Volume 2 — Ohio Circuit Court Reports

<p>Motion to continue.</p>

Defendant Martindale was arrested and tried before a magistrate, on a charge of cruelty to animals, under and in accordance with the provisions of section 3718a, of Revised Statutes. He was convicted and fined. It is claimed for him, that he did not waive a trial by jury in writing, and that therefore the magistrate had no final jurisdiction in the case, and erred in proceeding to final judgment without the intervention of a jury.

<p>.A settlement of the account of an executor, who lias been removed, does not bar a subsequent suit by him, against his successor, upon a demand existing in the life-time of his testator.</p>

<p>1. A receiver of a railroad company is a competent party plaintiff in a suit to restrain ditch proceedings against the company, commenced and prosecuted after his appointment as such receiver.</p> <p>:2. Under the statutes relating to township ditches, notice of the proceedings to a railroad company, by service upon its loeal agent, is not a valid service, and the company and its receiver having no other notice and no knowledge of the proceedings until after the order of apportionment is made, is not hound thereby.</p> <p>3. Under sec. 4520, Rev. Stats., as amended, 81 Ohio R., 81, the trustees should make a finding that the ditch is “ necessary ” as well as that it is “conducive to the public health, convenience or general welfare,” before they proceed to locate and establish the ditch and apportion the same for construction.</p> <p>4. The record of the proceedings should show such finding, and where no tax or assessment has been ordered to he levied or assessed, the want of such finding cannot he supplied by parol proof.</p>

<p>A physician rendering services to a pauper, can only recover against tlio township, for such services, such sum as the township trustees deem just and reasonable.</p> <p>Notice in writing is a condition precedent to the right to recover.</p> <p>Section 1494, Revised Statutes, construed.</p>

<p>1. Where the condition, and position of the body of a deceased poison found on. a railroad track becomes material, as to whether death was occasioned by a passing train, or by violence, railroad conductors and engineers are not competent, as experts, to give an opinion as to whether a train of cars, striking or passing over him, could have left the body in the condition and position in which it was found.</p> <p>2. Where two persons are jointly indicted for a felony, and one is on trial, declarations of the other tending to establish the guilt of the one who is being tried, are not competent to be submitted to the jury, unless it appears with reasonable certainty that such declarations wore heard by the one on trial.</p>

<p>1. The term of office of county auditors, elected on the second Tuesday of October, 1883, expired on the second Monday of November, 1886, while the term of office of their successors elected on the second day of November, 1886, does not commence until the second Monday of September, 1887, and for the interim between the expiration of the former and the commencement of the latter term, a vacancy has “ happened in the office ” within' the meaning of sec. 1017, Kev. Stats., which the commissioners of the copnty are authorized and required to fill by appointment as therein proivded.</p> <p>2. Such vacancy exists notwithstanding the auditor, whose term expired on the second Monday of November, 1886, thereafter retains possession and exercises the functions of the' office, claiming to be auditor defacto, rightfully entitled to the office.</p> <p>3. A county auditor, after the expiration of his term, cannot maintain an action to enjoin the county commissioners from appointing some suitable person to fill a vacancy which may happen in the office from any cause.</p>

At the beginning of the transactions out of which this suit arises, Howell was the owner in fee of the forty acres of land described in the petition, and in the actual possession thereof, and he was> not the owner of any other real estate. On the 16th day of October, 1879, Howell executed to one Balser Hagelberger his promissory note for $800.00; and to secure the payment thereof Howell and his wife executed to Ha gel - barger their mortgage upon said premises.

<p>Error to the Court of Common Pleas of Brown County.</p>

On the 11th day of October, A. D. 1886, the Merchants’ National Bank of Lima, Ohio, filed its petition in the court of common pleas of Allen county against Ream, praying for a judgment against him upon a promissory note, with an alleged warrant of attorney annexed, of which note and alleged warrant of attorney the following is a copy : “§105.00.

<p>Error to the Court of Common Pleas of Delaware County.</p>

<p>A justice of the peace has not jurisdiction of an action Brought to recover damages for injury to personal properly caused by the flow of water from the premises of the defendant, resulting from the bursting of the water-pipes on said premises. To maintain such action, the plaintiff must prove that the defendant had some title * (by possession, or otherwise) to the premises from which the water flowed, and the jurisdiction of the justice is thereby excluded under see. 591, Rev. Stats.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

This is a petition in error to reverse the judgment of the court of common pleas, rendered in favor of defendant at the September term, 1886. The suit in the court of common pleas was upon a promissory note in the following form : “§250. • > December 25th, 1884. “ On or before the first day of February, 1886,1 promise to pay to Frank Tobin, or bearer, two hundred and fifty dollars, for value received, with interest at the rate of six per cent, per annum.

<p>1. An assignee of an insolvent estate having a personal claim against the estate, cannot appeal from a judgment against him in the probate court without giving bond. Such appeal is not in the interest of the trust.</p> <p>2. A trustee of an insolvent estate can not recover individual claims of his deceased predecessor.</p>

<p>1. Where a judgment is rendered on a claim, which does not preclude the allowance of a homestead to the debtor, if the head of a family, and an execution is levied on the premises in which he lives, and an action then commenced to marshal the liens on said premises, and a person holding a lien which does preclude the allowance of a homestead as against it, is made a party defendant, and files an answer setting up his mortgage claim, which is not disputed, but a decree taken finding the amount due the judgment debtor, and reserving the claim on the mortgage for future adjudication, on which decree an order of sale issued, and the premises were appraised and advertised for sale, during all which time the judgment debtor was unmarried, and not the head of a family, but subsequently marries, and before the sale asks to have the premises set off to him as a family homestead: Held, that he was not entitled thereto.</p> <p>2. In such an action, with such liens thereon, the proper practice is to adjudicate as to both of the liens before the sale, and not simply as to the one as against which the homestead claim could be asserted. So that if necessary so to do, the property may be sold without the assignment of a homestead therein. In which case the division of the fund, when sold, would be in accordance with the provisions of sec. 5440, Rev. Stats. And it seems, (though the point is not directly before the court, and therefore not decided) that the question as to the allowance of $500 to the judgment debtor, in lieu of a homestead, if he be the head of a family, as against a lien which does' not preclude such allowance, js to be determined, as of the time of the distribution of such fund.</p>

<p> Receipts made out in the Name of a Mortgagee of Machinery and Chattels in a Building, without his Knowledge, do not bind him for Rent, he not being in Possession of the Building. </p>

The plaintiff, Mary Ruffner, filed a petition for dower in a quarter section of land, in Fairfield county. She was married to one Benjamin Ruffner, February 2, 1837, who died December 8, 1876. April 2, 1841, Thomas Trimble was the owner in fee of the land described in plaintiff’s petition, and oh that day he conveyed said land, by deed, of general warranty, to said Benjamin Ruffner, for the consideration of $3,800, stated in the deed.

<p>Error to the Court of Common Pleas of Hamilton County.*</p>

<p>Error to tbe Court of Common Pleas of Hamilton County.</p>

<p>The holder of a mortgage on real estate is not charged with constructive notice of a subsequently executed and recorded conveyance of a portion of the premises covered by his mortgage; and he cannot, with- . oqt proof of actual notice of such conveyance or circumstances equivalent thereto, be charged with the value of other portions of the mortgaged premises released by him after the record of such subsequent conveyance.</p>

This was a suit in ejectment in the court below by the plaintiff in error against the defendant in error, for the recovery of one hundred and thirty-one acres of land. Plaintiff’s claim was that this land was ceded by the state of Virginia to the United States, on March 1, 1874; by the United States to the state of Ohio, on February 18, 1871; and by the state of Ohio to it, on April 3, 1873. Vol. 70 Ohio L, 107.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Franklin County.</p>

On the 14th of August, 1840, Joseph Cairns made his will, and on June 25, 1845, added a codicil to it. He died in June 1865, leaving an estate amounting to about $18,000. The principal part of it consisted of real estate in Mansfield and a farm a few miles 'distant.

<p>Error to the Court of Common Pleas of Franklin County.</p>

<p>'Post-notes, mentioned in section 5183, of the Revised Statutes of the United States, are post-notes to circulate as money, and not time certificates of deposit, representing an actual loan.</p> <p>‘The facts, as expressed in the opinion of the court, create an estoppel against a national bank.</p>

<p>This court has no jurisdiction, under see. 7356, R. S. (82 Ohio L., 39), to review a conviction and sentence in the court of common pleas, on a petition in error, unless there is attached to and filed with such petition in error, a complete certified transcript of the record in the case, as provided in section 7358, R. S. (80 Ohio L., 46).</p>

<p>Error to the Court of Common Pleas of Wayne County.</p>

Stewart, a former auditor of Logan county, presented a claim to. the county commissioners for services rendered by him for, the county, in making what is known as Road Improvement Duplicates. The Board examined the claim, and disallowed it. From this order of the county commissioners Stewart appealed to the court of common pleas, duly perfecting his appeal. A petition was then filed in the court of common pleas, upon this claim, by Stewart v. Logan County.

<p>Under the statute of 1843, relating to dower, a widow is not dowable in lands of-which her husband had but a vested remainder in fee at the time of his death, and in which the freehold estate had not then terminated.</p>

Miller was prosecuted before the mayor of Bellefountaine for the violation of one of the ordinances of the village, found guilty, and sentenced to pay a fine and costs. To review the judgment of the mayor, Miller filed a petition in error in the Court of Common Pleas of Logan County, alleging several errors; but no leave was obtained of the court or a judge thereof to file such petition in error.

<p>Error to the Court of Common Pleas of Logan County.</p>

<p>Error to the Court of Common Pleas of Logan.County.</p>

<p>Error to tbe Court of Common Pleas of Franklin County.</p>

<p>1. When at the close of the evidence in a case, the court at the request of the defendant charged the jury to return a verdict for him, which was done, and this action only appears upon the journal of the court, with an exception thereto, and no bill of exceptions was taken showing such ruling of the court or any exception taken thereto, though a bill of exceptions was filed certified to contain all the evidence given in the case, — on proceedings in error the reviewing court can not properly consider whether the charge of the court to the jury was correct — such charge or the exception thereto not appearing in the bill of exceptions, which is the only mode by which a ruling of that kind can properly appear upon the record.</p> <p>2. When such a bill of exceptions does not recite or state the verdict of the jury — the fact that there was a motion for a new trial, that it was overruled and exceptions taken, or a judgment on the verdict, but all of these facts do properly elsewhere appear upon the record, the reviewing court is bound to consider the question (if presented by the motion for a new trial) whether the verdict was against the weight of the evidence.</p> <p>3. Where an action is brought against two persons as surviving executors of the will of a deceased person, representing that the testator at the time of his death was the owner of certain real estate, and that by his will he had authorized the three executors to sell the same, and that they as executors under and by virtue of the terms of said will, had contracted in writing with the plaintiff to convey the same to him, in consideration of a certain sum of money to be paid them, and the conveyance to them of another piece of property owned by the plaintiff — that afterwards one of said executors died, and that the plaintiff had tendered performance of the contract on his part, but that the surviving executors had refused to comply with their part of the contract, and a judgment was asked for against the defendants as executors for $20,000, his damages, and it appeared from the evidence that the contract had not in fact been signed by the deceased executor or by his authority — Held: That the plaintiff in such case had no right to recover in this action against the surviving executors as such, for two reasons: First, that the contract was not executed by all of the executors, and second, because they were not authorized to make a contract for the exchange of lands.</p> <p>4. On failure to show a right to recover against the surviving executors in their representative capacity, on a claim so asserted against them, the plaintiff was not authorized to treat the case as one brought against the defendants as individuals. And the court was not bound to allow him to amend his petition in this respect, because it. was not shown to be in furtherance of justice, and would have substantially changed the nature of the claim of the plaintiff.</p> <p>5. It is the clear rule of the law, that when a suit is brought against a person, seeking to charge him in his individual capacity, if it be on a contract on which the defendant is. or can be liable as such, he may also be so held, although he may be named in the petition as executor, administrator, or trustee, and the instrument on which suit is brought may be signed by him as such — the addition oí such descriptive words to the name of the defendant, either in the petition or to the signature affixed to such instrument, may be considered simply as a description of the person sued, and not of the character in which he is sued, or they may be treated as surplusage. But the plaintiff can not recover against persons individually, who are described as executors, and where the evident object and intent of the petition is to hold them in their representative capacity, as to a matter in which they could bind the estate of their testator.</p>

<p>Habeas Corpus from Butler County, O.</p>

John Madden filed his petition in the court of common pleas, in which he sets forth, in substance, that he is unlawfully imprisoned by the said Dennis Smeltz, marshal of the village of Alliance, in Stark county; that the alleged cause of his imprisonment is an order of the mayor of Alliance for the arrest and the imprisonment of him, unless he pay a fine of twenty-five dollars and costs, assessed against him by the mayor, in the certain proceeding, wherein it was claimed…

<p>Appeal from the Court of Common Pleas of Franklin County.</p>

<p>(Chief Justice Williams taking the place of Judge Cherrington.)</p> <p>Error to the Court of Common Pleas of Ross County.</p>

<p>A married woman is not liable, in an action at law, upon her covenants of warranty made in 1873; the statute of 1866 did not change the rule theretofore existing.</p>

<p>Error to the Court of Common Pleas of Lucas County.</p>

<p>N., having been duly elected sheriff of the county of H., gave bond with sureties, conditioned to “ punctually pay over to the parties entitled . thereto all moneys that shall come into his hands by virtue of his said office, and shall in all respects faithfully and impartially discharge the duties pertaining to his said office of sheriff of said county, according to law.” During his continuance in office, M. was, in the court of common pleas of said county, convicted of a felony, sentenced to the penitentiary of the state, to pay the costs of prosecution and ordered into the custody of N., as such sheriff. Within the time required by law he delivered said convict into the custo’dy of the warden of the penitentiary, together with a certificate of the sentence. Execution having been issued against said convict, and returned within the time required by law, indorsed, “ No goods, or chattels, lands or tenements, found whereon to levy, and said M. having no property in any other county whereon to levy.” N. also, as such sheriff, at the same time delivered to the warden, “ a complete bill of the costs made in the prosecution,” properly certified by the clerk, and allowed and certified by the judge of the court to be correct. Upon the certificate of sentence to which said cost bill was attached, there was a summary account, in which the state of Ohio was debited to the sheriff of said county for the prosecuting and the transportation charges. The warden, having allowed said charges, gave to said N. a certificate of allowance on the state auditor for the amount, and took from him at the bottom of said account, a receipt therefor, which said N. signed as sheriff. Thereupon, said N. ' assuming to act, and acting as alleged, as such' sheriff, obtained from the auditor of state a warrant upon the treasurer for the amount of said certificate of allowance, which amount he then and there received from said treasurer. He paid a part of said money to the persons entitled to receive it, but failed upon demand made to pay the balance to them, and thereupon suit was brought, against him and his sureties, upon his official bond, to recover said balance. Seld:</p> <p>(1.) That the money so received by said N., and sought to be recovered, was received by him in his official capacity, and by virtue of his said office of sheriff, and that his failure, on demand made, to pay it over to the parties entitled thereto, was a breach of the condition of his official bond.</p> <p>(2.) That if it was not received by him in accordance with the strict letter of the statutory provisions defining his duties as sheriff, yet it was received by him under color of office, and his sureties on his official bond are liable therefor.</p>

<p>When the iiiterest expressed in a contract is usurious, both by the law o£ the place where the contract is made and where it is to be performed, the law of the former place will govern as to the consequences of the usury.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Appeal from Court of Common Pleas of Hamilton County.</p>

<p>Appeal from the Court of Common Pleas of Hancock Co.</p>

<p>Where, under sec. 4113, of the Bevised Statutes, the issue is made whether the “ building,” or the “ building and grounds,” is the subject of the grant, evidence to show a description of the”premises is competent.</p> <p>Under this statute (sec. 4113) the extent of the territory or premises that would be included under the designation “building” or “dwelling house ” (being in the statute without any qualifying words to restrict • or extend its meaning), would be no more land than would¡be necessary for its complete enjoyment.</p> <p>Where a party requests the court to charge certain propositions claimed to be law, and requests the court to put its charge in writing, it is the duty of the court to strike out and refuse to give any matter that he does not regard as law, and it is error to say to the jury, “ we give you the following as correct propositions of law, except so far as modified by the general charges of the court.”</p>

<p>Error to the Court of Common Pleas of Lucas County.</p>

<p>The construction and maintenance of a telegraph or telephone line upon a highway, is a new and additional burden upon the fee, to which, when the highway was established, it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation.</p> <p>When such company proceed to and construct such line upon the highway, during the pendency of an action to enjoin them from so doing, against the objeetion of the owner, and without first acquiring the right so to do by contract with the owner, or otherwise, a court of equity will order the same removed.</p>

<p>In the absence of fraud and mistake, a bill of lading signed by the receiving agent of a commpn carrier, containing no restriction upon its common law liability, delivered to the consignor contemporaneously • with the receipt of the goods for shipment and acquiesced in by him, becomes the contract of shipment, and its terms cannot be contradicted by parol.</p>

<p>1. Where there is a clear and continuing breach of a negative covenant in a contract, and where an injunction against the breach of it will do substantial justice between the parties by obliging the defendant to carry out his contract or lose the benefit of the breach of it, and the remedy at law is not adequate, or the damages for such a breach are not susceptible of proper assessment by a jury, a court of equity may properly restrain the defendant from such a breach of the contract, though the court might not be able to enforce a complete specific performance of the contract against the other party.</p> <p>2. Where it is admitted or shown that a defendant, on a good consideration, has by a contract in writing bound himself to receive from the plaintiff all the gas necessary for the proper illumination of certain premises, for the period of ten years from March 16, 1886, the same to be paid for at a certain price, at the expiration of each month, and the amount of gas consumed is not to fall below a certain amount each month; and has further stipulated that he would not during said term, introduce into, or use on said premises oil lamps, electric lights or other material or power, for general illuminating purposes, or any other gas than that supplied by the plaintiff. And it is further admitted or shown that the plaintiff has duly kept and performed all of its stipulations in said contract, and is ready, able and willing to continue so to do; but that the defendant has broken his part of said contract by refusing to receive from plaintiff all the gas necessary for the proper illumination of the premises, but has introduced therein other lights, whereby the amount of gas consumed has been and will continue to be largely reduced below the amount stipulated to be used, this presents a case where the plaintiff has now no adequate remedy at law — the damages for such a breach of the contract (the same not having been wholly abandoned) not being susceptible of proper assessment by a jury in a single action; but would require successive actions, or a delay until the end of the term, and a court of equity may enjoin the defendant from such a breach of it, to prevent a multiplicity of .actions.</p>

<p>1. Where a person is indicted for murder in the first degree, and on the trial there is evidence tending to show that the deceased came to his death from the discharge of a pistol at the time in the hands of the defendant, but which pistol was not intentionally pointed or aimed at the deceased by the defendant, or voluntarily discharged by him, but that these facts were entirely accidental, and without fault on the part of the defendant, and while he was not in the commission of an unlawful act, it is the duty of the court, on the request of the defendant, to charge the jury that if such a state of the case was shown, that he can not be found guilty of any offense under said indictment.</p> <p>2. Where on a trial for homicide the evidence shows that the person killed came to his death by means of a shot discharged from a pistol, intentionally, but without malice pointed or aimed by the defendant at or towards him, he may properly be convicted of manslaughter, the slayer at the time having been in the commission of an unlawful act. Sec. 6822, Bev. Stats., was not intended to cover a case of this kind, but one where the maiming or injury does not produce death.</p>

On the night of the 29th day of January, 1881, Hiram H. Seever was run over and mangled by a train of cars near the B. & O. railroad depot in the city of Tiffin. In his wounded condition he was found lying on the railroad track, and was at once carried into the depot, where a number of persons— all strangers to him — surrounded him. A physician was then called, who, after making an examination of his wounds, said to Seever: “Your time is short.

<p>1. Where a lower rate of freight is given by a railroad company to a-favored shipper, which is intended to and necessarily gives an exclusive monopoly to the favored shipper, affecting- the business and destroying the trade of other shippers, the latter have a right to require an equal rate for all under like circumstances (43 Ohio St., 557).</p> <p>2. The enforcing of such right is not a regulation of commerce within the meaning of the constitution of the United States, and is within the jurisdiction of the state courts.</p> <p>3. It makes no difference whether the shipper has paid the increase of freight, or has been obliged by a lower price of the article he sells to make it up to the consignee; he is equally entitled to have the amount of such payment or rebate or loss in price included in his damages against the carrier making the discrimination.</p> <p>4. Although the primary object of the railroad company was to make money for itself by such discrimination, yet if the natural and intended consequence was to injure the business of the plaintiffs, the defendant, though a corporation, is guilty of malice, and is liable in a proper action to punitive or exemplary damages.</p> <p>5. In such a case the jury may in their estimate of compensatory damages, include the reasonable attorneys’ fees of counsel employed by the plaintiff in the prosecution of his action.</p>

<p>The lien of a chattel mortgage upon which a defective statement of the nature of the mortgagee’s claim has been endorsed, is prior to that of a later mortgage upon the same chattels taken with actual notice of the former mortgage.</p>

In the court of common pleas the plaintiff in error sought to recover against James Wilcox and J. F. Sink, personally, uppn the following instrument, and as indorsee thereof: “ November 26, 1884. “ Nine months after date we, the Board of Education of German township, Darke county, Ohio, promise to pay to the order of G. W. Eakle, three hundred and eighty-five dollars, without interest, value received.” “James Wilcox, President of Board. “J. E. Sink, Oleric.” Endorsed: “…

<p>1. Where a sale o£ telegraph-lines is made and confirmed pendente lite, leaving undetermined the liens of parties claiming them, such parties may bring suit In error to reverse such sale.</p> <p>2. In Ohio sales of real estate under decrees either final or inter locutory are to be conducted as upon execution at law.</p> <p>3. Orders of sale issued on such decrees are executions under secs. 5372 and 5373, Rev. Stats.</p> <p>4. Under sec. 5418 Rev. Stats., such orders of sale should be returned in sixty days, and it is error for the court under authority of which it is issued, without any return thereof to order the same writ to be extended ; and a sale made on such extended writ after the expiration of the sixty days should be set aside.</p> <p>5. If such sale is confirmed, a reviewing court may set aside such sale and confirmation.</p>

<p>3. Where H. executed to W. a chattel mortgage which was duly filed, but was not re-filed as required by law, and after the expiration of the time for re-filing H. dies, having always been in possession of the mortgaged property, which is then appraised and sold by the administrator of his estate ; and the whole amount of the assets is not sufficient to pay the debts of said intestate owing at the time of his death, the funeral expenses, and those of his last sickness, the costs of admin’stration and the allowance to the widow for her year’s support, such estate is an insolvent one, and the holders of all such claims are creditors thereof; and such mortgage not having been refiled is void as to them.'</p> <p>2. Where such property is taken possession of by the administrator and sold by him, the mortgagee, even if he had a valid lien thereon, is not authorized to maintain in the court of common pleas, an action against the administrator and the purchaser of the property to foreclose said mortgage. Under such circumstances he must assert his lien against the fund arising from the sale by the administrator in the probate court.</p>

<p>1. A petition which states that there is due to the plaintiff from an unincorporated association a certain sum, on an account for articles furnished to said association, as shown by an account attached to the petition, and that the defendant was a member of said association when the debt was contracted, and knew of and consented thereto, states a good cause of action against said defendant.</p> <p>2. When a debt is contracted by such an association with the knowledge and consent of all or a part of the members, so as to make those consenting liable therefor, if it is sought to recover the amount due from the members of such association who consented thereto, the liability being joint, all who are thus liable must be joined as defendants. If this is not done, a plea in abatement setting up that others (naming them), members of said association, at the time the debt was incurred, and who also consented to the incurring of the debt, were alive and within the jurisdiction of the court, and were so when the action was commenced, is a good plea, and a demurrer to it should be overruled.</p>

<p>In an action for the specific performance of a duly executed contract for the sale of real estate, the defendant cannot avail himself of the»defense that his title to the land is contested by a suit, instituted after the contract was entered into, asking to have the conveyance to the defendant set aside as having been made to defraud the creditor of his grantor. Such suit having been commenced long after the contract for the sale of the land was entered into and placed on record, the purchaser having no actual or constructive notice of the alleged fraud, he was an innocent purchaser for value, and will take the title free from any claim of the parties to such suit.</p> <p>Under a general agreement for the sale of land, the contract beiDg silent as to the kind of deed, it will be presumed that the intention was to sell the entire property, free of all claims, by a good and sufficient deed, which would be a deed of general warranty.</p> <p>Where in such an action it appears that the seller is a married man, of which the purchaser was not aware, and that the seller is unable to convey with release of dower, his wife refusing to sign the deed, the purchaser is entitled to protection against the contingent right of dower of the seller’s wife; and the manner in which such protection should be extended to the purchaser, is by requiring the purchaser to execute a mortgage to the seller, for whatever amount of the purchase-money the court shall deem right, to protect him against the cojjjitingent dower of the seller’s wife — [Ed. Bulletin.]</p>

<p>(1.) In a suit upon a specialty by the payee, an answer of the maker setting up a want of consideration constitutes a good defense.</p> <p>(2.) Although an instrument (executed prior to April 14, 1884) was not required by law to be sealed, if the maker affixed his signature in front of a scrawl seal, at the end thereof, such instrument is a specialty.</p> <p>(3.) Where a demurrer to a petition omitting a material fact, is erroneously overruled, but the defendant, by answer, supplies the fact omitted and the cause is disposed of on issues joined upon the answer, the judgment will not be reversed for error in overruling the demurrer.</p>

<p>Where a testator, in his life-time, had entered into a contract for the sale of certain real estate, and in his will empowers his executor to sell the same and give deeds, etc., the executor under such power to sell can not enter into an agreement with the purchaser in the contract, to sell the land for less than one-third the purchase-price previously agreed upon by his testator, and the estate will not be bound by such a contract of the executor, though such executor might in a proper action be made personally to respond to the party aggrieved in damages. But upon the tender of the balance of the puschase-money, due upon the testator’s contract of sale, the purchaser is entitled to a deed from the executor. — [Ed. Bulletin.]</p>

<p>(1.) Under the provisions of sections 3987 and 3988, Rev. Stats., the board of education of any district may purchase “school and reading charts ” for use in the schools of their respective -districts.</p> <p>(2.) In the purchase of such charts the board of education is not limited to the amount authorized to be expended by the provisions of section 3995, Rev. Stats.</p>

<p>(1.) In an action against a municipal corporation for injuries sustained by a defective sidewalk, the better practice is to set out in the petition the dangerous character of the sidewalk.</p> <p>(2.) The mere allegation that it was the duty of the corporation to keep the sidewalk in repair, and that it negligently omitted to do so, without alleging that it had notice of the defect before the injury, or that the defect was occasioned by some positive misfeasance of the corporation, its officers or employes under its authority J%or some facts from which notice would be implied, is not sufficient to sustain an action, and a demurrer to it will be sustained.</p> <p>(3.) When as in this case, the special findings of fact by the jury is inconsistent with the general verdict, the special findings will control the general verdict. Sec. 5201, Rev. Stats.</p>

<p>(1.) Statement in Re-filing Qhattel Mortgage. — The statement exhibiting the interest claimed by the mortgagee in a chattel mortgage, given for money loaned, on the property, at the time of re-filing the same, under sec. 4155, must state the amouut of the claim in dollars and cents; and a statement, giving the amount of the claim in -(blank) dollars and-cents, is not sufficient to maintain the validity of the mortgage against the creditors of the mortgagor, or against subsequent purchasers and mortgagees in good faith.</p> <p>(2.) Re-filing Qhattel Mortgage after General Assignment made by Mortgagor. — A. mortgagee in a chattel mortgage is not required to re-file his mortgage within the thirty days next preceding the expiration of the year of filing the same, where the mortgagor has made a general asssignment for the benefit of his creditors before the year expires, and the property mortgaged has passed from the possession of the mortgagor to the assignee. For in that case the rights of all the parties have become fixed, by the assignment, and the mortgagee will have to look no longer to the specific property mortgaged, but to the fund arising from its sale by the assignee under order of the probate court; and the re-filing of the mortgage on property which is no longer in the possession of the mortgagor, and which may have been already sold by the assignee free of the lien of the mortgage, would be a vain thing. — [Ed. Bulletin.]</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>(1.) Where a person from the nature of his occupation, receives, and is at trouble and expense about the personal property of another, he has a lien upon, and may retain it until his contract price, or his reasonable charges therefor are paid — but when an article or instrument is delivered by the owner thereof to another person, with which the latter is to, and does perform work for the owner, this does not give to the person so doing work therewith, a lien on the instrument itself.</p> <p>(2.) To make a local custom good, it must appear that it was long continued, without interruption, acquiesced in, reasonable, certain, compulsory and known to the parties to be affected thereby.</p> <p>(3.) If a person who otherwise would be entitled to a lien on articles in his possession, on which labor has been done by him for the owner, voluntarily surrenders the possession thereof, without any reservation on his part, he thereby loses his lien thereon. And if a person having such alien, should take a security for the amount due him for labor or expense on such property, payable at a future time, he thereby loses his right to retain such property therefor.</p> <p>(4.) See. 6332, Rev. Stats., authorizes and requires a creditor of an insolvent debtor, who has presented his claim to the assignee of such debtor, who has rejected the same, to bring an action against the assignee within thirty days thereafter, to have the judgment of the court that the assignee should allow the same in the settlement of his trust. If the assignee allows the same as a valid claim against the estate of the debtor, but refuses to allow the same as a preferred claim against a certain fund in his hands, will an action lie in the court of common pleas, to compel the assignee to allow it as a preferred claim against such fund? Quaere. — If so, the court should only render such judgment when all the parties in interest are before the court. If it appears that the debtor, before his assignment, had executed to other persons not parties to the action, chattel mortgages on the property from which the fund arose, and who were claiming under the same, the court should not make any such order. And it would seem that the probate court, having jurisdiction as to the distribution of the fund, was the proper tribunal to settle the conflicting rights of the parties to such fund.</p>

<p>(1.) In a proceeding in a probate court of this state, under sec. 5937, Rev. Stats., to admit to record in said court an authenticated copy of a will, alleged to have been executed and proved in another state, according to the laws of such state, an- appeal does not lie to the court of common pleas from a judgment or order of the probate court, refusing to admit the same to record.</p> <p>(2.) Though such a proceeding is ex parte in its character, the judgment so entered will not on proceedings in error be reversed for the sole reason that the probate court allowed persons, asserting an interest in land alleged to be devised by said will, to become parties to the proceeding and offer evidence tending to show that said will had not been proved according to the laws of the state where it was admitted to record.</p> <p>(3.) If the authenticated copy of the record so produced shows that the will was executed and proved according to the laws of such sister state, other evidence to contradict the facts so shown by it ought not to be admitted. Such record should not be impeached collaterally, but should have the same effect when offered in evidence here, that it has in the state where made.</p> <p>(4.) If such authenticated record shows that such will was duly recorded by the tribunal having jurisdiction of such matters in the proper record of probated wills, and where it should not be found, unless probated, and the statute of such state does not require the entry of a judgment that it was admitted to probate, but only that it be recorded, in view of the presumption of the law that courts and publie officers have properly discharged their duties, unless the contrary appears, and as there would be no reason or propriety in recording the same where proof of the will had not been made, such record in the absence of other evidence, would be sufficient to show that it had been probated.</p> <p>(5.) Where such authenticated record shows that at the time of the original production of the will for probate, the evidence of one of the witnesses to such will as to its execution was taken by the Register, and with such will recorded in the will record, and the other evidence offered tended to show that the practice of Registers, and of this Register particularly, before and after the time this will was offered for probate, was to record with the will, if proved, all of the evidence upon which it was done, and there was nothing tending to contradict this, such evidence shows that the will was admitted to probate on the testimony set out in the record.</p> <p>(6.) Where the evidence produced shows that under the laws of such state a will could not then be legally proved by the evidence of a ■single witness, and that if a record showing such a state of fact was produced in evidence in the courts of such state, in a collateral proceeding, it would not be conclusive, or perhaps prima facie evidence •of ajvalid probate, and to pass title to real estate, it is not entitled to greater credit in the courts of this state, and the probate court on such evidence might properly find that such will had npt been proved according to the laws of such state.</p> <p>(7.) Where in a proceeding in the courts of this state, the statute or common law of a sister state is to be ascertained as a matter of fact, the trial court, or a court reviewing its proceedings on error, cannot take judicial knowledge thereof, but the same must be proved by competent evidence like any other fact material to the case. And this court in reviewing the judgment of the probate court on the evidence, can not consider a statute of such state, or a decision of the court thereof construing the same, unless evidence thereof was offered in the trial court, and made part of the record by the bill of exceptions. '</p> <p>(8.) It was not essential in this case that the applicants in the probate court should there have offered evidence showing that there was land in this county devised by the will. The defendants in error on their own motion were admitted as parties on their claim that they had an interest in land devised thereby, and the whole controversy proceeded on that idea. And the fact that no such evidence was offered in the probate court, would not, under the circumstances, have justified that court in refusing, on that ground alone, to admit the will to record.</p>

<p>Error to the Court of Common Pleas of Sandusky County.</p>

<p>When two parties enter into a contract for a fraudulent purpose, one of the parties cannot recover the amount of a promissory note given as-a part of such contract, nor can the other party recover damages sustained by reason of a breach of the contract.</p>

<p>Appeal from Court of Common Pleas of Hamilton County.</p>

The original action was brought by Simpson to recover of the plaintiffs in error the sum of two hundred dollars and interest, alleged to be due upon' a. promissory note, executed March 31, 1885, by the latter in favor of M. H. Buckley, and by him transferred by delivery, before maturity, to Simpson.

<p>Error to the Court of Common Pleas of Butler County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>(1.) Where a member of a non-commercial partnership, formed for the prosecution of a single enterprise, without the assent of his co-partners, does an act which is not within the scope of the partnership business, such act is not binding upon such co-partners.</p> <p>(2.) Where a party deals with a member of such firm, who professes to act in its behalf, he is bound, at his peril, to inform himself as to the real scope of the partnership.</p>

<p>Young recovered a judgment against “The Young Surgical Chair Com-, pany,” in the court of common pleas. To reverse this judgment, The Young Surgical Chair Company filed a petition in error in the circuit court, giving bond under section 6718, Bevised Statutes, for stay of execution. The circuit court affirmed the judgment. To reverse the latter judgment, The Young Surgical Chair Company filed a petition in error in the supreme court, giving another bond under section 6718, for stay of execution. Young, the judgment creditor, obtained leave to enforce his judgment, giving a restitution bond under section 6722.</p> <p>He caused an execution to b§ issued, upon which the officer made return of no property found; Young then commenced an action against the sureties on the first supersedeas bond, while the petition in error was still pending in the supreme court. Held: Young cannot recover upon the supersedeas bond, until his judgment has been affirmed by the supreme court.</p>

<p>Appeal from Court of Common Pleas of Franklin County.</p>

<p>An officer, to be entitled to the salary of an office, must have qualified thereto in the manner provided by law.</p> <p>Where a municipal corporation has paid the salary of an office to a de facto officer, it will not be required to pay the salary a second time to a de jure officer, who has been excluded therefrom, pending litigation as to the title to the office.</p>

(Judge Follett of the Fifth Circuit, and Judges Haynes and TJpson of the Sixth Circuit taking the places of Judges Moore, Seney and Beer of the Third Circuit.) Appeal from the Court of Common Pleas of Crawford County.

This was an action in the court below, by the defendant in error against the plaintiff in error, praying for a writ of mandamus to compel him to pay to defendant in error the sum of $71.00 out of the tuition funds in his hands belonging to Staunton Township.

This is a petition in error to reverse the judgment of the court-of common pleas, affirming a judgment rendered by the probate court on appeal from an order made by the trustees of Jackson township, for deepening, widening and extending ditch No. 27, on the petition of J. H. Batdorf.

Common Pleas and Probate Courts of Columbiana County. The original proceeding was a petition filed in the probate court by the assignee, to sell the real estate of the assignor, and to adjust the liens thereon.

<p>While, as a general rule, fraud and undue influence must be proved by him who alleges them, they may, in a suit to cancel a deed upon the ground of their intervention, be inferred from the circumstance that the grantor was partially incapacitated by mental infirmity, or was subject to the controlling influence of the grantee, if it appear that the deed was without valuable consideration, or that the grantee acquired an undue advantage by its execution.</p> <p>Such circumstances cast upon the grantee the duty of showing, affirmatively, that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument.</p>

<p>Error to the Court of Common Pleas of Defiance County.</p>

<p>Mandamus. Reserved to Lucas county.-</p>

<p>Opinion of the Court on Motion for Stay. — October 28, 1887.</p> <p>Error to Court of Common Pleas of Butler County.</p>

At the February term, 1887, of the common pleas, the defendant in error, as administrator of Elijah Bloomer, deceased, obtained a verdict against plaintiffs in error. A motion for a new trial upon (he ground that the verdict was against the weight of the evidence, and for errors of law occurring at the trial, was made, but not heard until the following (June) term.

(Judge Follett, of the Fifth Circuit, talcing the place of Judge Stewart.) On appeal from the Common Pleas Court of Greene County.

<p>Appeal from • the Court of Common Pleas of Defiance County.</p> <p>Heard upon a demurrer to the petition. Facts sufficiently stated in the opinion.</p>

Appeal /rom the Court of Common Pleas of Scioto County. This action was brought to foreclose a mortgage given by defendant Webb in 1881, to his co-defendant Wheeler, and assigned, by Wheeler to the plaintiff. No issue was taken on the averments of the petition. Webb, the mortgagor, answered, setting up: 1.

<p>1. Since the passage of.the act of February 22,1887 (84 Ohio L. 31), repealing sec. 4008, Kev. Stats., a board of education of this state, no longer has the right to organize separate schools for colored children, and legally require such children who are entitled to the benefits of the public schools of a district, and who desire to avail themselves of such right, to do so, only in a school, organized, maintained or set apart by such board, solely for the education of the colored children of such district.</p> <p>2. Said section 4008, while in force, did expressly confer such power upon boards of education, and sec. 4013, was not intended to, and did not at the time of its enactment give the same authority. And the repeal of sec. 4008 did not so operate, as to give to sec. 4013, any different meaning or effect than it had before such repeal.</p> <p>3. The fact that prior to the repeal of sec. 4008, a board of education .had under its provisions, established a separate school for colored children, does not authorize it to continue the same after such repeal, and to require the colored children, against their will, to attend the same, and unless they do, to be deprived of the benefit of the public schools of the district. The legislature as to the conduct and management of the public schools, and the powers of the board of education is supreme. The law repealing sec. 4008, was not one affecting vested rights, or in any way impairing the obligation of contracts.</p>

The original action was brought by the- Richmond City Mill Works against W. E. Harriman, the plaintiff in error David Tarbill, and Joseph H. Porter, defendants, containing two causes of action, each declaring upon a promissory note, one dated October 1,1884, at nine months, and one dated January 2,1885, at nine months, and each in the sum of $1,853.73, and signed by the defendants.