Volume 20 — Ohio State Reports, New Series

On the 8th of February, 1870, tbe plaintiff filed in this court his petition for a mandamus directed to James H. God-man, auditor of State. The petition states in substance : 1.

<p>1. Under the restrictive and mandatory provisions of the first and sixth sections of the thirteenth article of the constitution of 1851, the general assembly cannot, by a special act, create a corporation; nor can it, by special act confer additional powers on a corporation already existing; and in the purview and application of the provisions of those sections of the constitution, there is no distinction between private and municipal corporations.</p> <p>2. The act of the 16th of April, 1870, “ to prescribe the corporate limits of Cincinnati” (67 O. L. 141), is a special act.</p> <p>3. The act assumes to confer upon the corporation of that city additional powers; to confer, on certain conditions, the power of municipal government, the power of police regulation, the power of judicial ;urisdiction, and of taxation and assessment, over a number of outlying incorporated suburban villages and other territory not before within the limits of the city, and is therefore repugnant to the constitution, and of no binding force and. validity.</p>

No. 18. Error to the district court of Cuyahoga county. No. 21. Appeal. Reserved in the district court of Cuyahoga county. These two cases were originally one and the same. The original case was an action of replevin brought by the plaintiffs on the 15th of July, 1856, against Miller M. Spangler, then sheriff of Cuyahoga county, to recover 1,525 tons of railroad iron. The plaintiffs claimed in their petition that they were the absolute owners of the property.

Reserved in the district court. The original action was instituted by Scarborough against Woodborne to recover damages for the taking and conversion by the latter of certain books of account and the accounts therein contained belonging to the former. The property was taken by Woodborne under color of several writs of attachment held by him as sheriff against George Goodwin, who had previously sold and assigned the books and the accounts to the plaintiff, Scarborough.

Appeal. Reserved in the district court of Knox county. Held: and still holds, to her separate use, real estate which is described in the petition; that by the execution of the note she intended to charge its payment on her separate real estate; and that her husband was insolvent, which fact was known to the plaintiffs intestate, who received the note relying solely upon the estate of the wife…

Prior to tbe year 1860, tbe father of Sarah E. Dallas and her brother William S. McClelland died intestate, leaving to them and bis four other children a farm in Butler county. The widow was entitled to dower in the farm. All the children except Mrs. Dallas gave up to their mother the use of the farm during her life. For the use of Mrs. Dallas’ share of the farm, being an undivided one-sixth part, her mother was to board her and her two children.

Motion to dismiss appeal. Reserved in the district court of Union county. The plaintiff filed his petition April 7,1866, stating that he is seized in fee-simple and entitled to the possession of certain real estate described, and that the defendant unlawfully keeps him out of the possession thereof, and prays judgment for the recovery of the possession of the premises.

The original action was brought by the plaintiff in error, to recover possession of a strip of land occupied and used by the defendant as part of its roadway.

Reserved in the district court. The original petition was filed in the court of common pleas, March 6th, 1865, by John and George Border against John S. Wilson, Isaac Wilson, and A. Williamson, partners under the firm name of Wilson, Williamson, & Go., upon a promissory note, of which the following is a copy: “ Due Jobu and Greorge Forder, or order, five hundred and eighty dollars, for value received, as witness my hand and seal, with interest at 10 per cent, from date.

On the 27th of January, 1866, the plaintiff, Daniel Alexander Starr, brought his action against the defendant, David M. Wright, in the court of common pleas of Highland county, to recover the possession of seventy-five acres of land. The defendant answered, denying the allegations in the petition.

The original action in this case was brought in the court of common pleas of Hamilton county, by defendants in error, to recover the possession of specific personal property.

Appeal. Reserved in the district court of Jefferson county. On the 2d of June, 1866, the plaintiff, Samuel Hout, filed his petition, under the code, in the court of common pleas of Jefferson county, for partition, claiming to be the owner in fee of one undivided third part of the premises described in the petition, as a son and heir at law of George Hout who died seized of the premises in fee, and stating that the owners of the other undivided two-thirds of the premises, as…

The original action was brought by Elisabeth Clark, by her next friend, against William Clark and her husband Edward B. Clark. She alleged in her petition that she had an estate and right of possession in and to certain real estate described therein, and that said William Clark'wrongfully kept her out of possession of the same. She prayed for the recovery of possession, and also for a judgment against William Clark for rents and profits.

Error. Reserved in the district court of Franklin county. In 1856 the court of common pleas of Franklin county, in an action then pending therein, wherein George S. Coe was plaintiff, and the Columbus, Piqua, and Indiana Railroad Company and others were defendants, adjudged that said company was insolvent, and thereupon ordered that the property of every description, and franchises of the company, should be transferred to and placed in the hands of a receiver.

Error.to the district court of Trumbull county. March 28, 1867, the court of common pleas of Trumbull county appointed Robert B. Potter receiver of the Atlantic and Great Western Railway Company, with power to operate the road, make improvements, aud carry on the general business of the company.

<p>1. Under the statutes of this State, mortgages have priority of lien in the order of their delivery to the recorder of the proper county for record.</p> <p>2. This statutory role is not affected by the fact that the supposed lien of a prior unrecorded mortgagees excepted from the covenants of warranty in a subsequent mortgage.</p>

The relator represents, that on the second Tuesday of October, 1870, he was legally elected auditor of Marion county, to serve from and after the first Monday of March, 1871, when, as he alleges, the… Held: and that the term of the incumbent does not expire till the second Monday of November, 1871.

The defendant in error sued the plaintiff in error in the court of common pleas of Hamilton county on a policy of insurance. The issues in the case were tried to a jury, who returned a verdict in favor of the plaintiff. After judgment, the defendant below, now plaintiff in error, demanded a second trial under the statute, which the court allowed, and fixed the amount of the undertaking to be given to obtain such trial.

<p>Appeal. Reserved in the district court of Stark county.</p>

<p>Where, under the wills act of 1852, real estate was devised to a widow for life, with remainder in fee to testator’s heirs, and the widow, without following the form prescribed by statute for making her election to take under the will, set up no claim for dower, but, with the knowledge and acquiescence of the heirs, in fact took under the will, and had the use and occupancy of the premises for more than eleven years after the probate of the will — held, that the parties were estopped to deny the election of the widow to take under the will.</p> <p>Thompson v. Hoop, 6 Ohio St. 480, approved and followed.</p>

<p>1. A judgment creditor of an insolvent railroad corporation may join, in the same action, a claim to compel payment of unpaid subscriptions for stock, and a claim to enforce the individual liability of stockholders, for the satisfaction of his judgment.</p> <p>3. In proceedings or actions against defunct corporations, service of process upon the members of its last acting board of directors is sufficient, under the statute, to give the court jurisdiction.</p> <p>3. In the statutory certificate of parties organizing as a railroad corporation, a description of one terminus of their proposed road as “ in or new" a place named in the certificate, and on the line of a specified road terminating at that place, is sufficiently certain.</p> <p>4. The want of a seal to such certificate is one of the defects or omissions which may be remedied or supplied by the court, so as to give eifect to the instrument according to the intention, of the parties, where equity may require it, agreeably to the provisions of the curative act of March 10,1859. (S. & O. 1173.)</p> <p>5. Where railroad stock is subscribed for, with a proviso that the “road shall be buüt ” in a specified locality, the permanent location of the road in the place designated is a sufficient compliance with the condition, to make the subscriber liable for calls on his subscription.</p> <p>6. By the code of civil procedure, actions to recover the amount of subscriptions for stock are limited to fifteen years, dating from the times fixed in the calls for payment; and where no circumstances interpose to render it inequitable, a creditor’s bill may be maintained to subject the amount due, to the payment of his claim, any time within that period.</p>

In the year 1853 the Clinton Line Extension Railroad Company was duly organized and became a body corporate/ under the laws of the State of Ohio, for the purpose of building and operating a railroad from the town of Hudson, in Summit county, to the city of Tiffin, in Seneca county, Ohio.

<p>1. Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.</p> <p>3. The plaintiff cannot in such case by dismissing his petition defeat the contest, where either of the defendants, in his answer, joins in the prayer that the will be set aside as invalid.</p> <p>3. The jurisdiction of the court of common pleas in such contests is not appellate but original, and the superior court of Montgomery county has concurrent jurisdiction therein.</p> <p>4. To entitle the defendant to set up in his answer a claim to relief by way of cross-petition, it is not necessary that the answer should contain a denial of the allegations of the petition, or a statement of new matter.</p>

<p>Where husband and wife join in a contract for the sale of her land, and in pursuance of the terms of the contract their joint deed for the land, executed and acknowledged according to law, is placed in the hands of a third person, to be delivered by him to the purchaser upon his paying the purchase-money, the husband and wife may enforce a specific performance of the contract on the part of the purchaser.</p>

<p>The vital provision of section 75 of the code of criminal procedure is that “ Before any witness shall be examined by the grand jury, an oath or affirmation shall be administered to him by the clerk.” If this provision be observed, an indictment found upon the testimony of the witness will not be held to have been illegally found, because the court has not certified that such oath or affirmation had been administered by the clerk, or because such certificate, if made, has not been delivered to the witness, and by him presented to the foreman of the grand jury, when he is admitted for examination.</p>

<p>By sections 134 and 135 of the code of criminal procedure, it Sa Made ground of challenge only to a juror, that he was a member of the grand jury which found the indictment; and such challenge for cause can be made only before the jury is sworn. Where no inquiry is made on the subject till after verdict, the existence of such cause for challenge, though previously unknown to the defendant and his counsel, will not necessarily entitle him to a new trial.</p>

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

<p>Error to the district court of Brown county.</p>

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

<p>On the impanelling of a jury for the trial of a person indicted for murder in the first degree, he claimed the right to reserve his peremptory challenges until a full panel of twelve, not liable to successful challenge for cause, should be selected. The court refused this, and required both parties to make their peremptory challenges after having first exhausted their challenges for cause, to each juror as called, and, upon failure of the parties to make any valid challenge, ordered the juror, so called, at once to be sworn as such. Held: That, in thus selecting the jury, there was no error to the injury of the defendant.</p>

The original action was brought, in the court of common pleas, by Frederick B. Dodge against The National Exchange Bank of Columbus, Ohio, to recover of the bank $600 damages for that, without the knowledge or consent of the plaintiff, the bank had wrongfully paid to a stranger, not entitled thereto, but who, in fraud of the plaintiff’s rights, had forged the plaintiff’s name thereon, the amount of a certain check of which the plaintiff was then the legal owner, and of which…

Quo warranto. Reserved in the district court of Hamilton county. The information was filed in the district court of Hamilton county on the 11th day of May, 1870.

<p>While a passenger train of a railroad company was crossing a bridge, constructed on the line of its road, over a creek, the bridge gave way, its central pier having been undermined by the waters of the creek, and the train was precipitated into the creek, killing a passenger who had about his person a package of money which he was- carrying for the plaintiff. By this catastrophe the stoves on the train were overturned, setting fire to the debris of the ears, and consuming the package of money with the body of the passenger. Upon suit brought by the owner of the money to recover from the railroad company for the value of the package, his petition stated the foregoing facts, and charged that the accident occurred through the negligence and unskilfulness of the defendant in the construction and maintenance of the bridge and in the running of the train. On demurrer to this petition on the ground that it did not state facts sufficient to constitute a oause of action — Held :</p> <p>1. That the case stated in the petition does not come within the operation of the maxim which requires every one so to conduct his business as not to do injury to another.</p> <p>2. That the defendant as a common carrier of passengers is not liable for the loss of money kept in the sole custody of a passenger, and which he carries, without notice to the defendant, for a purpose unconnected with the expenses of the journey, notwithstanding such loss was occasioned by the negligence of defendant’s servants; and that the demurrer to the petition was well taken.</p>

<p>1. Where there is no consideration for a mortgage of real estate, other than a pre-existing debt of the mortgagor, and the mortgagee is not induced thereby to change his condition in any manner, he cannot be regarded as a purchaser for value, and therefore is not entitled to the protection against prior liens afforded in equity to boná-fide purchasers, although he had no notice of such liens.</p> <p>2. One partner of a manufacturing firm gave a mortgage on real estate of which he held the legal title, but which in equity belonged to the firm, without any consideration other than to secure his pre-existing individual debt to the mortgagee who had no notice of the partnership or of the liabilities o£ the firm then existing: Held, that the lien of the mortgage on the premises was not superior to that of such prior liabilities of the firm.</p>

<p>1. The act of the general assembly of March 28, 1864, entitled “ An act to authorize the county commissioners, trustees of townships, and city councils to levy a tax for the payment of bounties to volunteers, and to refund subscriptions for that purpose” is not repugnant to the constitution. Cass Township v. Dillon (16 Ohio St. 88), approved.</p> <p>2. Special meetings of boards of township trustees may be held at any time and place within the township, and without previous notice to all the trustees.</p> <p>8. Under the statute a majority of the board of township trustees constitutes a quorum to do business at special meetings.</p>

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

<p>The incorporated, village of McConnellsville, in September, 1869, passed an ordinance-declaring it to be unlawful for any person to keep, within said village, a house, shop, room, booth, arbor, cellar or place where ale, porter or beer is habitually sold, or furnished to be drunk, in, upon or about the house, shop, room, booth, arbor, cellar or place where so sold or furnished. Meld:</p> <p>1. That the municipal corporations of this State were, at the date of this ordinance and prior thereto, expressly empowered to pass such a prohibitory ordinance; and such ordinance is not therefore invalid, as being in conflict with the statutes of the State, or unauthorized.</p> <p>2. It is no ground of objection to the validity of such municipal ordinances, when clearly authorized, that State legislation has not extended a similar prohibition over all parts of the State. It is for the law-making power of the State to determine, within the limitations of the constitution, to what extent city or village councils shall be invested with the power of local legislation.</p> <p>3. These principles do not conflict with the decisions in the City of Canton v. Nist, 9 Ohio St. 439, and Thompson v. The City of Mr. Vernon, 11 Id 688.</p>

<p>1. Where a party hy his own mistake, and without any fault of the adversary party, takes judgment hy default for a less sum than the amount due on his claim, he cannot maintain a second action to recover the remainder:</p> <p>2. Where the petition in such second action sets forth the mistake in the former suit, in such form as to show that it might or might not have been a mistake in matter of description, destroying the technical identity of the causes of action, but alleges that the causes of action are in fact the same, the petition will be held bad on demurrer.</p>

<p>The 41st section of the school law of 1853 (S. & C. 1360), which authorizes county commissioners to make allowances to the auditor for services under said law, was neither expressly nor impliedly repealed hy the act of February 7th, 1861, “ to regulate and limit the compensation of county auditors ” (58 O. L. 7), and such allowances could he lawfully made hy the commissioners after the passage of said act of 1861.</p>

At the v\ vober term, 1870, of the common pleas, James Call was indicted for perjury, in knowingly and corruptly taking a false oath before the probate court, in the matter of his application for license for the marriage of one Carmi Call and Harriet Davis ; the false oath being, that Harriet Davis was a resident of Vinton county, that her father was dead, and that her mother consented to the proposed marriage. The defendant demurred to the indictment.

<p>Husband and wife are not competent witnesses for or against eaeb other in criminal prosecutions. Neither the 139th section of the code of criminal procedure nor the 310th and following sections of the code of civil procedure render them competent in criminal cases.</p>

<p>1. The 107th section of the justices’ code (S. & C. 788), which requires a justice of the peace to render his judgment immediately upon return of the jury’s verdict, does not apply to an action of forcible entry or detainer, which is governed, in that respect, by the 135th section (p. 793) of the same act.</p> <p>3. The statutory notice to leave the premises, required to be given in an action of forcible entry against a tenant holding over his term, may be served as well before as after the expiration of the term.</p>

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

<p>Quo warranto. Deserved in the district court of Belmont county.</p>

The original action was brought on the 29th of December,. 1866, by Charles IT. Bostwick, defendant in error, against Horace Camp and wife, and others, plaintiffs in error, to* compel them, as heirs at law of Abram Olmstead, to make-contribution as between co-sureties.

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

<p>1. The act of April 0, 1868, to amend “An act to provide a bounty for' veteran volunteers” (63 O. L. 188), and the “Act to authorize and require the payment of bounties to veteran volunteers,” passed April 16, 1867 (64 O. L. 232), cannot, by fair construction, be limited as applying onlj to cases where the enlistment was made on the faith of a promise of bounty by the public authorities of the locality receiving credit for the enlistment on its quota.</p> <p>2. The duty imposed upon the municipal subdivisions of the State by these acts, does not arise out of any contract relation supposed to exist between them and the volunteers, but is devolved upon them by the legislature in the exercise of the taxing power of the State, and of the power of apportioning taxation.</p> <p>3. The counties, townships, and cities are public agencies in the system of the State government; and, in the class of laws above referred to, they are employed by the legislature as mere instruments to raise a tax for a public object, and to effect its equitable distribution among those for whom it was intended.</p> <p>4. Said acts, therefore, are not retroactive laws within the meaning of seo.. 28, art. 2, of the constitution.</p>

Appeal. Reserved in the district court of Clarke county. The case is sufficiently stated in the opinion of the court.

The original action, brought by Sterling & Ahrens against the sheriff of Hamilton county, was for the replevin of a lot of groceries, of the value of some $14,000, which had been levied upon as the property of Charles L. Moore & Co., of Cincinnati, at the suit of David W. Oliver. Subsequently Oliver was made defendant in place of the sheriff.

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

<p>W. being the owner of a lot, conveyed one-half of it to P.; and by a separate agreement in writing, not under seal, stipulated that P. might erect half of the wall of a building on the part of the lot retained, and that in any sale which W. might mate of the last-named premises, he would require the purchaser, when he or his assigns should use said wall as a party-wall, to pay P. or his assigns one-half of its value. After P. had erected the building, he conveyed his half of the lot “ with the appurtenances” to E.; and, subsequently, the assignees of W. used the wall in the erection of an adjoining building. Held :</p> <p>1. That the effect of the agreement was to give P. and his assignee the right, in equity, to an easement for the support of one-half of the wall on the premises of W. ; and that this right, as well as the property in the wall, passed to E. by P.’s deed of conveyance to him.</p> <p>3. That as the property thus conveyed to E. was liable to be subjected, under the agreement, to the burden of the use of the wall for the benefit of the adjoining premises, he was equitably entitled to the compensation to be paid therefor.</p>

Mandamus. This is an application for a peremptory mandamus to compel the commissioners of Franklin county to issue their order for the payment of $800, out of the county treasury, to the relator, as a just and proper compensation to him for his services as assistant to the prosecuting attorney of the county, in the prosecution of Daniel Sullivan to conviction and sentence under an indictment for the murder of Charles Thomas; which sum, or any other sum, the commissioners…

<p>Jh accordance with the act of March 9,1866, which requires certain contracts on behalf of a county to be made with the lowest bidder, the commissioners of Hamilton county advertised for proposals to furnish the county offices with blanks, blank books, and stationery for the year 1871, and gave to the several bidders specifications which required the prices of the articles to be furnished to be fixed by the ream, quire, gross, dozen, etc., but did not state the quantity of any article that would be required under the proposed contract. The total amount of the prices thus fixed for one of each of the items in the specifications, in the proposals of the relators, was lower than that of any other bidder; but, by reason of the difference of the prices fixed for the same items in the pro-posáis of the several bidders, and the different quantities of the several articles that, upon a fair estimate, would be required during thevyear, it appeared that the aggregate cost of all that would be required under tho proposed contract, at the prices fixed by the relators, would amount to more than it would at the prices fixed in the proposal of another bidder. Meld, that the relators were not, within the meaning of the statute, the lowest bidders, and therefore are not entitled to a mandamus to compel 'the commissioners to award the proposed contract to them.</p>

The original action out of which the present proceeding in error arises, was brought by the present plaintiff against the defendant before a justice of the peace, and, by appeal from his judgment, came into the court of common pleas of Morrow county. The suit was upon a promissory note, made and delivered by the defendant to the plaintiff for $50-, and the petition was in the usual form.

<p>On hearing of a petition for alimony, filed, after the husband has procured an ae-parte divorce in another State, it is competent for the wife to show that the husband has received accessions of property by inheritance since the date of the divorce, and for the court to take the same into consideration in estimating the amount of her alimony.</p>

<p>1. Where trustees act within the scope of their authority, and exercise such prudence, care, and diligence as men of ordinary prudence, care, ancf diligence manifest in like matters of their own, they should not be held accountable for losses happening from their management of the trust funds.</p> <p>2. WTiere executors are directed by will to put money at interest for a specified length of time, by deposit in bank or loan upon mortgage, they have a discretion to loan it for less periods than the whole time named, and tore-loan it from time to time, and change the mortgage securities, as they may deem best for the parties interested.</p> <p>3. In such case, if the executors are at fault in taking insufficient security for the loan, but subsequently procure the borrower to substitute therefor other security deemed by them sufficient, and such as they would have been justified in taking upon the original loan, they will not be held accountable for a loss happening through unforeseen defects in the latter security, merely because of their default in taking the former.</p> <p>4. A mortgage executed by an individual member of a firm, upon land the legal title to which is vested in him, but which is in fact owned and used by the firm as-partnership property, is “ real estate” security, within the meaning of a clause in the will directing such security to be taken for money loaned.</p> <p>5. The maxim that every person is presumed to know the law, is not always applicable to trustees. on the contrary, they may be exonerated from losses resulting from their ignorance of the law, in cases where they exercise proper diligence and precaution, and act upon the advice of counsel.</p>

Petition for dower. Reserved in the district court of Huron county. The case is sufficiently stated in the opinion of the court

At the May term, 1870, of the court of common pleas of' Montgomery county, Wroe, the plaintiff in error, was indicted for murder in the second degree. ELe pleaded not guilty,. and, on trial, was convicted of manslaughter and sentenced. On the trial, Smith Davison, a witness for the State, was examined as to the dying declarations of George Eisher, the - person charged to have been murdered.

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

<p>Quo Warranto. The case is sufficiently stated in the-opinion of the court.</p>

Appeal. Eeserved in the district court of Hamilton county. This is an action to procure the reformation of a deed. It came into the district court by appeal from the common pleas, and was there reserved for decision here.

This was an action by Rhoades, a constable, upon a bond of indemnity given him by Miller, a judgment creditor, contlitioned for the constable’s indemnification in case he would sell certain property held by him under execution, at the suit of the creditor, but which was claimed by Freeman, the debtor, to be exempt from execution. After sale of the property an action was brought against the officer by the debtor for the value of the property so sold.

No. 365. Error to the court of common pleas of Seneca-, county. Beserved in the district court. No. 167. Motion for leave to file a petition in error to reverse the judgment of the district court of Logan county.

<p>1. Where goods are taken, with a felonious intent, the felony lies in the very first act of removing them.</p> <p>2. When the offence of larceny is once completed, by a sufficient taking and removal, it will not be purged by a return of the property, though the possession be retained by the thief but for a moment.</p> <p>■ 3. The least removing of the entire thing taken, with an intent to steal it, if the thief thereby, for the instant, obtain the entire and absolute possession of it, is a sufficient asportation, though the property be not removed from the premises of the owner, nor retained in the possession of the thief.</p> <p>4. Where the defendant was indicted for stealing money from a drawer, which the evidence tended to prove; held — it was not erroneous to charge the jury that: “ If he had actually taken the money into his hand, and lifted it from the place where the owner had placed it, so as to entirely sever it from the spot where it was so placed, with the intention of stealing it, he would be guilty of larceny, though he may have dropped it into the place in which it was lying, upon being discovered, and never have had it out of the drawer.”</p>

<p>1. A testator devised all of his “home-farm” to his widow. Ia an action hy the residuary devisees to recover land which the defendants claimed. under the devise, as part of the home-farm, declarations of the testator, that he had received a large part of his means from the ancestor of the* plaintiff, and that, in consequence of such aid, he intended to will the premises in question to them, cannot be given in evidence as showing the extent or boundaries of the farm.</p> <p>2. In the admission of improper evidence on the part of the defendants, ' which operates only to rebut evidence improperly introduced by the plaintiffs, there is no error to the prejudice of the latter.</p> <p>S. In determining the extent of the home-farm, the situation of the land, the manner in which it had been used and treated, are proper subjects of inquiry ; but hearsay or neighborhood reputation cannot be resorted to.</p> <p>4. Where the bill of exceptions does not profess to set out all the evidence, nor all the facts which the evidence of the plaintiffs tended to prove, if improper evidence was allowed to be introduced by the defendants, which was calculated to mislead the jury, to the prejudice of the plaintiffs, the court cannot say, on error, that no prejudice resulted.</p>

<p>An administrator, for the purpose of subjecting sundry lots of land, held, by different owners, to the payment of the debts of his intestate, brought an action under the code, in the court of common pleas of the county in. which the land was situated. Some of the lot-owners, as well as sundry lienholders, were non-residents of the State, and they were all made defendants and constructively served with process by publication, pursuant to the 72d section of the code of civil procedure, but not in accordance-with the requirements of the act to provide for the settlement of the estates of deceased persons. Held: That the action having been brought' under the code, constructive service could be properly made only according to its requirements j and that the court having jurisdiction of the subject-matter, and. of the persons of the defendants, the order of sale made in the case was, even if erroneous, not void, but voidable only; and, binding the parties until reversed, it could not be collaterally impeached.</p>

<p>1. A repugnancy -which, will justify the rejection of a word or clause from a will must arise upon the face of the will itself, and cannot be created or supplied by extraneous proof.</p> <p>2. Such a repugnancy, however, need not necessarily arise between the-word or clause to be rejected and some other distinct word or clause, but may consist in the fact that the word or clause to be rejected is in conflict with the general tenor and scope of the will, including as well its implications and omissions as its positive provisions.</p> <p>3. A testator bequeathed to his wife (who was his only heir-at-law, and whom he appointed as one of his two executors) “ in trust only, and during her natural life only,” the rents of certain real estate, the dividends on his bank stock, and the interest on debts due him, “ as long as she ” might ‘1 live ; ” with a proviso that the bank stock and debts should not be diminished, but without any such proviso as to the rents, dividends, or interest. He then directed, that- after the death of his wife “ all his estate, real, personal, and mixed” (except certain named tracts of land which had been specifically devised), should be equally divided between the children of his nephew, but that no such division should be made till the youngest child became of age. The will did not otherwise appoint or name any beneficiary of the trust fund, or give any directions as to its management by the wife, or make any provision for its management after her death, in case she should die before the majority of the youngest child. The will provided that, in case of the death, resignation, or refusal of either of the executors, the other should act as sole ex ecutor. Held — that the words ‘ in trust only,” in their ordinary technical sense, are repugnant to the general scope and tenor -of the will, and are without legal effect in its construction, and that the wife took an absolute property in the rents, dividends, and interest so bequeathed to her.</p>

<p>The bail in an undertaking for a defendant arrested in a civil action, executed under section 157 of the civil code (S. & O. 993), is exonerated in the event that judgment be rendered in favor of the defendant upon a trial on the merits of the action, although upon a second trial, under the act to-relieve district courts, etc. (S. & C. 1155), or upon a new trial, after reversal of such judgment by proceedings in error, a judgment be finally ren dered against the defendant.</p>

<p>Where, on a trial for murder, the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and, on his motion, a new trial is granted, the effect of granting the new trial is to set aside the .whole verdict, and leave the case for retrial upon the same issues as on the first trial.</p>