Volume 21 — Ohio State Reports, New Series

<p>Quo Warranto.</p> <p>The information, filed February 28, 1871, states that the judges of the court of common pleas for the first judicial district of the State of Ohio, comprising the county of Hamilton since April 6, 1870, have been and are, without any lawful authority, usurping and intruding into the following office of trust, to wit : the office of fixing the compensation of all deputies, clerks, book-keepers and other assistants who may be employed by the treasurer, auditor, recorder, sheriff, probate judge, and clerk of Hamilton county ;' also of approving or disapproving the number of- deputies, clerks, bookkeepers and other assistants of the treasurer, auditor, recorder, sheriff, probate judge, and clerk, the same being offices of trust under the authority of the State of Ohio. Wherefore the relator prays that said judges may be required to answer ‘by what warrant they claim to exercise the office aforesaid.</p> <p>For plea to the information the judges say, that they are invested with the powers, and required to discharge the duties described in the information, in and by the act of April 6, 1870 (67 O. L. 36), entitled “ An act limiting the compensation of certain officers therein named and the act amendatory thereof, passed April 12, 1871 (68 O. L. 58), and that, at the request of the several county officers named •in said acts, they are exercising the said powers and discharging the said duties ; and that they claim no other powers and to discharge no other duties in the premises.</p> <p>Demurrer to plea.</p>

<p>Error to the superior court of Cincinnati.</p> <p>On the 12th April, 1870, J. Bryant Walker filed in the office of the clerk of the superior court of Cincinnati, his petition, stating:</p> <p>“That he is the solicitor of the city of Cincinnati, and a tax payer in the said city, and that by an act of the general assembly of the State of Ohio, passed on the 4th day of May, eighteen hundred and sixty nine, entitled 1 An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants,’ it was enacted in the first, second, third and fourth sections thereof, as follows: # * * * * * ’ * *</p> <p>1 Section 1. Be it enacted by the general assembly of the State of Ohio, that whenever in any city of the first class having a population exceeding one hundred and fifty thousand inhabitants, the city council thereof shall, by a resolution passed .by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided between termini designated therein, one of which shall be such city; it shall be lawful for a board of trustees, appointed as herein provided, and they are hereby authorized to borrow, as a fund for that purpose, not to exceed the sum of ten millions of dollars, and to issue bonds therefor in the name of said city, under the corporate seal thereof, bearing interest, at a rate not to exceed seven and three tenths per centum per annum, payable at such times and places and in such sums as shall be deemed best by said board. Said bonds shall be signed by the president of said board, and attested by the city auditor, who shall keep a register of the same, and shall be secured by mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax, which it shall be the duty of the council thereof annually to levy, sufficient with said net income to pay the interest and provide a sinking fund for the final redemption of said bonds; provided that no money shall be borrowed on bonds issued until after the question of providing the line of railway specified in the resolution shall be submitted to a vote of the qualified electors of said city, at a specified election, to be ordered by the city council thereof, of which not less than twenty days’ notice shall be given in the daily papers of the city; and further provided, that a majority of said electors voting at such election shall decide in favor of said line of railway. The returns of said election shall be made to the city clerk, and be by him laid before the city council, who shall declare the result by a resolution. The bonds issued under the authority of this section shall not be disposed of for less than their par value.</p> <p>‘ Section 2. If a majority of the votes cast at said election shall be in favor of providing the line of railway, as specified in the first section, it shall be the duty of the solicitor forthwith to file a petition in the superior court of said city, or, if there be no superior court, then in the court of common pleas, of the county in which said city is situate, praying that the judges thereof will appoint five trustees, to be called the trustees of-railway (the blank to be filled with the name given to the railway in the resolution), and it shall be the duty of said judges to make the appointment, and to enter the same on the minutes of the court. They shall enter into bond to the city in such sum as the court may direct, with one or more sufficient sureties, to be approved by the court, conditioned for the faithful discharge of their duties. The bond so taken shall be deposited with the treasurer of the corporation for safe keeping.</p> <p>* Section 3. The said trustees and their successors shall be the trustees of the said fund, and shall have the control and disbursement of the same. They shall expend said fund in procuring the right to construct, and in constructing a single or double track railway, with all the usual appendages, including a line of telegraph between the termini specified in the said resolution, and for the purposes aforesaid, shall have power and capacity to make contracts, appoint, employ and pay officers and agents and to acquire, hold and possess all the necessary real and personal property and franchises either in this State or in any other State into which said line of railway may extend. They shall also have power to receive donations of land, money, bonds and other personal property, and to dispose of same in aid of said fund.</p> <p>‘ Section 4. The said trustees shall form a board and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may by resolution from time to time confer upon him. A majority of said trustees shall constitute a quorum and shall hold regular meetings for the transaction of business at their office in the city under whose action they arc appointed, but they may adjourn from time to time to meet at any time and place they may think proper. They shall keep a record of their proceedings, and they shall cause to be kept a full and accurate account of their receipts and disbursements, and make a report of the same to the city auditor annually, and whenever required by a resolution of the city council. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allowance of the court appointing them, and shall be proportioned according to their respective services.’</p> <p>“That afterwards on the 4th day of June, in the yeai aforesaid, the city council of the cityof Cincinnati, reciting in a preamble the powers conferred in the first section of the said act, and that the said city of Cincinnati, in the State of Ohio, was a city of the first class, having a population exceeding one huudr.ed and fifty thousand inhabitants, resolved, in pursuance and by virtue of the powers in said act given (a majority of all the members elected thereto concurring, as follows:</p> <p>* First. That the said city council hereby declares it to be essential to the interests of the said city of Cincinnati, that .a line of railway, to be named “ The Cincinnati Southern Railway,” shall be provided between the said city of Cincinnati and the city of Chattanooga, in the State of Tennessee.</p> <p>‘ Secondly. That a special election be held on Saturday, •the 26th day of June, 1869, at which election the question of providing the said line of railway shall be submitted to a vote of the qualified electors of the said city ; and the city •clerk is hereby directed to cause to be printed a sufficient number of two sets of ballots (not less than one hundred •thousand of each set) for use at each voting place, one ■of which sets shall be printed: ‘Special election to decide for or against providing a line of railway between Cincinnati, Ohio, and the city of Chattanooga, State of Tennessee. For providing said line of railway.’ And upon the other •set shall be printed : 1 Special election to decide for or against providing a line of railway between Cincinnati, Ohio, and the city of Chattanooga, State of Tennessee. Against providing said line of railway.’</p> <p>* Thirdly. That the mayor of the said city of Cincinnati be and he is hereby directed to issue his proclamation to the qualified voters of said city, giving notice of said special election, and of the time and places of holding the same, and that said proclamation be published in the daily newspapers of said city, at least twenty days before said election. Said election shall be held at the usual places of voting at municipal elections in each ward, and shall be conducted in the manner prescribed by law for holding municipal elections. The returns of said election shall be made to the city clerk, and shall by him be laid before the city council, who shall declare the result by a resolution.</p> <p>“ That in pursuance and by virtue of said resolutions, the Hon. John E. Torrence, mayor of the said city of Cincinnati, did, by his proclamation, published in all the daily newspapers of said city for more than twenty days prior to the day of said special election, give notice to the qualified electors of said city that a special election to decide for or against providing the said line of railway, would be held on Saturday, the 26th day of June, a. d. 1869, and that polls would be open at the usual places of voting at municipal elections in eachyward, between the hours of six o’clock in the morning and six o’clock in the evening of said day.</p> <p>“That afterwards, to-wit, on the 28th day of June, in the year 1869, the said mayor sent his message to the city council of the said city of Cincinnati, certifying under his hand and the corporate seal of the said city, that he had given notice of the time and place of holding the said special election, as above stated, and the city clerk of said city laid before the said city council, at a meeting thereof, duly convened on said last mentioned day, the returns of said election ; whereby it appeared that at said special election there were cast fifteen thousand four hundred and thirty-five ballots of the qualified electors of said city, fot providing said line of railway, and fifteen hundred ballots against providing said line of railway.</p> <p>“ Whereupon the said city council declared by a resolution that the result of said special election was that a majority amounting to thirteen thousand nine hundred and thirty-five of the votes cast at said special election was in favor of providing said line of railway between the said city of Cincinnati, Ohio, and the said city of Chattanooga, in the State of Tennessee.</p> <p>“ That thereafter the city of Cincinnati filed in the superior court of Cincinnati, in cause No. 24,749, in the said court, on the 80th day of June, 1869, a petition reciting the facts set forth above, and praying for the appointment of five trustees, to be called the trustees of the Cincinnati Southern Railway, with all the powers given in the above recited act, and that their appointment be entered on the minutes of the said court, as the act provides.</p> <p>“ That on the said 30th day of June, 1869, the following order was made and entered upon the minutes of the said court:</p> <p> lIn the matter of the application of the city of Cincinnati for the appointment of the trustees of the Cincinnati Southern Railway. </p> <p>The petition of the city of Cincinnati, by J. Bryant Walker, city solicitor for said city, having been filed in this court, praying that the judges thereof would appoint five trustees, to be called the trustees of the Cincinnati Southern Railway, with the powers given in the act of the general assembly of the State of Ohio, passed on the 4th day of May, in the year 1869, entitled An Act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants. And the court and the judges thereof being satisfied, and finding that all the statements made in the said petition are true in substance and in fact, hereby appoint Richard M. Bishop, Edward A. Fer guson, Miles Greenwood, Philip Heidelbach and William Hooper, to be trustees of the Cincinnati Southern Railway with the powers given in the act aforesaid, and order that the said trustees severally enter into bond to the said city of Cincinnati, in the sum of one hundred thousand dollars, with four sureties each, to be approved by the court, conditioned for the faithful discharge of their duties. And it is also ordered that upon giving bond as aforesaid, the clerk of this court deliver a certified copy of this order to each of said trustees as the evidence of his appointment.</p> <p>“ And afterwards, to-wit, on the 3d day of July, in the term and year last aforesaid, the following entry was made in said cause on the journal of said court, to-wit:</p> <p>1 This day came the trustees of the Cincinnati Southern Railway, who were heretofore appointed, and presented their said bonds with the following named persons.:</p> <p>11 — As sureties for RichardM. Bishop, as trustee aforesaid, Charles H. Gould, William S. Dickinson, James A. Frazier and Wm. Glenn.</p> <p>1 2 — As sureties for Edward A. Ferguson, as trustee aforesaid, Charles W. West, Anthony D. Bullock, Henry Lewis, and John Schiff.</p> <p>‘ 3 — As sureties for Miles Greenwood as trustee aforesaid, Robert Mitchell, Lewis Worthington, William Woods, Joseph C. Butler and Peter Gibson.</p> <p>14 — As sureties for Philip Heidelbach as trustee aforesaid, Jacob Seasongood, Jacob Elsas, Abram Akerland and Samuel Thorner.</p> <p>‘ 5 — As sureties for William Hooper, as trustee as aforesaid, Learner B. Harrison, Leverett G. E. Stone, David H. Taylor and Thomas R. Biggs.</p> <p>‘ And the court being satisfied that such sureties are sufficient, approve the said bonds with the sureties aforesaid, and order that the city solicitor receive and deposit said bonds with the treasurer of the said city of Cincinnati, as is provided by the statute.</p> <p>‘ Thereupon the said trustees appeared in open court and were duly sworn to discharge their duties as trustees as aforesaid.</p> <p>“ And afterwards, to-wit, on the 8th day of July, a. d. 1869, there was filed in the office of the clerk of said court a certain receipt clothed in the words and figures following, to-wit:</p> <p>“ Citt ok Cincinnati,</p> <p>“ Treasurer’s Office, July 6, 1869.</p> <p>‘ Received of J. Bryant Walker, city solicitor, the bonds of the following named trustees of the Southern Railway : William Hooper, Miles Greenwood, R. M. Bishop, P. Heidelbach, E. A. Ferguson.</p> <p>1 Filed in the city treasurer’s office, according to law.</p> <p>Robert Moore, Oily Treasurer.</p> <p>“That on the 6th day of July, 1869, they met and chose Miles Greenwood president, and appointed Henry H. Tatem secretary, and ordered that their office be kept at the rooms of the board of trade of Cincinnati, in Pike’s opera house building, and that their regular meeting be held on the first Tuesday of each month, at 3 p. m.</p> <p>“ That since the last mentioned date they have procured the consent of the State of Tennessee to the construction and maintenance of the said line of railway, and to the exercise of the powers vested in them as aforesaid in said State, and have made application for a like consent from the commonwealth of Kentucky, in which latter State, however, no grant has as yet been made.</p> <p>“ That for the purpose of further enabling the trustees appointed under said act'of May 4th, 1869, to carry into effect the purposes of such act, the general assembly of the State of Ohio, on the 25th day of March, 1870, passed the following act:</p> <p>‘ An Act supplementary to the act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, A. d. 1869.</p> <p>‘ Sec. 1. Be it enacteclby the general assembly of the State of Ohio, That the city council of any city of the first class described in the act to which this ,is supplementary, may, after trustees have been appointed, as provided in said original act, advance to said trustees out of any fund oi said city, such sum as may be necessary, not exceeding fifty thousand dollars, for carrying the object for which they are appointed into effect, and said sum shall be repaid out of the trust fund provided for in said original act, when ■raised.</p> <p>‘ Sec. 2. This act shall take effect on its passage.</p> <p>“ That thereupon, upon the 2d day of April, 1870, the city council of the city of Cincinnati passed an ordinance advancing the sum of $50,000 out of the interest fund, to be paid to the said trustees as a loan, to be repaid out of the proceeds of the first bonds sold.</p> <p>“ That Charles H. Titus is the auditor of the city of Cincinnati, and that a portion of the funds so appropriated are still unpaid, and that he will pay the same unless restrained by the court.</p> <p>“ Plaintiff submits to the court that the statutes of the State of Ohio above recited are unconstitutional and void, and that the advance of such money is a misapplication of the funds of the corporation and in contravention of the laws governing the same, and is not proper corporate use.”</p> <p>Wherefore plaintiff prays the court to enjoin the payment of said money so appropriated, and for such other relief as may be equitable and just.</p> <p>The defendants demurred to this petition, assigning for cause that the facts stated in the petition do not constitute a cause of action against them or either of them.</p> <p>The superior court in general term sustained this demurrer and dismissed the petition.</p> <p>To reverse this judgment a petition in error was filed in this court.</p>

<p>Appeal. Deserved in the District Court of Mahoning county.</p> <p>On the 21st July, 1866, Eliza Jennings filed in the court of common pleas of Mahoning county, her petition for partition and dower, stating that she is a resident of Hancock county in the State of West Virginia ; that on the 30th October, 1865, her husband Simeon Jennings, then á resident of said county of Hancock, State of West Virginia, died without issue of his body, leaving the plaintiff his widow and only heir at law. That on the 9th September, 1859, her said husband, Simeon Jennings, executed his last will and testament, and on December 26th, 1860, executed his codicil thereto, all of which has been duly probated and admitted to record by the proper court of said county of Hancock, State of West Virginia, and which has also been duly admitted to record by the Probate Court of Mahoning county, Ohio ; that a copy of the will and codicil is attached to the petition, and made part thereof; that in and by said will, the testator devised all his real estate, wherever situated, as follows : the undivided one third part thereof to the plaintiff for and during her natural life only, and the remaining two-thirds thereof to the brothers and sisters of the testator, and their lineal descendents, jjer stirpes; the defendants being such devisees. Whereby the testator died intestate as to the fee of said one-third of said real estate, leaving it undisposed of after the death of the plaintiff. That on the 12th July, 1866, the plaintiff, as the widow of the testator, in due form of the laws of the State of West Virginia, and in the proper court for said county of Hancock, refused to accept the provisions made for her in said will and codicil, thereby claiming and herein demanding her rights in and to said real estate, according to the laws of the land. That said Simeon Jennings acquired and died seized in fee simple of tracts of real estate situate in various counties in the State of Ohio. These tracts of land are described in the petition, as- situate in the several counties of Mahoning, Stark, Cuyahoga, Medina, Wayne, Putnam, Defiance, Wyandot, Henry, Vanwert, Hancock, Columbiana, Lucas, Wood, Hardin, Williams and Carroll. The plaintiff claims a legal right to, and to be seized in fee simple of the undivided one-third part of the described tracts of land, as heir at law and next of kin to said Simeon Jennings, deceased, and avers that the defendants are tenants in 'common with the plaintiff in said lands and are entitled to the undivided two-thirds thereof, subject, however, to the dower estate of the plaintiff therein. The plaintiff asks that her one-third part of the lands may be set off to her in severalty, and that her dower estate in the remaining two-thirds thereof may be assigned to her according to the statute ; and prays for such other and further orders and decree as equity and justice to all parties in interest may demand.</p> <p>The answer of defendants deny that the plaintiff is entitled to one-third of the lands and dower in the remaining two-thirds of the same; but say that the plaintiff was bound to elect between the provisions in the will of her late-husband in her favor, and her dower in his lands, and that she could not take both dower and those provisions, That upon the election of the plaintiff against the will, and in favor of taking her dower in the lands, the defendants, who are devisees in the will, are entitled to beconqpensatedforthe dower taken by the plaintiff in the two-thirds devised to them by the testator, out of the one-third devised to her during her life, and rejected by her on her election, leaving her only what is equal to one-third of the lands in fee simple. The court is asked to decree accordingly.</p> <p>The case was appealed to the district court, and therein reserved to this court for decision, on the following agreed statement of facts : Simeon Jennings, deceased, left no issue of his body, and owned the lands described in the petition, having acquired them by purchase. He died on October 30th, 1865, leaving the plaintiff, his widow, surviving him. He resided in the State of West Virginia at the time of his death, and by the laws of that State, the plaintiff, as his widow, is entitled to one-half of all the personal property left by him at his death, subject to distribution. He had no power to bequeath that half of his personal property to others to her exclm sion, unless she voluntarily relinquishes it by electing to take under the will of her husband. The estate is not yet set-tied, but it is supposed by the parties that the personal estate, subject to distribution, will exceed two hundred thousand dollars. The defendants are the surviving brothers and sisters of the testator, and the children and grandchildren of deceased brothers and sisters. The testator made his last will and testament and codicil thereto, as charged in the petition, and the will and codicil have been duly proved and admitted to record in the State of West Virginia. The will gave the plaintiff the one-third of the real estate of the testator during her life, and gave the other two-thirds of his real estate to his brothers and sisters that were living, and to the children and grandchildren of such as were deceased, the children and grandchildren taking per stirpes, so that each living brother and sister, and the representatives of each deceased brother and sister, take the one-sixth of the two-thirds of the lands, free of the dower of the plaintiff therein, provided she had taken under the will. But the plaintiff elected against the provisions of the will, and claims her legal rights. The testator made no disposition of the remainder estate after the termination of the life estate in the one-third of the land given to the plaintiff during her life. The parties disagree as to what the plaintiff’s legal and equitable rights are in the lands of the testator under this statement of facts. The plaintiff claims that she is entitled, as heir of her late husband, to the one-third of his real estate in fee simple, and that, as widow, she is entitled to dower in the remaining two-thirds, without the defendants, or any of them, being compensated for the dower estate taken by her in the two-thirds of the real estate devised to others than herself. The defendants deny this claim, and insist that if she does not take the same third for her dower estate in the lands that was devised to her for life, but takes dower in the two-thirds devised to others, that then, and in that case, those to whom the two-thirds were devised, are entitled to be compensated for the dower so taken in the two-thirds, out of the one-third devised to her for life.</p>

Eeserved in the district court. The plaintiff seeks to reverse an order of the common pleas discharging an attachment. The motion to discharge the attachment appears by the record to have been placed both upon the ground of the insufficiency, and also of the falsity, of the affidavit upon which the order of attachment had been issued. On heai’ing of the motion affidavits were read to the court touching the truth or falsehood of the affidavit.

<p>Motion for leave to file a petition in error to the district court of Miami county.</p> <p>The judgment sought to be reversed by this proceeding, was rendered in an action brought in the court of common pleas of Miami county by W. H. H. Dye, (the defendant in error) against James M. Dye, (the plaintiff in error,)Thomas C. Dye, and Roswell S. Dye, on a joint and several promissory noto for ten thousand dollars, dated Dec. 12, 1864, and payable to W. H. H. Dye, in twelve months after date.</p> <p>The material question in the case arose on the demurrer of the plaintiff below to the separate answer of James M. Dye to the petition. He alleges in his answer, as a defence to the action against him, that the note executed by him and the other defendants to W. H. H. Dye, on which the action is brought, was signed by him as surety only for Thomas C. and Roswell S. Dye, which fact was known toW. H. H. Dye, the payee of the note and plaintiff in the action ; that, before the maturity of the note, Roswell S., one of the principals of the note, became insolvent; that on June 21, 1865, Thomas C. Dye, the other principal, failed', and made an assignment of all his property, for the benefit of his creditors, to O. Bowen and Roswell S. Dye, in the probate court of Marion county, according to law ; that said assignees duly qualified ; that they gave notice, as required by law, to the creditors of Thomas C. Dye (of whom W. H. H. Dye was one), to present their claims for allowance and payment; that the assignees realized out of the assets of Thomas C. Dye, after paying all special leins thereon, the sum of $167,323.04 ; that, after three partial settlements of said assignment, a final settlement was made by the assignees, Dec. 23, 1868, by which all claims against said Thomas C. presented to the assignees properly authenticated were paid in full; and that W. H. H. Dye, the plaintiff below, wholly neglected and refused to present his claim to the assignees, by reason of which the same was not paid. He insists that, therefore, he is discharged from his liability as surety thereon.</p> <p>The common pleas sustained the demurrer to the answer, and rendered judgment in favor of the plaintiff below for amount due on the note. Thereupon, James M. Dye took the case to the district court, on error, where the judgment of the common pleas was affirmed.</p> <p>To reverse these judgments, he now asks leave to file his petition in error in this court, on the ground that the courts below erred in sustaining the demurrer to the answer, thereby holding that the defence interposed by him was not sufficient in law to bar the action against him.</p>

<p>1. The practice of mutilating pleadings by striking out or inserting new matter byway of amendment is disapproved; but where such alteration is made with the permission of the court, and no prejudice results to the adverse party, the final judgment will not be reversed therefor.</p> <p>2. An action for injuries sustained by a wife, in her person, or property, or means of support, under (original) section seven of the act of May 1, 1854, (S. & O. 1432), entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” may be commenced after the death of the husband.</p> <p>3 The phrase, “means of support,” used in said section, is not too vague and uncertain to receive judicial construction.</p> <p>4. A wife has an interest in her husband’s capacity to perform labor as a means of support; and she may prosecute an action for damages resulting to her from the deprivation of such means of support, in consequence of the intoxication of her husband, against any person who caused such intoxication by selling to him intoxicating liquors in violation of said statute.</p> <p>5. The omission of a court, in its charge to the jury, to define or explain doubtful words or phrases contained in a statute upon which the action is founded, does not constitute a ground of reversal, unless such definition or explanation was requested by the party claiming to have been proju diced thereby.</p> <p>6. In all actions under said section, in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation.</p> <p>7. The verdict in such eases should not be set aside, on the ground that the damages are excessive, unless the court is satisfied that the jury abused its discretion.</p> <p>8. Nor will the verdict be disturbed because the court in its charge stated general propositions of law not involved in the issue, if it appear from the whole charge that the jury could not have been misled thereby.</p>

<p>The plaintiff on the 21st of August, 1866, made a contract with the defendant for the sale of from fifty to one hundred head of hogs, to he delivered at a place named, “between Christmas and New Years, 1866.” The “hogs to weigh from twenty-five to one hundred pounds,” and to be paid for at so much per hundred. In an action by the plaintiff against the defendant for refusing to accept the hogs when duly tendered, held:</p> <p>1. The rule of damages is the difference between the contract price and the market value at the time and place of delivery.</p> <p>2. If the plaintiff had the right to tender the hogs on the contract, so that by accepting them the defendant would have acquired a good title, the fact that the plaintiff was the absolute owner of only part of them, the remainder having been furnishod to him by third persons for such delivery, would neither constitute a defence nor diminish the damages. It only concerned the defendant to know that the delivery would invest him with a good title.</p> <p>.3. A tender on the last day of December, 1866, was in accordance with the contract.</p> <p>4. Tinder the contract the plaintiff could deliver hogs of any weight not heavier than one hundred nor lighter than twenty-five pounds.</p> <p>IS. The plaintiff was not bound to notify the defendant before the time of delivery of the number of hogs he intended to deliver, and the giving of such notice would not preclude the plaintiff from tendering a less number •than was specified in the notice, provided there was no fraud, and the notice did not operate to mislead the defendant to his prejudice.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.</p> <p>The original action was brought to recover ten thousand dollars insurance on four store buildings destroyed by fire. The buildings were part of the estate left by Stephen S. Boyle, deceased. Boyle died leaving a will, by which he devised, subject to the payment of his debts, one half of his property to his wife, Elizabeth W. Boyle, and the other half to his children. Mrs. Boyle was made executrix of the will, and Edward Purcell guardian of the children. No trusts were expressed in the will, to be performed by the executrix or by the guardian, in connection with the real estate.</p> <p>The children of Mr. Boyle were minors, and after his death continued to live with their mother. Mrs. Boyle, with the consent of their guardian, as executrix, took charge of the estate, real and personal, and undertook to protect and insure the property in question. Through an agent she applied to the secretary of the Globe Insurance Company to insure these stores. The agent told the secretary of the company that the insurance was wanted for the benefit of, and to cover, the estate of Stephen S, Boyle, and handed to him a piece of paper with the name “ Elizabeth W. Boyle, Executrix,” written on it. The secretary made out the policy, insuring ten thousand dollars on the four stores, at a premium of eighty dollars for one year, which was paid out of the estate of Boyle. The secretary, intending to insure the property for the benefit of the owners, inserted in the policy the name of “Mrs. E. W. Boyle, Executrix,” as the party insured. At the expiration of the year the policy was renewed for another year, at a premium of ninety dollars, paid out of the estate of Boyle, during which time the stores were destroyed by fire.</p> <p>The insurance company refused to pay the loss ; thereupon Mrs. Boyle and her minor children, by their guardian, joined in a suit on the policy against the company. They averred in their petition that, as the devisees of Stephen S. Boyle, they were the owners of the property insured and destroyed ; that it was intended and understood by the parties to be insured on their account and for their benefit, although the policy was made out in the name of “ Mrs. E. W. Boyle, Executrix ; ’ ’ that if it does not express the true agreement of the parties, it was so made by mistake; and they pray that it may be reformed, and that they may have judgment for the full amount of the policy.</p> <p>The company answered, averring that its agent did not know when the policy was issued, who were the owners of the property: but supposed it belonged to Mrs. Boyle as executrix of the will of Stephen S. Boyle; that the insurance was not intended for the benefit of any one but Mrs. Boyle as such executrix ; and denies that there was any mistake in making the policy. It avers that the only proof of loss was, “ that the property insured was real estate held in fee-simple belonging to the estate of S. S. Boyle, deceased, of which the said Elizabeth W. Boyle is the sole executrix and deny all liability on the policy, and all right, of the plaintiff's to the reformation prayed for.</p> <p>On the trial the court made a special finding of facts, which are in substance the same as the facts stated in the petition, and rendered judgment for the plaintiffs.</p> <p>The case was taken to the superior court in general term, where the judgment was affirmed, and now leave is asked in this court to file a petition in error to reverse both these judgments.</p>

<p>Error to the district court of Hamilton county.</p> <p>The originalaetion was brought by the Commercial Bank of Cincinnati, to set aside an alleged fraudulent conveyance of land made by Mark Buckingham to his brother Horatio, and to subject the same to the payment of the banks’ judgment against Mark ; and also for the purpose of having certain personal property, transferred by Mark to Horatio, declared a trust fund for the benefit of all the creditors of Mark, and accounted for and distributed as such. In addition to the two Buckinghams, other named judgment creditors, who as well as the Commercial Bank had acquired specific lein upon the land for the satisfaction of their judgments, were also made parties defendant.</p> <p>The judgment creditors so made defendants, appeared in the cause, and filed answers or cross-petitions setting forth their judgments and leins, and joining the Commercial Bank in its prayer for relief. The Buckinghams filed answers, in which, among other things, they deny all fraud in the sale of the land, and assert that the transfer of the personal property was an absolute and valid sale thereof to Horatio, and not in trust for the benefit of any other person or persons.</p> <p>On hearing in the common pleas, the petition was dismissed. An appeal was taken to the district court by the Commercial Bank of Cincinnati, alone; but the other judgment creditors also appeared in the district court, and the ■ whole case was there again heard. By the judgment of the district court the sale of the land was declared to be fraudulent, and the land was subjected to the payment of the several judgments mentioned, and the said personal property •was held to be a trust fund, enuring to the benefit of all the creditors of Mark Buckingham, and ordered to be distributed among them, or such of them as should come in and prove their claims.</p> <p>It is to reverse this judgment of the district court that the present petition in error is filed, the principal assignment of error relied upon, and the only one that need be here noticed, being that the finding of the district court was contrary to the evidence, and that a motion for a new trial, based upon that ground, was overruled.</p> <p>The petition in error was filed, and process of summons was served upon the Commercial Bank, within the statutory period of three years after the rendition of the judgment; but the other judgment creditors, the present co-defendants of the Commercial Bank, were not served with process, nor was any process issued against them, until after the expiration of said period of three years ; nor did the -original petition in error expressly make these other judgment creditors parties defendant, but merely made them such, if at all, by designating the defendants as “The Commercial Bank of Cincinnati, and others,” and by referring to, and filing with the petition in error, a copy of the record of the cause in the district court. Alter the expiration of the three years an amended petition was filed, making these creditors parties by name, and they have all since been duly summoned.</p> <p>One of the defendants, so served with process after the period of limitation had expired, filed an answer at rules, setting up the limitation as a bar to the proceeding in error, and moved to dismiss the same as for want of jurisdiction.</p> <p>The other defendants so brought into the case after the expiration of the period of limitation, being in default for answers, asked leave to interpose a similar defence by answer, and made a similar motion to dismiss the proceeding.</p> <p>A bill of exceptions, setting forth all the evidence in the cause, forms part of the record. So far as is necessary to an understanding of the points decided, the evidence contained in the bill of exceptions, is set forth in the opinion of the court.</p> <p>The case was argued and submitted as well upon the assignments of error as upon the question of jurisdiction or limi tation.</p>

<p>Appeal. Reserved in the district court of Morgan county.</p> <p>The defendant, Elias M. Stanberry, held two promissory notes made to him by William T. Purviance, each for the sum of $1,500, dated January 26, 1865. The notes respectively matured June 9, 1866, and June 9, 1867, and were secured by mortgage on certain real estate in Morgan county.</p> <p>On January 30, 1867, Stanberry filed his petition in the court of common pleas of Morgan county, against Purviance, alleging the execution of the mortgage and notes, and that there was due on the first note the sum of $1,099, and interest from June 9, 1866, and that the second note was not due until June 9, 1867. In his petition, Stanberry prayed for a judgment for the amount due upon the first note, and for the amount of some taxes; also for an order for the sale of the mortgaged premises, and for other proper relief.</p> <p>With his petition Stanberry filed an affidavit that Perviance was a non-resident of Ohio, but a resident of Allegheny county, Pennsylvania, and that service of a summons, could not be made on him in Ohio, and that affiant desired to obtain service by publication.</p> <p>Stanberry caused the publication of notice to Purviance, stating the filing of the petition setting, forth the execution of the mortgage “ to secure the payment of $3,000, according to two certain notes referred to in said mortgage and petition, and praying for a judgment against saidWm. T. Purviance for $1,099, with interest from the 16th day of June, A. D. 1868; also for $40.75 — this with interest from the 15th of Jan. 1867, and for sale of mortgaged premises; and said Wm. T. Purviance is notified to appear and answer by the 23d March, 1867.”</p> <p>The publication of this notice was all the proceeding ever had to bring Purviance into court, and the only mode by which he was brought into court.</p> <p>At the following term of the common pleas, Purviance failing to appear, the court found due to Stanberry the sum of $1,190.40, and ordered that, upon default of payment for ten days after, the rising of the court, the mortgaged premises should be sold, &c.</p> <p>Under that order the premises were sold for $2,400, an amount sufficient to pay the sum found due to Stanberry, and leave a surplus of $1,141.63 to apply on the second note.</p> <p>On the 13th of July, 1867, Stanberry filed a supplemental petition in the action, stating that the second note was then due and unpaid, and claiming a vendor’s lien as well as a mortgage lien on the premises, and asked for a further judgment on that note.</p> <p>No additional notice or other process was resorted to or served on Purviance ; but at the August term, 1867, of the court Stanberry took a judgment, under his supplemental petition on the second note, for $1,679 and costs, the court also confirming the sale of the lands previously made, and ordered the proceeds to be applied to the payment of the first judgment and the residue on the second judgment,, leaving a balance of about $537.37 of the second judgment unpaid, for which Stanberry, on March 30th, 1868, caused execution to issue against the property of Purviance, generally. On April 4th, 1868, this execution was levied on a certain steam engine and fixtures and other specified personal property, and the same was advertised to be sold under the levy, on April 20th, 1868.</p> <p>Prior to the 17th of April, 1868, Wood and Pond commenced an action against Purviance in the same court, andr on the requisite affidavit, procured an order of attachment to be issued against the goods and chattels of Purviance, for $305, the amount of their claim, and $50 probable costs. The-sheriff1, under this order, attached the steam engine and fixtures and other personal property upon which he had levied, the execution in favor of Stanberry, and the property was appraised at $491.50, and the sheriff made return accordingly, adding that the property had, on April 4th, 1868, been taken by him' on the execution in the case of Stanberry against Purviance, and was advertised to be sold under that execution, on April 20th, 1868.</p> <p>Thereupon Woocl and Pond filed their petition in the court of common pleas of Morgan county, reciting the pendency of their action against Purviance, the issuing of the order of attachment, the levy of the order on the personal property, the sheriff's return on the order, the fact that the sheriff had levied the execution, in the case of Stanberry against Purviance, upon the property, and that it was advertised for sale as stated in his return, and claiming that the execution was erroneously issued, there being no judgment in favor of Stanberry on which any general or personal execution could be legally issued against the property of Purviance, that the levy under the execution is void, but, inasmuch as the sheriff is proceeding under it, by order of Stanberry, to sell the property, and as that would remove it out of the possession of the sheriff, so that it would not or might not be forthcoming, to be sold under the attachment and judgment of the plaintiffs when they should obtain a judgment, they ask that Stanberry be restrained from selling the property under the execution, or causing the same to be done, until the matter can be heard in court, and that, on final hearing, a perpetual injunction may be granted, &c.</p> <p>A provisional injunction was granted on this petition by the probate judge; and afterward, at the June term, 1868, of the common pleas, the court, having overruled Stanberry’s motion to dissolve the injunction, ordered that the injunction be perpetual.</p> <p>From this order Stanberry appealed to the district court, where the case was reserved to this court for decision.</p>

<p>1. Where an accomplice testifies as a witness, a liberal and full cross-examination, for the purpose of testing the truth of his statements, should be permitted ; and it is error to restrict such cross-examination within unreasonable limits.</p> <p>2. Where an accomplice testified in chief, that, in Gallia county about a week before the 14th of November, he saw a letter from the accused, which was a material fact on the part of the prosecution, it was error in the court not to allow the accused to show, on cross-examination, that the witness was absent from that county from the 5th to the 12th of the same month.</p>

<p>1. A. brings an action, as indorsee, against B., and others, as indorsers upon a blank indorsement of a non-negotiable promissory note, made after maturity. The defense is, that the plaintiff, who was a stranger to the note, at the request of the makers, and for the makers, paid the amount of the note, in full, to the defendants, as holders, and thereby discharged the same; that after such payment, the defendants, without indorsement, delivered the note to the plaintiff) for the use of the makers; that after such delivery, the defendants, at the request of the plaintiff, wrote their names on the back of the note, (the indorsement sued on,) with an express understanding, between the parties, that such indorsement was to be used by the plaintiff, as evidence, to the makers, that he had paid the note for them, and for no other purpose. Meld, that the admission of parol proof of sueh defense, is not a violation of the rule of evidence, that parol testimony is inadmissible to explain, contradict, or vary, the terms of written instruments.</p> <p>S. If a motion to rule testimony from the jury, embraces competent, as well as incompetent testimony, it is not error to overrule the same.</p> <p>3. Evidence of facts, which are first introduced in a case, by way of rebutting testimony, may be rebutted by other proper evidence.</p> <p>4. When all the testimony in chief has been introduced by the parties, they “ will then be confined to rebutting testimony, unless the court, for good reasons in furtherance of justice, permits them to offer evidence in their original case.” (Code, seo. 266.) But judgment will not be reversed for permitting evidence in the original case to be offered under such circumstances, unless it appears affirmatively that good reasons in furtherance of justice were not shown.</p>

<p>1. A promissory note in the form, “ I promise,” <fcc., and signed by several parties as makers, is joint as well as several.</p> <p>2. After the delivery of a joint and several note, the addition of the name of a third person as maker, with the privity of the holder, but without the consent of the original signers, vitiates the note as to the latter; otherwise, if the new party, through inadvertence or mistake, signed so as, prima facie, to indicate that his name was added in the character of maker, when in fact such was not the intention.</p> <p>3. Where a note has been materially altered, it is error for the court, in its charge, to make the legal effect of the alteration depend on what the holder conceives tobe its effect, or on his design as to the future use of the note.</p>

The original action was brought by the defendant in. error against the plaintiff in error, upon a policy of insurance executed by the latter to the former.

<p>"Where judgment in a civil action is taken against several defendants, only some of whom have appeared in the action or been served with process, and those not appearing or being served afterward release all error in the proceeding, the defendants served with process cannot reverse the judgment for such error or irregularity.</p>

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

<p>Error to the court of common pleas of Summit county. Reserved in the district court.</p> <p>On the 7th day of January, 1871, the defendant in error Mary A. Pomeroy commenced an action under the seventh section of the act of May 1, 1854, entitled “an act to provide against the evils resulting from the sale of intoxicating" liquors in the. State of Ohio,” as amended April 18, 1870, before a justice of the peace, against the plaintiff iu error, and James Martin, Frank Peterman, and John Don hauser, claiming $300 damages, for injuries sustained by her m her means of support, in consequence of the intoxication of her husband, George ~W. Pomeroy.</p> <p>Judgment was demanded against James Martin and Frank Peterman, upon the ground that the intoxication of her husband had been caused by intoxicating liquors sold by them to him at divers times between the 1st of December, 1870, and the 3d of January, 1871; and against John Don hauser, upon the ground that he was the owner of the premises upon which the liquor was sold to her husband by Martin and Peterman, and that he knowingly permitted, intoxicating liquors to be sold upon his premises in violation of law, during said period; and against John Bowers, plaintiff in error, upon the ground that he was lessee of said premises, under Donhauser for a term of years, including said period, and had sublet the premises to Peterman for the purpose of selling intoxicating liquors thereon in violation of law, and that he knowingly permitted Martin and Peterman to sell intoxicating liquors on said premises, to her husband, during said period, contrary to law.</p> <p>On the 28th of January, 1871, trial was had before a jury, upon a plea of not guilty, and a verdict and judgment rendered against all the defendants jointly, for the amount claimed, and costs.</p> <p>It appears from the record that upon the trial, the plaintiff, to maintain the issue upon her part, offered evidence tending to prove, among other things, that the defendant John Donhauser was the owner of the premises upon which unlawful sales of liquor were made by Martin and Peterman, to her husband, and that on the 17th day of March, 1870, Donhauser leased the premises to Bowers for the term of two years from and after the 5th day of April, 1870. That Bowers went into possession under the lease, and afteiward, on the 1st day of October, 1870, sublet the same to defendant, Peterman, who went into possession and occupied the same as a saloon, during the period of said unlawful sales.</p> <p>It also appears that on the trial the defendants Donhauser and Bowers moved the court to dismiss the action as against them, “ because the court has no jurisdiction to try said cause of action against them, in this, to wit, that the action is one in which the title to real estate may be drawn in question, and is not an action for trespass ;” which motion was overruled and defendants excepted.</p> <p>The defendant Douhauser also moved the court, after the plaintiff had rested her case, to dismiss the action as to him, because the date of his letting to Bowers was before the amended act of April, 18, 1870, took effect; which motion was overruled and defendant excepted.</p> <p>Other questions were made during the trial before the justice, which are omitted here, as they are not considered in the opinion of the court.</p> <p>Donhauser and Bowers afterward filed a petition in error in the court of common pleas of Summit county to reverse the judgment of the justice, assigning for error, among other things, want of jurisdiction in the justice. Upon hearing, the court of common pleas reversed the judgment as to Don hauser, but affirmed it as to Bowers.</p> <p>Afterward on the 7th of September, 1871, Bowers hied his petition in error in the district court of Summit county to reverse the judgment of the common pleas affirming the judgment of the j ustice as to him. This petition in error was reserved in the district court for decision here.</p>

<p>Error to the court of common pleas of Crawford county.</p> <p>The original action was brought on the 1st of April, 1871, by the plaintiff in error, a married woman, against the defendant in error, under the statutes of May 1st, 1854 (S. & C. Stat. 1431), and April 18, 1870, (67 O. L. 101), to recover damages resulting from the drunkenness of her husband, caused by intoxicating- liquors sold to him by the defendant.</p> <p>The petition contains three causes of.action, which are separately stated and numbered. In each, it is charged that the defendant had been guilty of a series of unlawful saler of liquor to the plaintiff's husband, covering a period of some four years next preceding the commencement of the suit, her husband being an habitual drunkard, and the defendant knowing him to be such. In the first count of her petition she says, that by her husband's said drunkenness she has suffered injury in her “ property,” which consisted of a hor.se, and one hundred dollars in money. She charges that the husband squandered the money in dissipation, and that he sold and delivered the horse to the defendant, in payment of liquor bills.</p> <p>In the second count she charges that she was injured in her “ means of support.” She alleges that prior to his drunkenness her husband had ample means, which had all been squandered and lost by his said drunkenness ; that by the same cause he has become physically unable to labor, and utterly incapacitated to do any business for the maintainance of himself and family; and that for the last nine months she has had no means of support, except what she derived from the charity of her neighbors, and that she is now without any means of support whatever.</p> <p>The third count charges that plaintiff has been injured in her “person,” in this, that her husband at times became delirious, wild and dangerous, and she has been compelled to nurse and attend upon him, and has been put in much fear, and finally compelled to abandon his house, on account of his bad conduct and disagreeable society. But she complains of no actual violence to her person.</p> <p>The answer admits the marriage of the plaintiff, but denies all the other allegations of the petition.</p> <p>On motion of the defendant, after the filing of his answer, the second and third counts of the petition were stricken out. By the journal entries in the record it appears that these two counts were stricken out before the trial of the cause, and that the parties went to trial upon the first count alone; but by a bill of exceptions afterward taken in the cause, it seems that these counts were stricken out during the trial. No reason seems to have been given for striking them out. To the order of the court striking out these counts of the petition the plaintiff excepted.</p> <p>On the trial evidence was given to the jury by the plaintiff, tending to prove all the averments of the first and second counts of the petition. The plaintiff also offered to give evidence tending to prove the averments of the third count; but the evidence so offered was objected toby the defendant,, and was excluded by the court; to which order of the court the plaintiff excepted.</p> <p>At the close of the evidence the court instructed the jury, among other things, as follows : “ Plaintiffs petition alleges that she has thus been injured in her person, her property, and her means of support, and that such injuries were occasioned by her husband, when thus intoxicated.”</p> <p>The court then recited the provisions of the act of May, 1st, 1854, and the act of April 18, 1870, amendatory thereof, and explained to the jury the difference between said acts, namely, that under the former act the defendant would only be liable for the consequences of illegal sales of liquor, while under the latter act he would be liable for legal as well as illegal sales; and told the jury that as to sales of liquor, made prior to July, 4th, 1870, the case would be governed by the act of 1854; and only as to sales made after the 4th of July, 1870, would it be governed by the act of April 18,. 1870. The court then proceeded to further instruct the jury as follows:</p> <p>“ The proof, in order to entitle the plaintiff to recover, must show an injury: 1. To her person; 2d. To her property ; or 3d. To her means of support. You will therefore inquire — was she injured in her person : * * * * * Mortification, and sorrow, and loss of his [the husband's] society, is not enough. Her mental agony, mortification, and loss of her husband’s society, is her misfortune, for which she has no remedy under this law. If she had been attacked by her drunken husbaud, and injured in her person by his violence, she could recover.” *****</p> <p>“ Next: is she injured as to her property. Prima facie, the wife does not own property in the possession of her husband. It is presumed to belong to the husband .” * * * * u The court say to you, if the husbaud sold the defendant the horse, without the wife’s consent, he conveyed no title. And if she knew it, it was her duty to so tell the purchaser in a reasonable time, and notify him to return it. * * * * She should take steps to regain the property, and if she omitted to do so, and omitted to notify the defendant, she would acquiesce, and the sale becomes valid, and she cannot recover here or otherwise, ***** but if the husband takes possession of the wife’s property, and puts it out of her reach, she might recover,” &c.</p> <p>“Next: In regard to her means of support. What were they ? That you will fiud from the evidence. When did the insufficiency of her support arise ? She has no legal, right to complain if he squanders his own property. There is another statute for cases like that. She may procure the appomtmeut of a guardian for him. * * * * This is a civil action. She cannot complain or obtain relief in this kind of action against his squandering his own property. You will, therefore, find when her means of support ceased. '* * * * If her means of support were cut short by Ms intoxication, then she is injured. * * * * You will, therefore, inquire who caused those intoxications of plaintiff’s husband after the time you find the support to have ceased. * * * * Such sale of liquor by defendant must go directly to such injury. * * * * The injury must have been the immediate result of the intoxication. * * * It must be an injury while her husband was so intoxicated. * * * * It is for you to inquire what that injury was. * * * # How much time did he lose ? * * * and did the plaintiff suffer for means of support in consequence ? * * * # ;por jf glue had plenty during that time, and was not in any manner deprived of her means of support, she was not injured. * * * * The plaintiff claims that if defendant, by a series of sales of liquor, caused the husband to be used up, or impaired, the defendant putting him in that condition makes himself liable. You can’t charge the defendant with the husband’s disability caused before his support for his wife failed. If the husband was used up before the property was used up, then defendant is not liable. * # * * It must be the immediate effect of intoxication. If the effect is immediately produced by the husband’s intoxication, not his insanity or imbecility contracted, then such intoxication, if caused at the time by defendant’s liquors, entitles the wife to recover. Then she has made a jprima fade case.”</p> <p>To these instructions the plaintiff excepted, asking the court at the same time to give some counter instructions, which were refused by the court.</p> <p>The jury returned a verdict for the defendant, and judgment was rendered accordingly. To reverse this judgment is the object of the present petition in error. The assignments of error relied upon are : 1. The striking out by the court of the second and third counts of the petition. 2. The rejection of evidence offered under the third count. 3. The court misdirected the jury.</p>

<p>“Where, under the 31st section of the act of 1853, “ to provide for the organization, supervision, and maintenance of common schools,” as amended in 1864, the proper boards of education constructed a joint district for the education of colored children out of two contiguous districts for the education of white children, and provided a school for colored children in the joint district equal in every respect to those for white children in the other districts, and which schools for each class of children were equally commodious. — Reid, that the act airthorizing such classification, on the basis of color, does not contravene the constitution of the State, nor the 14th amendment of the constitution of the United States, and that colored children residing in either of the districts for white children, are not, as of right, entitled to admission into the schools for white children.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the district court of Auglaize county.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

<p>1. The original tally sheet of a municipal election, duly certified by the officers thereof, is, on a proceeding in quo warranto, prima facie evidence of • the election to the office of mayor of the person for whom it shows a majority of the ballots cast for said office was given.</p> <p>2. The officers of an election board, after its regular dissolution, are fnncti oficio, and their subsequent acts in that character unauthorized. Hence where a municipal election board had regularly dissolved, and the box in which the canvassed ballots wore replaced had remained five days in an exposed place of easy access, a subsequent tally sheet, made on the fifth day, on a recount of the ballots then found in the box, by four officers of the municipality, some of whom were members of the election board, will not he received to impeach the original canvass and tally sheet.</p>

<p>Motion for leave to file a petition in error to reverse the the judgment of the district court of Cuyahoga county, reversing the judgment of the court of common pleas.</p> <p>On the 20th of December, 1867, the plaintiff in error commenced a civil action for the recovery of money, in the court of common pleas of Cuyahoga county, against Oliver R. Butler and Frederick Jewett, non-residents of the State of Ohio, and, at the same time, upon a proper showing, procured an order of attachment to issue against the goods and effects of the defendants, with notice of garnishment to the defendant in error, a corporation then existing in the State of Ohio, under the name of the Cleveland, Painesviile and Ashtabula Railroad Company, for the purpose of attaching in its hands forty shares of its capital stock, alleged to be the property of the defendant Oliver R. Butler.</p> <p>On the 24th day of the month the summons was duly returned by the sheriff, endorsed “not found,” as to eachiof the defendants, and on the same day the order of attachment was returned endorsed : “ On the 20th day of December, 1867, at 5 o’clock 27 minutes p. m. of said day, I served this writ by delivering a true and certified copy thereof, and a notice to appear and answer as garnishee in the within entitled cause, in the court of common pleas for said county, as by law provided, to Amasa Stone, jr., president of the within named Cleveland, Painesviile and Ashtabula Railroad Company. The within named defendants not found in my county, nor any property belonging to them whereon to attach by virtue of this writ.”</p> <p>On the 26th of the same month an affidavit, in due form, was filed for service by publication, upon the ground that defendants were non-residents of the State, and had in this State property and debts owing to them sought to be taken by attachment in the action.</p> <p>On the 81st of the same month the defendant in error, by George B. Ely, its treasurer, made answer as garnishee, as follows : “ The said railroad company, for answer to the garnishee process and notice issued against it, says that there is not, and was not at the date of the service upon it of process and notice in this case, any money owing from it to the defendants, or either of them; nor have they, or either of them, any stock in said Cleveland, Painesville and Ashtabula Railroad Company, as appears on the books of said company, or as known to it; nor has said company any property or credits of either of said defendants in its possession or under its control. It further says, that on the 3d day of May, 1867, the said Oliver R. Butler transferred, as appears from the books of the company, to Mary J. Butler, twenty-three shares of said stock, and has held none since that date of which the company has any knowledge.”</p> <p>At the February term, 1869, of the common pleas, proof of service upon the defendants by publication for six consecutive weeks from and after the 27th day of December, 1867, was duly made, and at the same term judgment by default, and upon proof of the claim, Avas rendered against the defendants in the action for $1,331.66 and costs ; and at the same time an order Avas made by the court for the sale of forty shares of the capital stock of said railroad company, as property attached in the hands of the defendant in error, and belonging to the said Oliver R. Butler.</p> <p>Jurisdiction of the persons of the defendants in the action was not acquired by the court otherwise than as above stated.</p> <p>On the 27th of April, 1869, the sheriff, under an order of the court, in due and proper form, sold to the plaintiff in the action forty shares of the capital stock of the Cleveland, Painesville and Ashtabula Railroad Company, as the property of said Oliver R. Butler, seized under the proceedings in attachment.</p> <p>Afterwards, on the 13th day of May, 1869, the plaintiff requested and demanded of the railroad company the transfer and delivery to it of the forty shares of its capital stock so purchased, but the railroad company refused aud neglected to comply with such inquest and demand.</p> <p>Thereupon the plaintiff in error, on the 9th of June, 1869, commenced its action against the defendant in error, in the court of common pleas of Cuyahoga county, to recover the value of said forty shares of stock, claiming, in addition to the facts above stated, that, at the time of the service of garnishee process on the defendant, the said Oliver R. Butler was in fact the owner of said stock; that the transfer thereof by him to Mary J. Butler, who was his wife, was without consideration, and was made with intent to defraud the plaintiff; that the stock was in fact and in law seized and held by the attachment; that, by Virtue of said proceedings and sale, the stock became and was the property of the plaintiff, and that the defendant wrongfully refused to transfer and deliver the same to the plaintiff when so requested.</p> <p>The defendant, by its answer, denied the validity of the judgment against Butler and Jewett, and of the order of sale ; denied that the court had jurisdiction to render aud make the same; denied that the court had jurisdiction of the persons of the defendants in that action; denied that the stock was seized' or held by the attachment; denied that Oliver R. Butler was the owner thereof at the time of the service of notice in attachment, or that he had fraudulently transferred the same to Mary J. Butler, or that the transfer was without consideration; denied that the defendant held the same for the benefit of any one but Mary J. Butler; denied that any interest had passed to the plaintiff by the sale under the order of court, and denied that the defendant had any right or authority to transfer the same to the plaintiff, or that it had wrongfully refused to do so.</p> <p>It appears, also, from the record, that one Sylvanus D. Lewis was made a defendant in the action, who answered the petition by a general denial, and set up, by way of defence, that he was the owner of the stock, under a purchase from Mary J. Butler, made on the 22d day of ^December, 1868, for a full consideration, and without any notice or knowledge of the proceedings in attachment, and that the certificates of the stock had been duly assigned to him.</p> <p>The plaintiff, by reply, denied the new matter in the answer of Lewis, and averred that he also was a fraudulent holder of said certificates, and had paid no consideration therefor, &c.</p> <p>Upon the issues thus made the case was finally submitted to a jury, at the February term, 1871, of said court, and a verdict was rendered for the plaintiff for $2,353.20.</p> <p>The defendant thereupon moved to set aside the verdict and for a new trial, because of divers errors upon the record, and errors intervening at the trial, and because the verdict was contrary to law and the evidence.</p> <p>The motion was overruled, and judgment entered on the verdict, and the defendant excepted, and took a hill of exceptions containing all the testimony, the charge of the court, and exceptions to sundry opinions and rulings of the court during the progress of the case.</p> <p>On the 6th of July, 1871, the defendant below filed its petition in error in the district court of Cuyahoga county, to reverse the judgment of the court of common pleas for divers errors therein assigned, and afterwards, at the September term, 1871, of the district court, the judgment of the court of common pleas was reversed.</p> <p>This motion is now made for leave to file a petition in error to reverse the judgment of the district court, upon the ground that the district erred in reversing the judgment of the court of common pleas.</p>

John Thall was indicted and tried at the October term, Í871, of the Clarke common pleas, on two counts : the first for burglariously breaking and entering a “ still-house” with intent, &c.; and the second for grand larceny. The jury returned a verdict of guilty on the first count, but made no response to the second. The prisoner, by his counsel, inter, posed a motion to set aside the verdict and for a new trial on the grounds : 1.

Reserved in the district court.. In the common pleas a judgment was entered for the defendant, on a general demurrer to the plaintiff’s petition, and the case reserved for decision here is a petition in error to reverse that judgment. The only question, therefore, is, whether the original petition sets forth a good ground of action.

Reserved in the district court. The original action came to the court of common pleas of Hancock county, by appeal from the judgment of a justice of the peace, and was brought by John Cox, the plaintiff, against Emanuel Phifer, the defendant, for wrongfully •cutting down one rod of hedge-fence growing on the premises of the plaintiff.

The original petition, filed by Carr against Hamil in the ‘Court of common pleas, was for the recovery of the possession of real estate.

The original action was brought by Gaynor against Corry to recover assessments made upon sundry lots for the improvement of a street. The petition sets forth all the facts necessary to show a valid assessment against the lots, giving separately the amount assessed against each. It alleges that the work was duly let to a contractor, who has fully completed it, and that the assessments so made have been assigned to the contractor, and by him assigned to Gaynor.

<p>1. The right of stoppage in transitu is regarded with favor, and the engrafting of further restrictions upon the rule governing it, is not warranted by public policy.</p> <p>2 The right of stoppage in transitu is extinguished only by the actual and complete delivery of the goods consigned, to the vendee or to some agent of and for him.</p> <p>3. In the absence of an express or implied understanding to the contrary, the employment of a carrier by a vendor of goods on credit, constitutes all middlemen into whose custody they pass agents of the vendor, for their transportation and delivery; until the complete performance of which duty the goods consigned are deemed to be in transitu.</p> <p>4. The transfer of goods, consigned in the usual general terms, by a vendor on credit, from the coaches of a carrier by railway, to a freight depot or warehouse- at the station designated for their discharge, in the vicinity of the vendee’s place of business, there to await the payment by him of the charges thereon, does not ipso facto constitute a delivery thereof; but will be deemed the reasonable exercise of a right and duty by the carrier in the course and furtherance of their transit, referable to and in virtue of his original employment by the vendor, not as an act of, but as precedent to delivery.</p> <p>5. The seizure of goods m transitu at the suit of the vendee’s creditors, does not extinguish the right of stoppage, and the vendor on credit may maintain an action for them or their value against the officers making the seizure.</p> <p>3, The commencement of an action against a vendee by the attorney of a vendor for the price of goods sold on credit, without the vendor’s knowledge, and before either was apprised that the transitus was not terminated, is not a waiver of the right of stoppage, if it be. asserted within a reasonable time, and the improvident action be not prosecuted. . It is not competent in rendeiing judgment for the value of goods unlawfully seized by an officer, to order that it bear interest after its rendition at a rate exceeding six per centum.</p>

Eerok to the district court of Eoss county. On the 20th of October, 1865, a petition was filed in the court of common pleas of Eoss county, by Isaac Stookey — -a judgment creditor, who sued for himself and John McNally, and other named judgment creditors of Jacob Bush — against Jacob Bush, William Bush, Strawder James, and Allen Bush, to set aside a conveyance, made January 31st, 1861, by Jacob Bush, of certain tracts of land described, to William Bush and Strawder James,…

Callahan was convicted under the twenty-fourth section ■of the crimes’ act, (S. & S. 265,) for maliciously shooting Thomas Keegan, with intent etc. The indictment, in differ It appears' from the record that about half-past seven . o’clock in the evening of March 4th, 1871, Keegan was in :the custody of two police officers, who were conducting Rim to one of the station-houses, in the city of Cincinnati, 'One having hold of each arm.

Mandamus. These cases are separate proceedings in. mandamus, to determine the respective rights of Boren & Guckes, and of E. L. Farman, separate bidders, to have a contract awarded to, and made with them, by the commissioners of Darke county, for furnishing materials and building a court house ■in that county. The commissioners accepted the bid of Rouzer & Rouzer, and contracted with them.

Reserved, on special verdict, in the district court of Hamilton county. This is an action of assumpsit, originally brought in the ■court of common pleas of Hamilton county, to recover damages for the breach of a written contract of which the following is a copy : “ Agreement entered into at New Orleans, La., on the 2d ■day of January, eighteen hundred and fifty one, between Messrs.

. In December, 1863, the plaintiff instituted proceeding? in the probate court, for condemnation of a right of way for its road over defendant’s land. The jury assessed the defendant’s damages at $2,804. A motion was made by the company for a new trial. This motion was overruled, and the company took a bill of exceptions.

This cause came into this court ou a petition in error to reverse a judgment of ouster entered by the district court of Hamilton county in a proceeding in the nature of quo warranto against Henry M. Cist, the plaintiff in error. The facts as disclosed by the record, are as follows : In June, 1866 a portion of sub-school district No. 15, in Mill Creek township, Hamilton county, was organized into an incorporated village, under the name of College Hill.

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

Amanda Musser made complaint, under the statute providing for the maintenance of illegitimate children, in which, she accused George M. D. Stewart of being the father of her illegitimate child. Upon this complaint a warrant issued, under which Stewart was arrested and brought before' the magistrate. This officer heard the complaint, and, upon his order, Stewart entered into a recognizance for his appearance at the next term of the court of common picas.

On the trial the State gave evidence tending to show that the horse was stolen on the night of the 17th July, 1871, in Warren county, about twenty-five miles from the city of Cincinnati ; that, on the morning of the 17th, about half-past four o’clock, Armstrong passed a toll gate, with the stolen horse, eight miles from the city, going towards the city, where the horse was found on the morning of the 18th.

Appeal. Reserved in the district court of Hamilton county. In October, 1853, Scott Jenks died intestate, without-issue, or heirs in the descending line, and seized in fee simple of two tracts of land in Hamilton county, which he acquired by purchase. He left surviving him his widow, the appellant, Eleanor Jenks, and two brothers of the whole blood, William D. Jenks and Stephen B. Jenks.

Reserved in the district court. On the 20th of March, 1865, the trustees of Westfield township, Morrow county, brought an action against the board of directors of the Infirmary of Marion county, to recover for temporary relief furnished to Susan Smith, who, the petition alleges, is an insane pauper, and has a legal settlement in Marion county, in which there is an infirmary, and in which she had previously been placed, upon the war rant of the trustees of Richland township,…

Reserved in the district court. The original action was-brought by Hubbard against the city of Toledo to recover damages resulting to' him by the vacation of that part of the Wabash aud Erie Canal known as the Manhatten Branch. . The questions presented in the cáse arise on the pleadings.

The original action was brought in the court of common pleas of Union county, in 1867, to foreclose a mortgage. The case was appealed to the district court.

Appeal. Reserved in the district court of Cuyahoga county. The plaintiff brought his suit to restrain the collection of a judgment rendered against him for the costs in a prosecution in which he was convicted and sentenced for manslaughter. The plaintiff claims that he is released from the judgment for costs by virtue of a pardon from the governor.

Reserved in the district court. The original action was brought by the defendant in eiror against the plaintiff in error to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant.

Ekkok to the court of common pleas of Montgomery county. At the general election in October, 1871, Renner and Bennett were opposing candidates for the office of coroner, in and for the county of Montgomery. The board of canvassers declared Bennett elected to the office ; and Renner contested the election, by appeal to the court of common pleas, under the provisions of the statute.

The act of March 9, 1849, to confirm the charter of the Covington and Cincinnati Bridge Company, incorporated by an act of the general assembly of Kentucky, passed February 17, 1846, with certain limitations ” (47 O. L. L. 269), in express terms constituted the company a corporation of this State.

Reserved in the district court. On tbe 17th day of April, 1866, the plaintiff brought ;his action against the defendants., in the court of common pleas of Trumbull county, on a promissory note, of which the following is a copy : “$150.

The original action was brought by the plaintiffs in error, against the defendants in error, upon a draft for $168.82 drawn by the defendants upon their correspondent in New York city, in favor of Cochran, Holmes & Co., and by them indorsed to Charles Clark, (a fictitious name) and in that name indorsed in blank. The draft was presented, payment refused, by previous directions of the defendant, and protested, and due notice given to defendants.

Reserved in the district court. Miller brought his action in the common pleas against Woods and Dunlap upon a promissory note for five hundred dollars, made by the defendants to the plaintiff on the 12th of April, 1863, averring in his petition that the note had been lost or destroyed, and offering to indemnify them against it, in case it should ever be found.

This case, and two others like it, were formerly before this court, and are reported in 16 Ohio St. 371 et seq. The plaintiff in error brought an action in the superior court of Cincinnati, on a promissory note for $1,000.00, made in 1853, by Stegner as principal, and Huber as surety.

The suit below was brought by Church against the .¿Etna Insurance Company, upon two causes of action. The first was abandoned by him before trial j the second was for a .share of one-twentieth, or five per cent, of the profits payable to J. B. Bennett, general agent of the company, accruing or made during the period of Church’s service, from July 1, 1865, to November 1, 1865, being a period of four months, under a contract with the company, by J. B. Ben* nett, agent.

<p>1. As a general rule, a municipal corporation is not liable for injuries to buildings on lots abutting upon streets and alleys, resulting from the improvements of such streets or alleys, or from their appropriation to a public use, provided its officers and agents, in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice.</p> <p>2 If, however, it be shown that the municipal authorities, before the construction of such buildings, had so improved or appropriated the street or alley to public uses, as to indicate fairly and reasonably that no future change or other use would be required by the city or village, and the abutting proprietor, relying upon such corporate acts as a final decision as to the wants of the public, improve his lot in a manner suitable to the established use, and afterward his improvements are injured by a change, or by the appropriation of the street or alley to other uses, the corporation will be liable for damages resulting therefrom.</p> <p>3. But if the nature and extent of the improvements and uses of the street or alley have not been so indicated or defined by the city or village, abutting proprietors must, at their own peril, improve their lots with reference to such fnture uses or changes in the streets as may be made and adopted by the city or village while acting within the scope of its municipal authority.</p> <p>4. Under the laws of this State, sewerage is one of the legitimate uses to which the public streets and alleys of the city of Cincinnati may be appropriated by its municipal authorities.</p>

Appeal. Reserved in the district court of Delaware county- The material facts disclosed by the record in this case are as follows : In 1845, Otho Hinton and his wife Rebecca, joined in a mortgage of realty to the plaintiff. In 1847, Otho Hinton, by deed in which his wife did not join, conveyed his equity of redemption.

<p>Error to the superior court of Cincinnati.</p> <p>The defendant in error filed a petition in (he superior court of Cincinnati, of which the following is a copy :</p> <p>“ Plaintiff1 says that defendant is a corporation duly incorporated under ihe laws of Ohio ; that it is a common carrier of passengers ; that it has a street railroad track on Fourth street, in said cily, between Broadway and Race streets, in said cily ; that it has street railroad cars running on said track, for lhe carrying of-passengers therein; that it has one of these, cars numbered 5 ; that it has in its employ, on ibis car, a conductor, and that all of (hese statements were equally true of, and applicable lo, defendant on the 2thh day of July, 1804. Plaintiff further says, that on the night of said 2Cth day of July, at 10 o’clock, he and his wife got into said car no. 5, at the corner of Fourth and Sycamore streets, the car, at their request, having stopped to let them get on; that they thus got on said car to ride therein as passengers a few squares ; that they had in their hands and were ready to pay, when called upon, the charge for their transportation, but they were not called upon to payanylhing; that after they were upon the car, the conductor thereof, appointed by and in the employ of defendant, ordered plaintiff to go to the front of the car near the driver,' and to stand on the platform in front of the car : that plaintiff declined to do this, and took a seat in the car with his wife, claiming, at the time, he had a right to do this ; that the .said conductor, then, in a rude manner, ordered the plaintiff to get out of the car. Plaintiff declined to obey this order, and thereupon the said conductor called to the driver to come and assist him (the conductor) to put plaintiff off the car, but the driver did not come; then the conductor ordered the car to move on ; that, as the car got opposite Hammond street, the conductor stopped it and stated to the plaintiff he would go and get a policeman, who would put him (plaintiff) out of the car, to which plaintiff replied that he would obey the order of an officer that the conductor returned to the car without a policeman, and ordered it to move on ; that when the car reached Vine street, or near it, the conductor stopped it and went out for the purpose of getting some rowdies and gamblers to assault plaintiff and drive him from the car; that in a short time the conductor returned with some five of these rowdies and gamblers, who, at the instigation and by the procurement of the conductor, entered the car, and with force and violence assaulted plaintiff, seized him by the throat, dragged him from the car and struck him, wounding and cutting his face ; at the same time they pushed plaintiff’s wife from the car and struck her. Plaintiff says this was done by the procurement and direction of the said conductor, he being present, ordering and assisting the said rowdies and gamblers, and he being, at the same time, in the employ of the defendant as their conductor, and, as such, having control of the car ; that plaintiff was thus, by the defendant, through its conductor, assaulted, beaten and driven from the car as aforesaid. Plaintiff further says that during all this outrage upon him, and during the time he was in the car, ho and his wife were in an orderly and proper manner conducting themselves, being seated upon the seat of the car; that the car was not full, but there was abundant room for many such passengers; that neither plaintiff nor his wife were sitting so as to touch any other person; that they were sitting off by themselves, there being only two other persons seated on the side of the car in which they were sitting.</p> <p>“ Defendant therefore says he has been injured and damaged by the defendant, by the above acts, to the amount of $10,000, for which sum he asks judgment.”</p> <p>To this petition there was a general demurrer by the railroad company, on the ground that the facts stated did not constitute a cause of action against it.</p> <p>The demurrer was overruled, and no further pleading being filed by the company, the case was set for trial for the assessment of damages by a struck jury.</p> <p>When the jury was called, twelve of the jurors appeared, but, upon their own application, the court excused seven of them from serving, and directed the plaintiff to fill up the panel from bystanders ; whereupon the counsel for the company moved the court to postpone the trial until another jury could be struck and summoned, in accordance with the statute. But the court overruled the motion ; to which the company excepted. Thereupon the company asked the court to issue a special venire to fill up the panel; and the court ordered one to issue, containing the names of seven persons selected by the court. Upon the return of this venire, there still being vacancies, caused by challenge and exceptions, the court ordered the sheriff to fill up the panel by talesmen; but the company objected thereto, and moved the court to issue another venire; but the court overruled the motion and directed the sheriff to proceed as already directed ; to which the company excepted.</p> <p>The case haying been submitted to the jury thus impanneled, they returned a verdict for the plaintiff below for $800 ; and the defendant moved for a new trial for the following among other causes:</p> <p>First. For irregularity in the proceedings of the court in impanneliug the jury.</p> <p>Second. Because the damages are excessive, and appear to have been given under the influence of passion or prejudice.</p> <p>The plaintiff having remitted $300 of the verdict, the motion was overruled, and judgment rendered accordingly.</p> <p>This judgment was affirmed, on error, by the court in general term, and the object of the present proceeding in error is to reverse these judgments.</p>

<p>1. Where in a petition for partition the demandant prays for equitable relief touchini the tide of the property, the proceedi ig is to be ívgtrded as a civil action, within the meaning of the code, and, as such, subject to appeal.</p> <p>2. J. E., by his will, disposed of his property as follows: “To my beloved son James Ellison, I give a id bequeath a tract of lan 1 on th ■ waters of Beasley’s Fork of Brush creek, containing one hundred and thirteen acres (on which John Morrison now lives, and also a man of the name of Sims lives at- present on said tract), to him my said son James, bis heirs and assigns forever. And all the rest of my estate, real and personal, I give and bequeath to my be oyed wife Mary El.ison. allowing her, said Mary, to make such distribution of my said estateasshe in her discretion may judge brsi and most advisable among my children, James, Mary, William, David, El zabeth. Margaret, Ann, Robert, Bratton, and John G-lisscon. It will be understood by my beloved wife, that if she should j tdge the one hundred and thirteen acres of land bequeathe 1 above to my son James should be equal to his proportion of my estate, she will not feel herself under obligation to give him more, as it is not my wi.l to give him said luid over and above an eq ini portion with the rest. And I do hereby constitute and appoint my brother Robert Ellison, executor, and my wife Mary Ellison, executrix, of this my last will and lestameat. But should my wife Mary mirryag.iin a'ter my decease, then and in that ease it is my will that she be divested of the power given her above of disiriburing my estate, and that my estate, boJi real and personal, in that case he divided as the law may direct, yet so as not to affect the title of my son James to the bind assigned to him above.” The widow survived the testator, remaining unmarried, and du.i.ig her lifetime conveyed to some of the children named parcels of the re.,1 estat-, as and for their respective shares thereof, but died seized of the remaining parcels.</p> <p>In an action by some of the children asking for a construction of the will, and an equitable partition of the real esta.e — held:</p> <p>(1.) That the wife took a life interest only in the real estate devised, with power to distribute the remainder among the children named in the will.</p> <p>(2.) That- the power so granted to the widow was not one of unlimited disci-,‘tion, but required her to distribute the entire properly among the children named, giving to each what she bona fide judged to be an equal po tion.</p> <p>(3.) That under the circumstances, the power never having been fu’ly exercised, equity requires that the entire estate should he apportioned equally between all tlie children named, the partial distributions already made, together with the devise t.o James, to stand as advancements, and be accouted for as such, but not beyond the amount of the equal portirn of the party so advanced.</p> <p>(4.) That in adjusting sucb advancements, valuations should be estimated as of the date of the widow’s death, and interest thereon accounted for from that time, but excluding from the estimate improvements made by the party.</p> <p>(,5.) Where the testator at his death Judd the legal title to lands the equitable estate in which belonged to another, the widow bad power, under the will, to convey the legal title to the person having the equity, and such lands will bo excluded from the distribution.</p>

<p>1. Under the provisions of the 399th. section of the code, an action for slander does not abate by the death of the plaintiff during the pendency of the suit.</p> <p>2. In an action for slander, where certain actionable words were charged in the petition to have been spoken of the plaintiff on a day named, and at sundry other times between that day and the commencement of the suit— held, that, in the absence of a motion to separately state the different causes of action, or make them more definite, as authorized by the code, any utterance of the words charged by the defendant between the day mentioned in the petition and the commencement of the suit, may be considered as a ground for recovery of damages. But evidence of the speaking of the same words by him after the commencement of the suit, is admissible only for the purpose of proving malice in the utterance of the words mentioned and relied on in the petition as a ground of recovery, and cannot be considered as a foundation of a recovery, nor to increase the damages, further than as they affect the degree of malice with which the words spoken within the time mentioned in the petition and relied on as a ground of recovery, were uttered.</p> <p>3. A statement made by a physician that an unmarried female patient is pregnant, is noka privileged communication, unless it be made in good faith to one who is reasonably entitled to receive the information; and when made to others, and the statement is false, he is not relieved from liability to the injured party, merely because, on examination of the patient, he believed it to be true. Such belief, however, may be considered in mitigation of damages.</p> <p>4. Quere whether it is error to charge the jury, in an action for slander, that “in estimating the damages,” they may take into consideration “the pecuniary ability of the defendant to respond.” Per Day, J.</p>

<p>1. A conveyance of land to another than him by whom the consideration or some part thereof, is at the time paid or secured, vests in the latter an equitable estate pro tanto, by resulting trust, unless otherwise intended.</p> <p>2. Where a loan of money to a trustee holding the legal title, on his personal account, is in no manner induced or influenced by the conduct of the cestui que trust, the latter will not he estopped to assert his equitable estate against the creditor seeking to subject it.</p>

<p>Error to the district court of Meigs county.</p> <p>The original action was brought by plaintiffs in error against the defendant in error, in the court of common pleas of Meigs county, to restrain the collection of taxes, and was taken by appeal from a decree in favor of the plaintiffs to the district court.</p> <p>Upon the hearing in the district court a decree was rendered in favor of the defendant. A motion for a new trial was made by the plaintiffs and was overruled, and a bill of exceptions taken containing all the testimony.</p> <p>The principal error now relied upon is, that the district court erred in dismissing the plaintiffs’ petition and rendering judgment in favor of the defendant.</p> <p>Some of the plaintiffs are incorporated companies, orga. nized under, the laws of Ohio, doing business in the State of Ohio; others are incorporated companies organized under the laws of the State of West Virginia, doing business in the State of West Virginia. Valentine B. Horton, one of the plaintiffs, is a citizen of the State of Ohio. They are all engaged in the business of manufacturing and selling salt.</p> <p>In their petition the plaintiffs set forth in substance the following facts:</p> <p>The several plaintiffs, in order to faciltate the selling and shipping of salt manufactured by them respectively, appointed certain agents for that purpose, but subject to the direction and control of the plaintiffs. For the purpose of keeping proper accounts, and regulating expenditures, the agency was called the Ohio River Salt Company. After this agency was created, several of the plaintiffs associated themselves with the companies who originized the agency, and for like purposes, and with them beuame principals of the agency, and owners of the personal property mentioned in the petition.</p> <p>In the prosecution of business by means of this agency, it became necessary for the plaintiffs to own a large number of flat boats, barges, and other personal property. This property was owned in common by the plaintiffs, but in different proportions.</p> <p>All the plaintiffs, except the Excelsior Salt Company, located in the county of Meigs, were taxed upon their respective shares in the joint property. Such of the plaintiffs as are companies located in Mason county, West Virginia, were there taxed for the years 1865 and 1866, and not subjected to tax in Meigs county, Ohio. The Excelsior Salt Company listed its interest in the joint property for taxation in the year 1866. For the year 1865, through the advice of the auditor of Meigs county, the Excelsior company failed to list its interest in the joint property for taxation, but should have so listed $3,640.</p> <p>At the times of listing personal property for taxation in Meigs county, for the year 1865, and 1866, the assessor returned, in the name of the Ohio River Salt Company for taxation, a valuation of $26,000 for the year 1865 ; and a valuation of $27,000 for the year 1866, to which a penalty of $13,800 was added. These returns of the assessor are averred to have been wrongful and unauthorized by law.</p> <p>It is also averred that the defendant, the county treasurer, well knowing that the Ohio River Salt Company was none other than the agency described, on the 17th of January, 1867, distrained, for the payment of the taxes and penalties assessed against it, certain property of the plaintiffs, and had advertised and intended to sell the same, in the name of the Ohio River Salt Company; and that if he should do so, the plaintiffs would be taxed double on the same property. Wherefore an injunction is prayed.</p> <p>The defendant answered, in substance :</p> <p>1. That the Ohio River Salt Company is not a mere agency of the plaintiffs, but is a joint stock company, distinct, in name and character, from the several plaintiffs, and does business, in its own name, shipping and selling salt; and is composed of several individuals associated together, having a president, directors, and managing agent, and constituted for the object of shipping and selling salt, under the name and style of such company ; and has so held and still holds itself out to the business community and the world. That, in order to carry out the object of the company, it necessarily had, at the time the tax mentioned in the petition was assessed, and still has, flat-boats, barges and other personal property, controlled by the agents of the company ; and that, at the time the tax was assessed in Meigs county, in the years 1865 and 1866, the property assessed was subject to be listed, in that county, as the property of the company.</p> <p>2. That the property thus taxed, and the property dis-trained to pay the tax, belonged to the Ohio River Salt Company, separate and distinct from the property of the plaintiffs or either of them.</p> <p>3. That if the several plaintiffs were interested in the company at the time of the levy of the tax and the distraint of the property, it was subject to the control of the company.</p> <p>4. That the taxes for the years 1865 and 1866 levied against the company, were legally assessed ; and that neither the taxes nor penalty had been paid, but were due and payable at the time of the distraint.</p> <p>5. That if the Ohio River Salt Company was the mere agent of the plaintiffs, still it should have listed the property in its possession and under its control, for the years 1865 and 1866.</p> <p>6. That neither of the plaintiffs had listed and paid the tax on their individual shares in the company.</p> <p>7. That the plaintiffs were notified by the auditor of Meigs county not to list their stock in the Ohio River Salt Company for taxation, and that he had received instructions from the auditor of state to have the property of the com•pany listed in its name, and that the property of the company should be so listed and taxed.</p> <p>On the trial the plaintiffs, to maintain the issue on their part, offered the following evidence, and it was all the evidence offered :</p> <p> The Record of the Ohio River Salt Company. </p> <p>“At a meeting of the delegates of the salt companies on the Ohio river, held at the Ohio River Salt Company’s office, Coalport, Ohio, July 31, 1857, the following salt companies were represented : Dabney Salt Co., by Y. B. Horton; Sugar Run Salt Co., by C. Grant; Pomeroy Salt Co., by C. R. Pomeroy; Hartford City Salt Co., by W. H. Healey; West Columbia Salt Co., by S. Hamilton; Coalridge Salt Co., by J. H. Guthrie; Coalport Salt Co., by Y. B. Horton and R. R. Hudson.</p> <p>“ The object of the meeting was made known by Mr. Horton, who read the articles of association, as follows r</p> <p>1 ‘ Eor the purpose of insuring system and unity of action in the disposition and sale of salt, the undersigned, manufacturers of salt, agreed to form themselves into an association, and have adopted the following articles:</p> <p>“Article 1st. — The association-shall be called the Ohio River Salt Company.</p> <p>“Art. 2d. — The business of the company shall be the shipping, transportation and sale of the salt made by the members of the association, and the company may, if deemed for its interest, buy such salt from others than members of the association.</p> <p>“ Art. 3d. — Salt manufacturers' may become members of this association by subscribing these articles, binding themselves to deliver all the salt made by them, and to conform to all the rules made in pursuance of the provisions of these articles, as to the delivery of salt, quality, cooperage and general conduct of the business.</p> <p>“ Art. 4th. — The board of directors shall be chosen annually, in the following manner, to wit: Each salt company being a member of this association shall elect a dele gate to represent its interest and to act as a member of the board of directors. The persons so chosen shall constitute the board of directors of this association.</p> <p>“Art. 5th. — The board of directors shall elect one of their members as president, and shall appoint a suitable and competent person as secretary and treasurer. The board of directors shall keep a set of books and records, in which they shall cause to be entered and recorded, in an appropriate and business-like manner, all their appointments, rules and business transactions; and these boobs shall, at all proper times, be open to the inspection of such persons or their agents as shall be interested therein. And the said board shall have power to make rules for the conduct of the business of the association, including mode and time for receiving salt, inspection of quality, mode of settling with manufacturers, and inspection of cooperage, to appoint agents, fix their compensation, and through such agents, and under such rules as they may prescribe, shall have power to transact all the business of this company, and to do whatever may be necessary, in the opinion of the board, tc carry out most advantageously the objects of this association.</p> <p>‘A quorum shall consist of such members as represent a majority of the manufacturing companies composing this association.</p> <p>“July 18, 1857.”</p> <p>“Office Ohio River Salt Co., ) “August 1, 1857. )</p> <p>‘ ‘ Board of directors met agreeable to adjournment. President called the meeting to order. Minutes of former meet ings read, and on motion approved.</p> <p>“ Committee on rules and regulations made the following report, which was adopted:</p> <p>“article 1st.</p> <p>“The president to preside at meetings, to exercise supervision over the business of the company, and call special meetings of the board when necessary.</p> <p>“The secretary to keep records of meetings, books and accounts, as directed by the board, open at all proper times to the inspection of companies interested.</p> <p>“The treasurer to receive and disburse funds of company, and to attend to financial negotiations generally.</p> <p>“•The shipping agents to be governed by direction of the board through president or secretary.</p> <p>“ The local agents to be governed by direction of the board through president or secretary.</p> <p>“ There shall be a meeting of the board of directors at the office of the company, on the second Tuesday of each month. Meetings may be called by the president at other times on his own motion, or at the request of two directors.</p> <p>“ The board shall take cognizance of the affairs of the company in as much detail as practicable; shall from time to time give directions as to the distribution and price of salt, but may confer upon the president the power to direct as to the distribution of salt, and to fix and change prices, and also upon principal agents the power to determine from time to time the price of salt in their respective districts.</p> <p>ART. 2».</p> <p>“ Uniform good quality of salt shall be aimed at, and good, cooperage. To secure these ends, salt shall be drained ten-days before it is received by this company, and shall be inspected and weighed by an agent of this company. Barrels-shall be well made, of seasoned timber; shall be sound and good, and have not less than ten good hickory hoops each, to be carefully examined when received; barrels on hand, now excepted.</p> <p>art. 4th.</p> <p>“ Returns shall be made to the office of the company from all the agencies at least once in each quarter, or oftener if required.</p> <p>ART. 5TH.</p> <p>“The treasurer of the company shall have power to indorse in the name of the company all the paper received for salt sold, and each member of the company shall be bound, for the indorsement. No paper shall be made by the company, except by special vote of the directors — two-thirds of' the directors present voting in favor.</p> <p>art. 6th.</p> <p>“ Provision shall be made at as early a day as practicable to-have all the salt freighted in steamboats and barges.</p> <p>art. 7th.</p> <p>“ Dairy and table salt may be made by any member of this-company. The price allowed to each company shall be in proportion to the proceeds compared with common salt.</p> <p>art. 8th.</p> <p>“The secretary of each salt company to report to the secretary of the Ohio River Salt Co. the amount received for retail sales and pay over the same monthly.” '</p> <p>R. R. Hudson made the following statement: “ Eor the-purpose of making an equitable distribution of salt in the various markets, to avoid competition in price, and reduce cost of handling salt, the plaintiffs agreed to and appointed joint agents to ship and sell salt, who were under the imme* diate control and direction through a secretary, all of the plaintiffs having an equal voice in controlling, and all agreeing to and paying their proportion of expense, and receiving their proportion of sales pro rata per bushel for the amount of salt deposited with these agents. To transport this salt to market the plaintiffs purchased quite a large number of barges, lines and other equipment, which property is scattered and used on the Ohio, Mississippi, Cumberland and Illinois rivers. This property is never all of it in this State, county or township, and but a small portion of it is ever in this county at one time, and especially so in the spring, when heavy shipments are made, which happens to be the time for listing property for taxation. Over one-third of this property is now owned in the State of West Virginia. At the time of year when property is listed for taxation, a valuation of this property is made out pro rata to each plaintiff — each plaintiff listing and paying their own tax, except the Excelsior Salt Company, in 1865, who were induced not to list their portion, through the influence of the county auditor. This property is not owned or claimed to be owned by these agents. They use it under the control of and direction of the plaintiffs who are the sole and exclusive owners.</p> <p>“I am secretary and treasurer and managing agent of the Ohio River Salt Company. Furnaces located partly in Mason county, West Virginia, and partly in Meigs county, Ohio. Home office of Ohio River Salt Company, was located in Coalport, Meigs county, Ohio, for the reason that inside there each Salt Company has a representative or member in Ohio River Salt Company to direct agency. Property used by Ohio River Salt Company consists of barges, lines, &c., bought by the Ohio River Salt Company, and assessment made on each company for pro rata when necessary to pay the same. The property in 1865 listed for taxation, by making aggregate estimate of all the property, and dividing to each in proportion to quantity of salt furnished Ohio River Salt Company by each. In this way all the property used by Ohio River Salt Company is listed for taxation. The name ‘ Ohio River Salt Company ’ was adopted merely for convenience in managing and carrying on joint business of selling salt manufactured by all the plaintiffs. All contracts for sales of salt made in the name of the ‘Ohio River Salt Company;’ all purchases made by the same. We make no purchases only such as are incident to and necessary to carry on the business of shipping and selling salt, except the purchase of some salt prior to and since 1865. The plaintiffs are consulted in reference to purchase of salt before made by agents of ‘ Ohio River Salt Company.’ I return to furnaces in West Virginia list for taxation, same as to those in Ohio. But small portion of property used by Ohio River Salt Company is in this county at any one time. The barges, lines, &c., used by the furnaces in shipping their salt. Some of the property never here. ‘ Ohio River Salt Company ’ at times takes temporary leases, in its name, of real estate for purposes of storing salt. Have agents in Louisville, Cincinnati, St. Louis, &c. Office furniture at Louisville, Cincinnati and St. Louis. Also lines used for fastening barges. Proceeds of salt sold divided pro rata monthly, and passed to furnaces respectively, less expenses incurred in shipping and selling.</p> <p>And on cross-examination further states “that, agents of Ohio River Salt Company at different points settle with me here ; they do the business in the name of the ‘ Ohio River Salt Company,’ and are under direction of board of ‘ Ohio River Salt Company.’</p> <p>“All the property included in list of taxation, whether here or elsewhere. The plaintiffs individually cannot control the property used oy Ohio River Salt Company. It is all under control of agency. All hands are hired and directed by the Ohio River Salt Company. We have sometimes lumber on hand to repair barges. Ohio River Salt Company owns two horses and two buggies. Ohio River Salt Company executes notes in its own name. When suits are brought plaintiffs are named. Company was organized May 17th, 1857. Prior to 1865 property was listed in the name of ‘Ohio River Salt Company. ’ Has a president. Adopted articles of association and by-laws. Salt of all companies must pass through the hands of ‘ Ohio River Salt Company ’ for purpose of sale, except a small retail business. (The third article of constitution not enforced since the first year.)</p> <p>Y. B. Horton testified as follows : “I helped organize the company. The delegates control all the operations of the company. The board decided that under the present organization ‘ Ohio River Salt Company ’ could not own steamboats. The mode of assessment changed by board prior to 1865, making it the duty of Mr. Hudson to furnish each company with its proportion of property to be listed by them for taxation.”</p> <p>It is admitted that the auditor of Meigs county notified the salt company that they must list in the name of “ Ohio River Salt Company” for the years 1865 and 1866.</p>

<p>Motion for leave to file a petition in error, to reverse a judgment of the district court of Madison county.</p> <p>The material facts disclosed by the record in this case are, in substance, as follows ;</p> <p>On the 24th of September, 1868, Horace Putnam, as principal, with others, his sureties, made and delivered to the plaintiffs in error, an unincorporated banking company, their negotiable promissory note for $5,000, payable at one year. In consideration therefor the banking company, on the same day, made and delivered to Putnam their certificate of deposit for $5,000, “payable to the order of himself on return of this certificate.”</p> <p>At the date of this transaction Putnam was, and until his death, on the 12th of May, 1869, continued to be treasuxer of Madison county. Previous to making his semi-annual1 settlement in March, 1869, he had secretly embezzled $5,000' of the funds of the county ; and, to make restitution, deposited said certificate in the county treasury. At his semi- . annual settlement, made with the commissioners of the county in March, 1869, he produced to them, with the money in the treasury, and as part of the funds of the county, the said certificate of deposit, which was by them received and counted as a part of such funds, and the auditor of the county was directed to enter the same to his credit on the journals-of their proceedings, it being the intention of Putnam then and thereby to transfer the same to the county. The commissioners, at that time, had no knowledge that the consideration of the certificate was the promissory note mentioned, above; but believed it to have been given for the money of thp county. No assignment was indorsed thereon by Putnam during his life ; but, after his decease, the certificate was, on the 19th of May, 1869, formally indorsed by his-administrators to his successor in office, at the treasury of the county, within which it then was, and subsequent to said, settlement continuously had been.</p> <p>On the 20th of May, and again on the 25th of September, 1869, the then treasurer of the county presented the certificate to the plaintiffs in error, and payment thereof having been refused, the commissioners commenced an action thereon-against them in the court of common pleas.</p> <p>In their answer to the petition filed against them, the company controverted the alleged deposit of the certificate in the-county treasury, and transfer thereof by delivery to the commissioners, in the lifetime of Putnam ; also the authority of his administrators to assign the same, averring that his-estate was insolvent, and that such transfer would operate as-a fraud upon his creditors, among whom they were numbered ; and finally they sot out the said promissory note, alleging that it was the sole consideration of the certificate, and that the whole thereof was unpaid.</p> <p>The answer is traversed by reply.</p> <p>The cause being on trial to a jury, the plaintiffs in error requested the court to instruct the jury, “ that if they found from the evidence that the true and only consideration for the said certificate of deposit, by the defendants made and delivered to the said Horace Putnam, was the promissory note, a copy of which is set forth in the pleadings, and that Horace Putnam was the principal of said note, and the other makers were his sureties, and that no part of the same has been paid, and that at the time of the endorsement of said certificate by his administrators the estate of said Horace Putnam was insolvent, that then the title to said certificate did not pass to the plaintiffs, and that it is not entitled to recover thereon against the defendants the amount thereof, even though the jury should find further, that the said Horace Putnam, after he made the said loan of the defendants, and obtained said certificate, deposited the same in the safe in his office, as county treasurer, and that on the — day of March, 1869, while the same was so deposited in the safe in the office of said treasurer, the commissioners of said Madison county went to said treasurer’s office, in pursuance of law, to examine the condition of the treasury, and make their semi-annual settlement with the said treasurer, and the said Putnam, on said examination, produced to said commissioners, along with the money in said treasury, and as part of the funds of said county, the said certificate of deposit, and the same was thereupon counted as part of the funds of said county; and that, independently of said cer tificate, there would have been a deficiency of five thousand dollars in the said treasury; and that at the time the said commissioners counted and received the same, they had no knowledge that the consideration of said certificate was the note aforesaid, but believed the same to have been given for the money of the county; and that having made the said settlement with said treasurer, they directed the auditor of said county to enter said settlement on the journal of their proceedings, and enter said certificate as a part of said settlement ; and that it was the intention of said Putnam, at the time of said settlement, to transfer the said certificate to the county as part of the funds thereof; and that the commissioners, at the time of said settlement, received it as such, and that the said certificate afterwards remained in the possession of the said Putnam, as such treasurer, until his decease, in pursuance of said settlement and arrangement, and was found in the safe of said county, in the said treasurer’s office, among other assets of said county, after his decease.”</p> <p>This instruction the common pleas refused to give, but charged the jury “ that if they found the facts as stated and recited in said instructions so asked by the defendants, the title to said certificate became vested in said county, and the plaintiffs are entitled to recover the amount thereof from the said defendants.”</p> <p>Judgment having been entered against the plaintiffs in error, and a motion for a new trial overruled, the record was removed to the district court, on error, wherein the action and rulings of the common pleas were affirmed; to reverse which leave is now asked ’to file a petition in error in this ‘Court.</p>

<p>1. If a statute in the nature of a police regulation gives a remedy for private injuries resulting from the violations thereof, and also imposes fines and penalties at the suit of the public for such violations, the former will not be regarded in the nature of a penalty unless so declared.</p> <p>2. In au action brought by a private person to recover damages for the violation of a duty imposed upon the defendant by such statute, it is a competent and sufficient defense to show (unless precluded from so doing by the terms of the statute or by olear implication arising therefrom), that the plaintiff by his own negligence contributed to the injuries complained of, and it matters not, as to such defense, whether the contributory negligence of the plaintiff arose from the violation on his part of a duty imposed upon him by a statute or a common law duty.</p> <p>2. In an action by the owner, against a railroad company, to recover damages resulting from an injury to Ms eow “ by reason of the want or insufficiency of fences,” &c., as provided by the first section of the act of March 25,1859, (S. & O. 331), entitled “an act for inclosing railroads by fences and cattle guards,” it appearing in the petition that the injury complained of was done subsequent to the taking effect of the act of April 13, 1865 (S. & S. 7), entitled “an act to restrain torn running at large certain animals therein named,” it is sufficient answer to allege: “That the plaintiff did-not live along the line of its said road, nor was his said cow grazing in any inclosed field adjacent thereto. That said plaintiff knowingly, wilfully and unlawfully permitted his said cow to run at large on the highways and uninclosed lands adjacent to defendant’s said railroad, whereby said eow went upon said road and was accidentally killed.”</p>

<p>Error to the district court of Ross county.</p> <p>The material facts of the case are as follows :</p> <p>On May 2d, 1865, Timmons and wife conveyed to Jones, in fee simple, by deed in due form, certain farm lands in-Ross county.</p> <p>It was provided in the deed that Timmons, the grantor, should have the right to harvest and remove as his own, and as personal property, about twenty acres of wheat then growing on the land; and likewise, Timmons having commenced plowing for and planting about forty-five acres of corn on the land, it was provided in the deed that he might put in the corn and cultivate the crop, and remove it when raised and gathered. The deed provides that Jones, his heirs and assigns, shall have and hold the premises, subject to the exceptions mentioned; and contains covenants on the part of Timmons that the premises, except as stated, were free and clear of all incumbrances; that he and his heirs would forever warrant and defend the premises, with the exceptions mentioned, unto Jones, his heirs and assigns, ■against all claim or claims of all persons whomsoever.</p> <p>The price of the lands was $8,000, one-half of which was paid down, and for the other half Jones gave his note to Timmons, payable in a year, without interest, and a 'mortgage on the lands to secure payment. The note and mortgage were executed and delivered the same day the deed was.</p> <p>Jones, claiming that, by the terms and operation of the ■deed, he became entitled to the land, and to its use and possession, with the exceptions mentioned in the deed, and that, by its covenants, Timmons was estopped to deny that title and right, about the 1st of July, 1865, went to the premises for the purpose of mowing the meadow, when Timmons forbid him doing so, and refused to give him possession of the land, or any part of it.</p> <p>On April 1st, 1866, Timmons left the premises, but in the meantime had the use of the same, mowed the grass and kept the hay, pastured a part of the land, and rented out pasture to others, and received the rents, &c.</p> <p>On August 28th, 1866, Jones brought an action in the common pleas to recover of Timmons for the use and occupation of the premises, and for damages alleged to have been done by the defendant to the lands by turnizig stock into the meadow, and otherwise, and asked judgment foi $500, and infcei’est from Ápx-il 1st, 1866.</p> <p>In his answer, Timmons avers, among other things, that previous to, axid at the time of, the execution of the deed, it was agreed between him and J ones that, on account of the deferred payment being withoixt ixiterest, he was to retaixi possession of the premises, and farm them as theretofore, until the time of payment matured; axid that he was to have the right to cut from growing trees on the premises thirty saw logs to make fencing lumber; and that, at the time the deed was executed, he expressed a desire to have these reservatioxis specified in writing, but was told by Jones- and the scrivener who drew the deed, that it was unnecessary, &c. Defendant insists that it would be a fraud upoxx him to give the deed the effect claimed by the plaintiff.. The defendant denies havixxg injured the premises, and coxitroverts the plaintiff’s right to recover for use and occupation, and damages, as claimed; and sets up a counter-claim for the value of the saw logs, alleging that the plaintiff prevented him from getting them, &c.</p> <p>' The reply joins issue with these allegations of the answer.</p> <p>On the trial in the common pleas, the plaintiff, J ones, to-maintain the issues on his part, gave in evidence to the jury the deed executed by Timmoxis axxd wife, and also the mortgage axxd ixote for $4,000, given by him to the plaintiff, axid gave other testimony, and rested.</p> <p>The defendant offered himself as a witness to prove the allegations of his answer as to the agreement between the parties, that he should retain possession of the lands until the maturity of the deferred payment. The plaintiff objected to this evidence ; and the court sustaixied the objection ; and defendant excepted.</p> <p>The defendant also offered himself as a witness to prove the allegations of his answer in regard to his right to cut the thirty saw logs. The plaintiff objected; but the court admitted the testimony subject to objection, and to be ruled out on further consideration.</p> <p>Afterward, in the charge to the jury, the court ruled out all the evidence in regard to the reservation of the saw logs, and charged the jury to disregard it, as growing timber could not be reserved by parol in the sale of real estate. To this ruling the defendant excepted.</p> <p>The court further instructed the jury, that the execution and delivery of the deed superseded the contract between the parties, and that the defendant could not show anything by parol inconsistent with the deed; that it entitled the plaintiff to the immediate possession of the premises; that the defendant -was a mere tenant at will, and was liable, in the action, to the plaintiff for the fair value of all the premises, except the corn and wheat lands, during the time the same’were held by him after the date of the deed. The court, also, on motion of the plaintiff, ruled out all the statements of the witnesses showing or tending to show a right to the possession of the premises inconsistent with the deed, and instructed the jury to disregard the same. To all which the defendant excepted.</p> <p>The verdict being for the plaintiff, the defendant moved to set it aside and for a new trial, on the ground, among others, that the court erred in the rulings and charge above stated. This motion was overruled and judgment entered on the verdict, and exception taken.</p> <p>On a petition in error filed by the defendant, the district court reversed the judgment of the common pleas. To reverse the judgment of the district court and to affirm that of the common pleas, the present petition in error was filed.</p>

The original action was brought by Carrier against Gordon, wTho was treasurer of Paulding county, to enjoin the-collection of a tax assessed upon a quantity of ship timber owned by Carrier.

<p>1. The acts of an officer defaeto, when questioned collaterally, are as binding as those of an officer de jure.</p> <p>2. To constitute an officer de facto of a legally existing office it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office. It is sufficient if he derives his appointment from one having colorable authority to appoint; and an act of the general assembly, though not warranted by the constitution, will give such authority.</p> <p>3. By section 174 of the municipal code, the mayor, in the absence or disability of the police judge, is authorized to select a member of the bar to hold the police court, who, it is declared, shall have, for the time being, the jurisdiction and powers conferred upon judges of police courts, and shall be styled “ acting police judges.” S.'eld: That assuming (but without deciding the question) the power of appointment thus conferred on the mayor to be unauthorized by the constitution, yet the person acting under such appointment, would be a judge defaeto.</p>

<p>Error to tbe district court of Athens county.</p> <p>October 22, 1864, Belinda Hammond brought an action in the court of common pleas of Athens county against John Hammond, for the recovery of a tract of land. He answered, denying her ownership of the land. The case was first tried to the court, (a jury being waived,) which found for the plaintiff, Belinda Hammond. A second trial was taken, as allowed by the- statute, and the jury disagreed. Belinda Hammond married Nehemiah O. Warren, who was made party plaintiff’ with her in the action. Another trial was had to a jury, which disagreed. Again, at the November term, 1866, of the court, the case was tried to a jury, which returned a verdict for the defendant, John Hammond. A motion for a new trial was made, on the ground that the verdict was against the evidence, which was overruled, and judgment was rendered against Nehemiah O.Warx-en for the costs. A bill of exceptions was taken, settixxg forth all the evidence, excepting to the ruling and judgment of the •court.</p> <p>August 5, 1867, Nehemiak O. Warren filed in the district court a petition in error, alleging the death of his co-plaintiff Belinda Hammond Warren, and asking the reversal of the judgment of the court of common pleas, on the ground that the court erred in overruling the motion for a new trial. A summons in error was issued, but was not returned. At the September term, 1867, of the district court, leave was granted to amend the petition in error, and make the-heirs of Belinda Hammond Warren parties plaintiff. Nothing appearing to have been done under this leave granted, at the next term in September, 1868, the same leave was-again granted by the court, and her heirs appeared and made themselves parties plaintiff to the petition in error. Thereupon both parties appeared by their attorneys, and, on-hearing, the judgment of the common pleas was reversed, and the cause was remanded to that court for further proceedings. No exception appears to have been taken to the action of the court in allowing new parties to be made to the petition in error, or to any ruling of the district court.</p> <p>Thereupon the present plaintiff in error, John Hammond, on leave, filed his petition in error in this court, to reverse-the judgment of the district, and he assigns for error : 1. That the court erred in permitting the heirs of Belinda Warren to be made parties; 2. That the court erred in reviving the action, and reinstating it on the docket; 8. That-the court erred in reversing the judgment of the common pleas, and in granting a new trial; 4. That there wás a misjoinder of parties plaintiff in the petition in error; 5. That said heirs “had no legal status in said action as plaintiffs; ” 6. That the judgment of the district court was for the defendants in error, when it should have been for the plaintiff in error.</p>

<p>The defendants, on a ease coming on for second trial, one of whom alone had entered demand therefor, claimed that such trial should be had as to all of them, which, being allowed by the court, resulted in the verdict and judgment complained of. Held: That having claimed and been allowed the advantages of such trial, the defendants were precluded from objecting to the regularity of the steps taken to obtain it.</p>

David T. Sherman died testate March 9th, 1867, and Ev erett Sherman was qualified as his executor. Soon after the testator’s death the appraisers of his estate, in due course of the administration, allowed to Sarah'Sherman, his widow, in money and property, the sum of $450, for her support for one year from the death of the decedent.

<p>1. Where, in proceedings under sec. 5 of the act of March 12, 1852, directing, among other things, the manner of admitting to bail in criminal cases (S. & 0.1180), the probate judge, in open court, takes an acknowledgment of the prisoner and his'sureties, in writing, in the usual form of a recognizance, the fact that the instrument of writing is signed by them, does not render it invalid as a recognizance.</p> <p>2. Such recognizance taken January 21,1868, is not invalid by reason of its condition being for the appearance of the prisoner at the next term of the court of common pleas, beginning February 10, 1868, although a term of that court, began October 14,1867, did not finally adjourn until January 27, 1868.</p>

Markward & Niman brought their action in the common pleas against Doriat to recover damages for the alleged breach of a contract between the parties, by which Doriat sold and was to deliver to Markward & Niman a certain quality and quantity of walnut lumber, at a specified price.

Eorrest was indicted and tried for murder in causing the-death of Taylor by a pistol shot. The two were armed with loaded pistols, and engaged in an affray in the house of Johnson, in the town of Sandusky. During the affray a wagon was passing with four persons in it, who heard the-firing, and stopped in plain view of the house, and within ten rods of it. They saw Taylor come out of the house, and Forrest come quickly to the corner and fire the fatal shot and jump back.

Reserved in the district court. Two cases are considered together. The original actions were these: One for the recovery of money claimed to be due the defendant in error, as part of the school fund of Mill-creek Township — amount claimed $3,783.12, with interest from April 14, 1858. The other action was for the recovery of money claimed to be due the defendant in error, as part of the funds of Millcreek Township — amount claimed $3,391.96, with interest from April, 14 1858.

August 13, 1867, Catharine Roth, an unmarried woman, resident of Loraine county, made complaint, under oath, to a justice of the peace'of the county, that she was then pregnant with a child, which, if born alive, would be a bastard, and that John Jacobs, Jr. was the father of the child.

This is a motion for a writ of mandamus to compel the defendents to allow the payment, out of the county treasury, of the relator’s bill for legal services amounting to the sum ■of $1,149, rendered under the following circumstances : Ou the 5th of January, 1869, the board of commissioners of Franklin county, (then composed of other than the present members), entered upon the journal of the board the following order, viz. “ Ordered, that E. T. DeLany, Esq., prosecuting…

The original case was a petition for dower, filed in the court of common pleas of Madison county, by Margaret A. Rankin (now Kemp), the defendants thereto being all minors. Process was served upon the minors, and also upon their general guardians. No guardian ad litem was appointed for the infants, but their general guardians appeared and put in answers.

At the March term, 1872, of tbe common pleas, George-M. Moots was indicted for stealing George P. Vernon’s mare, in Logan county, on May 9th, 1871. Plea — not guilty.

The petition of McCoy, the plaintiff, in the common pleas, dates that Wilcox, the defendant below, sold to him twenty-five head of fine wooled sheep, representing them to be sound; that they were not sound, but all, or a portion of them, had a disease known as the hoof rot, and that the defendant knew it.

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

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

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

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

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

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

In the court below Anne J. Pendleton brought an action against Mitchell & Eowland for the recovery of rent. The liability was denied. And on the trial, a jury having been waived, the court, having been requested to make a special finding of the facts, separate from the questions of law, found the following to be all the material facts of the case : 1.

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

<p>Petition for injunction. Reserved in the district court of Seneca county.</p>

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

On bill of exceptions taken, under the statute, in the court of common pleas of Logan county. At the March term, 1871, of the common pleas, Morton was indicted for embezzlement. The indictment is founded on sec. XY of the act of April 12, 1858, “ to establish the-independent treasury of the State of Ohio.” S. & C. 1610.