Volume 22 — Ohio State Reports, New Series

The original action was brought in the Superior Court of Cincinnati, by Rebecca Stallmann, administratrix of Henry Stallmann, uuder the act of March 25,1851 (S. & C. 1139), against the Pendleton Street Railroad Company, to recover damages from the defendant for causing the death of her intestate by .wrongful act and neglect. The defendant made answer as follows: 1.

<p>A cause of action against a sheriff, for not paying money collected by him on execution, does not accrue until demand is made on him for payment; and the statute of limitations begins to run from the time of demand.</p> <p>Such demand, however, must be made in a reasonable time, and, if no cause for delay is shown, should be made at least within the time limited hy the statute for bringing the action; and, in the absence of special circumstances, if no demand be shown within that time, it will be presumed to have been made at the expiration of that period, so far as regards the statute of limitations.</p>

<p>Error to the Court of Common' Pleas of Hamilton county, reserved in the District Court.</p> <p>The original action was brought by the plaintiffs in error to recover a strip of ground three feet wide, fronting on Longworth street, in the city of Cincinnati.</p> <p>The defense relied on was the statute of limitations. The case was submitted to the court upon the following agreed statement of facts:</p> <p>AGREED STATEMENT OE EACTS.</p> <p>Jane McNeely et al.l ^ g2 Q2^</p> <p>Thomas Langan. J Ham^011 Common Pleas.</p> <p>It is hereby agreed between the parties that Stephen Burrows, on the 1st day of January, 1842, leased perpetually to R. G. Masterson the following described premises, to which the said Burrows-had a good title in fee simple, viz: beginning at a point in the south line of Long-worth street as continued, and the east line of a lot of ground lately belonging to the estate of Samuel Still, deceased, extending thence south with said east line eighty feet, more or less, to the north line of a ten-foot alley; thence east along the north line of said alley twenty-three feet; thence north parallel with said Still’s east line aforesaid eighty feet, more or less, to the south line of Longworth street as aforesaid; thence west along the south line of Longworth street twenty-three feet to the beginning. That R. G. Masterson conveyed said lot and leasehold to Joseph More, May 20,1850; said More to E. P. Craneh, April 10, T854; and said Craneh to the defendant, Thomas Langan, August 29, 1860. It is hereby further agreed that said Masterson, on or about May, 1842, built a frame cottage on the west line of said lot and on the land described in the petition. It is further agreed that the plaintiffs are the owners of said land described in their said petition, if the same does not belong to the defendant by occupancy. It is further agreed between the parties that the land de-' scribed in their petition was not conveyed by deed to Masterson, nor by Masterson to More, nor from More to Craneh, nor from Craneh to the defendant,Langan. That the said Masterson, at the time of taking possession under his lease from Burrows, entered into the possession of the premises described in the petition, fenced it in with the other property, built his house partly thereon, so as to occupy these three feet as above stated; and the said Master-son, More, Cranch, and the defendant, Langan, have, by transfer of possession made at the time of the several conveyances above mentioned, remained in continuous possession and actual occupancy of said premises and cottage, including said three feet, from May, 1842, to the present time. That neither the plaintiffs, nor those under whom they claim, nor the defendant, nor those under whom he claims, were aware of any question as to the title to this strip of three feet, nor as to any error made in the orignal location of said cottage and fencing, until October, 1860, when, by a survey then made, it was discovered by the plaintiffs that these three feet were not included in the perpetual lease made to Masterson ; and thereupon the plaintiffs, in the year 1865, made, for the first time, a demand upon the defendant for the possession thereof, which was refused then as it is now, and hence this suit.</p> <p>¥m. Disney,</p> <p>Attorney for Defendant. S. Clark,</p> <p> Plaintiffs’ Attorney. </p> <p>The court found in favor of the defendant, and rendered Judgment accordingly.</p> <p>The plaintiffs filed a petition in error in the District Court, asking a reversal of the judgment on the general .grounds that the court erred in allowing the defendant the benefit of the statute of limitation.</p> <p>■ The case was reserved by the District Court for decision by this court.</p>

The original action was brought by Daniels against Levi,, upon his indorsement of a promissory note for $2,112.42,, made by S. Oberderfer to Levi. This note was given upon settlement of accounts between Daniels and 8. Oberderfer & Co., and principally, if not entirely, for the amount claimed to be due upon certain notes of a prior date, executed by Oberderfer & Co. to Daniels.

In the month of December, 1863, Barker, Hart & Cook were the owners of the steamboat Prima Donna, on which the Baltimore and Ohio Railroad Company, with others, shipped, at Cincinnati, a cargo destined for the port of Wheeling. On the passage, at the head of Captina Island, below Wheeling, the vessel struck a coal barge, which, unknown to the pilot, had the previous day been stranded and sunk in the main and usual channel of the river Ohio.

<p>Several 'writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in. writing and signed by the party to be charged therewith.</p> <p>If some only of such writings he so signed, reference must be specifically made therein to those which are not so signed ,• but if each of the writings be so signed, such reference to the others need not he made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.</p> <p>An instrument of writing in the usual form of a deed of conveyance, but not delivered as such, may nevertheless be delivered as an executory contract, or as partial evidence of a contract to sell and convey the lands therein described; and if signed and so delivered by t he vendor, and accepted by the vendee, it is sufficient, in an action thereon, against the vendor, to take the case out of the operation of the statute of frauds.</p> <p>On the trial of an issue under the statute of frauds, the assent of the plaintiff to the terms of the contract may be shown by parol testimony.</p> <p>If the contract was made by the agent of the plaintiff in such a case, the agency may be established by parol testimony, notwithstanding the ■agent may have contracted in his own name, without disclosing his agency or the name of his principal in the transaction.</p> <p>.If, on the trial of a cause, incompetent testimony be admitted with the consent of a party, but subject to his objection, and no motion be afterward made to rule out such testimony, its admission will not constitute a ground for the reversal of the judgment.</p> <p>The admission of incompetent testimony for the successful party, though excepted to at the time by the adverse party, does not necessarily entitle the latter to a reversal of the judgment. If the whole testimony in such case be placed on the record, and it appear to the reviewing court that the rejection of the incompetent testimony could not have changed the result of the trial, the error can not be considered as prejudicial to the party excepting.</p>

<p>The surplus of the proceeds of a sale of real estate by an administrator, remaining in his hands on the final settlement of his account, under the statute, is to he considered and disposed of as real estate, and the widow of the intestate is not entitled to any part thereof in her capacity as one of the distributees of the personal estate of the deceased.</p>

<p>On the trial of an indictment for murder, the burden of proving that the homicide was excusable on the ground of self-defense, rests on the defendant, and must be established by a preponderance of the evidence.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>The plaintiff in error was convicted and sentenced for the crime of rape, charged to have been committed upon Mary Donnelly, who is described in the indictment as being a woman other than the daughter or sister of said William Blackburn.” On the trial, there was evidence tending to show that said Mary Donnelly, at the time of the alleged commission of the crime, was under eighteen years of age, and was of the age of about seventeen. The state gave evidence tending to prove the alleged felonious assault, and that the prisoner had consummated the crime by actual penetration and emission, but there was also evidence tending to prove the absence of emission.</p> <p>The prisoner’s counsel asked the court to charge the jury, that if they found that Mary Donnelly, at the time of the transaction, was under eighteen years of age, they should acquit the prisoner on the ground that Mary was a “ child,” and therefore improperly described in the indictment as a “ woman.” The court refused this instruction, and charged that she was properly described as a woman, if, at the date of the transaction, she had arrived at the age of puberty, although not eighteen years old.</p> <p>The prisoner’s counsel also asked the court to charge the jury, that if they did not find the fact of emission, as well as penetration, they must acquit the prisoner. This instruction the court also refused, charging the jury that emission was not necessary in order to constitute the crime of rape.</p> <p>To both these charges the counsel for the prisoner excepted, and they now ask this court to reverse the judgment, on the ground that the court below erred in giving them, and in refusing the instructions asked.</p> <p>Other errors are assigned upon the record, but the view taken of the case by the court renders their notice and consideration unnecessary.</p>

<p>An attachment will lie in a civil action to recover unliquidated damages for assault and battery, under section 191 of the code of civil procedure, as amended February 16, 1865, which provides, among other grounds, that such process may issue when the defendant has “fraudulently or criminally contracted the debt, or incurred the obligation on which suit is about to be, or has been, brought.”</p>

<p>Error to the District Court of Wood county.</p> <p>This case presents the same auestion as Sturdevant v. Tuttle.</p>

<p>Although, as a general rule, the judgment of a court of error reversing the judgment of an inferior tribunal for refusing to grant a new trial,, where it is claimed that the findings of fact are not sustained by sufficient evidence, will not be disturbed, yet, if upon review of all the testimony, it clearly appears that such findings were sustained by the weight of testimony, this court, upon error, will reverse the judgment of reversal.</p> <p>In an action by the shipper against the owners of a steamboat engaged in the business of common carriers, to recover for the non-delivery of goods as per bill of lading, the defendants are liable only for so much of the goods as was actually received on the boat or delivered to somo one authorized to receive freight on her account.</p> <p>In such action, parol evidence is admissible for the purpose of explaining or contradicting the terms of the hill of lading, in so far as it purports to he a receipt for freight delivered to the boat.</p> <p>The mere employment of an officer or agent for such boat does not clothe him with apparent authority to issue hills of lading for goods not on board, or not delivered to one authorized to receive freight on account of the boat.</p> <p>"Where the agent of such boat carelessly issues a bill of lading acknowledging the receipt of freight not on hoard or not delivered to a person authorized to receive it, the owners of the boat are not estopped, by reason of such-carelessness, from denying the receipt thereof, although the shipper may have been misled thereby.</p>

<p>Reserved in the District Court of Summit county.</p> <p>Anton Plorning brought his action, in the Court of Common Pleas of Summit county, against George Allison, to recover the amount claimed to be due on a contract for dressing and laying the stone walls of a building. The plaintiff in the action claimed, in his petition, that the price agreed upon' for the work was one dollar and fifty cents a perch. The defendant answered, denying that to be the price, and alleged that the contract price was one dollar and thirty-five cents a perch. This averment the plaintiff denied in his reply. On the trial, each party gave evidence, tending to prove the contract to be as he claimed in his pleading. It further appears, from the bill of exceptions, that, “During the progress of the trial, the plaintiff offered testimony, tending to prove what it was worth to do the work embraced in said contract, and to prove that it was worth more than the contract price, as claimed by himself.” This testimony was objected to by the defendant, and the objection was overruled. “ The plaintiff was permitted to prove that it was worth more to do said work embraced within the contract, as claimed by the plaintiff, than said plaintiff claimed the contract price to be; the court ruling that such evidence was competent, and might be used by the jury for no- other purpose than to enable them to ascertain which party was right in their respective claims as to what was the true contract between them.” The defendant duly excepted.</p> <p>The jury returned a verdict against the defendant, which he moved to set aside, on the ground that the court improperly admitted said evidence. This motion was overruled, and judgment was rendered on the verdict.</p> <p>The defendant thereupon brought his petition in error, in the District Court, to reverse the judgment of the Common Pleas for error, in 'overruling his objection to said testimony and his motion for a new trial. The case was reserved in that court for decision in the Supreme Court.</p> <p>Other matters contained in the record are not material to the only question made in the case.</p>

<p>An order drawn by the clerk of the board of education, under the statute, in favor of a third person or bearer, on the township treasurer, is not negotiable, and a purchaser takes such order subject to the same defenses that could be made against it in the hands of the payee.</p> <p>The written acceptance of such order by the predecessor of the township treasurer, to whom it is presented for payment, imposes no greater obligation on the latter to pay the same, than he would have been under had it been presented without such previous acceptance.</p> <p>The board of education is made by the statute a body corporate, and the contracting of a debt by the board, and the directing the issuing of an order to pay it, are corporate acts which can not be performed by the individual members of the board acting separately.</p>

<p>"Where goods are described in the bill of lading as destined for a place beyond that to which the carrier undertakes to transport them, it is his duty, in the absence of contrary instruction or usage, to forward them by the usual conveyance toward their place of ultimate destination.</p> <p>Where goods are marked with the name and place of residence of the owner, and are described in the bill of lading as so marked, and nothing further appears to indicate their destination, the residence of the owner will be held to be their ultimate place of destination.</p> <p>.A bill of lading for the transportation of goods from New York to Philadelphia was executed in the following form : “ Received of Davis, Rhodes & Co. (1) one case merchandise, marked D. W. Mott & Bros., Memphis, Tenn., to be transported to Philadelphia, and there delivered to the Penn. R. R., all rail to Cincinnati, Ohio.” Nothing further appeared in the bill, or upon the package, to indicate its destination. The goods were duly received at Cincinnati by the agents of the Pennsylvania Railroad Company, and by"them forwarded in the usual course of conveyance to Memphis, but were lost on their voyage thither. In an action by the owner of the goods against the forwarding agents :</p> <p>Meld, that, prima facie, the ultimate destination of the goods was Memphis, and not Cincinnati, and that, in the absence of evidence to the contrary, the agents were justified in forwarding them to Memphis, and were not liable to the owners for their loss.</p> <p>In a proceeding without action, under section 495 of the code, the submission, the agreed case, and the judgment of the court thereupon, constitute the complete record, and it is not necessary, in order to a review and reversal of such judgment by proceedings in error, that there should be a motion for a new trial, or a bill of exceptions.</p>

<p>The deacons of an unincorporated religious society, who are ex officio agents for the management and control of its property and effects, can not bo held personally liable on a contract made by other agents of the society, unless it be shown that the former participated in the appointment of the latter, or in some way ratified such contract.</p> <p>In order to hold a 'member of such society responsible for its debts, it must be shown that such member, in some way, sanctioned or acquiesced in their creation.-</p> <p>Such society can not, hy its polity or its rules and regulations, invest or transfer the title to property or impose personal obligations upon its-members or officers, in a mode unauthorized hy the general laws of thestato.</p> <p>Ii the charter or the powers and franchises granted hy a foreign state to a corporation, whether located in this state or elsewhere, become the foundation of an action in this state, they must be specially pleaded; and a pleading for that purpose which does not disclose the-state by which, nor the terms in which, they were granted, is had on demurrer.</p> <p>The statute of January 3, 1825 (S. & O. 305), entitled “an act securing to-religious societies a perpetuity of title to lands,’’ etc., is applicable only to cases where lands and tenements are conveyed to some person or persons, as trustee or trustees, for the use, etc.</p> <p>If the plaintiff's petition be adjudged insufficient upon demurrer, and no leave to amend he asked for, it is not error to proceed to final judgment against the plaintiff, without granting leave to amend.</p>

<p>Error to the Court of Common Pleas of Ashtabula county — reserved in the District Court.</p> <p>The defendant in error, the plaintiff in the court below, being a real estate agent, was, on tbe 3d of April, A. D, 1865, employed by one Webster to sell the farm of tbe latter. The authority was in writing, signed by the parties, and was to continue for one year. It was stipulated that the farm should not he sold for less than thirty-seven dollars per acre, and that the defendant in error should have all that the farm brought over and above said sura as compensation for his services, and the purchase money, to the extent of thirty-seven dollars per acre, he was to pay over to said Webster.</p> <p>Subsequently the defendant in error made an agreement with the plaintiffs in error for the sale of said farm, of which the following is a copy: “ This article of agreement entered into this 1st day of November, a. d. 1865, by and between H. N. Bancroft, of the township of Jefferson, Ashtabula county, and State of Ohio, of the first part, and Samuel Evrit and E. E. Wightman, of Venango and Crawford counties, Pennsylvania, of the second part, witnesseth: that the party of the first part has sold to the party of the second part the human Webster farm, of one hundred and forty-three acres of land, it being located in the township of Jefferson, and being the same upon which he now lives, and being tbe same farm which is placed in my hands for sale, for the sum of $6,500, all to be paid on the 1st day of February, a. d. 1866, at which time possession will he given. The sugar-house fixtures are to go with the farm, or their equivalent paid in cash to the party of the second part. H. N. Bancroft, Samuel Evrit, E. E. Wightman.”</p> <p>This agreement was duly stamped.</p> <p>Bancroft filed his petition to recover the damages he claimed to have sustained by tbe breach of this contract on the part of Evrit and Wiglitman. He states, in his petition, the amount of his damages to be “twelve hundred and nine dollars, that being,” as he avers, “ the amount of money which belonged to him as his commission for selling said farm.”</p> <p>A demurrer to the petition having been overruled, the case was submitted to a jury on an inquiry of damages. On the trial the plaintiff gave no evidence as to the value of the land. The evidence introduced by the defendants showed the value of the farm on the 1st day of February, A. d. 1866, to have been from forty-eight dollars to fifty dollars per acre.</p> <p>The defendants below asked the court to charge the jury that the true rule of damages was the difference between the contract price of the farm and its value at the time of the breach of the contract, or on thq, 1st day of February, A. d. 1866; and that if the jury should find that the value of the farm at said time equaled or exceeded the price agreed to be paid by said defendants in the contract, the jury should return a verdict for the defendants.</p> <p>This instruction the court refused; but told the jury in effect, among other things, that if the defendants had kept and performed their contract, the plaintiff’s interest therein would have been the difference between thirty-seven dollars per acre and the amount the said defendants agreed to pay for the same, and that the defendants, by their non-performance or refusal to perform, could not lessen the plaintiff’s interest in said contract, and that the rule of damages would be the difference between thirty-seven dollars per acre for the farm, and the price the defendants agreed to pay for it.</p> <p>The verdict was in favor of the plaintiff for $1,420.64, on which, after overruling a motion for a new trial, the court rendered judgment.</p> <p>The object of the present petition in error is to obtain the reversal of this judgment.</p>

<p>Reserved in the District Court of Ashtabula county.</p> <p>This was an action of trespass for entering plaintiff’s land and digging up the soil. The defendants, who were the supervisor of roads and highways and the hands working under him, justified on the ground that the locus in quo -■was part of a public highway. 'Whether it was part of a public highway was the only issue in the cause.</p> <p>On the trial, the defendants gave in evidence the record •of the survey and establishment of a state road, made in 1811. This record describes the road as beginning at a ■named point, and running thence, by various courses, for -several miles, to a terminal point, giving the intermediate objects and marks denoting the line, and describing the -road as being sixty feet wide, and lying on. the south side of that line, but without indicating any actual survey or marking of its southern or of its central line.</p> <p>The defendants also gave in evidence the record of a review" and resurvey of a part of this road, made in 1861, under the statute authorizing such reviews and resurveys, in cases where “the place of beginning or true course” of •such roads “ shall be uncertain.” 8. & C. 1293, sec. 28. This resurvey, like the survey of 1811, describes a single line, but does not declare or show on which side of the line the road lies, or whether the line is the middle thread of the road; nor does it affirmatively or expressly appear whether the-line of the resurvey is identical with'said north line of the original survey, or is a new line run at the time •of makiug the resurvey. By the record, it appears also that the committee made their report of the resurvey in July, 1861, and the same was accepted by the commisBioners, and that in December, 1861, without any new order ■or authority from the commissioners, they made a supplemental report, in which they slightly changed the line, and resurveyed and remarked the same, and that it is this last resurvey, and not that made in July, 1861, which was approved and ordered to be recorded by the commissioners; and it is the road, as located by this survey, that the commissioners established and declared to be the public highway. In this report the viewers say that they found a monument of the original survey, and they adopted and described it as one of the terminal monuments on the line of their resurvey.</p> <p>In 1867, another review and survey of this part of the-road was had, purporting to be under the same statute. The report of this review and resurvey simply repeats the description of the line surveyed by the reviewers in November, 1861, as and for the road, and says that the reviewers “found” the monuments at the termini of-the part of the road so resnrveyed “ to be in the center of the road,” and that they resurveyed and marked the line “ as the center line of the road.”</p> <p>The place of the alleged trespass is north of the line described in these last surveys, and within the distance of thirty feet therefrom, so that, if this line be the center line-of the road, then the locus in quo is within the road; but if it is to-be regarded as identical with the original northern boundary line, then the locus in quo lies north of the legal road, unless the viewers had power to change its location..</p> <p>These records were read in evidence against the objection of the plaintiff', and he excepted to the order of the court admitting them.</p> <p>The plaintiff then offered to prove by parol testimony,, that the origiual road, as opened, worked, and used by the public, lay entirely south of the line in question, and did not include the place of the alleged trespass. He offered, to prove that the trees growing upon it were deadened in 1813; that the timber was cut and removed from it in 1837; that it was turnpiked in 1852 ; that it was fenced;, and that from 1813 to 1867, it was worked and traveled by the public as a road lying south of said line. This evidence was objected to by the defendants, and rejected by the court, aud the plaintiff excepted to the order rejecting the same.</p> <p>After the evidence had closed, the plaintiff’ asked the court to charge the jury, that if the place of the alleged trespass was outside the limits of the road as actually opened and used from 1813 to 1867, he was entitled (o recover. This the court refused, and, on the contrary, instructed ,?the jury, in substance, that the records .so given in evidence were conclusive evidence of the location and lines of the road, and that they could not be impeached by parol evidence. To which refusal and charge the plaintiffs excepted.</p> <p>The jury found for the defendants, and judgment was entered accordingly. To reverse this j udgment the plaintiff prosecuted his petition in error in the District Court, and the cause was there reserved for decision here.</p>

<p>Motion for leave to file a petition in error.</p> <p>The original action was to recover the price and value-of milk sold and delivered. The answer alleges that the milk was diluted with water, and that, by the contract under which it was delivered, the milk was to be pure. The reply denied the adulteration of the milk. On the trial of this* issue, the defendant offered to prove that after the delivery of the milk the plaintiff was seen diluting other milk, which he was preparing to deliver under the same pon tract. This evidence was excluded, and it is now claimed that the court erred in its exclusion.</p>

<p>Motion for leave to file a petition in error to reverse a judgment rendered by the District Court of Noble county.-</p> <p>J., being seized in fee of several tracts of land, conveyed one tract by deed of gift to Reed and Sarah, two of his children, to hold jointly in fee, the deed being delivered to Sarah in 1857. In 1858, Sarah, without the knowledge or consent of Reed, handed the deed to J., and he destroyed it; and thereupon J. executed a will devising one-half of the same tract to Sarah in fee, and the other half to Reed for life, remainder to Ann, auother sister, in fee, and making provision for his other children.</p> <p>Afterward, J. had born to him two other children — Isaac and Mary — and haviug made advancements to some of lessons, died, leaving nine children. The said will was duly admitted to probate; and thereupon Isaac and Mary prosecuted a civil action in the Court of Common Pleas, making Reed and Sarah, and all the other devisees, legatees, and heirs of J., parties defendant therein, to obtain their full and equal shares of J.’s estate. In this action, the Court of Common Pleas, amongst other things, found that J. died seized in fee of the same tract which, in 1857, he had eonvayed to Reed and Sarah; that Reed held under the will a life estate in the undivided half thereof, and that Ann owned the fee of said half, subject to said life estate. And thereupon the court made a final decree for contribution based upon that finding. This decree was rendered in 18G6.</p> <p>In 1869, Reed having, after said decree, died intestate, unmarried, and childless, and Sarah having had her half of- the land set off to her in a partition suit, Samuel, John, and others, brothers and sisters of Reed, began a civil action in the Common Pleas against Ann, claiming that Reed had, by virtue of the deed of 1857, died seized in fee of the one-half of said land, and asking for its partition between themselves and his other heirs at law. Besides other defenses, Ann, by a separate answer, pleaded the aforesaid decree of 1866 as an estoppel, averring that Reed was a party to that action, and that the judgment remained in full force and unreversed. To this answer the plaintiffs demurred, and the District Court (the cause pending there upon appeal) overruled their demurrer and dismissed their petition. They now ask leave to file a petition in error to-reverse said judgment</p>

<p>. Motion for leave to file a petition in error to reverse tbe judgment of the District Court of Butler county.</p>

<p>A promissory note, made on March 18, 1862, payable one year after dato, “to be paid in. gold or silvor coin, if required,' could not, after maturing, payment in eóin being required, be discharged by the paymont of its face in legal tender notes, under the act of Congress of February 25, 1862, milking United Stales treasury notos a legal tender for the payment of debts. Phillips v. Dugan, 21 Ohio St., approved and followed.</p> <p>The release of the milker by the payee, after maturity, from his obligation to pay such note in coin, is a sufficient consideration to support a now promise to pay the face of the note and fi ty per cent, in addition, in legul tender notes, it appearing that the premium on gold-at the time of milking the new promise was more than fifty per cent, on legal tender notes.</p>

<p>Motion for the allowance of a writ of error to the Court of Common Pleas of Hamilton county.</p> <p>The plaintiff' was tried and convicted on an indictment for larceny. The property charged to have been stolon, consisted of various articles of table ware, and were described in the indictment as being “silver” articles, as “one silver codec-pot, one silver tea-pot,” etc. On the trial, it appeared that the articles stolen were not silver ware, but such as are denominated plated ware, consisting of only about one twenty-fifth part silver. It is assigned for error, that this evidence did not support the indictment, and that the prisoner should have been acquitted on account of the variance.</p>

<p>Motion for the allowance of a writ of error.</p> <p>Motion overruled, on thegx’ound that the application can be made to the Common Pleas.</p>

The C. G. L. & C. Co., filed a petition in error, in the District Court, to reverse a judgment recovered by him against the company, in the Common Pleas, and when the case in error was called, moved to dismiss its petition. This being objected to by Duffy, the motion was overruled, and the judgment of the Common Pleas affirmed. And it is now insisted that in refusing to dismiss the petition, and in hearing the cause, the court erred.

<p>Application for mandamus.</p>

Error, to the Superior Court of Cincinnati.. The following statement of facts will be sufficient for an understanding of the points decided in this case : June 16, 1838, N. S. Hubbell, Sen., purchased of one Joseph Bonsall the real estate in controversy, and took a title bond in favor of his son, William M. Hubbell.

<p>Error to the Court of Common Pleas of Eayette county, reserved in the District Court.</p> <p>The facts appear in the opinion of the court.</p>

<p>The erection of an enbankment upon one’s own land, whereby the surface water on the adjoining land of another is prevented from flowing in its natural course, and caused to flow off in a different direction over the land of the latter, is a nuisance for which an action may be maintained without showing any actual damage, and for which nominal damages, at least, may be recovered.</p> <p>Title by prescription may be acquired by twenty-one years’ adverse enjoyment of an easement, and the period begins to run from the time the right of action accrues.</p> <p>Whore the only issue in a cause is upon the truth of- immaterial matter, it is not error in the court to render judgment upon the pleadings, irrespective of the verdict of the jury.</p>

<p>Civil action; reserved in the District Court of Preble county.</p> <p>The original action was brought to foreclose a mortgage given by Samuel O. Foster, in 1861, to secure the payment of a note for $700. The petition stated that Samuel C. Foster was dead, and made his administrator and Christina R. Simpson and her husband parties, averring that they, had an interest in the mortgaged premises. The defendants answered, that in 1850 Christina Reed died, seized in fee simple of the land mortgaged, and that she devised the same in fee simple to the children of her niece, Jane Foster, namely, John M. Foster, Robert R. Foster, Samuel C. Foster, James W. Foster, and Christina Reed Foster (since married to Alexander Simpson), but subject to the contingency, if any of said children “should die without issue, that the share or shares of such decedeut or decedents shall be equally divided among the survivors of them;” that the devisees survived the testatrix, but all of them died afterward, without issue, except the defendant, Christina R. Simpson, leaving her the sole owner of the mortgaged premises under the will, free from liability under the mortgage.</p> <p>The plaintiff demurred to the answer, and the case came to the Supreme Court, where the demurrer was overruled, and the cause was remanded to the District Court for further proceedings.</p> <p>In that court the plaintiff filed an amended petitiou, averring therein that, in 1859, John, Samuel and Christina survived of said children, and, being unmarried, lived as one family together on the mortgaged premises, held by them as aforesaid; that there being no suitable dwelling thereon, by mutual agreement, John and Samuel erected a dwelling house thereon of the value of $2,000, by means of their own labor, the products of the farm and debts incurred therefor; that Christina assented thereto and cooked for the workmen; that John died, and Samuel, with the assent of Christina, borrowed $700 of the plaintiff to pay said debts, and made the mortgage to secure the payment thereof; that the house was a necessary, permanent, ar?d valuable improvement on the premises, which Christina still continues to enjoy; that Samuel, when he built the house and executed the mortgage, believed that he, John, and Christina were equal joiut owners in fee simple of the land under said will, and by descent from James and Robert; that thereby Samuel had an equitable interest in the premises, to the amount of $1,500, which passed under the mortgage to the plaintiff-; that, after Samuel’s death, Christina and her husband admitted the lien of the plaintiff and promised to pay the debt; that the estate of Samuel C. Foster is insolvent; and claims that, to the extent of the value of the said improvement of said premises, he has a lien for the payment of the mortgage debt.</p> <p>The defendants demurred to the amended petition, which was overruled. Thereupon they answered, adopting their former answer, and stated that Robert died in June, 1852; John, in September, 1858; James in June, 1860; and Samuel in May, 1862; that the house was built in 1857, and completed in 1858, when Christina was under the age of sixteen years. They deny that the house was built under any agreement; that it was worth $2,000; and that Christina was consulted about, or that she ever assented to the building thereof, and deny that she ever promised in writing to-pay the note of her brother secured by the mortgage. They state that the house was built by her brothers, while-she was a minor, without consulting her, and that if she-cooked for the workmen building it, it was because she did the housework of the family, and cooked for anyone her brothers brought into the house. They deny that the-money was borrowed of the plaintiff with the knowledge- and consent of Christina; and, being ignorant of the use-made of it by Samuel, they deny that it was used to pay-debts contracted in building the house.</p> <p>The ease came on for trial in the District Court, where,, the testimony being heard and duly certified,it was reserved, for decision in the Supreme Court.</p> <p>The plaintiff testified that., after Samuel’s death, Christina gave him to understand that the money was borrowed tc pay debts incurred in building the house, and encouragement that she would pay the note by asking further time on it; but consulted a lawyer and then refused to pay it. He-proved by other witnesses that the house was built by John and Samuel; that the house was worth from twelve to fifteen hundred dollars; that the business was mostly done in John’s name, and materials for building were charged to> him; that after his death, Samuel, as his administrator, paid his debts, amounting to $717 above the assets of John’s estate — a large part of which were debts incurred in building the house; and that the money was borrowed for this purpose.</p> <p>The defendant, Christina, testified in substance as stated in the answer.</p> <p>A more full statement of the evidence is not deemed necessary, as it was regarded by the court of a character that required it to find the issues of fact made by the-pleadings in favor of the defendant; and, together with the foregoing statement and reference thereto in the opinion of the court, sufficiently presents the ease.</p>

<p>Motion for leave to file petition in error.</p> <p>On the 25th day o± April, 1868, the trustees of Eaton township, - county, laid out and established a ditch. On April 30, 1868, David Burke, Jx\, gave notice of his intention to appeal to the Probate Court, but did not file his appeal bond until May 18, 1868. The transcript was filed May 27,1868. The Probate Court having rendered a judgment in the case, which, upon proceedings in error, was-affirmed by the Common Pleas, Jackson et al. filed a petition in error in the District Court. That court held that the appeal had not been perfected; that the Probate Court acquired no jurisdiction of the cause, and for that reason reversed the judgments of the Common Pleas and Probate Courts, and adjudged the costs in error against David Burke, Jr. David Burke, Jr., now moves for leave to file-a petition in error to reverse said judgment of the District Court.</p>

<p>Error to Darke Common Pleas, reserved in the District Court.</p> <p>This action was commenced in December, 1866. The original petition avers the congenital imbecility of the plaintiff’s ward; his want of capacity to consent; his ownership of certain described lands; the appointment, in 1861, of the plaintiff' as his guardian ; his pretended marriage-in October, 1866, with the defendant, Jetmore, without the plaintiff’s knowledge, and the fraudulent conspiracy of the defendants in procuring said marriage ceremony to be performed, with a view to securing some interest in, or support from, sai d imbécil e’s estate. Prayer, that said marriage be declared a nullity, and that defendants be restrained from asserting such interest, or deriving such support.</p> <p>The- defendants severally interpose general demurrers. The defendant, Jetmore, at the same time moved that the-action be dismissed on the grounds :</p> <p>1. That the petition showed no cause of action.</p> <p>2. That the court had no jurisdiction to divorce the parties ; and,</p> <p>3. That the court had no jurisdiction over either of the-defendants.</p> <p>This motion was overruled; but the demurrers were sustained, and final judgment entered by the Common Pleas for the defendants.</p> <p>The plaintiff, by petition in error, removed the cause into-the District Court, wherein itwas reserved for decision here..</p>

The original action was brought in the Court of Common Pleas of Hamilton county, by the defendant in error, against the plaintiff' in error, to restrain him from opening a new county road through the premises of the plaintiff below.

Reserved in the District Court of Geauga county. The original action was brought in the Court of Common Pleas of Geanga county, on a joint and several note given by the defendants to the plaintiff.

The plaintiff in error was indicted, in the Court of Common Pleas of Lorain county, for unlawfully selling intoxicating liquor to a minor, in violation of the statute.

The original action was brought by Hawkes, against .Schryver and Bierce, upon a promissory note executed to him by Bierce as principal and Schryver as surety, for the sum of $650. Judgment was taken against Bierce by default.

Error, reserved in tbe District Court of Hardin county. Tbe questions in tbe ease arise upon tbe ruling of the Court of Common Pleas in sustaining a demurrer to the petition. Tbe action was brought on an official bond of a justice of the peace against tbe justice and bis sureties on the bond.

<p>Motion for a writ of mandamus, from Huron county.</p>

The plaintiff below filed his original petition against the present plaintiff's in error, and the Cincinnati Transfer Company, and the Ohio and Mississippi Railroad Company jointly. To this,, the defendants severally demurred, on the ground of misjoinder of parties defendant, and misjoinder of causes of action. The demurrer of the plaintiff in error was overruled, to which it excepted. That of each of the other defendants was sustained.

The case made by the pleadings and evidence is substantially as follows: In 1854, George Sweesey died seized of a tract of land in Mercer county, Pennsylvania, leaving a widow and four minor children. Jefferson Sweesey was appointed guardian of the children; and in 1855, under an order of court, he sold the land.

<p>1. A policy of insurance against fire excepted from the risk any loss by an explosion. In an action upon the policy it appeared that an explosive mixturo of whisky vapor and atmosphere had come in contact with the flame of a gas-jet, from which it ignited, and immediately exploded, whereby a fire was set in motion, which destroyed the insured property. Held, that in such case it can not be said that the destruction was caused by a fire within the meaning of the policy, but, on the contrary, that the loss was by fire, occasioned by the explosion.</p> <p>2. In construing such policy wherein the exception embraces “any loss or damage occasioned by, or resulting from any explosion whatever,” the-exception must he taken and held to include all loss and damage occasioned by any fire of which an explosion was the efficient cause.</p> <p>3. Where such exception provided that the underwriter would not be liable-for “any loss or damage occasioned by, or resulting frem any explosion whatever, whether of steam, gunpowder, camphene, coal-oil, gas, nitro-glycerine, or any explosive article or substance, unless expressly insured against and special premium paid therefor,” and the property insured is destroyed by a fire occasioned by the explosion of one of the' explosive substances named, and notwithstanding it is made to appear that at the time of taking the risk, such explosion, from the nature of" the property insured, was in the contemplation of the parties, such-loss falls within the purview of the exception, unless the particular peril by which the property was destroyed was expressly insured) against, and a special premium paid therefor.</p>

Information in the nature of quo loarranto. The facta of this case, so far as necessary to an understanding of the questions decided, are sufficiently stated in the opinion of the court.

<p>Motion for leave to file a petition in error, to reverse a judgment of the Superior Court of Cincinnati.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Putnam county.</p>

<p>Application for mandamus, Muskingum county.</p>

The original action was brought by defendant in error against plaintiff in error for the recovery of certain sums of money. The petition contained four several causes of action. The first was for a balance due upon a special contract for services rendered by plaintiff, at the agreed rate of $500 per month ; and the others were for balances due on account of moneys loaned and money paid for defendant’s use.

<p>Error to the Superior Court of Cincinnati.</p> <p>The facts appear in the opinion of the court.</p>

The original action was brought, by defendants in error, against plaintiff in error and one H. Kent, to recover damages alleged to have accrued to plaintiffs by reason of the fraud and deceit of the defendants in obtaining certain goods.

Patrick Christie was indebted to J. & J. Toohey in the sum of $523, on a contract for the erection of a house on a lot owned by Christie. The Tooheys were indebted to J. & T. Mantón, in the sum of $294.96, for work and material on the same house, and in $191.96 upon another contract. In payment of this indebtedness, the Tooheys, on the 20th day of September, 1867, assigned to the Man-tons the claim due to them from Christie.

The plaintiff'in error was indicted under the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors.” The indictment charges the offense as follows: “ That Henry Picket, on the 4th day of September, in the year eighteen hundred and sixty-nine, with force and arms, at the county of Hamilton aforesaid, did unlawfully sell intoxicating liquors to one Lewis A. Martin, to be drank upon the premises where sold, contrary to the form of…

Proceeding in the nature of quo warranto. This is a proceeding under section 12 of the attorney-general’s act (S. & C. 89), instituted by direction of the house of representatives, against the above-named defendants and their associates, said to be too numerous to •be brought upon the record, charging them with usurpation and unlawful exercise of certain franchises and authority, and asking a judgment of ouster.

<p>Motion for leave to file a petition in error.</p> <p>The facts are indicated by the court.</p>

<p>This case originated in the Probate Court of Perry county on exceptions to the final account of the executors.</p> <p>The defendants in error are executors under the will of Miles Cluney, deceased, which is as follows:</p> <p>“ In the name of the omnipotent Father of all, I, Miles Cluney, of the State of Ohio and county of Perry, do make and publish this my last will and testament.</p> <p>“Item 1. I give and bequeath to my grandson, Conrad Litzinger, on his coming of age, the tract of land formerly owned by Jacob Litzinger, deceased, and bounded and described as follows: Being the south half of the southwest quarter section 16, township 16, range 16, containing eighty acres of land, more or less, said pi’operty being situated in the county of Perry and State of Ohio; and the said Conrad Litzinger, on his coming of a go, is to pay to my executors or administrators the sum of $480, a balance due my heirs on said laud, I having already received as payment from himself and his mother the sum of $1,700; and further, should said Conrad Litzinger die without any heirs of his body, the said land to revert to my daughters, "Lucy Cluney, alias Lucy Dittoe, Mary Cluney, alias Mary "Wellan, Elizabeth Cluney, alias Elizabeth Dittoe, and Catherine Cluney, alias Catherine Dittoe. I also give and bequeath to Conrad Litzinger (my grandson) the tract of land purchased from Michael Bnrshue, supposed to contain seventy-five acres situate in Perry county and State of Ohio, subject to the following conditions: Said Conrad Litzinger, on arriving of age, is to pay the dower interest in said land to my beloved wife, Catherine Cluney, and to my four daughters, before mentioned, or their heirs. Should my grandson Litzinger fail in the performance of the fore mentioned condition, said seventy-five acres is to revert to my beloved wife and four daughters and said Conrad Litzinger, all shares as above directed (my wife her dower interest, and my five heirs their just shares); furthermoi-e, said seventy-five acres is not to be sold till said Conrad Litzinger comes of age (twenty one years); but it, together with the other eighty acres above mentioned, is to be leased, the proceeds of the former, arising in the meantime,.to be distributed among the legitimate claimants according to their just dues.</p> <p>“Item 2. I desire and ordain that the farm on which I now reside be adjusted and disposed of in the following manner: My wife her dower interest and all other things during her widowhood, and my five heirs their just and legitimate shares.</p> <p>“Item 3. I desire that a decent and becoming monument be erected to my memory, and that my said monument just debts, and funeral expenses be paid out of the proceeds resulting from the first sale of my personal property. I desire that two hundred dollars be paid over to St. Joseph’s Literary Society as soon as convenient, say within a year at the furthest. I hereby nominate and appoint George Wellan and Dennis McElroy the executors and administrators of this my last will and testament. I revoke all former wills by me made. In testimony whereof I have hereunto set my hand and seal, this 4th day of March, a. d. 1866.</p> <p>my “Miles M Cluney.”</p> <p>This will was executed in due form, and Cluney dying on June 21, 1866, it was duly admitted to probate, and said executors duly appointed and qualified.</p> <p>On March 12, 1868, George Wellan, as one of the said executors, filed, for settlement in sai'd Probate Court, the executor’s account- upon which the questions arise.</p> <p>In this settlement and in this statement, the amount found to distribute, arising out of the personal property not disposed of by the will, is found to be $1,984.21, and Elizabeth Dittoe is charged with an advancement by the words and figures following: “ Elizabeth Dittoe, one of the daughters of said decedent, and her husband, Linus B. Dittoe, having received of his estate to the amount of $1,618.32, or more, the said decedent, on the 28th day of February, 1866, then in life, took from said Linus B. Dittoe, the husband of said Elizabeth, as evidence of the amount so received, a receipt, of which the following is a true copy:</p> <p>“Received of Miles Cluney, my father-in-law, 28th of February, 1866, sixteen hundred and thirty-two dollars and thirty-two cents.</p> <p>“L. B. Dittos.”</p> <p>To this account Mrs. Dittoe excepted. But the Probate Court ruled against her, and held that the amount evidenced by said receipt was an advancement chargeable against her on the distribution of her father’s intestate personalty.</p> <p>Mrs. Dittoe then appealed the cause to the Common Pleas, where witnesses were heard, and the evidence embodied in a bill of exceptions. The Common Pleas having followed the holding of the Probate Court, the cause was removed on error by the administrator of Mrs. Dittoe, who had died in the meantime, into the District Court; in which the Common Pleas was affirmed, and the record is now brought here, on error, to reverse the action of the lower courts.</p> <p>The record shows that Miles Cluney left intestate personalty for distribution to his widow and five surviving heirs at law; that many years before his death, he conveyed eighty acres of land to Linus B. Dittoe, husband of his daughter Elizabeth, for the nominal consideration of six hundred dollars, taking his note and mortgage deed of himself and wife therefor; and that a few days before making his will, he surrendered to his son-in-law the said note and mortgage, then amounting to fl,613.32, taking therefor, in his account book, the receipt above set out.</p> <p>The errors assigned by the counsel of Mrs. Dittoe to the action of the courts below are.as follows:</p> <p>“ The court erred in permitting the said Elizabeth Dittoe to be charged with an advancement in said account.</p> <p>“The court erred in holding that advancements may be made to a son-in-law.</p> <p>“ The court erred in holding that said Elizabeth Dittoe should be charged with an advancement against her share of the personal property set forth in the account, by the conveyance to her husband of land for which were given the notes, the surrender up of which is charged as an advancement.</p> <p>“ The court erred in permitting evidence to be offered other than the will of the testator.</p> <p>“ The court erred in refusing to sustain the exceptions of said Elizabeth Dittoe to so much of the executors’ account as charged her with an advancement.</p> <p>“ The court erred in charging advancement of real estate against the personal property of the decedent for distribution.</p> <p>“ The court erred in its finding on the evidence.</p> <p>“The judgment, finding, and order were against the law and the evidence.</p>

<p>1. When the defendant in a criminal prosecution is discharged under the 161st or 162d section of the criminal code, on the ground that he has not been brought to trial within the time therein limited, the order of discharge is to he regarded, not as a mere temporary release of the prisoner from confinement, but as a final judgment in the cause, and a bar to all subsequent prosecutions for the same crime or offense.</p> <p>2. Where the court erroneously refuses to grant such order of discharge, and instead thereof remands the prisoner to jail, and continues the cause, the order remanding the prisoner to jail, so long as it remains unreversed, is a valid and legal authority to the sheriff for retaining the prisoner in custody, and the order can not be reviewed and reversed,. or the prisoner discharged, by a proceeding in habeas corpus before another tribunal.</p> <p>3. To entitle a prisoner to such discharge, on the ground that he has not been brought to trial during the time limited by sections 161 or 162, he must make application to the court therefor, and if when he makes such application, whether during the time so limited, or at a subsequent term of the court, the state is ready to proceed with the trial, or makes the showing specified in section 163 for a continuance, he will not be entitled to be discharged.</p>

<p>Error to Hamilton Common Pleas; reserved in District Court.</p> <p>The defendant in error, who was plaintiff below, brought this action in the Court of Common Pleas, to recover of the Pendleton Street Railroad Company for serious and permanent personal injuries, caused by negligence in running one of its cars. The cause was three times tried, to as many juries, and verdicts returned for the plaintiff below, the last for §10,000. During the progress of the trial numerous exceptions were taken by the company to the ruling of the court, on questions of evidence, as well as to the instructions given and refused on points of law. A motion was made after the coming in of the verdict to vacate it and grant a new trial, on the ground, among others, that “the damages were so excessive as to indicate passion and prejudice on the part of the jury.” On this motion the record shows the following order to have been entered:</p> <p>“ The court, being fully advised in the premises, overrules said motion, on condition of the plaintiff’ remitting §5,000 on the amount of the verdict; and the plaintiffs consenting thereto, it is ordered and adjudged by the court that the plaintiff' recover of the defendant his damages, assessed at five thousand dollars, etc.”</p> <p>A bill of exceptions was signed by the court, embodying the evidence, the ruling, and instructions on points of law, and the following finding on the motion for new trial, to wit:</p> <p>“ The court, having considered the motion, found that the damages were excessive, and put the plaintiff' to his election to remit §5,000 of the verdict, or a new trial would be granted; and the plaintiff, having elected to make the remittitur, the court overruled the motion, etc.”</p> <p>The cause was carried up on error to the District Court, whereiu an order of reservation was entered, and it is now brought here for review and reversal.</p>

<p>1. "Where an agent has been authorized, by an instrument of writing, to enter into a contract on the part of his principal with a third person therein named, and all the terms and conditions of the proposed contract are contained in the instrument, and the same is signed by the principal, or by some other person thereunto authorized, the agent may, in the execution of the power, deliver such instrument to the person named as and for the proposal of his principal; and when such person assents to and accepts the proposal thus made, the contract is complete; and the agreement thus entered into is “ in writing and signed ” by the proponent within the meaning of section 5 of the statute of frauds and perjuries.</p> <p>2. A railroad company agreed with K. and his associates, in consideration that they would build an iron furnace on the line of its road, to transport ore and metal to and from such furnace at a given rate for the term of ten years, “when by them required so to do.” And K. and his associates, in consideration of the promise and agreement of the railroad company, erected a furnace according to the stipulations of the agreement. Held, that the promise of the company to carry freight at the rates agreed upon is not void for want of a sufficient consideration, nor for want of mutuality of obligation between the parties; and held, further, that the right thus secured under the contract by K. and his associates was transferable by assignment to a subsequent purchaser of the furnace property.</p> <p>3. "When an exception is taken to the ruling of a court in rejecting testimony offered by the party taking the exception, it is not necessary that the testimony so offered and rejected should be set out in the bill of exceptions; it is sufficient if the hill state the facts which such testimony tended to prove.</p>

<p>Where it was stipulated in an indenture by which a building lot was leased for ninety-nine years, renewable forever, that, at the expiration of each successive period of twenty years, the'“ground” should bo revalued by “three disinterested men” — one to be selected by the lessor, one by the lessee, and the third by the two thus chosen — who should appraise the same at its “ true value,” and report the amount , in writing, and that eight per cent, thereon should be the annual rent for the succeeding term of twenty years; and where appraisers so chosen could not agree, and only two of them made a report of such appraisement — Held :</p> <p>1. In order to the valid execution of the power thus intrusted to the appraisers, they must all unite, and a majority can not make a valid report;</p> <p>2. If they can not agree, and two of them only make a report of their appraisement, and one party to the lease refuses to select new appraisers in accordance with its provisions, the other party may bring his action to set aside such invalid report, and for the valuation of the leasehold ground.</p> <p>3. In such action, tho court may refer the case to a master to take testimony and report therewith the 11 true value ” of the ground.</p> <p>4. The value contemplated by the lease is not the rental value of the ground, but its real worth at the time it is required to be appraised, excluding all improvements on the premises.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The present petition in error is prosecuted to reverse the judgment of the District Court dismissing the petition of .the plaintiff in error for a mandamus to compel the defendant, as auditor of Hamilton county, to enter upon the tax duplicate of the county, for taxation, in the name of the Young Men’s Mercantile Library Association, certain described premises, which stand on the duplicate and are taxed in the name of the plaintiffs in error.</p> <p>The plaintiffs and the library association referred tor are each corporations, duly organized under the laws of this state.</p> <p>The plaintiffs being seized in fee simple of a certain lot of ground fronting on the east side of Walnut street, in Cincinnati, on the 1st day of January, 1849, by articles of indenture entered into with theYoung Men’s Mercantile Association, in consideration often thousand dollars paid, aud of certain covenants in said indenture contained, demised and leased to said association, being the party of the second part to said indenture, together with certain other privileges, “all those certain apartments in the Cincinnati College buildings of the party of the first part, occupying the entire front of the second story of said building, one hundred and forty feet in length, and fifty feet deep, more or less, and together with the privileges and appurtenances to the same belonging, to have and to hold the said premises-to the said The Young Men’s Mercantile Library Association of Cincinnati, and their successors and assigns, for the-full term of ten thousand years, to be fully completed and ended free of all i’ent, commencing on the 1st day of January, a. d. 1849, and renewable forever, on the same terms,, and the same privileges and provisions herein contained.”</p> <p>• The indenture, among others, contains the following stipulations: “And the said party of the first part agrees-to keep the said college building in good repair, so as not to obstruct or interfere with the full and complete enjoyment and use of the apartments above mentioned, by the said party of the second part; and the said party of the second part agrees to keep the said apartments in good order and repair, at their own expense; and the said party of the second part agrees to keep ten thousand dollars insured on said building on their own account at all times; and the party of the first part also agrees to keep such an additional'amount constantly insured on said building as shall, in conjunction with the amount insured by the party of the second part, secure all parties against any loss by fire; and the said party of the first part agrees, in case the aforesaid building shall be destroyed by fire, or other casualty covered by insurance, that they will rebuild the same and put it in as good a condition as it was before, and the-rights, interest, and privileges heroin granted to said party of the second part, shall extend to each and every new building rebuilt upon the lot where the said college building now stands, as fully and completely as to the present college building; and it is agreed, by the said party of the-second part, that they will contribute toward such rebuilding their proportion of the insurance money received, or which may be received, by the said parties in ease of fire, etc.; . . . and the said party of the first part agrees to hold the said party of the second part secure and harmless against ail special assessments or taxes, such as paving and lighting the streets, etc., which may be levied upon the said party of the second part, for city purposes, and against no other taxes whatsoever, and for delinquency in the payment of such other taxes, the said party of the first part may re-enter,” etc.</p> <p>The plaintiffs, in their petition filed in the District Court for mandamus, aver: “That according to the intent and meaning of said instrument, by force of its terms and stipulations, as also by force of law, it became and was the duty of the said association, immediately after the execution and delivery of said conveyance, to cause their interest and estate in said property, so derived under said conveyance, to wit, their interest and estate in said apartments above described, to be entered upon the tax duplicate, against them for taxation, for state and county purposes, and for all purposes except special city purposes, such as-paving and lighting the streets, etc., and therefore to pay the aforesaid taxes on such interest or estate; and further, that they failing so to place it on the duplicate, it became and was the duty of the auditor of Hamilton county to so place said interest or estate on the tax duplicate for taxation, against said library association.</p> <p>“But they say that although many years have elapsed since the execution of said conveyance, yet said association have never applied to have such interest or estate so placed on the duplicate; neither has such auditor so done, nor has said association ever paid any tax thereon.”</p> <p>The only averment -to show a breach of duty on the part of the auditor, in not making the transfer on the duplicate of the premises demised or conveyed as aforesaid, from the name of the plaintiffs to that of the "Young Men’s Mercantile Library Association, is the following: “ That on the 4th day of May, a. d. 1871, they presented to Geo. S. La Rue, auditor of Hamilton county, and defendant herein, a statement comprising said facts, and requested him to have said interest or estate of said association, in said premises, valued and placed on the tax duplicate in the name of said association; and that the said defendant then and there refused so to do, or to take any steps to that end, and still refuses.”</p> <p>An alternative writ was allowed to issue, embodying the substance of the petition, and to which was attached, as part (hereof, a copy of the indenture. The defendant was duly served; but he neither made return nor answer to the .alternative writ.</p> <p>The case appears to have been submitted to the court upon the petition and the copy of the indenture. The following is so much of the final entry as shows the disposition .-of the case:</p> <p>“ In this cause, no answer having been filed, and the cause beii g submitted upon the petition of plaintiffs, and the instrument of conveyance annexed to the alternative writ of mandamus heretofore granted herein, which instrument, by agreement of parties, was treated and considered as a part of the petition, and no testimony being offered by either party, and the arguments of counsel being heard; the court thereupon lind that the plaintiffs are not entitled to require that the portion of the building described in the petition as demised or conveyed'to the Young Men’s Mercantile Library Association by said instrument, and occupied and used by said association, shall be separately assessed for taxation against said association ; and accordingly order said petition dismissed at plaintiffs’ costs.”</p> <p>The refusing of the order asked for, and the dismissing •of the petition, are assigned for error.</p>

<p>Error to the Court of Common Pleas of Ashtabula county.</p> <p>The original case was an indictment for subornation of perjury. It charges, in due form of law, the commission of the crime of willful and corrupt perjury by one "William II. Saxton. The peijury is alleged to have been committed by Saxton, in his deposition taken before a notary public in Ohio, to be read in evidence in a cause pending in the Court of Common Pleas of Lagrange county, Indiana, wherein said Stewart was plaintiff, and his wife was defendant, and in which he sought a divorce from his wife. In this deposition Saxton testified, among other things, that •Stewart was a resident of said Lagrange county, Indiana, and had been such re.-ident for one year, at the date of filing his said petition for divorce. It is upon this deposition of Saxton that the perjury is assigned, the indictment charging that at the time the deposition was made, Stewart was not, and never had been, a .resident of Indiana; and that Saxton well knew this statement, as well as the other statements upon which the perjury was assigned, to be false. The indictment then charges that Stewart, at a .specified time before the committing of the peijury by Saxton, “did unlawfully, willfully, wickedly, feloniously, and corruptly persuade, procure, and suborn him, the said Saxton, the said willful and corrupt perjury to commit.” 13ut the indictment does not, otherwise than in the above form, charge that Stewart knew, at the time lie so suborned Saxton, that Saxton would make said false statements corraplly, and knowing them to be false.</p> <p>Stewart pleaded not guilty, and on the trial a bill of exceptions was taken on bis behalf, setting forth all the evidence in the canse. From this evidence it appears that the Court of Common Pleas in Indiana has general jurisdiction in causes for divorce, but is not authorized to grant divorces, except in cases where the petitioner resides in the •county in which the petition is filed, and has resided in the •State of Indiana for at least one year at the time of filing the petition; and the law of Indiana regulating such divorces provides that the court shall, before granting the divorce, require the petitioner to make proof of such residence. The laws of Indiana also provide that a non-resident defendant in divorce cases may be brought into court by publication of notice; and the evidence shows that, at the time of taking this deposition in question, neither of the parties in said divorce cause was or ever had been a resident of Indiana.</p> <p>The bill of exceptions further shows that Stewart introduced upon the trial evidence tending to show his former good character for honesty and integrity.</p> <p>After the evidence had closed, the court was asked, on behalf of Stewart, to charge the jury, among other things, that if neither Stewart nor his wife was a resident of Indiana at the time of filing said petition for divorce, the Court of Common Pleas of Lagrange county had no jurisdiction of tbe divorce cause, and the oath and deposition of Saxton were extrajudical and unauthorized by law, and lie must be acquitted. This instruction the court refused to give, and, ou the contrary, charged the jury, in substance, that if the petition for divorce was pending at the time the oath was taken, notwithstanding sucii non-residence, the court had sufficient jurisdiction over the cause to authorize the taking of testimony therein, and that the oath of a witness therein would not be extrajudicial, or unauthorized,for want of jurisdiction in tbe court.</p> <p>The counsel for Stewart also asked the court to instruct the jury that “ the evidence offered by the defendant, of his good coaracter for honesty and integrity, is to go to vho jury and be considered by them like every other fact and circumstance in the ease; and if they believe the defendant to be guilty, they must so find, notwithstanding his good character.” Which instruction the court refused to give, and instead thereof charged the jury as follows:</p> <p>; “Where the guilt of an accused person is doubtful, and the accusation is of such a nature as to involve the character of the alleged criminal, a presumption of his innocence-arises from his former conduct ia society, as evidenced by his known general character, since it is not probable that a person of known probity would commit a corrupt criminal act in the particular instance. Such presumptions,, however, are entitled to little or no weight as against clearly established facts. But they are admissible in doubtful cases, where, from the nature of the offense, a reasonable-presumption arises therefrom as to the fact in question;, and the presumption will be more or less weighty in proportion as the good character of the party is more or less satisfactorily proven.”</p> <p>To those charges of the court, as well as to the court’s-refusal to charge as requested, exceptions were taken by Stewart’s counsel.</p> <p>The jury found tile defendant guilty, and he was sentenced to the penitentiary, and he now seeks to reverse the-judgment, alleging, among other grounds of error, that the indictment is insufficient, and that the court erred in its-instructions to the jury, and in refusing the instructions asked.</p>

<p>Error to the Court of Common Pleas of Ross county.</p> <p>At the October term, 1872, of the court of common pleas of Ross county, Valentine Weis was convicted of murder in the second degree, and was sentenced to the penitentiary for life. After the verdict a motion for a new trial, on the ground of misconduct of the jury, was overruled. In this it is claimed the court erred, and for that error it is now sought to obtain a new trial. A bill of exceptions was taken to the overruling of the motion, in which all the evidence offered on the hearing of the motion is set forth.</p> <p>The trial began on Monday, the 25th day of November, and the verdict was rendered on Sunday morning, the 1st day of December.</p> <p>In support of the motion, the affidavits of a number of persons were given in evidence, in each of which it is stated that John Wegerly, one of the jury, on Friday evening, after the adjournment of the court until the next morning, drank three glasses of whisky, and four or five glasses of lager beer, at a saloon, and was then drunk. It is also stated in some of the affidavits that he drank intoxicating liquor on Saturday morning, and was much intoxicated when he went into court. Saturday evening, November 30th, the court took a recess from about half-past six to half-past seven o’clock, during which time, it is stated in the affidavits of two persons that the same juror drank liquor at three places, and became “ highly intoxicated.”</p> <p>On the meeting of the court on Saturday evening, the court charged the jury, and directed them to remain and to be kept together until they should be discharged by the court. They thereupon retired to deliberate.</p> <p>During the night, while the jury were out, the deputy sheriff, having charge of the jury, bought ten cents worth of liquor at a saloon, and took it away; and between twelve and two o’clock in the night, while the jury were deliberating upon their verdict, went to the same saloon with one of the jurors who obtained and drank a glass of whisky. Shortly after, about three o’clock in the same night, the jury agreed upon a verdict of guilty.</p> <p>After they had agreed, at about five o’clock in the morning, the jury were taken, in charge of an officer, to a hotel kept by one of the jurors, where they obtained breakfast, and while there, one of the jurors treated two of his fellow-jurors to ardent spirits.</p> <p>The defendant offered, in support of his motion for a new trial, an affidavit of one of the jurors to prove that his fellow-juror, "Wegerly, was drunk when the jury were charged by the court, and when they retired to deliberate; to which the prosecuting attorney objected, and the court sustained the objection, and refused to permit it to be read. ITe also offered an affidavit to prove what one of the jury said subsequent to the trial about treating twTo of the jury to brandy; but, upon objection, this affidavit was also excluded. To which rulings the defendant excepted.</p> <p>On the part of the state, the affidavit of John "Wegerly was given in evidence, in which he states that some of the affiants on the part of the defendant are mistaken in the times they saw him drink, but he says nothing about his drinking during the recess of the court on Saturday evening. He denies that he drank beer, and denies that he was drunk at any time during the trial. He says that his drinking in no way affected or influenced him in the discharge of his duties as a juror, and that he is a cripple, and for that reason walks unsteadily.</p>

<p>Error to the Court of Common Pleas of Delaware county. Eeversed in the District Court.</p> <p>The plaintiff in error brought an action in the Court of Common Pleas of Delaware county, against the defendants in error, upon a promissory note, of which the following is a copy:</p> <p>“ Columbus, Ohio, November 13, a. d. 1867. $6,000. On March 1st, without grace after date, we jointly and severally promise to pay to the order of George Garlinghouse, at the First National Bank of Columbus, six thousand dollars for value received. George Garlinghouse, Daniel Hunt, James Budd, Jonathan Bateson.”</p> <p>Indorsed: “ George Garlinghouse.”</p> <p>The defendants, Hunt and Bateson,.filed an answer in the action containing five supposed defenses.</p> <p>Their first defense was in these words :</p> <p>“ 1. That there is not due from them, and that they do not owe unto the plaintiff, upon the promissory note in petition mentioned, said sum of six .thousand dollars as therein claimed, nor any part thereof, because they say that they executed said promissory note as sureties only for the said defendant, George Garlinghouse, and for his accommodation, for the purpose only of having the same discounted, or money borrowed thereon, at the rate of interest allowed by law in the State of Ohio, being six per cent, per annum, to be taken, charged, and received, 'on such loans, and discounts; that on or about the 13th day of November, 1867, said plaintiff, well knowing that these defendants were such sureties only for said Garlinghouse upon said note, by agreement of said Garlinghouse only, and without the knowledge or consent of these defendants, discounted the same for the sole use and benefit of said Garlinghonse ; and upon said discount took and reserved from him as interest for the money loaned said Garlinghouse upon said note, for the time the same had to run, a greater rate of interest than six per cent, per annum, the rate alio wed bylawin the State of Ohio, to wit, the interest at the rate of over nine per cent, per annum, being the sum of one hundred and thirty-seven dollars and fifty cents, as these defendants are informed ; that the said interest, so taken and reserved by plaintiff, was usurious and illegal, done only by agreement of plaintiff and said Garlinghouse, without the knowledge or consent of these defendants, and in fraud of their fights as such sureties of said Garlinghouse therein.”</p> <p>The fourth defense was :</p> <p>“ 4. These defendants, further answering, say, that they do not owe, and that there is not due from them to the plaintiff said sum of six thousand dollars, or any part thereof, upon the promissory note in petition mentioned, as therein claimed, and that the plaintiff is not entitled to recover the same or any part thereof, because, they say, that plaintiff is an association formed for the purpose of carrying on the business of banking, under the act of Congress of the United States of America, entitled ‘an act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,’ approved June 3, 1864, located and doing business at the city of Columbus, Franklin county, State of Ohio ; that by the provisions of the act aforesaid plaintiff was authorized to take, receive, reserve, and charge upon any loan or discount made by it, or upon any note, bill of exchange, or other evidence of debt, interest at the rate of six per cent, per annum, that being the rate of interest allowed by law in the State of Ohio, and no more ; that these defendants executed said promissory note in petition mentioned as sureties only for said Garlinghouse; that on or about the day of its date, plaintiff discounted said note for said Garlinghouse, aud, on the discount thereof, took, received, reserved and charged more interest than six per cent, per annum, to wit, interest at the rate of over nine per cent, per annum ; and defendants say that the loan and discount so made as aforesaid for said G-arlinghouse by said plaintiff of said note, was unauthorized by the provisions of the act aforesaid and contrary thereto, and was illegal and void.”</p> <p>The plaintiff' interposed a demurrer to each of said first and fourth defenses. The court rendered judgment, overruling these demurrers, and dismissing the action against said Hunt and Bateson, with costs.</p> <p>This is a petition in error, to reverse that judgment, filed in the District Court of Delaware county, and bv that court reserved for decision in the Supreme Court.</p>

Several questions raised in this case have been considered and disposed of in connection with like questions in other cases decided at the present term, and reported in this volume. Reference is made to the fourth proposition of the syllabus in Shinkle et ux. v. The First National Bank of Ripley, also the first proposition in National Bank v. Garlinghouse.

<p>Motion for leave to file a petition in error to the District ■Court of Brown county.</p> <p>The original case was an action by the bank, against .Shinkle and wife, to recover the amount of Shinkle’s promissory note for $1,400, and to foreclose a mortgage executed by him and his wife to secure its payment. The note and mortgage were dated August 24, 1867, and were both executed aud delivered to one A. J. Stivers, and by him ■assigned and transferred to the bank.</p> <p>The defenses set up were, that the note was made without consideration; that the bank was not the owner of the-note; and that it included, or was given in part for, usurious interest. Issues were taken on these several matters of defense, and on the trial the court, to which the cause was submitted without the intervention of a jury, made a special-finding of the facts. These facts are substantially as fol lows ;</p> <p>The plaintiff in error, John G. Shinkle, with Walter L. Shinkle and Barton B. Shinkle, were partners, under the-name of J. G. Shinkle & Co. Prior to the date of the note- and mortgage in suit, the firm had made two several loans of money from the defendant in error — one for $5,000, dated July 25, 1864, and the other for $6,768, dated December 80, 1865. They had also made a loan of $1,600 from the Farmers’ National Bank of Ripley, Ohio, dated March 26, 1867. On each of these loans Michael Shinkle was surety,, and on each interest was charged and reserved at the rate of ten per cent. These loans were continued, by renewing the notes given for them from time to time, at the same rate of iuterest, down to the time of executing the note and mortgage in suit. The Shinkles then being unable to pay their debts, and having lately, at the request of these two-banks, made an assignment of their property for the benefit of creditors, by agreement of all the parties to these loans, an arrangement was entered into, as follows: The-aggregate amount due on the three loans, including the illegal interest, was divided into four several sums, in proportions agreed upon and arranged between the Shinkles themselves, of which portions each was to assume and pay one, in five annual installments, at six percent, interest, and to secure the same by mortgage on his individual property,, with a proviso that if the interest should not, be paid at the end of each year the principal sum should become due in. two years and six months. The portion thus assumed and agreed to be secured and paid by said John G. Shinkle was-$1,400, and it was for the security and payment of that sum, and in fulfillment of said agreement on his part,' that the note and mortgage in suit were executed. The portion-so assumed and secured by Walter L. Shinkle was $4,400; that assumed and secured by Barton B. Shinkle, $4,000; and that assumed by Michael Shinkle, $4,765. The notes and mortgages were all executed and delivered according to this agreement, and by the consent of the two banks, and for their use and benefit, were executed and delivered to Slivers, withontany consideration moving from Stivers, and were transferred by him to the defendant in error without any new consideration, and by consent of all parties ; and by like consent the old notes were cauceled and given up.</p> <p>On this finding of facts, the court rendered a judgment in favor of the defendant in error, for the amount of the note in suit, without interest, but including the usurious-interest so incorporated in the note.</p> <p>To reverse this judgment, Shinkle and wife filed their petition iu error in the District Court, alleging, among other grounds of error, that the judgment upon the facts found should have been rendered iu their favor, or if not, that the court at least erred in including in the judgment the usurious interest incorporated in the note. The defendant in error thereupon filed its cross-petition in error, praying to have the same judgment reversed, on the ground that the court erred in excluding the interest upon the note in suit. The petition and cross-petition were both heard and decided at the same time, and without objection by either party; and upon their hearing the District Court reversed the judgment of the Common Pleas, and gave the bank a judgment'and order of sale for the full amount of the note in suit, with interest from its date, holding that the Common Pleas erred in disallowing the interest accruing upon the note, and did not err in allowing the usurious interest included in the body of the note. This judgment of the District Court Shinkle and wife now seek to reverse.</p> <p>The assignments of error relied upon are sufficiently set forth in the opinion of the court.</p>

<p>Error, reserved in the District Court of Licking county.</p> <p>This case depended upon the construction of an agree-' ment reading thus:</p> <p>“Eor value received, we, or either of us, promise to pay Robert A. Green and Ann Green, his wife, sixty-six dollars annually, during their natural lives.</p> <p>“Witness,” etc.</p> <p>Suit was brought, in Licking Common Pleas, to recover, upon this instrument, an installment for a period subsequent to the death of Robert and prior to the decease of Ann. That court held that the annuity ceased when Robert died, and gave judgment for the defendants. A petition in error was filed in the District Court, and the cause reserved for decision here.</p>

<p>1. "Whore, in the case of an appeal, the record certified to the appellate court showed that the appeal bond was filed within the time limited by law, and was approved by the clerk, whether, on motion to dismiss the appeal on that ground, it is competent to show, aliunde, that the bond, although received by the clerk, and by him filed within the time limited, was not, in fact, approved by him until after that time had elapsed, quaere? But, held, that, in such case, the appeal is not, on that ground, to be defeated without clear proof, not only that the bond was not approved, but that the appellant had knowledge of that fact.</p> <p>2. In an action by a married woman to establish, as against a third party, her title to property which she claimed in her own right, the plaintiff, under section 314 of the code, as amended by the act of February 16, 1866 (8. & S. 588), is a competent witness on her own behalf, hut is not competent to testify concerning communications between herself and husband, made during coverture-</p>

Tbe ease made by the alternative writ and answer is this : Proceedings were instituted before the defendant as probate judge of Allen county, by a railroad company, for condemnation of relators’ land, under the statute in such case provided. The jury assessed the damages and compensation at $1,350. The company moved the court to set aside the verdict, and for a new trial; but the motion was overruled, and the company took a bill of exceptions.

This is an application for the allowance of a writ of mandamus, to compel the defendant, as justice of the peace, to sign and seal a bill of exceptions. The relators were defendants in a case of forcible detainer tried before the justice. The case was tried without a jury; and, at the close of the testimony and arguments of counsel, the justice announced that he found the defendants guilty.

<p>Motion for writ of error to the Court of Common Pleas of Cuyahoga county.</p> <p>The plaintiff in error, who was defendant below, was convicted, in the court of common pleas, for maintaining a nuisance, under the act of April 15, 1857 (S. & C. 880). After verdict, the prosecuting attorney^moved the court for judgment; and pending the motion, and before sentence, the defendant offered to prove to the court that said nuisance had been removed, and did not exist at the time said motion was made — which proof the court refused to hear; and thereupon the defendant excepted and took his bill of exceptions. The court then passed sentence, as follows, to wit: that said defendant pay a fine of $100 and costs; and that the nuisance charged in the indictment bo and the same is ordered to be abated and removed, by the issuing of an order, out of this court, to the sheriff of Cuyahoga county for that'purpose; the same to be.done at the expense of the defendant, unless such nuisance shall be abated or removed before said order shall be issued, to tho sheriff'.</p> <p>The refusal of the court to hear the evidence offered, by the defendant, on the motion for judgment, is the only matter assigned for error.</p>

The original case was an indictment for incest. It charges that the plaintiff in error had sexual intercourse with one Adelia A. Hopkins, his step-daughter, knowing her to be such step-daughter; but it does not specially allege the marriage of the plaintiff in error to Adelia’s mother, or otherwise show how the said relation of stepdaughter and step-father was created ; nor does it specially set forth the fact that the marriage relation was still subsisting at the time of…

auditor’s office and the public convenience, it is hereby ordered : “‘First. That the recopying of said plats be resumed. “ ‘ Second. That the following rales shall govern the work, viz : a, the plats to be executed with entire correctness ; b, the work to be done in a plain, neat, and distinct •.style, avoiding all ornaments; c, forty feet to an inch shall be used for subdivisions, and two chains to an inch for land tracts. “ ‘ Third.

The original action was brought in the Court of Common Pleas of Summit county, by Jacob Kellar, defendant in error, against Clark A. Sackett aud others, plaintiffs in error, upon certain promissory notes made by Sackett to T. T. Kendrick or bearer, and upon a mortgage given by Sackett and wife to secure the payment of these notes and others made at the same time.

On the 19th of November, 1852, the Junction Eailroad Company was a corporation organized under the laws of this state, with power to construct a railroad, the line of which would pass over that part of section 1, T. 1, U. S. R., which lies between the side-cut of the Wabash and Erie canal and the Maumee river.

<p>Error to the Court of Common Pleas of Morgan county.</p> <p>At March term, 1866, of Morgan Common Pleas, George Blackburn, having been indicted for burglariously and forcibly breaking and entering, in the night season, the dwelling-house of one Reuben Porter, with intent to rob, etc., was found guilty, and on the 17th day of March, 1866, was sentenced to be confined in the penitentiary for ton years, etc.'</p> <p>On the 8th day of January, 1873, on application then made, a writ of error was allowed, returnable to the Supreme Court.</p> <p>No attempt to institute any proceeding to reverse the judgment of the Common Pleas bad previously been made.</p> <p>The charge to the jury, at the trial, contained the paragraph quoted in the fourth proposition of the counsel for the plaintiff in error.</p>

<p>1. The right of a municipal corporation to make assessments to defray the expense of improving a street, and to make the same payable to the ec n ■ tractor doing the work, and the right of the latter to sue thereon in Ilia own name, as authorized by the act of May 3, 1852 (2 S. & O. 149 i), where the assessment was ordered, and thecontract made while that act was in force, are not affected by the repeal of that act by the municipal code (66 Ohio L.) hut the same are within the saving clauses of section 725 of the latter act.</p> <p>2. The trustees of special road districts have no power, under section 46 of the act of May 3, 1852, above referred to, as amended by the act of May 12, 1853 (51 Ohio L. 376), to order the improvement of streets, and charge the cost thereof upon the abutting lots, except upon the petition of two-thirds of the resident owners of the lots thus situated; and the finding of the trustees that such petition was presented, is not conclusive of the fact.</p> <p>3. Where, in such case, the trustees order the improvement, and let the contract for doing the work under a mistaken belief that the petition is signed by two-thirds of such resident owners, and the contractor, in ignorance of any defect in the proceedings, agrees to take the assessment for bis compensation, and is induced to enter into such contract, and to do the work, by the assurances of one of the lot-owners that if he did the work ho should be paid: Held, in a suit brought by the contractor to collect the assessment, such lot-owner is estopped from showing that the petition was not, in fact, signed by two-thirds of tho resident lot-owners.</p>

<p>Error to the Superior Court of Ciucinnati.</p> <p>This was an action of replevin, brought by Jenkins, Bro. & Chipman against Frank, for five bales of cotton, and the only question in the case was the title to the property, each party claiming to be its owner. The facts disclosed by the pleadings, and by a bill of exceptions setting forth all the evidence in the case, are substantially these: Frank was a merchant at Holly Springs, in the State of Mississippi, and1 one Trotter was his commission merchant, at Memphis,. Tennessee. The five bales of cotton in question were the property of Frank, and were shipped by him, as large-quantities of cotton had previously been shipped, to Trotter,, at Memphis, for sale. Jenkins, Bro. & Chipman were commission merchants in Boston, Massachusetts, engaged in the business of receiving shipments of cotton from Memphis to Boston, and making advances of money thereon to the shippers or owners. On receipt of the five bales of cotton,, Trotter shipped them, with seventy other bales, making in all a lot of seventy-five bales, to Jenkins, Bro. & Chipman, receiving from them an advance of seven thousand dollars on the entire lot of seventy-five bales. The shipment was, made by the Great Eastern Dispatch Company, a forwarding line between the West and East, employing steamers and railroads; and the bill of lading was delivered to Brown, the agent of Jenkins, Bro. & Chipman, at Memphis, and by Mm forwarded to them. This bill of lading, so called, is in fact two several bills of lading conjoined, viz: a bill of lading per steamer Anna, O. P. Shinkle, master, from Memphis to Cincinnati, and at the foot of it, on the same sheet, a bill of lading of the Great Eastern Dispatch Company, for carriage of the cotton from Cincinnati to-Boston.</p> <p>On the 19th of April, 1867, the cotton having arrived at Cincinnati, Erank there replevied it from Shinkle, the master of the Anna; and subsequently, on the same day he brought an action against Trotter, in the same court in which the replevin suit had been commenced, to recover of Trotter a large sum of money claimed to be due from him to Erank, including in the account sued on, the price of the five bales of cotton in controversy. Eive days afterward, on the 24th of April, 1867, Erank also brought an action in Boston, against Trotter, for money claiméd to be-due and owed to him by Trotter, and there caused to be served upon Jenkins, Bro. & Chipman a process of garnishment, claiming that they were largely indebted to-Trotter. Whether the money sued for in the ’ast-named action included, as'the Cincinnati case did, the price of the five bales of cotton in controversy, does not appear, otherwise than by the fact that the sum claimed exceeded the-entire amount due from Trotter, including the price of the five bales.</p> <p>Two days after the service of the process of garnishment upon them, on the 26th of April, 1867, Jenkins Bro. &• Chipman brought their action of replevin in Cincinnati, for the five bales of cotton, which is the action here in review.</p> <p>When this action was tried at the June term, 1867, the Cincinnati suit against Trotter for the price of the cotton-was still pending, and the replevin suit against Shinkle had been determined by a judgment in favor of Erank. What finally became of the two actions against Trotter does not appear, nor is these any evidence to show that they were commenced under any mistake or ignorance of the facts, or that Prank ever elected to abandon them, or either of them.</p> <p>The State of Tennessee has never passed any statute like the statutes of Massachusetts, Ohio, aud most of the other states, recognizing the principles of Lord Tenterden’s acts (4 and 6 Geo. 4, ch. 88, 94), by which a factor, with power to sell, is to be regarded as owner, so far as to give validity to such a disposition of the cotton in question as was made by Trotter. See 1 S. & O. 421, sec. 62.</p> <p>Upon these facts the court found for Jenkins, Bro. & Chipmau, and gave them a judgment. Prank took a. bill of exceptions, setting forth the evidence and the overruling of his motion for a new trial, predicated upon the ground that the finding of the court was not supported by the evidence, and he now assigns for error the overrating ■of that motion.</p>

<p>"Where one of the parties in a proceeding in partition, during the pendency of the case, assigned to several persons specified amounts of his share of the money to be realized from a contemplated sale of the land, and afterward a creditor of the saíne party obtained judgment against him and levied an execution on hi» undivided interest in the land, also at the same time proceeded by cross petition to subject such interest to the payment of the judgment, and the proceeding in partition resulted in a sale of the land: Held—</p> <p>1. The lien acquired by the judgment creditor on the interest of the debtor in the land, was divested by the sale in partition, and his equitable right to that portion of the proceeds of the sale belonging to the debtor, having accrued after a part thereof had been assigned by the debtor, is subordinate to the rights of the assignees, and, in the distribution of the fund, the amount assigned to them must be first paid.</p> <p>2. The debtor had the same right to the statutory exemption in lieu of a homestead, as against the creditor, that he would have if the creditor had levied an execution on the money in dispute; and the court having control of the fund, on the proper application of the debtor, may, in the distribution of the fund, refuse to apply the amount of such exemption to the satisfaction of the nidg-ment.</p>

<p>1. In a suit to foreclose a chattel mortgage, where the court has jurisdiction of the parties in interest, it is not necessary to a decree of foreclosure that the mortgaged property should he within tlie territorial jurisdiction of the court.</p> <p>'2. The mortgagee of the undivided half of a vessel, registered and enrolled at the port of Buffalo, instituted a suit in the Court of Common Pleas of Cuyahoga county, in this state, against the mortgagors and the subsequent mortgagees, to obtain a foreclosure of his mortgage. The personal appearance of the defendants was effected to the suit, and by the final decree it was ordered that, unless they paid the plaintiff his mortgaged debt within a time specified, the mortgaged property should be sold by a master as upon execution. Held, that to enable the officer to make a valid sale under an order issued in pursuance of the decree, it was not necessary that the vessel should he present, or under his control, at the time and place of sale.</p> <p>3. Courts of equity, in ordering a sale of property, follow the rules regulating sales on execution, when they are applicable. But where the subject with which the court is dealing is such that these rules can not be ap- , plied, without defeating the ends of justice, they will he disregarded.</p>

judgment of the Superior Court of Cincinnati. The Farmers’ Insurance Company was incorporated under the “ act of April 11, 1856.” S. & C. 360, as amended in 1865 (S. & S. 228).