Volume 23 — Ohio State Reports, New Series

<p>1. One who bargains for the purchase of a specific chattel' does not, by the mere payment of a part of the purchase money under an express-contract that no title shall vest in him until all of the purchase money, is paid, acquire any interest therein which is subject to levy and sale-on execution.</p> <p>2. Where, in such case, the levy is made upon the property then under the contract rightfully in the possession of the vendor, and in recognition of his rights, the title of the officer .making the levy is not aided, and he does not acquire any Interest in the property, or become entitled to its possession, by tendering to the vendor the amount of tho purchase money then remaining unpaid.</p> <p>3. A judgment will not be reversed for error in 'sustaining a demurrer to the reply when the plaintiff, on leave, files an amended reply, presenting, in addition to others, the same issues, and the case proceeds to trial and final judgment upon the issues thus presented.</p>

The plaintiff in error brought his action against defendant in error, in the Court of Common Pleas of Richland county, for damages sustained by reason of being unlawfully ejected from the defendant's cars. On the 17th of December, 1866, the plaintiff bad entered the car for the-purpose of taking passage from Crestline to Mansfield — a distance of thirteen and a half miles — without purchasing a ticket or prepaying fare at the ticket-office of the company.

<p>1. Taxation can only be authorized for public purposes. Where, therefore, a statute authorizes a county, township, or municipality, to levy taxes not above a given per cent, on the taxable property of the locality, for the purpose of building so much of a railroad as can be built for that amount, and the part of a railroad so to be built can be of no-public utility unless used to accomplish an unconstitutional purpose, such tax is illegal and can not he imposed.</p> <p>2. Section 6, article 8, of the constitution, declares, that ‘the general assembly shall never authorize any county, city, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint-stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association.” What the general assembly is thus prohibited from doing directly, it has no power to do indirectly.</p> <p>3. Where public credit or money is furnished by any of the subdivisions of the state named, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded as furnished for, or in aid of, such parties.</p> <p>4. The act of April 23, 1872, to authorize counties, townships, and the municipalities therein named to build railroads, etc. (69 Ohio L. 84), authorizes the raising of money by taxation, which is equally applicable to the unlawful purpose of aiding railroad companies, and others engaged in b hiding and operating railroads, as it is.to any lawful purpose, and gives to the officers intrusted with the control and application of the money thus raised, no means, or power, of discrimination as to-the lawfulness, or unlawfulness, of the work, or purpose, to which it is to be applied, and is thus in contravention of section 6, article 8, of the constitution, and therefore void.</p>

The original action was brought on a policy of insurance against loss by fire. On the 1st day of August, 1867, the insurance company, for a premium of $141.50, issued its policy to Marcus C. Parker, insuring him for one year in the sum of $2,075, upon specified portions of an oil-refinery and property therein contained, located in the city of Cleveland, against loss or damage by fire.

The original suit was brought by the defendant in error' against the plaintiff in error, Allen, upon four promissory notes and upon a mortgage executed to secure their payment. The notes were dated July 18, 1866, each being for $5,000, and payable one year after date to the order of C. R. Merrick, and were signed by Allen as, sole maker, and indorsed by Merrick. The mortgage was also executed by Allen to Merrick, and was duly recorded.

Petition in error to reverse a judgment of the Superior Court of Cincinnati. The action in the Superior Court was brought by the defendants in error to recover $5,000 upon a policy of insurance issued by plaintiff in error upon the life of George Best, for the benefit of defendants in error, who are his widow and children. The policy was issued at Cincinnati, Ohio, April 19, 1867. The assured died June 10, 1871, and the suit was commenced April 9, 1872.

In September, 1865, Fosdick sold to Metcalfe the “ Franklin Cotton Factory,” including the lot, buildings, machinery, utensils, etc., for the sum of $60,000. Of this amount, some $20,000 was paid in hand, and for the balance four notes were executed by Metcalfe to Eosdick, payable in one, two, three, and four years.

<p>1. When an information in the nature of a quo viarranto is filed against a corporation, by its corporate name, calling upon it to show by what warrant it claims to be a corporation and to exercise corporate powers, and the defendant pleads an act of the legislature granting to it the franchises named in the information, it is competent for the relator, by way of replication, to aver cause' of forfeiture, and to pray for a judgment of dissolution.</p> <p>.2. Whether the act of March 20, 1867 (64 Ohio L. 285), purporting to authorize the defendant to abandon, lease, or sell the whole or any part of its canal, be in conflict with provision of the constitution against the conferring of corporate powers by special laws or not, and whether it be operative as a waiver of any cause of forfeiture committed by the defendant before its passage or not, it can not be so construed as to relieve the defendant from its duty to keep in repair those portions of its canal not abandoned under the provisions of the statute, or from the consequences prescribed in the charter for failing to perform such duty.</p> <p>3. Where a corporation has been guilty of such negligence as is made by the terms of its charter a cause for the forfeiture of its franchises, and the state, on the relation of the attorney-general, demands a judgment of dissolution on account thereof, the court has no discretion to refuse such judgment upon the ground that public or private interest would be better subserved by preserving the existence of the corporation.</p>

<p>Error to the Court of Common Pleas of Lucas county.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

Court of Medina county. Morning Star Lodge, No. 26, of the Independent Order of Odd Fellows, situate in the village of Medina, owned and possessed $2,774, of which $1,712 constituted a lodge fund, and $1,062 a widows and orphans’ fund. The former fund w«,s held for the purpose of relieving sick and needy members of the order, and the latter to provide for the widows and orphans of deceased members.

<p>1. Where statements of a prisoner are given in evidence against him, the exculpatory parts thereof, as well as those which import guilt, are to be received as evidence, and it is the province of the jury, in the light of all the evidence in the case, to decide upon the truth or falsehood of such exculpatory parts ; and it is not error in the court so to instruct the jury, and to refuse to instruct them that they have no right to reject or disregard such exculpatory parts, unless there is some other evidence in the case showing them to be false, or unless they are so unreasonable or absurd, as to be, in the opinion of the jury, unworthy of credence.</p> <p>2. Neither fraud nor deception is a necessary ingredient in the act of administering poison, within the meaning of the first section of the crimes act. To force poison into the stomach of another; to compel another by threats of violence to swallow poison; to furnish poison to another, for the purpose and with the intention that the pérson to whom it is delivered shall commit suicide therewith, and which poison is accordingly taken by the suicide for that purpose; or to be present at the taking of poison by a suicide, participating in the taking thereof, by assistance, persuasion, or otherwise, although the party so present and participating at the time intends and agrees himself also to commit suicide — each and all of these are forms and modes of “administering poison,” within the meaning of the act.</p> <p>3. Although extrajudicial confessions alone are not sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence.</p> <p>4. Where the defense of insanity is set up on the trial of an indictment for murder, it is not error to the prejudice of the accused, to instruct the jury that the questions to be decided, as regards this defense, are these: Was the accused a free agent in forming the purpose to kill 7 was he at the time capable of judging whether that act was right or wrong? and did he know at the time that it was an offense against the laws of God and man 7</p> <p>5. Under section 151 of the criminal code (vol. 66, p. 09), the court is not bound to reduce instructions to writing unless requested so to do before the argument of the case to the jury, nor to read or deliver the charge when so reduced to Writing until after the close of the argument, if any argument is made.</p> <p>6. When a new trial is asked on the alleged ground that one of the jurors had previously expressed his opinion as to the prisoner’s guilt, the overruling of such motion will not be held erroneous, if the evidence of the fact of such expression of opinion is conflicting, or there is testimony tending to disprove it.</p> <p>7. Where, on the trial of an indictment for murder, the prisoner, for the purpose of proving that the deceased came to her death by suicide, offered to show that six years previous to her death, she was of a melancholy condition of mind, and predisposed to and threatened to commit suicide — Held: That it was error in the court to reject the testimony, the remoteness of the period to which it referred going merely to its weight, and not to its competency.</p>

<p>In quo warranto.</p> <p>The opinion of the court indicates the facts.</p>

<p>Motion for a writ of error to Lucas Common Pleas.</p> <p>The facts are indicated by the opinion of the court.</p>

Appeal. Reserved in the District Court of Scioto county. This action was brought to obtain an order restraining the defendant from enforcing against the plaintiffs a certain tariff' of rates for transportation of property upon its road.

The plaintiff brought his original action against the defendant in the Court of Common Pleas of Guernsey county,, on the 30th of October, 1867, and caused a writ of attachment to be issued therein and levied upon the defendant’s property.

The plaintiffs agreed to sell and deliver to the defendants-nine hundred cheeses, and delivered and received their pay for one-half of the cheeses agreeably to the contract. The-remaining half was tendered by the plaintiffs, and refused by the defendants, on the alleged ground that they were defective ; and the plaintiffs brought this action to recover $1,700 damages for defendants’ refusal to receive and pay for the cheese so tendered and refused.

Appeal. Reserved in the District Court of Brown county. The case was reserved for decision here from the District Court of Brown county, to which it was appealed from the-Common Pleas. It stands upon demurrer to the petition, which shows that the parties to the case are the heirs of Robert Craighead, deceased, being his living sons and daughters, and the children of those that are deceased.

The defendants in error are tax-payers of the city of 'Cincinnati, and the city solicitor having refused to institute any proceeding for that purpose, they brought their action in the Superior Court of Cincinnati to enjoin the plaintiffs in error, the board of education and certain of its members and officers, from carrying into effect, or enforcing, two resolutions then lately adopted by the board.

<p>Error to the District Court of Cuyahoga county.</p> <p>The facts appear in the opinion of the court.</p>

Noble had obtained a judgment against Arnold, in the Court of Common Pleas of Pickaway county. On October 16, 1866, Arnold brought an action in the same court against Noble for a new trial of the case, and obtained an injunction restraining him from the collection of the judgment. Under the order of the court an undertaking was filed in the case, of which the following is a copy : “HENRY ARNOLD V. JOSHUA H. NOBLE.

Reserved in the District Court. The following items are contained in the last will and testament of Benjamin H. Johnson, deceased: “23d. I give and bequeath to my executors in trust, for the uses and purposes hereinafter named, ten thousand dollars, which sum I direct my executors to put at interest, and, at the expiration of six years from the date of my death, to pay the same principal sum of ten thousand dollars to a college for completing the education of young men,,…

The original action, which was a proceeding for dower,, prosecuted by defendant in error against plaintiff in error, was brought by appeal into the District Court, and upon hearing therein, dower was decreed as demanded by the petitioner. The testimony was placed upon record by bill of exceptions, from which the following state of facts appears: 1.

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

<p>When an executory contract for the purchase of laud is assigned by the purchaser, either absolutely or as a collateral security, and the assignor subsequently mortgages the contracted premises, the relative rights of the assignee and mortgagee are not determined by the fact that the mortgage was duly executed and recorded. In such case, and between parties thus situated, the act providing for'the execution and recording of deeds, etc. (S. & C., Vol. 1, 458), has no application.</p>

<p>Motion for leave to file a petition in error to the District Court of Lucas county.</p> <p>The original action was brought in the Court of Common Pleas of Lucas county, by the First National Bank of Toledo, against the Wabash Elevator Company, to recover the value of five thousand bushels of corn.</p> <p>The case was tried to the court and decided in favor of the bank. The elevator company moved for a new trial, which was overruled. A bill of exceptions was taken, embodying all the evidence, which shows substantially the following case:</p> <p>E. C. Smith & Co. and Hamilton & Goldsmith were two firms of commission merchants, doing business at Toledo, Ohio. Smith & Co. owned a large quantity of corn, for which they had taken warehouse receipts of the elevator company where it was stored. These receipts had been deposited with the bank as security for advances of money in payment of the grain.</p> <p>On the 30th of February, 1872, Smith & Co. offered for sale, on ’Change, at Toledo, five thousand bushels of corn, at a price named. The offer was accepted by Hamilton & Goldsmith, and nothing further was said; but, according to the custom on ’Change, they were regarded as the purchasers of the grain to be paid for on delivery of warehouse receipts for the quantity sold.</p> <p>For the purpose of completing the sale, Smith & Co. applied to the bank for warehouse receipts for the quantity of corn so sold, which the bank permitted them to take, upon the understanding that the money received for the grain should be returned to the bank.</p> <p>Smith & Co. sent to Hamilton & Goldsmith, by their clerk, the warehouse receipts for the five thousand bushels of corn so purchased by them, with a statement of the amount due therefor. These were handed by the clerk to Mr. Goldsmith, who took them and gave them to his bookkeeper; but, instead of paying the amount due, as expected by Smith & Co., Mr. Goldsmith informed the clerk that he would give Smith & Co. credit for the amount on their account with Hamilton & Goldsmith. Thereupon the clerk left.</p> <p>At the date of the purchase of the corn and delivery of the receipts, Smith & Co. were indebted to Hamilton & Goldsmith in a sum exceeding the price of the corn. The amount of this indebtedness had been adjusted between, them ; but Smith & Co. were not then prepared to pay it, and were negotiating with Hamilton & Goldsmith for time. There was no understanding between the parties that the price of the grain should be applied on the debt. On the contrary, the evidence strongly tends to show that the grain was offered for cash, and was so understood by both parties to the sale.</p> <p>On the return of the clerk to the office of Smith & Co., Mr. Smith went to Hamilton & Goldsmith’s, and demanded •either the return of the receipts or a check for the price of the corn. Mr. Goldsmith insisted that the amount should be applied in reduction of the indebtedness due from Smith .& Co. Angry words ensued, and Mr. Smith attempted to snatch the receipts from the book-keeper. He succeeded in tearing off and carrying away with him a portion of all. the receipts but one. The remaining portions of the torn receipts, and the one not torn, were retained by Hamilton A Goldsmith.</p> <p>The warehouse receipts had been issued in the usual negotiable form by the Wabash Elevator Company, and were usually transferred by delivery merely.</p> <p>The elevator company was immediately notified by both parties of the whole transaction.</p> <p>The bank claimed the corn of the elevator company, and insisted that the receipts bad been pledged to the bank for .advances made by it; but the company delivered the com to Hamilton A Goldsmith. Thereupon the bank brought suit against the elevator compauy for the value of the corn.</p> <p>The judgment of the Common Pleas, in favor of the bank,, was affirmed, on proceedings in error, by the District Court. To reverse these judgments, leave is now asked to file a petition inerror in this court.</p>

<p>1. Cases of bastardy may be continued from term to term, as other cases, and for causes other than those'named in section 4 of the act; and when continued for any cause, it is the duty of the court to bind the accused in a recognizance conditioned that he will appear at the next term to answer the complaint, and abide the order of the court — the words “that the accused person shall be forthcoming at the next court after the birth of the child,” etc., contained in section 4 of the act, not being intended to express the condition of such recognizances, but the object of taking them.</p> <p>2. Recognizances so taken are not in the nature of bonds of indemnity,, and when forfeited an action may be maintained thereon by the State-of Ohio, and the full amount of the penalty, with interest from the-date of the forfeiture, recovered, without averring or showing any loss or damage sustained by the mother of the child, or the township-where it may be born.</p>

The record shows that after the jury impaneled in the cause had sealed up their verdict, but before the same was delivered in court, the plaintiffs in error moved to discharge the jury, for the reason that one of the jurors, who had been summoned by special venire in the case, was not an elector of the county; and he supported the motion by affidavit, showing the fact of the juror’s disqualification, and also showing that the plaintiff in error, at the time of impaneling the…

<p>1. In mandamus, under the code, the writ is the only pleading on tho part of the relators ; and the same effect is to be given to it, and it is to be construed, and may be amended in the same manner, as pleadings in a civil action.</p> <p>2. Where an alternative writ states the facts showing the obligation of the defendant to perform the act, which it is sought to compel him to perform, but in a form of statement more general than is allowable in good pleading, the objection should be taken by motion to make the recitals of the writ more definite and certain by amendment.</p> <p>3. By section 10 oi the act of April 27, 1869, authorizing county commissioners to purchase land for the use of public buildings, and to erect public buildings thereon, etc. (66 Ohio L. 54), it is made the duty of the prosecuting attorney, on the submission to him of a contract entered into by the commissioners for the erection of a public building, to investigate and ascertain whether such contract is in accordance with the provisions of the act, and, if he finds that it is, he is bound to indorse thereon his certificate to that effect.</p> <p>4. When an alternative writ of mandamus is issued against a prosecuting attorney, commanding him to make the indorsement, or- show cause why he refuses to do so, and the recitals of the writ, which are sufficient in other respects, show, in general terms, that the contract is in accordance with the provisions of the statute, the defendant ought, in the absence of a motion requiring the facts to be more specifically stated, to answer the writ; and it is error for the court, on the motion, of the defendant, to quash the writ and dismiss the proceeding.</p>

Error, on bill of exceptions, taken on behalf of the state in the Court of Common Pleas of Lucas county. The defendant was indicted at the October term, a. d. 1872, of the Court of Common Pleas of Lucas county, for the crime of larceny.

The plaintiff’in error was convicted and sentenced to the penitentiary upon an indictment charging an assault upon John J. Thompson with intent to wound. The record sets forth all the evidence in the case, and it is assigned for error, among other things, that the court overruled a motion for a new trial predicated upon the ground that the verdict is not sustained by the evidence.

<p>1. An action on an undertaking for an attachment given to A. and B. may" be prosecuted in their names, as partners, where it appears that the only injury complained of was the wrongful seizure of property owned by them as partners.</p> <p>2. Under the code of civil procedure an action on such undertaking may be-prosecuted by those obligees who have an interest in the damages sought to be recovered, without making other obligees, who have no-interest in the action, parties thereto.</p> <p>3. In such action it is not necessary to aver or prove that the attachment has been discharged as to those obligors who are not necessary parties to the action.</p> <p>4. The execution of a redelivery bond, under section 199 of the code, by the-defendant in attachment, can not be set up as a bar to his right of action on the attachment undertaking.</p> <p>5. In such action the plaintiff may recover damages for interruption to his-business, caused by the wrongful seizure and detention of a stock of goods kept for sale by retail.</p> <p>6. Compensation in such eases includes reasonable costs and expenses incurred in procuring the discharge of the attachment and the restoration of attached property.</p> <p>7. It is error to admit in evidence the opinions of witnesses as to the amount of loss or damage sustained by depreciation in the market value of a stock of goods, caused by the seizure and detention thereof under an order of attachment.</p> <p>8. Damages supposed to result by reason of an injury to the reputation of goods caused by the levy of an attachment thereon, are too vague and uncertain to be capable of legitimate proof, or to form the basis of a recovery in an action on the attachment undertaking.</p>

Under the the act of the general assembly of the State -of Ohio, entitled “ an act to provide for locating, establishing, and constructing ditches, drains, and water-courses in townships,” etc., passed May 6, 1868 (S. & S. 322), one H. Kohn completed some jobs of ditching in Hoagland town.ship, Van Wert county, and on the 26fch day of October, 1868, pursuant to section 13 of said act (S. & S. 327), received four several orders (one for each job), drawn by the auditor of the…

<p>1. "Where the testimony of the prosecutrix, in a rape case, charges the crime upon the defendant, it is competent, in giving in evidence her declarations made immediately after the alleged transaction, in corroboration of her testimony, to show that in and by said declarations-she charged the crime upon the defendant.</p> <p>2. The rule, that unless the party propounding a question to a witness discloses at the time what he expects to prove, the erroneous rejection of the question by the court will not he regarded as prejudicial to the party, does not apply where a witness, on cross-examination, is asked, if he has not made statements inconsistent with his testimony in chief, the purpose and object of the inquiry being sufficiently manifest without such disclosure.</p>

<p>1. Under the statutes in force in 1853, relating to the taxation and collection of costs, to wit, the act of March 9, 1835, entitled “ an act to regulate the taxation and collection of costs,” the eighth section of the act of same date, entitled “ an act to amend the act entitled an act to regulate the practice of the judicial courts,” and the act of March 18, 1839, entitled "an act for the disposition of unclaimed costs,” the party recovering judgment for his costs acquired an absolute interest in the moneys collected thereon only to the extent he had paid the fees taxed therein, and, upon payment to him of such judgment, he became liable to persons whose fees were unpaid, as for'money had and received for their use.</p> <p>2. Where the party recovering such judgment assigned “all his right, title, and interest therein” to his attorney of record, the assignee, upon receiving payment of the judgment, became liable to an action for money had and received at the suit of persons whose unpaid fees were taxed therein.</p>

<p>Petition in error to the District Court of Athens county.</p> <p>On the 6th day of April, 1868, George C. Coates filed, in the Court of Common Pleas of Athens county, his petition against the Chillicothe Branch of the State Bank of Ohio, the State of Ohio, and Eliakim H. Moore, setting forth the following state of facts: That, in 1850, the Chillicothe Branch Bank filed its petition, in the Court of Common Pleas of Athens county, against John Coates, Moses R. Bartlett, Jacob May, and William H. Douglas, stating that the Chillicothe Branch Bank had recovered two judgments in Hocking county against John Coates, M. R. Bartlett, and Jacob May, one for $11,285.27, and the other for $4,058.32; that, on the 30th day of August, 1850, executions, issued on said judgments, were levied on lands in Athens county, as the property of John Coates, viz: on section No. 36; also, 165 acres in section Nos. 9 and 15, lot No. 59 ; and 193 acres in lot No. 61, in Athens township and Athens county; that, at the same time, an execution in favor of William .Douglas was levied on the same land; that said execution creditors had been unable to find the evidence of John Coates’ title to said land; that the prajmr of the petition was, that John Coates might disclose his title to the land, and that his interest therein might be sold to satisfy said judgments according to their priority of lien; that, in 1852,, the said Branch Bank filed an amended-petition, making Arthur Coates and said George O. Coates parties, averring that they claimed to own said lots numbers 59 and 61, and praying that they might disclose their title thereto; that John Coates answered, denying that he ever had any title-to said lots 59 and 61; that, before the amended petition was filed, said George C. Coates had gone to California; that he was served by publication in 1858; that John Coates died in 1864; that nothing was done in the case until 1866, when the ease was revived against the heirs of John Coates, deceased, and the Athens Branch of the State Bank of Ohio-was made party, with the averment that it had a lien on said land; that Arthur Coates answered, claiming to own lot No. 59; that George C. Coates failed to answer; that, in 1867, an attorney of said court, at the request of the agent of said banks, without authority from said George C. Coates,, fraudulently appeared in said case as the attorney of said George C., and filed an answer for him, claiming the ownership of lot No. 61, and denying that John Coates had any title thereto.</p> <p>It was further averred in the petition that George C., Goates was in possession of said lot No. 61, and had been for more than twenty-one years prior to the time of the commencement of the suit, claiming title thereto; that in 1839 John Coates assigned to him a leasehold estate therein, and that he acquired a fee-simple estate in said lot No. 61, which Is worth fifteen thousand dollars.</p> <p>It is also averred that said Moore, for himself, and as agent of said banks and president of one of them, paid said attorney six hundred dollars, to appear in said case for George C. Coates, answer for him, and consent to a decree against him ; that said Moore agreed with Arthur Coates to give him nine thousand dollars for lot No. 59, which, by consent was to be decreed to Arthur Coates ; that accordingly, in 1867, the court rendered a decree, by consent of tall the parties, finding the facts in favor of the plaintiff in the case, except as to lot No. 59, which was found to belong to-Arthur Coates, and John Coates was found to be the owner of lot No. 61, with au equity therein in favor of George C. Coates to the amount of $2,400; that thereupon, by consent of all parties, the court ordered lot No. 61 to be sold, and. that the proceeds be applied, first, in payment of the costs;. secondly, the amount found due George C. Coates, and, if the bank became the purchaser, by agreement, it was decreed to have a credit on the amount due George C. Coates of six months on one-half, and of twelve mouths on the remainder, without interest; and, by agreement of parties,, the bank was ordered to pay the said attorney of George C. Coates.</p> <p>It is further averred that said attorney had no authority from George C. Coates to appear as his attorney in said case,, nor to consent to said decree; but he avers that he had other attorneys employed to resist said decree, whom the-court refused to hear, and that said Moore, acting as before stated, fraudulently procured said attorney to appear and. consent to said decree, with full knowledge that George C. Coates was the owner of said lot, and had a good defense to said suit.</p> <p>It is further averred that said Moore, as such agent, immediately caused an order of sale to issue on said decree,, and caused said 193 acres to be appraised at $10,000; and, on the sale, became the purchaser thereof at two-thirds of the appraised value, a sum greatly below its true value,’and sold ninety acres thereof to. the State of Ohio-for a sum paid by the citizens of Athens much larger than he paid for the whole; that said Moore had full knowledge of the equity of said George C. Coates to impeach said decree; that he conveyed said ninety acres to the State of Ohio for the location of a lunatic asylum, without any consideration paid by the state; that the state, through its trustees (said Moore being one of them), had notice of all the rights of the said George C.. Coates.</p> <p>The petition concludes as follows:</p> <p>“Therefore the said plaintiff’ prays that a summons may Issue against said defendants, and that an injunction may be granted restraining said defendants from turning the family of said plaintiff out of the possession of said premises ; and that, on the final hearing and trial of this ease, the decree of said court, so entered, may be vacated and set ¡aside, and said plaintiff let in to try his title to said premises; and that he may, by the decree of the court, be quieted in his possession of said lands, and the title be, by such decree, reinvested in him, and said E. H. Moore and .the said State of Ohio, be adjudged to release their title to the same to said plaintiff, and for such other and further relief as equity may require.”</p> <p>The Chillicothe Branch Bank and E. H. Moore answered the petition, denying, substantially, all the averments in the petition, and set up, by way of defense, that, at the time the Chillicothe Branch Bank brought its suit against John Coates and others, he was the owner of lot No. 61, and set forth the facts showing how he obtained title thereto; that, .-at first, he filed an answer in the case, claiming to be the owner, which was afterward withdrawn by reason of a fraudulent combination with George C. Coates, whereby, for the purpose of defrauding the creditors of John Coates, long after the commencement of that suit, a pretended assignment of John Coates’ title was executed to George C. Coates, and dated back for the purpose of defrauding said creditors; that George C. had no valid title to the land, and that his possession thereof was only as a tenant of John Coates, until after the commencement of said suit.</p> <p>Upon these pleadings, at the May term, 1869, the case was tried upon the evidence, and the court found the answer of the defendants to be true, and that the equities of the case were with them, and thereupon dismissed the petition. .The plaintiff' gave notice of appeal, and duly filed his bond therefor; thereupon the case went to the District Court, where, at the September term, 1869, the defendants filed a motion to dismiss the cause, because there is no provision of law under which it could be appealed from the Court of Common Pleas to the District Court, and the Court sustained said motion, and ordered and adjudged that the appeal be dismissed. To reverse this judgment of the District Court, a petition in error is prosecuted in this court.</p>

<p>1. The act passed March 11, 1861, entitled “ an act regulating the Commercial Hospital of Cincinnati,” does not constitute the board of trustees, therein provided for, a corporation, or confer corporate power on the city of Cincinnati; nor is said act repealed by the municipal code.</p> <p>2. By said act the authority of governing the hospital is vested in the board of trustees; and the board of hospital commissioners provided for in the municipal code has no authority over it.</p>

<p>1. The inquiry in proceedings by information in the nature of quo warranto is limited to the charges in the information, and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped.</p> <p>2. An information which charges a corporation with usurping certain franchises by acting through other parties, calls in question only the - authority of the usurping corporation, and can not be extended so as to include authority not derivable from the corporation, and which such parties exercise in their own right.</p> <p>3. The act of February 29, 1864, amendatory of section 4 of the act of March 11, 1861, regulating the Commercial Hospital of Cincinnati (58 Ohio L. 151;, is a special act assuming to confer corporate powers on the city council of Cincinnati, in respect to the government of the - hospital, and being thus in conflict with section 1, article 13, of the constitution, is inoperative.</p> <p>4. The city of Cincinnati can exercise no rightful authority in the government of said hospital, that power being vested in the board of trustees under the act of March 11, 1861, as an independent body.</p>

<p>Reserved in the District Court of Marion county.</p> <p>The original action was brought by the defendants in' error against the plaintiff in error. In this they allege that Ault’s’estate is insolvent,’and that they have paid to Kreis, under the mistaken belief that the estate was solvent, the full amount of his claim against the estate; and they seek to recover back the excess of the payment over and above Kreis’ fro rata dividend of the assets. The facts-disclosed by the pleadings and evidence are substantially these: On the 5th of September, ,1868, Morton and the testator (Ault), who then were, and for years had been,, partners in a mercantile business, entered into an agreement to the effect that the said partnership should continue-till the 1st of January, 1864, and that Ault should then take possession and become the owner of all the partnership property and effects, and pay all the debts of the firm, .and that he should pay a stipulated sum to Gorton in full of his claims and demands upon the concern. On the same day Ault executed his will, in which he appointed said Gorton and Merrill his executors, and authorized them, as such executors, to continue and carry on the business for three years from and after the 1st of January, 1864, Ault died on the 6th of September, the next day after making this agreement and will. Gorton, as surviving partner, continued in possession of the assets of the firm, and as such carried on the business, making purchases as well as sales in the name of the firm of “Ault & Gorton,” as had been done prior to the death of Ault. The executors never qualified as such till the 7th of January, 1864, 'The claim of Kreis was for money loaned to the firm of Ault & Gorton in May, 1863, and was evidenced by their .note signed “Ault & Gorton.” In December, 1863, Gorton, who still continued to carry on the business in the old firm name, requested Kreis to bring the note and receive his money, which Kreis agreed to do, but delayed the matter till the 14th of January, 1864, when he delivered up the note and received from Gorton his pay in full. Kreis at this time had no knowledge of the agreement, or of the will, made on the 5th of September, 1863, or that Ault had acquired any individual or exclusive interest in the assets of the concern, and the payment was made to him by a bank check drawn by Gorton in the firm name of Ault & Gorton. No change of the account of Ault & Gorton in the bank was made, either at the death of Ault, or at the date of the qualification of the executors, the funds therein still standing in the name of Ault & Gorton. Gorton, it seems, was the only acting executor, and when he paid this note he supposed the estate of Ault to be solvent, but it was in fact, and now is, insolvent. IIow or whence the funds in bank at the time this check was drawn were derived, does not appear otherwise than from the fact that they were the proceeds-of the mercantile business, and not derived from» the individual property of Ault not put into the concern. The business was carried on in the name of the old firm until May or June, 1864, when it was ascertained that the estate was-insolvent, and the business was closed. Gorton then placed all his individual property in the hands of the executors, to her used as assets of the estate in payment of its debts. Nearly all the debts of the estate are debts contracted in the name of Ault & Gorton — some of them contracted before and some' after the death of Ault. Whether any of them were contracted after the qualificaion of the executors does not appear. Nor does it appear whether any money was deposited-in the bank between the date of their qualification and the payment to Kreis. Kreis knew nothing of any change in the ownership or management of the business, and supposed that it was still in fact, as it was ostensibly, under the control and management of Gorton.</p> <p>Upon the trial of the cause, the court instructed the jury that if they should find that Ault and Gorton did enter' into said agreement of September 5, 1863, “ then, upon the-death of Ault, all the property belonging to the business-conducted in the name of Ault & Gorton became absolutely the property of Ault.” Under this instruction the' jury found for the plaintiff; and the court, after overruling a motion for a new taial, predicated upon the ground of the misdirection of the court, and the insufficiency of the testimony, gave the executors a judgment for the amount of their claim.</p> <p>The errors assigned are, substantially, that the court misdirected the jury, and that the verdict is not supported by the evidence.</p>

<p>1. When a fact is admitted by the pleadings, and no evidence offered to disprove it, it is error for the court, when special findings are requested under section 280 of the code, to state the fact contrary to the admission.</p> <p>2. Where a motion for a new trial, on the ground that such special findings are contrary to the evidence, has been overruled and exceptions taken, and the whole, testimony embodied in a bill of exceptions, the reviewing court, having found the error complained "of to exist, will look into the whole record to ascertain whether the error was prejudicial to the party against whom it was committed.</p> <p>3. Where a husband purchased lands subject to a mortgage and paid the purchase money less the amount of the mortgage debt, and for the purpose and with the intention of making a gift to his wife, procured the-deed of conveyance to be made by the vendor to her, subject to the outstanding mortgage, and at the same time promised the vendor to pay the mortgage debt upon maturity: Held, that upon delivery of the deed to the wife she became seized of the equity of redemption only as a gift executed ; and held, further, that the promise of the husband to pay the mortgage debt for her benefit, did not inure to her as a gift,, either of an interest in the land or of the money promised to be paid until payment in fact was made; and hold further, that in case the husband became insolvent before payment of the mortgage, that the payment thus made was fraudulent as against then existing creditors, although they became such after the delivery of the deed to his wife, and after the promise to pay the mortgage debt was made.</p> <p>4. In an action by a creditor for the purpose of subjecting property in the hands of a donee to the payment of his claim, it being made to appear that the debt was contracted by the donor prior to the making of the-gift, the burden of showing the solvency of the debtor at the time of making the gift rests upon the defendant.</p>

<p>Error to the Court of Common Pleas; reserved in the District Court of Scioto county.</p> <p>On the 25th day of April, 1868, Henry H. Neal filed a petition, in the Court of Common Pleas of Scioto county, against Simeon Nash and Henry W. Gilman, setting'forth that, at the February term, 1856, Gilman recovered in said court a judgment against Nash as principal, and Neal as surety, for $1,647.72 debt, hnd $5.32 costs; that Nash refused or neglected to pay the judgment, and the same could not be collected of him by execution, wherefore Neal was compelled to settle the judgment with Gilman, and thereupon paid him the amount thereof, with the understanding and agreement between them that the judgment should not be satisfied, but was to remain in full force and effect, and Neal was to have the benefit of it, with all the rights and remedies of Gilman against Nash to collect the same ; that the judgment was subsequently assigned by Gilman to Neal; that the judgment remains unpaid by Nash, and became dormant in June, 1867; and the whole amount of the judgment is due from said Nash.</p> <p>The prayer of the petition is, that Neal may have the judgment revived against Nash; that he may stand in the stead of Gilman, the original plaintiff, in the judgment, and have all the rights and remedies he was entitled to in the collection and enforcement of the judgment; and such* other and further relief as he is justly entitled to.</p> <p>To this petition Nash demurred, because; 1. The petition does not state facts sufficient to constitute a cause of action ; 2. The claim set forth in the petition sought to be-revived against him, is barred by the statute of limitations;, and, 3. The plaintiff has no right to a revival of the judgment against the defendant.</p> <p>The court sustained the demurrer, and dismissed the petition, to all which the plaintiff excepted.</p> <p>Thereupon, the plaintiff filed his petition in error, in-the District Court, to reverse the judgment of the Court of' Common Pleas, on the ground that the court erred 'in sustaining the demurrer, and in rendering judgment against the plaintiff. The case was reserved in the District Court for decision in this court.</p>

<p>1. The will of a person whose domicile, at the time of his death, is in. this state, is properly admitted to original probate at the place of such domicile, without regard to where the will was made, or where such person died.</p> <p>2. On the trial of the issue, in a suit to contest the validity of a will, errors- or irregularities of the probate court in admitting the will to probate can not be inquired into. The prima facie effect which the statute-gives to the order of probate, can only be overcome by showing that the will is, in fact, invalid.</p> <p>3. Where a will is admitted to probate on the ground that the original will has been destroyed, the omission of the record to state that the destruction of the original will was subsequent to the death of the testator, does not render the order admitting such will to probate void; and on the trial of the issue, in a suit to contest the validity of such will, such order is entitled to the same prima facie effect, as the statute gives to an order probating an original will.</p>

<p>1. The act of March 14, 1864 (S. & S. 847), which provides for the sewerage of cities of the first class, containing a population exceeding eighty thousand inhabitants, does not empower the city authorities to contract for the construction of “ house connections ” with the street sewers, unless such house connections are made part of the plans and specifications, required by the act to be prepared and submitted to the inspection of the parties interested, on ten days’ notice in a newspaper of general circulation, and approved by the board of city improvements as a part of the plan or system of sewerage authorized by the act.</p> <p>2. Section 2 of the act of April 5, 1866 (S. & S. 858), confers authority on the city council to provide for the construction of such house connections only upon the recommendation of the board of city improvements, and in streets “about to be paved, macadamized, or otherwise permanently improved,” and the city authorities are not thereby authorized to contract for the construction of such house connections, except in view of the permanent improvement of the street where they are to be made, nor unless it appears that their construction was definitely recommended by the board of city improvements and approved by tho city council.</p>

<p>Error to the Superior Court of Montgomery county.</p> <p>The plaintiffs in error were plaintiffs in the original action. The case was this : The city council of Dayton having adopted an ordinance to extend Bainbridge street in said city from its northern terminus to Third street, and to appropriate for that purpose the necessary land, the city afterward filed in the Superior Court of Montgomery county its application, describing a parcel of land belonging to the plaintiffs necessary to be appropriated for that purpose, and asking that the compensation to be paid plaintiff's therefor might be ascertained as provided by law.</p> <p>The object of the original petition was to enjoin these proceedings, and restrain the city from extending the street across the plaintiffs’ land. The plaintiffs alleged that they were lawful railroad corporations of this state, created long prior to the passage of the act under which defendant was ¡seeking to make said appropriation; that they owned and were operating a .railroad extending through said city, which was a leading route of transportation and travel, and had lawfully acquired, for the uses and purposes of said road, the tract of land across which it was proposed to extend said street, and had appropriated the same to those uses and purposes; that they had extended their main track across the same, had built thereon an expensive depot and car-house, and laid down numerous side tracks and switches; all of which land, as so used and occupied, was absolutely .essential and necessary to the use and enjoyment of said railroad and the transaction of its business. They further alleged that the extension of said street across said land, as proposed, would greatly endanger their property and the lives of passengers upon their trains, and would so retard their business and interfere with their use of said grounds, buildings, and tracks as to make it necessary to abandon, the same ; that no other convenient and proper grounds or location for said depot and improvements could be procured in said city, and the injury to them would be irreparable and could not be compensated in damages; that the extension of said street was not a public necessity, and would not be even a public convenience, but a public nuisance, and dangerous and injurious not only to said railroad and the public, who use the same, but to the public who should •use said street.</p> <p>The defendant’s answer denied that the extension of said .street across said railroad and tracks, as proposed, would prevent the free use of the same by the plaintiffs for the purposes to which the same had before been devoted, or that such extension would seriously, or to any great extent, hinder or impede the plaintiffs in the prosecution of the.r business,.or endanger their property or the lives of their passengers ; and, upon this subject, it averred that the proposed extension and opening of said street would not be more dangerous to the public, whether using said street or railroad, or to the trains and the property of the plaintiffs,, than is ordinarily and necessarily incident to the running' of railroad trains through cities. It further averred that the extension of said street, as proposed, was a public-necessity, and would constitute a great and lasting benefit to the public and to the plaintiffs.</p> <p>Upon trial of the case in the Superior Court, the petition was dismissed. The plaintiffs having moved for a new trial, on the ground, among others, that the finding was not supported by the evidence, and the motion having been overruled, they took a bill of exceptions, setting out all the testimony.</p> <p>On behalf of the plaintiffs, it is now alleged that the-judgment is not warranted by the evidence, and is contrary to law.</p>

This was a petition by the administrator to sell lands. It came by appeal from the Common Pleas into the District Court, where it was dismissed upon hearing; and the administrator now claims that in dismissing the petition, and in overruling his motion for a new trial, the District Court erred.

<p>1. The rivers of this state, to the extent that they are in fact navigable, are public highways.</p> <p>2. A river is regarded navigable which is capable of transporting the products of the country, or upon which commerce maybe conducted; and its character as a highway is determined by its navigable capacity rather than by the frequency of its use for navigation.</p> <p>3. The entire obstruction of a navigable river, where it is used by the public, is a public nuisance, and where such nuisance works a private-injury, the party injured may restrain its continuance by injunction.</p> <p>4. The landings and warehouses of individuals on the bank of a navigable river used in connection therewith, is such private property as maybe irreparably injured by the destruction of the navigability of the river-to such landings and -warehouses.</p> <p>5. Corporations or public officers are not authorized to obstruct the navigation of a river, under a legislative grant of power, merely for the-building of a bridge across a river, where the bridge can reasonably be constructed so as not to destroy the navigability of the river.</p> <p>6. Where the legislature has power to require one public easement to-yield to another more important, the intention to grant such power must appear by express words, or by necessary implication ; and such implication arises only when requisite to the enjoyment of the powers expressly granted, and can be extended no further than such necessity requires.</p> <p>7. The commissioners of Lake county, under their powers as such com missioners, or as the successors of the Lake and Trumbull Plank-road Company, being empowered only in general terms to erect a bridge across Grand river, are not authorized to construct it in such a manner that it will prevent the navigation of the river.</p>

<p>The defendants contracted to tow the plaintiff’s barge, by means of a steam-tug, from Bay City, Michigan, to Buffalo, New York. After the voyage had been commenced, and been partly performed, it was voluntarily suspended and delayed by defendants, the barge during the delay being exposed to none of the perils peculiar to the voyage. After the-voyage was resumed, and while it was being duly prosecuted, a storm was encountered by which the barge was lost. Held, that the defendants, by the mere fact of the delay, did not become responsible for the loss of the barge, although the delay was unreasonable and unnecessary, and although, as the event proved, the barge, but for the delay, would, probably, have been safely towed to its place of destination. In such case the storm must be regarded as the proximate, and the' delay as only the remote cause of the loss.</p>

<p>1. Section 566 of the code of civil procedure prescribes the only manner in which persons injured by the official neglect or misconduct of a justice of the peace can have redress by action, in their own names, on the official bond of the justice.</p> <p>2 The only form of action authorized by said section, is a joint suit against all the obligors in the bond.</p> <p>3. Where a joint suit against all the obligors in a bond is the only remedy of the plaintiffs thereon, it is error, under the provisions of section 371 of the code, for the court to render a several judgment against one or more of the defendants, leaving the action to proceed against tha others.</p>

<p>1. Where a person called as a juror in a criminal case is challenged, on the ground that he has formed or expressed an opinion as to the guilt or innocence of the accused, if it shall appear that such opinion was formed upon reading what purported to be a report of the testimony of witnesses of the transaction, he is not, under section 134 of the code of criminal procedure (as amended February 10, 1872), competent to serve as a juror in the case, and should be set aside by the court.</p> <p>2. But if such opinion “ shall appear to have been founded upon reading, newspaper statements, communications, comments, or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify,” the person so challenged may, in accordance with the proviso of said section, be admitted to serve as a juror, if he shall state, “on oath, that ho feels able, notwithstang such opinion, to render an impartial verdict upon the law and the evidence,” and the court is satisfied that the juror is impartial and will render an impartial verdict in the case.</p>

<p>An indictment; under the fourth section of the act of May 1, 1854, to provide against the evils resulting from the sale of intoxicating liquors, is not supported by proof that the accused kept a place of public resort where ale was sold in violation of law ; the terms “ intoxicating liquors ” in the fourth section being, by the proviso contained in the eighth section of the act, limited to intoxicating liquors other than “ wine manufactured ot the pure juice of the grape cultivated in this state, beer, ale, and cider.”</p>

<p>1. Whore the natural surface of adjoining city or village lots has been changed by filling or grading, the words "surface of the adjoining lots,” as used in section 49 of the municipal code (66 Ohio L. 232), are to be understood as designating the existing or artificial, and not the original or natural surface of the lots.</p> <p>2. The meaning and effect of sections 494 and 495 is, to subject a party to the liability therein provided, where he makes an excavation on bis lot deeper than the foundation walls on the adjoining lot, and more than nine feet below such actual or existing surface, or if the street be curbed or graded, more than nine feet below the curb or grade.</p>

The original action was brought before a justice of the-peace on an account. The case was appealed to the Court of Common Pleas.

On exceptions taken by the prosecuting attorney to the decision of the Probate Court of Montgomery county. The facts appear in the opinion of the court.,

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Lorain county.</p> <p>The scow M. Tuttle was built at Black River, a port on Lake Erie, in Lorain county, in 1869. Buck, the defendant in error, furnished lumber for its construction, and a part of the price remaining unpaid, he, on June 5, 1872, instituted proceedings in the Court of Common Pleas of that county, under the act to provide for the collection of claims .against steamboats and other water-crafts, and authorizing proceedings against the same by name, to enforce a lien upon the scow for the amount due.</p> <p>The scow having been seized upon process issued in pursuance of the act, a demurrer was interposed to the petition. The ground of demurrer specially assigned was, that the court had no jurisdiction of the action, in manner and form as brought, for the reason that the same was within the exclusive jurisdiction of the United States District Court sitting in admiralty. The demurrer was overruled, and judgment rendered for the plaintiff below. The judgment was, on error, affirmed in the District Court of Lo-rain county; and the object of the present proceeding is to reverse the judgment of affirmance. The point relied upon is the same specially assigned as ground of demurrer to the original petition.</p>

<p>1. The prosecuting attorney, in discharging the duty imposed on him by section 10 of the act of April 27, 1869, providing for the erection of public buildings, etc. (66 Ohio L. 52), is not limited to ascertaining whether the contract awarded by the commissioners is in legal form, hut he is also required to ascertain whether the necessary steps which procede the awarding of the contract have been followed.</p> <p>2. The duties of the prosecuting attorney, under the statute, are not limited to such as are merely ministerial; he is also invested with discretionary authority. '</p> <p>3. Where he refuses to indorse this finding, that a contract awarded by the commissioners for the erection of a public building, is in accordance with the provisions of the act, and the form and proceedings adopted in receiving bids are susceptible of being so construed and understood as to show that the contract may not have been awarded to the persons offering to do the work for the lowest price, and the prosecuting attorney finds such to be the fact, he will not, by mandamus, be compelled to make the indorsement.</p>

<p>.-1. Under the criminal code, where a defendant has been convicted and' sentenced on an indictment duly returned by the grand jury, he can not, on error, avail himself for the first time of the objection that the-record omits to show the impaneling of the grand jury. Such objection should be made in the court below, by motion to quash, before thei pleading to the indictment.</p> <p>2. The failure by the court, on the impaneling of a jury for the trial of a cause to inquire, as directed by the statute (70 Ohio L. 170, sec. 11), whether either of them had served as a talesman within the preceding twelve months, constitutes no ground for error where it appears that the party complaining, though present at the time, made no objection to the omission.</p> <p>3. Neither the affidavits filed in a cause, the certificate of the.clerk, nor the agreed statement of counsel as to what took place at a trial, can be made to supply the place of a bill of exceptions taken in accordance with the statute. And when matter is sought to be brought into the record by such means, it will, on error, be disregarded.</p>

This was an action for the foreclosure of a mortgage, and to recover a judgment for the amount of the mortgage debt. Issues of fact were joined in the cause, and the court, on hearing, decided them in favor of the plaintiff and rendered a decree for sale of the premises, but gave no judgment for recovery of the money. The defendant demanded a second trial, which the court refused to allow, on the ground that the case was one for appeal and not for second trial.

<p>Motion for the allowance of a writ of error to the Court of Common Pleas of Cuyahoga county.</p>

<p>1. A person indicted under section 24 of the crimes act (S. & S. 265), for maliciously shooting another person with intent to kill, may be convicted under such indictment of the offense of assault and battery.</p> <p>2. Where the jury on the trial, under such indictment, return as their verdict that they “ find the defendant guilty of shooting with intent to kill in a fit of passion and excitement, but without malice,” it is not error for the court to refuse to receive such verdict, and to direct the-jury to further consider the case.</p>

<p>1. In an action on a covenant against incumbrances, it is not necessary to aver or prove an eviction.</p> <p>2, A deed, whereby “ail the iron ore and coal" upon certain lands, with right of way and other privileges for their removal, were granted and sold, is an incumbrance within the meaning of a covenant “that said lands are free from'all incumbrances whatsoever.”</p> <p>3. An exception from such covenant of “a claim ” which the owner of such incumbrance “has on said lands for iron ore” does not withdraw from its operation the claim for coal, or the easements granted in connection therewith.</p> <p>4. In an action on such covenant, no recovery can he had on account of expenses in and about the alleged removal of the incumbrance, unless it be shown that the incumbrance has been legally extinguished.</p> <p>5. In such case the extinguishment of the incumbrance at any time before trial may he-shown. Such extinguishment, however, is not shown by evidence of an unexecuted agreement for its removal or release.</p> <p>6. For the purpose of showing the existence, quantity, and quality of coal in certain lands, it is competent to prove that seams of coal'have been opened and mined upon other lands in .the immediate vicinity and similarly situated, in connection with the opinions of witnesses skilled in the geological formations of the neighborhood that like seams exist on the lands in question.</p> <p>7. In an action against the estate of a deceased person, it is not necessary to aver or prove that, at the time the claim upon which suit is brought was rejected by the executor or administrator, a specific demand was made for the indorsement of his allowance thereon.</p> <p>43. A deed which describes the property intended to he conveyed as “all my interest in real estate, easements, and rights to dig and mine coal in Mahoning county, Ohio, conveyed to me, and now owned, held, and enjoyed by me from W. B.',” is not void for uncertainty.</p>

<p>Motion for the allowance of a writ of error to Cuyahoga Common Pleas.</p> <p>The facts are apparent in the opinion.</p>

The original action was brought in the Summit County Common Pleas, by the plaintiff in error, to recover of the defendants, as commissioners of Summit county, damages resulting from the wrongful and negligent construction of an embankment made by order of the defendants in and about the opening and grading of a public highway, whereby water was diverted from its natural channel and flowed back on the lands of the plaintiff.

In the Common Pleas the plaintiff: took exception to the order of the court setting aside the verdict of the jury and granting a new trial, and before any new trial was had, prosecuted his petition in error in the District Court, to reverse the order allowing such new trial. The District Court dismissed the petition in error as being prematurely filed. A new trial was then had in the Common Pleas, which resulted in a verdict upon which final judgment was entered.

<p>An appeal can not be taken to the District Court from a judgment of the-Superior Court of Montgomery county in a case to contest the validity of a will.</p>

Dwinell sued Edwards in the Court of Common Pleas of Hamilton county, to recover damages for the seizure by the latter, under an order of attachment, of certain goods and chattels belonging to the former. The order of attachment was sued out by a creditor of Dwinell, and was put in the hands of Edwards as an officer for execution.

<p>1. Under the act of March 29, 1867, as amended by the acts of March 31 and May 9, 1868, authorizing county commissioners to construct roads, and providing for assessing the cost thereof upon lands thereby benefited, the commissioners are not authorized, after the report of the-apportionment committee has been affirmed, to order the assessment of additional lands. The confirmation of such report is final, and exhausts the power of the commissioners with respect to the assessment.</p> <p>2. Where, in such case, after the report of the apportionment committee had been confirmed, the commissioners ordered additional lands to be assessed, and caused such assessment to be placed on the duplicate for collection : Held, that the several parties whose lands were thus illegally charged, might properly join in an action to restrain thé collection of the assessment.</p>

<p>1. A conveyance of land to the county commissioners for a county road, the acceptance of such grant by the commissioners, the opening of the road by their order, and its subsequent use as such by the public, and by the proper authorities, constitute it a legal public highway, notwithstanding the want of statutory proceedings for its establishment.</p> <p>H. Where territory, including a public road connecting with the streets of a city, is annexed to the city, and the road continues to be used as a street or thoroughfare, it thereby becomes a “ public highway ” of the city, within the meaning of section 439 of the municipal code (66 Ohio L. 222), although it has never been “accepted and confirmed by an ordinance specially passed for such purpose,” as provided in section 440.</p>

<p>A right of way in gross is a right personal to the grantee, and can not he made assignable or inheritable by any words in the deed by which, it was granted.</p>

<p>1. The lien of a judgment recovered under the act to provide against the-evils resulting from the sale of intoxicating liquors, as amended April 18, 1870 (67 Ohio L. 102), is limited to the real estate of the judgment-debtor.</p> <p>2. The provision in section 10 of the act as so amended, which declares-that real estate, not owned by the judgment debtor, shall be held liable for the payment of the judgment, is not designed to create a lien on such property, but to authorize it to be subjected to the payment of the judgment in a suit against the owner instituted for the purpose.</p> <p>3. Until the commencement of such suit, the judgment creditor acquires no interest in the property, and if before the suit is brought, the property has been sold and conveyed, it can not be subjected to the payment of the judgment.</p>

<p>Error. Reserved in the District Court of Morgan county.</p> <p>The defendant in error was incorporated by a legislative .act of the State of Pennsylvania, empowering the company to carry on the business of mining in Pennsylvania and in other states. The company duly organized in Pennsylvania, in 1865, but it had not, at the time the proceedings now brought in review were pending, done any business in that state, except to- keep up its organization. In 1866, the company was prosecuting its mining business in Ohio, and John H. Edson was its agent there. As such agent, Edson had in his possession certain articles of personal property belonging to the company, for the recovery of which property Antonio Pelletier brought an action of replevin against Edson; and the plaintiffs in. error, Hanna and Finley, became Pelletier’s sureties in a replevin bond or undertaking, executed in conformity to the statute, and conditioned that Pelletier should duly prosecute his action aforesaid, and pay all costs and damages which might be awarded against him. Pending the action, and after the replevin of the property, and the execution of the undertaking, on motion of said International Petroleum Company, and by consent of the parties in the cause, the company was made party defendant in lieu of Edson; and such proceedings were thereafter had that the company recovered a judgment against Pelletier for $1,297 damages, and $32.83 costs — which judgment remaining, in part, unpaid, for want of property whereon to levy, the company brought its action against Hanna and Finley upon their undertaking, to recover the amount of the judgment remaining unpaid. The cause was submitted to the court upon demurrer to the answer — the petition and answer setting forth substantially the facts above recited. Thereupon the court sustained the demurrer, and rendered a judgment in favor of the company.</p> <p>To reverse this judgment a petition in error was filed in the District Court, and reserved for decision here.</p> <p>The grounds of error insisted upon are: 1. The International Petroleum Company could not own property, or be a party to a suit in Ohio; 2. By the substitution of the company in place of Edson, the sureties were released from the obligation of their undertaking.</p>

<p>Error. Reserved in the District Court of Mahoning county.</p>

This was an action to recover possession of real estate. The plaintiff claimed title by descent, and issue was taken as to the validity of a marriage, by which her title was sought to be defeated. The defendants claimed that the plaintiff had released her title to them, and issue was also taken as to whether the deed of release had been obtained ¡by fraud. These two were the only issues in the case.

<p>Where a railroad corporation proceeded before a probate judge, under the act of April 23, 1872 (69 Ohio L. 88), for the assessment of compensation to the owner of land appropriated to its use, and a final judgment was rendered by the judge in favor of the owner of the' property against the corporation, for the amount assessed by the verdict of the jury, and the corporation paid the amount of such judgment into court and entered into possession of the land, and then filed its petition in error to reverse the judgment of the Probate Court, and requested the judge to retain the money so paid into court until the final disposition of the proceedings in error: Held, that it was the duty of the probate judge, on the demand of the party in whose favor the judgment was rendered, to pay over to him the amount of such judgment, nothwithstanding the pendency of the proceedings in error and the objection of the corporation; and his failure to do so is a breach of' his official bond.</p>

<p>W. contracted with R. for the sale of salt to arrive — the contract being in these words: “ Cincinnati, October 13, 1862. Sold J. H. Rogers one thousand sacks coarse Liverpool, and two thousand sacks fine Liverpool salt, at $2.10 per sack, to arrive by the 15th of November.” In an action on such contract by the purchaser against the seller, for failing to deliver the salt — Held: 1. That the words “to arrive by the 15th of November,” are words of condition and descriptioñ only, and do not import a warranty that the salt shall arrive by the day named. 2. In such action testimony offered by the purchaser to show that by the custom of merchants the words “ to arrive by the 15th of November,” meant “deliverable by the 15th of November,” was properly excluded.</p>

<p>1. The discount by a state bank of a bill of exchange payable without the State of Ohio, with knowledge that the parties thereto do not expect to pay the same at the place of payment named, but with the bona fide expectation that a third person, for whose accommodation it was drawn,_ will thus pay it for the drawer, is not usurious within the meaning of section 5 of the act of March 19, 1850 (S. & C. 150).</p> <p>2. H. agreed “to lend his credit” to M. “for the sum of $2,000, for which amount” he agreed “to give his note or bill in blank, to be filled up and negotiated” by M., and to give “such other notes and bills of like tenor for the same amount” as should be required by M., to “renew or extend such loan” for a period named, M. agreeing “to pay the last of such notes or bills” when the same should become due. Held, that M. was not bound to indorse or become party to bills of exchange drawn by H. under the agreement, but might negotiate them without indorsement to parties having knowledge of the contract, and thus make them binding upon H. in the hands of such parties.</p> <p>3. A bill of exchange, which had been discounted in bank, was sent by the bank to the drawee for collection, indorsed by the cashier of the bank to the drawee or order; and was by the drawee, without the knowledge or consent of the bank, indorsed and delivered to a third party, who had no notice of the rights of the parties, except what appeared on the bill itself. After maturity of the bill, and while it was so in the hands of such third paTty, the drawee, ignorant of the fact that the bill had been so transferred, gave to the bank his second bill as a renewal or payment of the first; and the first bill was subsequently procured by the bank and tendered to the drawer. Held, that there was a sufficient consideration to support the second bill, and that the bank might maintain an action thereon against the drawer.</p>

<p>A testatrix devised a house and lot to her husband for life, upon condition that he, in a suitable, proper, and fatherly manner, provide for and take care of their daughter L., an imbecile, during their joint lives; and also conferred upon him a power to sell and convey the premises in fee simple, if, in his judgment, such sale became necessary for the comfortable support of either himself or L. She also devised, in case L. survived her father, and the property was unsold at the time of his death, the same premises to their son A., in fee simple, upon the same conditions which were imposed upon the devisee for life, provided A. would take upon himself the care and support of L. The husband relict died in June, 1852, without having sold the property, leaving L. surviving him, whereupon A. took upon himself the care and support of L., and did, in fact, care for and support her in a proper manner during their joint lives, to wit, until the time of his death, in March, 1857. In the meantime — to wit, in November, 1852 — A., by deed of general warranty, conveyed the premises to W., who, together with his assigns, has occupied the same ever since. Held, the estate in W. and those holding under him is absolute, and can not be charged with the maintenance of L.</p>