Volume 24 — Ohio State Reports, New Series

<p>Appeal. Reserved in the District Court of Clermont county.</p> <p>This is an action brought by the executors, under section 8 of the act of April 17, 1857 (S. & C. 621), against the devisees, distributees, and heirs of the testatrix, asking the direction and judgment of the court as to the true construction of the will of the testatrix, and the rights of the defendants thereunder, and praying, among other things, for an order to sell the real estate for the payment of the legacies and for distribution. The case came into the District Court by appeal, and having been reserved for decision here, a motion is now made to dismiss the appeal, on the .ground that this, is a statutory proceeding to sell lands for the payment of debts and legacies, and therefore not appealable.</p> <p>Receivers were appointed and qualified while the cause was in the Common Pleas, and a motion is also made by the plaintiffs for the appointment of receivers by this court, in case the appeal shall not be dismissed, on the supposition that the office of the receivers was vacated by the appeal.</p>

<p>1. In an action brought under the act of May 3, 1859 (S. & C. 81, 648), to recover one-half the value of a partition fence, the appraisal of the township trustees duly made, in pursuance of the provisions of the act, is, unless impeached for mistake or fraud, conclusive with respect to value, and of the fact that the fence, in character and quality, meets the requirements of the statute; but such appraisal is not evidence of any other fact.</p> <p>2. The plaintiff in such action is not precluded from recovering, by the fact that the fence is a better or more expensive one than would have satisfied the requirements of the statute.</p> <p>•3. Nor does the fact that the fence does not conform .to the boundary line between the lands of the respective parties necessarily constitute a defense to such action. It is sufficient upon this point if it was constructed and maintained as and for such line fence, and was recognized and acquiesced in as such by the defendant.</p>

<p>1. "Where a will assumes to give to one of its beneficiaries property of another person for whom provision is likewise made in the will, the latter can not take the provision made for him in the will, and also hold the property, but must elect which he will take.</p> <p>2. In order to put the party to such election, it mpst plainly appear that it was not the intention of the testator to give him the provision made in the will in addition to the property, except where the property in question is the widow’s right of dower, as to which the rule has been reversed by statutory provision.</p> <p>3. A court of equity has jurisdiction to compel the party to make such-election, or to abide by an election already made.</p> <p>4. Such election, in order to make it binding upon the party, must be made understandingly, that is, with a knowledge of the facts, and of the party’s rights under the will.</p> <p>.5. Money borrowed by the husband from the wife, and secured to her by the note of the husband, given to her at the time of receiving the money, will, after her death, and as between the husband and hef estate, be regarded as an equitable claim against the husband; and, therefore, a provision in her will releasing such "a, claim, is a provision beneficial to the husband.</p>

<p>Error to the Probate Court of Montgomery county.</p> <p>At the July term, 1869, of the Probate Court of Montgomery county, JohnU. Kreidler was prosecuted for usurping the office of first lieutenant of police for the city of Hayton. The information did not specify any particular act done by him further than what was contained in the general charge, that from the 10th to the 29th day of May, 1869, he took upon himself to officiate in the office of first lieutenant of police for the city of Dayton, being an office of authority in the State of Ohio, without being legally authorized to officiate in said office.</p> <p>It appeared on the trial that the city council of the city of Dayton, pursuant to the first section of act of April 16, 1868 (65 Ohio L. 94), passed an ordinance for the establishment and organization of the department of police for the city of Dayton. Among other things it was ordained that the city council should annually elect two lieutenants of police, who should continue in office until their successors were chosen and qualified.</p> <p>On the 15th day of May, 1868, Kreidler was duly appointed and qualified first lieutenant of police, and from that time discharged the duties of the office until the 29th day of May, 1869.</p> <p>. On the 6th day of May, 1869, the act of April 16, 1868, was amended so as to require the city marshal to appoint the lieutenants of police (66 Ohio L. 141), who are required to give bond in the manner and in the amount required by ordinance of the city marshal. The first section of the act of 1868 was repealed by that of 1869; and it is claimed that the term of office of the lieutenants appointed in 1868 was thereby abrogated.</p> <p>On the 10th day of May, 1869, the city marshal appointed Amos Clark first lieutenant of police for the city of Dayton, who then tendered his bond, and oath of office indorsed thereon, to the city council; but, by reason of alleged defects, the bond was not accepted or approved by the council.</p> <p>Thereupon, Kreidler, for the purpose of showing that he acted in good faith, believing it to be his duty to discharge the duties of said office during the period in controversy, on the gi’ound that his-successor had not qualified, and that he was therefore such officer de facto, if not de jure, offered to prove by the mayor of the city and members of the city council and board of police, acts tending to show that he was regarded and treated by the city government as continuing in office until the 29th of May, 1869; but the court refused to permit him to give the evidence to the jury, and he duly excepted.</p> <p>On behalf of Kreidler, the court was requested to charge the jury, that if he continued, under a legal appointment made in 1868, to serve as first lieutenant of police during the time mentioned in the information, believing that it was his duty and legal right so to do, and the circumstances were such as might reasonably warrant such belief it was their duty to acquit; and that it would be their duty to acquit if no one had been legally appointed and qualified to sucpeed him in the office.</p> <p>The court refused so to charge, but did charge the jury, that the act of 1869 abrogated the appointment of Kriedler, and that he could not thereafter act as first lieutenant of police either de jure or de facto; and, in' substance, that they must convict, if they found that he did, in fact, act as such officer during the time in question.</p> <p>Thereupon, Kriedler excepted to the refusal of the court to charge as requested, and to the charge as given. Having been convicted and sentenced, he prosecuted this proceeding in error to reverse the judgment of the probate court.</p>

<p>1. Where the name of the agent, with whom a contract for the purchase of real estate was made, appears in the written memorandum of the agreement signed by the purchaser, who is the party to be charged, the statute of frauds is satisfied, although the names of the principals are not'disclosed therein.</p> <p>2. When a vendor of land, having contracted to convey a perfect title, brings his action to compel specific performance against the vendee, who denies the sufficiency of'the vendor’s title, the burden of showing title in himself rests on the plaintiff, arid the introduction of a deed of recent date executed to himself, without further proof of title, is not sufficient.</p> <p>3. A deed, purporting to have been executed by the president of a railroad corporation, under the seal of the corporation, as authorized by section 16 of the act of May 1, 1852 (S. & C. 219), if objected to, can not be given in evidence without proof of its execution.</p> <p>4. The power to purchase land, conferred upon a railroad company by section 14 of the' act of February 11, 1848 (S. & O. 273, note), is not limited to the acquisition of such lands as may be necessary for operating or maintaining its road.</p> <p>6. If, in malting a purchase of real estate, the company abuse the power conferred upon it by. said section, still, after resale and conveyance, the title becomes indefeasible in the hands of its vendee.</p> <p>6. A mortgage executed by a railroad company on “ the road ” of the company, “whether made or to be made, acquired or to be acquired, and all property, real or personal,” of the company, “ whether now owned or hereafter to be acquired, used, or appropriated for the operating or maintaining the said road,” is not a lien upon real estate of the company, then owned or afterward acquired, which has not been used or appropriated for operating or maintaining the road.</p> <p>7. A purchaser of land, who is entitled under his contract to a perfect title, can not be compelled to perform his agreement, if the property purchased be subject to a judgment lien, unless he can be protected by the decree from loss or inconvenience by reason of the lien, although it be shown that the judgment debtor has other property sufficient to satisfy the judgment.</p> <p>8. Where it is stipulated in a deed-poll that the grantee, his heirs and assigns, shall build and perpetually maintain a fence on the line between the land granted and other lands owned by the grantor, and the parties to such deed, at the time of its execution, contemplate the subdivision of the granted premises into building or town lots, and their subsequent sale, the burden of maintaining such fence will not attach to, or run with, lots which do not abut on the lino of the proposed fence.</p> <p>9. Where a “sale" at auction is announced to be “positive,” it is an act of fraud on the part of the vendor, or his agent, to employ by-bidders to keep up the price for his own benefit.</p>

<p>1. Inclosures of railroads, as required, by the act of March 25, 1859 (S. &- C. 331), must be separate and distinct from the inclosures of adjoining-proprietors.</p> <p>2. The obligation to construct and maintain fences upon both sides of railroads, imposed by that act upon railroad companies, is not limited to owners and occupiers of adjoining lands, but extends to the public generally.</p> <p>3. The rule of the English common law, which requires the owners of domestic animals to restrain them from running at large, has never been adopted or re«ognized as the common law of this state.</p> <p>4. The owner of such animals running at large is not guilty of a breach of' any duty imposed upon him by the act of April 13, 1865 (S. & S. 7), if they be at large without the omission on his part of reasonable care.</p> <p>5. "Where cattle running at large, without the fault of the owner, enter the-inclosed field of another person, through which a railroad passes, and thence go upon the track of the road by reason of the want of fences which it was the duty of the railroad company to have constructed so-as to separate the railroad from the adjacent lands, such owner is not guilty, under the act of April 7, 1865 (S. & 8. 373), of contributing, by his own wrong, to an injury done by a passing train to his cattle while-upon the railroad</p>

<p>Error to the District Court of Morrow county.</p> <p>The plaintiffs presented a petition to the commissioners - of Morrow county for the establishment of a specified county road, and gave due notice of the hearing thereof at the next regular meeting of the commissioners, on the • first Monday of March, 1868. They also presented another petition to. the commissioners, praying for the vacation of specified parts of a county road and state road, and gave notice of the hearing thereof at the same meeting of the commissioners. So far, each of the proceedings was ■ separate and distinct from each other. The road sought to be established ran north and south between two east and west county roads; and the roads sought tp be vacated ran nearly diagonally between the two east and west roads,. and was crossed by the road proposed to be established.</p> <p>March 5, 1868, the commissioners appointed three viewers and issued an order, directing them to view the road sought to be vacated, and to report their opinion in favor - of or against the vacation of the road; and, in case of vacation, to proceed with a view to locate the road sought to-be established. The viewers reported that, after viewing - the roads sought to be vacated, they “ are of opinion that • the same be vacated;” and, with a view to locate the new road, they further report as follows: “ That the length of said road will not be increased, but will be diminished about 145 rods by the proposed alteration; that said alteration will place the road on as good ground as the same --now occupies, except at the crossing of "Whetstone creek, where the petitioners are willing, and pledge • themselves to erect a suitable bridge, and make it in a good condition to pass over said stream at their own expense, if said alteration is made; and, in said viewers’ opinion, said-. -■alteration ought to be established, for this reason, and the reasons contained in the petition of the applicants.”</p> <p>Thereupon, remonstrances were presented to the commissioners against the establishment, vacation, or alteration of said roads, on account of the increased distance necessary to be traveled by a road at right angles instead of a diagonal road, increased cost of building bridge, and the long ;and continued use of the road sought to be vacated.</p> <p>At the June session of the commissioners, the report of the viewers was confirmed, as follows:</p> <p>“ The report of the viewers, Canaan township, is hereby ■confirmed, upon condition that the petitioners shall make the proposed road to be established a good and suitable road, and build a good and substantial bridge across mid-file fork of Whetstone, mentioned in said report, to the acceptance of the county commissioners, and in accordance with plan and specification to be hereafter made.”</p> <p>Thereupon the remonstrants gave notice of appeal to the Probate Court, where the case was disposed of, as follows:</p> <p>“ This cause came on to be heard upon said plaintiff’s motion to dismiss the appeal in this action, for the following reasons, to wit:</p> <p>“ That the original papers in said road case, and a certified transcript from the record of the proceedings had and made by and before said commissioners, was riot filed in said Probate Court in time to perfect said appeal, ac■■cording to the provisions of the statute in such case provided, to wit:</p> <p>“ That the final order of said commissioners in said road ■case was made and entered of record by t¡h.e said commis•sioners, on the 3d day of June, A. d. 1868, and the bond for undertaking was given by said defendants for said appeal, on the 11th day of June, a. d. 1868, and that said original papers and said transcript of said proceedings before said commissioners, in said road case, were not filed in said Probate Court until the 7th day of July, a. d. 1868. And further, that it does not appear from any of said ■original papers or transcripts from said commissioners in eaid road case, or otherwise, whether said appeal was taken from the establishment or vacation of said road, or from both, or any other cause.</p> <p>“ Whereupon, the court do sustain said motion and dismiss the said appeal, with costs of suit.”</p> <p>' This order was, however, reversed on error to the Common Pleas, and the case was remanded to the Probate ■Court for further proceedings.</p> <p>June 28, 1869, the ease was again heard in the Probate Court, which found that the proceedings “ were, in substance, regular and legal,” and thereupon affirmed the order of the commissioners.</p> <p>On the trial before the Probate Court, as appears by a bill of exceptions taken by the defendants, the defendants offered sundry items of evidence tending to prove that the proceedings of the commissioners were unauthorized and illegal. To each and all of which the plaintiffs objected, and the court sustained the objections and excluded the evidence; and the defendants excepted to the ruling of the court.</p> <p>The defendants took this case in error to the Court of Common Pleas, where the judgment of the Probate Court was affirmed. Thereupon, they filed their petition in error in the District Court, and that court. reversed both the judgment of the Common Pleas and that of tfie Probate Court, at the costs of the plaintiffs, and made no further order in the case.</p> <p>And now the plaintiffs come to this court to reverse the judgment of the District Court, and to affirm those of the Common Pleas and Probate Court.</p>

<p>Error to the Court of Common Pleas of Logan county.. Reserved in the District Court.</p> <p>The action below was on a policy of insurance, issued by the plaintiff in error, in the name of Daniel K. McMillen,. the husband of the defendant in error, and insuring his-life for her sole and separate use. The annual premium was $83.32, which was to be paid on or before the 1st day of December in every year, during the continuance of the-policy. The policy bears date February 2, 1868, but in the-body it purports to operate from the 1st of December,, 1867.</p> <p>The policy provide's, that “the first payment of the before-mentioned annual premiums, having first been received by the company or their accredited agent, during the lifetime and good health of the said insured as is hereinafter provided, and not otherwise, and in consideration of such payment having been so received, and of the provisions herein for future payments of premiums, the said-company do hereby insure the life of Daniel 3L McMillen aforesaid, in the amount of one thousand dollars, from the 1st day of December, 1867, at noon, until the said'insured shall arrive at the full age of sixty-five years,” etc.</p> <p>It also contains the following provisions :</p> <p>“ Provided especially, and this policy is made, and it ia accepted by tbe assured and tbe said Daniel X. McMillen, upon the express condition' that if the amount of any annual premium herein provided for is not fully paid'/ with the interest due thereon, on the day and in the manner so provided for, then this policy shall be null and void, and wholly forfeited, and also that no agent of this company^ except the president or secretary, can waive such forfeiture, or alter this or any other condition expressed in this policy. . . . And it is also a condition of this ■policy, accepted by the assured therein, that in case it 'becomes null and void, for any of the above causes, or by -forfeiture, or otherwise, all payments of premiums made thereon, and all dividend credits accruing therefrom and remaining unpaid, and all apportionments of profits thereto, -shall also be null and void, and shall not constitue any claim against the company to any party. . . . Said -company shall have a right to set off any demand they shall have against said assured, her assigns or representatives, .arising incidentally to, or in connection with, this insur.anee, against any claim for which this company shall be ■liable thereon.”</p> <p>It was likewise provided that the contract should not he binding until the advance premium was paid.</p> <p>In the margin of the policy is the following :</p> <p>“Special Agreement. — It is expressly understood and ■agreed, and this policy is accepted by the assured upon the ■condition, that if, at any time, any note, cheek, or draft *(other than the usual premium note for one-half of the .annual premium) shall be given in payment, or part pay-•ment, of any premium then due, orto become due, for or •on account of this policy, and such note, check, or draft .shall not be paid according to the provisions thereof, then this policy shall become immediately void, and the company be thereby released from all obligations under it, and .after three annual premiums, herein provided for, have been fully paid, the company will at any time pay the holder of this policy its fair value, in cash, upon its surrender while: in force, or in lieu of such cash value/ a paid-up policy for an equitable amount will be granted.” .</p> <p>Poliowing the signatures of the officers of the company is the following provision:</p> <p>“ The annual premium required to keep this policy in-force must be paid on or before the day it falls due, or the insurance under it ceasés, and the policy is void. The-company are under no obligation to renew or revive' it. Should they upon any occasion do so, by the acceptance of' the renewal premium, each such acceptance must be considered an independent act of grace or courtesy, in nowise-creating any obligation or precedent for waiving any forfeiture or any condition of the policy in regard to future-non-payments of premium. Premiums are payable at the* company’s office in Boston, Mass., and no agent or other person whatever is authorized to collect payment elsewhere of any annual premium to continue this policy in force,, except with a special certificate of such authority signed by the secretary of the company, stating the specific payment for which it is issued, and attached to which must be-the receipt to be given for that payment, and such special certificate is the only evidence of the policy-holder of the authority of any person to receive the renewal premium.”</p> <p>Under the rules of the company the assured was allowed to pay the annual premium as follows : One-half in a premium note due at five years, one-half of the remainder in-cash, and the other half in a note due at six months, the-notes bearing interest.</p> <p>.At the trial, three notes were produced by the defendant, which were given in evidence by the plaintiff. Two-of these were premium notes, and were alike, except as to date. One was dated 'December 1, 1867, and the other December 1, 1868. The following is a copy of the last-named :</p> <p> </p> <p>“ Bellefontaine, 1st December, 1868. $16. Eiye years after date I promise to pay the Union Mutual Life Insurance Company, or order, sixteen dollars, with interest, annually, at six per cent., for value received, And it is an express condition of the acceptance of this note by the said company, in part payment of the annual premium for policy No. -23,789, which condition is fully agreed to by the promisor herein, that such acceptance shall in nowise affect the condition in said policy, respecting the forfeiture thereof, in case of the non-payment of any other portion of said annual premium ; and that if the interest on this note is not paid annually, or the note itself at maturity, then all the benefits which full payment in cash of said annual premium would have secured, shall become immediately void and forfeit to said company. D. 3L McMillen.”</p> <p>The third was payable in six months, and was called a cash note. Of this, the following is a copy:</p> <p> </p> <p>“ Union Mutual Life Insurance Company, Directors’ Office, 80 Washington street. $8. Bellefontaine, 1 December, 1868. Eor value received, I promise to pay to the Union Mutual Life Insurance Company, or order, eight dollars, in six months, without grace (waiving notice), with interest; being in part payment of the annual premium on policy No. 23,789, issued by said company, and all benefits which full payment in cash of said annual premium would have secured, shall become immediately void and forfeit to said company, if this note is not paid at maturity. Payable at Bellefontaine, Ohio. D. K. McMillen.”</p> <p>E. Durkee was the agent of the company at Bellefon•taine during the transactions in question. It does not appear at what time the policy was delivered by the agent, nor at what time he received the first premium. It does appear from his testimony that the first premium was reported to the company as settled in his report made the 15th of December, 1868-, and that the first premium note and the remainder of the first premium in cash were' then transmitted to the company, the receipt of which was duly acknowledged. No reference was made in this report to the premium, which became due December 1, 1868.</p> <p>Durkee was a witness for the plaintiff. It also appears from his testimony that, on the 1st of December, 1868, when the premium for the second year became payable, he was absent. On the 11th of the same montbq a few days after the agent’s return, MeMillen came to him and executed the premium note for $16, and the cash note for $8, dating both as of the 1st of December, but no. money was paid. MeMillen requested the agent, when he was about to remit to the company, to call on him at the post-office and get the money, which the agent promised to do. When the agent was about to make his next remittance, he called on MeMillen aud said to him he would like to have the cash part of his renewal for 1869 — $8.32. Mc-Millen remarked that he was busy making up the mails, and had not then time to stop, and asked the agent if he would not be remitting again in a few days. The agent answered that he would be, and said that when he next remitted he would let MeMillen know. This was the last conversation between them. The agent states that when he made his next remittance he never thought of MeMillen.</p> <p>MeMillen died on the 2d day of March, 1869. On the morning of that day, and while MeMillen was in a dying condition, the policy in question became the subject of conversation between Durkee, the agent, and some others who were friends of MeMillen. Durkee informed them of the facts in l’egard to the last premium. On one of them expressing regret that the money had not been paid, Durkee stated that he did not think it would make any difference whether the money was paid at that time or not; that he considered it his fault, and not McMillen’s. One of them remarked, that if he had the money, he would pay the amount of the unpaid premium, and expressed a desire to borrow the money for the purpose. Durkee handed him ;$10, and gave him directions to deposit it in bank to Dorkee’s credit. The $10 was on the same day so deposited, but before the deposit was made, McMillen died.</p> <p>On the same day, Lyman Dow paid Durkee $10, for which he took a receipt, antedated to February. 2d. A copy of the receipt is as follows: “Received of L. Dow} for D. K. McMillen, to' be credited on life insurance policy, this 2d day of February, 1869. E. Durkee.”</p> <p>On March 4th, Durkee reported the policy to the company as renewed December 11, 1868, and inclosed the two renewal notes before referred to, and $9.32, the cash part of the premium. The report of this .renewal was made by adding it to his previous monthly report of February, which had been returned to him by the company for certain corrections. At the same time, he advised the company of McMillen’s death, and in explanation of the omission to include the renewal of this policy in his former reports he said:</p> <p>“ On the 11th of December he came to my house and executed the notes I here inclose, and it was my fault their not being put in a former report, he saying to me, “ When you want the cash, call at the post-office,” he being chief clerk there. My report, 15th December, 1868, should have included his account, but as I went to the bank for the draft I called, but did not find him, and did not send the renewal.”</p> <p>In the letter of the president of the company, acknowledging the receipt of the letter of Durkee of March 4th, with the inelosures, he states that it appears from the report that the renewal premium on this policy, which was d.ue December 1st, was not paid until December 11th. He further states that Durkee was not authorized to receive it then; and that the policy was not in force March 2d, when McMillen is reported to have died.</p> <p>A correspondence followed between the president of the company and Durkee, on the subject of this policy, which it is not deemed necessary here to notice,</p> <p>On the 25th of May, 1869, the superintendent of agencies of the company went to Bellefontaine to investigate the facts in regard to the payment of the premiums on the policy. On ascertaining them to be as before stated, he tendered back the money paid on the last premium; 'but the tender was refused. The two notes taken by Durkee on December 11, 1868, and foi-warded to the company March 4, 1869, were not tendered back.</p> <p>On these facts, the court (trial by jury having been waived) found for the plaintiff. A motion for a new trial was made by the defendant, on the ground that the finding was against the evidence and against the law.</p> <p>This motion was overruled, and judgment rendered for the plaintiff.</p> <p>The case was taken on error to the District Court, where it was reserved for decision by this court.</p>

<p>Error to the Court of Common Pleas of .Shelby, county.. Beserved in the District Court.</p> <p>The case is sufficiently stated in the opinion of the Court-</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>Antram & Co. brought an action against Hazard L. Baldwin and three other named persons, to recover the price of goods alleged to have been sold by Antram & Co. to the defendants, while the latter were doing business as partners under the name of M. J. Baldwin & Co. The suit was commenced by the issuance of a writ of attachment, and no personal service was made on the defendants. Process of garnishment was served upon Swasey & Co., charging that they had property of the defendants in their hands, or were indebted to them, and Swasey & Co. answered, denying all indebtedness and liability. Antram & Co. took judgment by default against the defendants in attachment. At the date of this judgment, Hazard L. Baldwin, one Of the defendants, was dead, having died after the commencement of-the suit; but the plaintiffs being ignorant of the fact, no suggestion of his death was made, nor were his legal representatives made parties. After obtaining their judgment, M. T. Antram & Co., being dissatisfied with the answer of Swasey & Co., brought an action against them (under the 218th section of the code, S. & C. 1009), charging that they had property in their hands, or were indebted to an amount exceeding the sum so recovered. The cause was submitted to the court upon the pleadings and an agreed statement, which embody substantially the following facts:</p> <p>In 1864, Mary J. Baldwin, the wife of said Hazard L. Baldwin, with the assent of her husband, procured a “ permit ” to trade within the lines of the federal army, and for that purpose, with like consent, entered into a partnership with the said three other persons so sued as co-defendants ■with her husband in the attachment suit. The business .consisted in buying and selling goods, and was managed principally by her, assisted by her husband. The business ■was commenced without capital, the goods being purchased on credit, and the claim of M. T. Antram & Co. was a debt due for goods sold to the firm.</p> <p>In May, 1865, the firm of M. <1. Baldwin & Co. was dissolved, and its property and effects sold by the other partners to Mrs.. Baldwin, she agreeing to pay all the partnership debts. This was done with the consent of her husband; and with like consent, in June, 1865, the entire property and effects were sold by her to Swasey & Co., the husband, as well as the wife, signing the bill of sale. Although this bill of sale purports to be an absolute transfer and conveyance, it was in fact intended as a mortgage, to secure a debt due to Swasey & Co. Swasey & Co., however, took the property upon the same terms as did Mrs. Baldwin— that is, they were to pay all the partnership debts, including the debt due to Antram & Co. The property was amply sufficient to pay all the debts. It was not actually delivered to Swasey & Co. at the time of the sale, but was subsequently managed, and sold from time to time, by Mrs. Baldwin, as agent for Swasey & Co., and the proceeds paid over to them as they came to hand, her husband assisting her in managing the business.</p> <p>After service of the process of garnishment upon Swasey .& Co., the principal part of the debt due to them having been thus paid from the proceeds of the property, the remainder of the property and effects was reconveyed by them to Mrs. Baldwin.</p> <p>On these facts, the court found for the plaintiffs; and after overruling a motion of the defendants for a new trial, predicated on the ground that the finding was contrary to the law and the evidence, rendered a judgment in favor of the plaintiffs. Whether the court erred in so finding, and in rendering judgment, is the question presented by the pres* ■ent petition in error.</p>

<p>1. The possession of a mortgagor, or of those claiming under him, continuing in the occupancy of the mortgaged premises, acknowledging the subsistence of the mortgage, is not adverse to the rights of the-mortgagee, and will not ripen into a title superior to the mortgage.</p> <p>2. Where lapse of time is not pleaded in bar to an action, but is relied on< merely as evidence of the payment of a debt, it can only raise a presumption of such payment, which presumption may be rebutted by-other circumstances, showing that the debt is not paid.</p> <p>3. A party invoking affirmative relief based on the alleged payment of a debt, must establish the fact of payment; such relief will not be-granted upon a presumption of payment arising alone from lapse of time. Though such presumption may be successfully used as a shield,, it is not equally available as a weapon of attack.</p> <p>4. As between tho parties to a mortgage, the legal title, after condition! broken, is vested in the mortgagee; and where he devises his interest in the mortgaged premises to a trustee for the benefit of his children and their heirs, the mortgagor, without having paid the mortgage-debt, is not entitled, in an action against the cestuis que trust alone, to-a decree against them for a relinquishment of their interest in the-mortgaged premises.</p>

The original action was brought to foreclose a mortgage executed by Joel Riblet to the plaintiffs, Davis et al., to secure the payment of a promissory note made by Jacob Riblet, Joel Riblet, and Samuel Shunk for the sum of $8,702.91, payable one year after date with interest.

<p>Where the carelessness of the plaintiff, as well as that of the defendant, operated directly to produce the injury complained of, the plaintiff has no right to recover. And in a case where the defendant is entitled to and requests a charge to that effect, the refusal or neglect of the court to so instruct the jury, .in unambigious terms, is error, for which a judgment in favor of the plaintiff will be reversed.</p>

Reserved in the District Court of Lucas county. The plaintiff brought suit in the Common Pleas of Lucp.s county to enjoin the collection of a street assessment. Held: to pay all taxes levied, and all assessments made upon the demised premises. The property so held and owned by him was all included in the assessment.

<p>Motion for leave to file a petition in error to the District •Court of Huron county.</p>

<p>1. In a criminal cause, the discharge of the jury without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative.</p> <p>2. In such case, the record must show the existence of the necessity which required the discharge of the jury; otherwise, the defendant will be/ exonerated from the liability of further answering to the indictments</p>

<p>Where land was described in a deed of conveyance as lying north of a-specified road, and was also described by boundary lines, which in-' elude the road-bed: Held, that the repugnancy between the two descriptions is not irreconcilable, and that the road-bed is included in. the conveyance.</p>

<p>Error to the Court of Common Pleas of Adams county.</p> <p>The plaintiff in error, John Warden, and one James Daugherty, were jointly indicted for the murder of one Morris Edgerton. Warden, upon being separately tried, was convicted of murder in the second degree. The indictment upon which this conviction was had, after charging that both defendants, at the time and -place named, actuated by the same felonious intent, assaulted the deceased, and that his death was occasioned by a wound then and there inflicted by Daugherty, proceeded as follows: “And the jurors aforesaid, upon their oaths aforesaid, do further find and present that said John Warden, being then and there present at the time said felony and murder was committed, as aforesaid, to wit, on, etc., at, etc., with intent then and thereby to kill and murder‘him, the said Morris Edgerton, did unlawfully, willfully, purposely, and of Ms deliberate and premeditated malice, aid, abet, and procure him, the said James Daugherty, the felony and murder aforesaid, to do and commit.” * -</p> <p>Thirty-six electors of the county having been summoned to attend the trial as jurors, the accused, on the day fixed for the trial, moved to set aside the array on the ground that four of the electors thus summoned failed to attend. The motion was overruled, and the defendant excepted.</p> <p>The jury having returned their verdict, finding the defendant guilty of murder in the second degree, the defendant, by his counsel, filed his motion for a new trial, assigning as reasons therefor:</p> <p>1. That the verdict was not responsive to the charge.</p> <p>2. That the court erred in its charge to the jury.</p> <p>8. That the verdict was not sustained by the evidence.</p> <p>This motion was also overruled, to which defendant excepted ; and thereupon, on his behalf, a bill of exceptions-was taken, setting out the testimony and the charge of the court.</p> <p>The several rulings of the court excepted to, are now-assigned for error.</p>

The plaintiff was the owner of bonds issued by the defendant for the construction and equipment of its road. The bonds bore interest at the rate of seven per cent., payable semi-annually, and contained a provision that the owner might convert them, at any time within ten years from their date, into stock of the company. At the date of the bonds, the capital stock of the company was $1,500,000; but the company had power, by law, to increase it to any necessary amount.

<p>Errob to the District Court of Union county.</p> <p>On the 9th of May, 1859, Sophia Hemminway and Earmery Hemminway, her husband, obtained a judgment in the Court of Common Pleas of Union county, for the sum of $1,162, to bear interest at ten per cent., against Ira C. Johnson, Joseph Johnson, and S. K. Reed, and, May 18,1859, had execution thereon issued and levy made on one hundred and twenty-seven acres of land, in Union county, known as Johnson’s Tyler farm.</p> <p>On the 27th day of April, 1859, Joseph Johnson' mortgaged the said one hundred and twenty-seven acres to E. Messenger for $3,300, which mortgage was left for record with the recorder of Union county, May 9, 1859, at 11 o’clock A. M. On the 19th day of August, 1859, said Hemminway and wife filed their petition against said Johnsons, Messenger, et al., in said court, setting forth the said judgment; that Joseph Johnson was the owner of the said one hundred and twenty-seven acres of land; that Sophia Hemminway was the real party in interest owning said judgment, her husband being a nominal party only; that said mortgage was made, without consideration, to defraud the creditors of said Joseph Johnson, and praying the court to find their said judgment to be a lien on the said land prior to said mortgage; or, if not, that said mortgage be declared void for fraud and want of consideration; that the said lands be sold, and the said judgment be paid out of the proceeds, etc.</p> <p>The defendant Messenger answered, setting forth the record of the said mortgage, and that it was duly executed and delivered, and left for record, before the court sat, and before the rendition of the said judgment in favor of the plaintiff, and was a prior lien upon the premises; and that he gave full value for it, and asking that he be first paid, etc. The reply denied that the mortgage from said Johnson to said Messenger was left for record before the court sat and before the judgment was rendered, in favor of the plaintiff, against said Johnson</p> <p>On the 30th of April, 1861, a trial was had, and, upon hearing the evidence, the court found said mortgage to be a prior lien on said one hundred and twenty-seven acres; that said Hemminways’ judgment was the next lien thereon; that there was due to said Messenger on his said mortgage the amount by him paid thereon, which the court found to be only §1,658, including interest; that there was due to Hemminways $1,391, with interest thereafter at ten per cent. And the court then ordered said land to be sold by the sheriff, to pay, first, the costs; second, the amount due to Messenger, and then the amount due to Hemminways, and that he bring the residue into court.</p> <p>August 3,1861, the sheriff sold said land for $3,162.30.</p> <p>The sale was afterward confirmed, a deed ordered to be made to the purchaser, and the ease continued for the distribution of the proceeds of sale.</p> <p>February 20, 1862, M. Davis filed his petition in the Union Common Pleas Court against Ira C. Johnson, Joseph Johnson, Hemminway and wife, E. Messenger, Caleb Clark, Robert Y. Abrahams, and Philip Snider, setting forth that at a term of the said court, begun and, held on the 9th day of May, 1859, before 11 o’clock a. m. of said day, he recovered a judgment for $779.96, to bear interest at ten per cent., against said Johnsons; and, on June 13, 1859, caused execution thereon to issue and levy made on said one hundred and twenty-seven acres of land, and that they had no other property; the said mortgage of Johnson to Messenger; that it was made without consideration and to defraud creditors, etc.; the judgment of Hemminway and wife and their levy; the substance of their said petition, filed in said court August 19, 1859; the trial and the findings of the court therein ; that, August 3,1861, said sheriff', Philip Snider, sold said land, under said order, to said Robert Y. Abrahams for $3,162.30; that said Abrahams paid to said Snider the sum of $1,658 on the day of sale, and gave said Snider his note for the residue, payable about August, 1862; that said sum so .paid down and said note are in the hands of said Snider; that he, said Davis, was not a party to the said suit of Hemminway v. Messenger et al., and that the findings and orders in said case will do him great wrong unless vacated, and praying that said mortgage be annulled for fraud and want of consideration; or, if this can not be done, that the lien of the plaintiff Davis, by his said judgment, be adjudged prior to the lien of said mortgage, and of the same date and legal force and effect as the lien of said Hemminway on said land; that the order of the court made in the case of Hemminway v. Messenger et al., ordering said land to be sold, and distributing to said Messenger, of the proceeds, $1,668, and said Hemminway $1,391, be set aside and annulled; that said Philip Snider, sheriff', retain in his hands said money which may be paid thereon until the final determination of this case; and that said Abrahams be ordered not to pay any portion of said money now in his hands to any person other than said Snider, sheriff', or his successor in office.</p> <p>Messenger’s answer admits the filing of said mortgage for record, at 11 o’clock a. m. of May 9,1859; the recovery of the Hemminway and Davis judgments on that day, and the proceedings of the Hemminways, August 19,1859, for priority, and denies all other averments of Davis’ petition. Messenger then sets forth, as a second defense, in substance, the said petition of Hemminway and wife, filed August 19, 1859; the trial, the findings, and order of court therein; and avers that the said court did determine the several questions made by the pleadings in that case, and did find him entitled to priority over said Hemminways in his lien upon and title to said one hundred and twenty-seven acres of land, to the amount of $1,400, and interest from May 27, 1859, and did then and there settle and determine all questions relating to the consideration of said mortgage and to the fraud of this defendant and of said defendant Johnson; that, in and by said judgment in the said Hemminway case, all the matters in the present action involved, and all of the claims against this defendant now made, were fully and conclusively adjudicated upon and determined, and that said judgment still remains in force, etc.</p> <p>Davis replied, denying the matters of Messenger’s answer.</p> <p>At the September term, 1868, of the District Court, the following decree was entered :</p> <p>“ And this trial coming on further to be heard upon the petition of plaintiff Davis, the answer of said-Everett Messenger, the reply thereto (all the other parties being in default), aud also on the proof and arguments of counsel, the court, being advised in the premises, does find that the mortgage by said Messenger set up, is valid for the purposes therein mentioned, and is a lien on the real estate described therein, prior to others, except to said judgment of said plaintiff, which it is adjudged is a prior lien thereon to that of said Messenger.</p> <p>“ The court does further find that the statements in the second defense of said Messenger are true, aud that, as between the said Messenger and the said Hemminways, the equity of the case is with Messenger; that all questions between them as to the order of the distribution of the proceeds of said Tyler farm were, as in said second defense stated, heretofore fully determined by said Court of Common Pleas; and that after payment from the proceeds of •said sale of the Tyler farm of the amount due to plaintiff' on his judgment, the claim of said Messenger, heretofore determined by said judgment, to wit, thé sum of $1,568, should be next paid, and that the proceeds then remaining in the hands of said sheriff’ Snider be paid to said Hemminways.</p> <p>“ The court does further find that said Hemminways are estopped by said judgments from setting up or claiming any preference in the distribution of said money over the said Everett Messenger.</p> <p>“ The court does find that said Philip Snider, as sheriff' and special master commissioner of this Court of Common Pleas, sold, on the 3d day of August, 1861, the said Tyler farm for the sum of $3,162.30. The court does further find that there is due to plaintiff' the sum of $1,527.67 ; that there is due to said Messenger the sum of $2,243.60. It is • therefore considered, adjudged, and decreed that the said Philip Snider, the sheriff and special master aforesaid, pay out of the proceeds of said sale the costs herein to be taxed; second, that he next pay said sum of $1,517.67 to plaintiff; third, that he next pay to said Everett Messenger the said sum of $2,259.92, and that the balance, if any, of the pro* ceeds arising from the sale of said land he pay to said Hemminways.</p> <p>“ And it is further ordered and decreed that said Messenger and ITemminways shah account to the said Philip Snider, sheriff, for such sum of money, with interest, as either of them have received from him, for the purpose of enabling him to carry out this order.”</p> <p>To which ruling the following errors are assigned.'</p> <p>1. The District Court erred after finding, in accordance with said averments of the petition, that your petitioner’s judgment was the first lien upon the property, and equal to the lien of said Davis judgment, in decreeing that said Davis judgment should be first paid from the proceeds, and petitioner postponed to the payment of Messenger’s mortgage, by which it was wholly lost.</p> <p>2. That Said court erred in holding your petitioner estopped by the previous proceedings, to which Messenger, but not Davis, was a party, and in holding that no one else was estopped, giving to Davis, without making any claim to it, what had been decreed to her, and allowing Messenger to greatly increase the amount due on his mortgage and to be paid before the petitioner.</p> <p>3. The court erred that any estoppel properly applied to the case.</p>

<p>The bringing into this state by the thief, of goods stolen in the dominions of Canada, or other foreign country, is not larceny in this state.</p>

The plaintiff in error was indicted and convicted under section 4 of the act of May 1,1854, “to provide against the evils resulting from the sale of intoxicating liquors, of keeping a place where intoxicating liquors were sold in violation of law. The place alleged to have been thus kept was described in the indictment as a room.

<p>Motion for leave to file a petition in error to the District Court of Marion county.</p> <p>The original action was brought in the Court of Common Pleas of Marion county, on a recognizance for the appearance of the accused in a prosecution under the bastardy act. The questions arise on demurrer to the petition. A brief statement of the material averments therein is as follows: In March, 1869, on the complaint of the plaintiff, E. C. Throckmorton was recognized, under the bastardy act, to appear at the next term of the Court of Common Pleas of Marion county. The defendants, Daniel S. Drake and W. S. Drake, were his sureties. At the next term, May, 1869, the case was continued; but the defendant entered into a .new recognizance with the same sureties. The recognizance was conditioned for the appearance of the defendant at the next term, to answer the complaint against him, and to abide the order and judgment of the court. At the Pebru.ary term, 1870, the defendant was tried and found guilty. 'The court adjudged him to be the reputed father of the bastard child, and ordered that he stand charged with its maintenance to the complainant, or whoever might support lit, in the sum of $400, and ordered that $100 thereof be 'paid to complainant in thirty days, or in default, that ex- • ecution issue therefor, and for the costs. The court made no further order, and the plaintiff’ excepted. The plaintiff took the case on error to the District Court, where the order of the Court of Common Pleas was modified, by reversal of the order for execution, and by entering an ..order against the defendant Throckmorton to give security ¿to perform the order of the Court of Common Pleas as to the payment of said $400 and costs, and in default thereof, that he be committed to jail until he complied therewith ; and remanded the case to the Common Pleas for further proceedings. At the February term of that court, 1873, a default was entered on the recognizance against the sureties for the failure of the defendant to appear at that term of the court. This default, and the non-payment of the amount adjudged against the defendant in the bastardy case, are assigned as breaches of the recognizance, for which a recovery is sought.</p> <p>The sureties demurred to the petition : 1. Because the plaintiff was not entitled to sue on the recognizance — it being made payable to the State of Ohio for the use and benefit of Richland township in said county;” 2. Because the petition does not contain facts sufficient to constitute a cause of action. The court overruled the demurrer, and gave judgment for the plaintiff. The sureties took the case on error to the District Court, where the judgment of the Common Pleas was reversed, and the demurrer was sustained. Now, the plaintiff applies here by her motion for leave to file a petition in error to reverse the judgment of the District Court.</p>

<p>1. The right to revive an action, under title 13, chapter 1, of the code, is not dependent on the discretion of the court, or of the judge making the qrder, but under the conditions and within the time therein limited is a matter of right.</p> <p>2. The chapter of the code above referred to provides a summary remedy for reviving an action, but the remedy thus provided is not exclusive. The court has power, under section 39 of the code, "in the exercise of a sound discretion, to allow the action to be prosecuted by or against the representatives or successor in interest of a deceased party. For this purpose, supplemental pleadings may be allowed and process served as in the commencement of an action.</p> <p>3. The court, in the exercise of this discretion, is governed by the equitable principle which requires reasonable diligence and good faith on the part of those invoking its action; and where the time has elapsed within which an action can be revived by a conditional order, as provided for in title 13, chapter 1, of the code, the application for leave to continue the suit by supplemental pleading, may be granted or refused, according to the nature and circumstances of the case.</p> <p>4. "Where, pending a supplemental petition to revive an action against the representatives of a defendant, the plaintiff dies, the action may be revived in favor of his representatives by conditional order.</p>

The defendants in error were accommodation indorsers of David Gibson & Co., and the case below was an action brought by these indorsers to foreclose a mortgage given to them by David Gibson, to indemnify them as such indorsers.

<p>1. Section 48 of the criminal code, which provides for the holding of an examining court at the instance of a person committed to jail charged with the commission of any crime or offense, does not apply to persons-committed on indictment.</p> <p>2. During the term at which an indictment charging a capital offense wa? set for trial, application was made by the accused for the court to hear testimony to show that the offense was in fact bailable. Held, that the application was properly refused.</p>

<p>Motion for leave to file petition in error to the District Court of Lucas county.</p>

<p>In an action by tbe assignees of a judgment, against the debtor and others, to subject equities to the satisfaction of the judgment, the judgment debtor set up in his answer, by way of set-off, an indebtedness to him from the judgment creditor accruing before the assignment to the plaintiff. Held, that the judgment creditor was a necessary party to the is sue thus tendered by the defendant in his answer. And qvtere — Whether in such case, in order to constitute an equitable set-off, an allegation of the insolvency of the judgment creditor, or othei circumstance of equitable cognizance, is not necessary 1</p>

The plaintiff was indicted for violation of the act to provide against the evils resulting from the sale of intoxicating liquors. He plead in abatement, that one of the grand jurors who found the bill of indictment was a justice of the peace. To this plea a demurrer was filed on behalf of the state, and sustained by the court.

The plaintiff was indicted for assault with intent to commit a rape, and for assault and battery. The first count set out the time and place of the commission of the alleged offense with sufficient certainty.

<p>1. An appropriation of partnership assets by one partner without the assent of his copartners, in satisfaction or security of his private debt, in the absence of proof to the contrary is presumed to be fraudulent and collusive, as against the other members of the firm, and may by them be set aside. This presumption, however, is not conclusive, but may be rebutted.</p> <p>2. Where the sole acting member of a dissolved partnership, with full power to dispose of its property and pay its debts, himself became a creditor of the firm, by advancing his private funds in payment of its debts, and then in good faith and with no intention to defraud the company, disposed of the property of the firm to an amount less than the sum so due him, in satisfaction of a debt due from him to a third person, who received the same in like good faith, and in the belief that such sale was authorized by the firm: Held, that this disposition of the property can not be avoided by another member of the firm, it appearing that all the outside debts pf the firm are paid or secured, and that there is nothing due to such other member from the firm, unless he includes in his account against it a part of the same claim of A upon the'firm, transferred by A to him in satisfaction of a debt due to him from A.</p>

<p>Error to the District Court of Allen county.</p> <p>The original action was brought by the defendants in error, against the plaintiff in error, May 27,1868, to recover possession of certain real estate and damages for the unlawful-detention thereof, from July 1,1862, up to the time of the commencement of this action. The amended answer of the defendant, after admitting the possession, avers, in substance, that on the 23d day of September, 1851, William S. Rose, then the legal owner and possessor of the premises in plaintiffs’ petition described, for a valuable consideration, sold the same to the Ohio and Indiana Railroad Company, and at the same time gave the said company possession of said premises, and entered into a written agreement with said Ohio and Indiana Railroad Company, to convey by release to said company, said premises upon certain conditions set out in said agreement. In pursuance of said sale and agreement, said company took possession of said premises at that time, and in accordance with the terms of said agreement, made valuable and permanent improvements thereon, and permanently located its road upon the other grounds described in said agreement, and said Ohio and Indiana Railroad Company and its successors, including the defendant, have ever since remained in undisturbed and uninterrupted possession of the same, •and have had the entire control thereof, and have duly performed all the conditions expressed in said agreement on its part to be performed; that pi aintiffs are the heirs and legal representatives of said William S. Rose; that the defendant is the legal successor of said Ohio and Indiana Railroad Company; and asks that its title to said premises be maintained and decreed, -and that the plaintiffs may be required to execute the deed of release as aforesaid to the defendant. The copy of the agreement attached to the answer is as follows:</p> <p>u I hereby agree with the Ohio and Indiana Railroad Company to convey by release to said company the right of way, two rods in width along the north line of my land, in section 31, in Bath, township, Allen county, for the line of road, and the right of way, four rods in width, across the east half of the southeast quarter of section 25, in German township, for the line of said road. Also, to convey them a lot of ground six rods wide from north to south, and twenty rods long, from east to west, to be bounded north by said right of way in section 31, Bath township „ east by a line corresponding to the center of Main street, in the town of Lima; the south and west lines to be at right angles with the other two lines, for the purpose of a depot for the use of said road. This agreement' is made upon condition that the Ohio and Indiana Railroad shall be permanently located upon said right of way above described, and that said lot of ground above described be occupied for the west part of the depot and a part of the usual buildings erected thereon; and further, that I am to have abundant facilities for connecting my lots with said road, on the usual terms adopted by the Ohio and Indiana Railroad Company, on the line of their road.</p> <p>(Signed-,) “ W. S. Rose.</p> <p>41 Lima, September 23,1851.”</p> <p>The reply denies that said Rose, on said 23d day of September, or at any other time, for a valuable consideration, sold and gave possession of said premises described in petition to the Ohio and Indiana Railroad Company; admits the agreement attached to the answer, but says it was wholly without sale from said Rose to said company, and without any valuable consideration paid or agreed to be paid by said company therefor ; denies that said Ohio and Indiana Railroad Company, or any of its successors ever occupied said premises described in the petition, for the west part of its depot, or that it or any of its successors ever erected any part of the usual depot-buildings on said premises. But, on the contrary, the said plaintiffs say, that the said Ohio and Indiana Railroad Company, on or about the month of-, a. d. 1854, purchased, took possession of, occupied, and permanently located and erected the whole of their depot-buildings on premises situated on the line of said road, more than forty rods east of the premises described in the petition, and that the said Ohio and Indiana Railroad Company, and all its successors, does now and has ever failed to occupy and use said premises for the west part of the depot for said road, and to erect a part of the usual depot-buildings thereon; denies that said Ohio and Indiana Railroad Company, or its successors, and the defendants, have duly performed all the conditions expressed in said agreement on its part to be performed; admits that they are the heirs at law and legal representatives of said Rose, and that the defendant is the legal successor of the said Ohio and Indiana Railroad Company.</p> <p>Upon the trial of the case, on appeal, in the District Court, the testimony offered in evidence by the defendant was in substance as follows :</p> <p>W. S. Rose and William McHenry were owners of a good deal of ground, in the town of Lima, and interested in the place the Ohio and Indiana Railroad should be located ; and as a consideration for locating the road where Rose and McHenry desired, the company, among other things, asked for the ground upon which to put the different buildings. Accordingly, Rose gave as his share the land in dispute, and McHenry .an equally large piece on the other or east side of the street. At the same time Rose made the agreement, which is set out in defendant’s answer, with said Ohio and Indiana Railroad Company. McHenry made a like agreement with same company, except names! and description of land; and by McHenry’s agreement, the east part of the depot and a part of the usual buildings were to be erected upon the land described in his agreement. Rose’s land lay on the west side, and McHenry’s directly opposite on the east side of Main street, in said town of Lima. The road was located upon the right' of way described in Rose’s agreement, and has been kept there ever since; and as soon as the trains were running upon said railroad, a warehouse, such as is usually put up along railroads for the receiving of grain and freight, was-put upon the ground described in Rose’s agreement, which was some time in 1855. Said warehouse was used'by said company as its stopping-place until it put its other depot-buildings at the crossing of its road and the Dayton and Michigan Railroad, east of, and about forty rods from said land of Rose’s, and upon McHenry’s land. The depot of the defendant is now, and has been for ten or fifteen years, at the crossing of the defendant’s road and the Dayton and Michigan Railroad. The defendant has put and maintains its cattle or stock yards and coal and lumber yards upon this land of Rose’s, ahd a platform for loading and unloading freight. After the defendant had put up the buildings at the said crossing of the two railroads, there was very little freight at the warehouse, but it has been used some of the time for storing and shipping some goods.</p> <p>At the time Rose and McHenry made their agreements with defendant, it was the understanding that the defendant’s depot-buildings were to be where the railroad crossed Main street; but no arrangement was made as to exactly what buildings were to be put upon each lot.</p> <p>The following is the contract of the Ohio and Indiana Railroad Company with Taylor & Iioover for building the said warehouse, put in evidence by the defense: .</p> <p>“ The Ohio and Indiana Railroad Company agrees to lease to Taylor & Hoover, of Lima, Allen county, Ohio, for the term of five years, so much of the grounds (known as the depot-grounds), in the said town of Lima, as may be necessary for the construction of a warehouse, and for the approach of teams thereto ; the location of said warehouse to be west of Main street, and south of the railroad, commencing forty feet west of Main street.</p> <p>“ The railroad company agrees to construct a side-track to said warehouse as soon as may be necessary, for the convenience of loading. The said railroad company reserve the right to take possession of said warehouse, whenever the owner or occupants fail, for good and sufficient cause, to satisfy the company or the public therefor, for such a reason able value as may be assessed by three disinterested persons, to be chosen in the usual way of selecting arbitrators. It is further agreed by the said railroad company, that at the expiration of the five years, or at the taking possession of said warehouse, there be chosen as above, three arbitrators, who shall assess the value of said warehouse and fixtures ; and said railroad company agrees to pay the amount so assessed to Taylor & Hoover, or their assigns, for the same, provided that the said railroad company wishes to occupy said building — if not, then this lease to continue from year to year, until said railroad company may wish to occupy the same, they giving three months’ notice of said intention.</p> <p>“ It is agreed by Taylor & Hoover, of the second part, that they will handle and store (for a reasonable time), all the rolling freight going from or coming to said town belonging to the company, or to residents of the town, where said building is located, free of charge or compensation, and to and from non-residents, at a i’ate not exceeding those charged at inland points on the canals and railroads of Ohio.</p> <p>“ All storage of grain and other articles upon which storage and commission are chargeable, shall be uniform and reasonable. And it is further agreed that, so far as practicable, all persons wishing storage are to be accommodated for a reasonable time. The rolling-freight for citizens thus passed through said warehouse, is distinguished from the storage and handling of grain, which latter shall be subject to the same charge as non-residents. This last not to be transferred without the consent of the company.</p> <p>“ In testimony whereof, I, Samuel Hanna, president of said railroad company, have hereunto set my hand, this 14th day of September, 1855.</p> <p>“ Ohio and Indiana Railroad Company,</p> <p> uJBy Samuel Hanna, President.” </p> <p>By indorsement on the back of this agreement, Taylor & Hoover assign to R. Metheany, the company approve the assignment, and R. Metheany assumes and agrees to discharge all the responsibilites of the contract.</p> <p>There is no claim that the contract has not been duly executed and performed.</p> <p>The plaintiffs offered testimony tending to show that the usual buildings for depot purposes are the places at which cars stop to receive and discharge freight and passengers, and do the business generally of the road at that place: that the depot and depot-buildings of the defendants are at the crossing of the defendant’s and the D. & M. Railroad, and that there the defendant receives and discharges freight and passengers; that when freight is taken to another building for storage, it would be a store-house, and not a depot-building; that cattle-yards and pens, and also grounds for placing coal, lumber, and such things, were not a part of the depot, though necessary and usual for the business of railroads.</p> <p>The District Court rendered a judgment for the plaintiffs, that they recover the premises in their petition described, and ordered that the prayer of the defendant be dismissed. The defendant moved for a new trial, which motion was overruled.</p> <p>To reverse the judgment, orders, and decrees of the District Court, this writ is prosecuted.</p>

<p>Error to the District Court of Summit county.</p> <p>The plaintiff, Philip TJpington, suing on behalf of him,-self and ninety-four others, named in the petition, all of whom, he alleges, have, with him, a common and general interest in the subject of the action, brought suit in the 'Common Pleas of Summit county, to enjoin the collection of an assessment upon certain lots on Exchange street in the city of Akron, of which the plaintiff and the other parties named are the several owners. The assessment was made by authority of the city council, to pay the expense ■of grading and paving said street.</p> <p>It was alleged that the council, in the course of the proceedings, failed, in several particulars, to comply with the provisions of the statute, and that the assessment was, by reason thereof, without authority of law, and invalid. Upon the trial of the case in the District Court on appeal, -the petition was dismissed. The plaintiff, upon the overruling of his motion for a new trial, took a bill of exceptions setting out all the testimony. Prom the pleadings, .and the record of the proceedings of the council embodied in the bill of exceptions, the following appear to be the facts :</p> <p>On May 9, 1870, the council adopted a resolution declaring the proposed improvement necessary. The grade of the streetbeing afterward changed, on May 16th this resolution was rescinded, and a new resolution in the same terms, but referring to the grade as then established, was adopted. Publication of the resolution of May 9th was immediately -commenced, and was continued for the requisite time after the adoption of the resolution of May 16th, but no change was made in the form of the resolution as published. As published, it purported throughout to be a resolution adopted May 9th.</p> <p>Section 98 of the municipal code provides that all bylaws, resolutions, and ordinances of a general or permanent nature shall be read on three different days, unless three-fourths of all the members of the council shall dispense with the rule. Upon the adoption of the resolution of May 16th, these provisions were not complied with.</p> <p>It also appears that this resolution, although entered in the journal of the proceedings of the council, was not recorded in the book of ordinances.</p> <p>On May 1, 1871, an ordinance was passed providing for the improvement of the street throughout its entire length, as contemplated by the resolution of May 16, 1870. It provided for making advertisement for bids for doing the work as required by law, and further provided “that the cost and expense of said improvement, except as otherwise-directed by statute, be estimated and assessed equally upon each and every foot front of the several lots and parcels of land bounding and abutting on said street.”</p> <p>The estimated expense of the improvement exceeded #5,000, and two newspapers were published in the city. In one paper the publication of advertisement for bids for constructing the improvement was commenced May 3d, and in the other, May 10th. The bids were to be, and were, received and opened May 24th. The statute required advertisement in two papers for the period of four weeks.</p> <p>Two assessment ordinances were adopted, and two assessments made. The first ordinance was passed January 3d, and the second, August 12,1872. The first assessment was-at the rate of sixty-six cents per- foot front, for a part of the street, and forty cents for the remainder. On the-second assessment, these rates were, as to the different sections of the street, reversed, so that together they constituted a uniform rate on the property assessed of fl.Od per foot front.</p> <p>The aggregate amount of the two assessments, as to some of the lots, exceeded twenty-five per centum of their taxable value. The excess, as to each lot with respect to-which it occurred, was remitted by the city, and the unpaid assessment upon all the lots certified to the county auditor, and placed on the county duplicate for collection.</p> <p>The street improved was wholly within the city limits, but a tract of land belonging to one Chapman, adjoining the street on the south, and having a frontage on the street, as improved, of one thousand or more feet, was not, at the commencement of the proceedings, within the city. The-council made a contract with Chapman, by which he agreed to pay his just proportion of the cost of the improvement,, not exceeding the rate per foot assessed upon the other lots abutting upon the street; the amount to be paid to be determined by three persons named by the parties. The-Chapman land was annexed to the city in March, 1872, after the first and before the second assessment. This tract was not included in either assessment. The first assessment was made during the progress of the work, and was intended to cover only a part of,the expense of the improvement. The second assessment ordinance made no reference-to the first, but it, together with the first, was intended to-cover the entire cost. At the time it was made, however, the improvement had not been completed. A substantial part of the work at the time the suit was commenced, and at the time of the trial in the District Court, still remains unperformed.</p>

<p>1. The jurisdiction conferred upon the courts of common pleas by the act of April 10, 1856 (S. & C. 1151), to “restrain the collection of taxes illegally assessed,” is an equitable jurisdiction, and is to be exercised upon equitable principles.</p> <p>2. The collection of an assessment made to pay the expense of a street improvement will not be enjoined by reason of irregularities in the proceedings where, under section 550 of the municipal code, the amount of such assessment is, notwithstanding such irregularities and defects, properly chargeable against the property assessed.</p> <p>3. Where an assessment for street improvements is made, pursuant to section 577 of the municipal code, payable in deferred installments, interest upon such installments to the time they respectively become due may properly be included in the assessment.</p>

Appeal. Reserved in the District Court of Jefferson county. This action was prosecuted to recover the possession of certain lands in Jefferson county, Ohio, belonging to the Ohio Yearly Meeting of the Society of Friends. The petition, is, in substance, as follows : On the 4th day of April, 1832, the Ohio Yearly.

<p>Motion for leave to file petition in error to the District Court of Green county.</p>

<p>Motion for leave to file petition in error to the District Court of Hamilton county.</p>

<p>Error to the Court of Common Pleas of Pike county.</p>

•Motion for writ of mandamus. This is a motion for a writ of mandamus to compel the defendant, Joseph B. Humphreys, Auditor of Hamilton county, to draw his warrant for $45.34, upon the Treasurer of Hamilton county, for the purpose of refunding to the plaintiff the said sum of $45.34, the amount of taxes paid into the county treasury by her through the mistake of the auditor.

George Heart, the defendant in error, brought an action 'in the Superior Court of Cincinnati, against the People’s Insurance Company, plaintiffs in error, upon a policy of insurance, as assignee of said policy.

Court of Logan county. The defendant in error brought an action against the plaintiff in error, and Martin McAdams, under the statute(S. & S. 10), to recover damages for the injury, etc., of certain sheep hy the dogs of the defendants.

The original action was brought before a justice of the peace of Put-in-Bay township, Ottawa county, Ohio, to recover damages for the injury to the property of the plaintiff by a cow belonging to the defendant.

The original action was brought in the Court of Common Pleas of Hamilton county, by the plaintiff against Walter Dixon, on a promissory note for $1,704.88. After the commencement of the suit, Dixon paid to the plaintiff $1,250, on the note, and filed an affidavit, under the 42d section of the code, stating that Caroline Schwab, wife of Peter Schwab, claimed the balance due on the note, and that he was ready to pay it as the court might direct.

Reserved in the District Court of Preble county The original action was brought by the defendant in error against the plaintiff in error. In the court below the defendant demurred to the petition on the ground that it did not state sufficient facts, which demurrer was overruled. The cause was afterward tried to a jury, and resulted in a verdict for the plaintiff. A motion was made by defendant for judgment in its favor, notwithstanding the verdict, which motion was overruled.

The facts in the case are as follows: On December 4, 1863, the plaintiff, Thomas Smith, entered into a contract, in writing, with one A. C. Penniman,. for the sale and conveyance to him, in ninety days from the date of the contract, certain lots in the town of Sidney,, and out-lots 178 and 179 of said town, “having thereon erected the Sidney distillery, with all the machinery, fixtures, etc., thereto belonging or appertaining,” together with certain lands situate in Shelby…

<p>Error to the Superior Court of Cincinnati.</p>

The original action was brought in the Court of Common Pleas, by the plaintiff in error, against the defendant :in error and Isaac N. Gibson and Charles N. Gibson, on three several promissory notes, executed by the defendants to the plaintiff, and dated August 8, 1873; that is to say: One note for $500, payable in six months ;• another for $900, payable in nine months, and the other for $950, payable in one year from date, with interest, etc. It was alleged in the ■petition…

The cause came into the Court of Common Pleas of Lake county, by appeal from the decision of the board of commissioners.

Pringle & Heiskill, judgment creditors, brought an action, in the nature of a creditor’s bill, against the judgment debtor, James P. Edwards, and others, in the Court of Common Pleas of Clark county.

Reserved in the District Court. The defendant in error, George C. Corning, filed his petition in the Court of Common Pleas of Hamilton county to recover the possession of the real estate devised by Anthony Harkness, deceased, to Sarah Harkness, by the seventh item of his will. The petition avers that the testator was seized of the premises at the time of his death, and that his will had been duly admitted to probate and record.

This is a suit for partition. The petition avers that, in 1842, Jacob Synif and wife, for a valuable consideration, conveyed by their deed, duly executed and delivered, the premises therein described to their daughter, Eve Brown, and the heirs of her body forever; that, at the time of the conveyance, Eve Brown was the wife of the defendant, Samuel Brown, and died in 1855, leaving surviving her five children, the issue of her body by Samuel Brown ; that the plaintiff and two…

The original action was brought by Amos Shaum against Andrew D. Swihart, the judgment debtor, and others, to subject lands conveyed by the judgment debtor to his sons-in-law, John Lewis and Hosea Eisher, and his sons, Philip and William Swihart, to the payment of the judgment. The following facts appear from the record : The indebtedness, upon which the judgment was founded, accrued in the year 1864, upon a written contract between plaintiff and Andrew D. Swihart.

On the 24th day of July, 1805, Alexander Gibson, who was the assignee in a direct line of George Turner, a soldier of the Virginia line, entered 100 acres of land, situate in the county of Pickaway, on a military land-warrant (No. 4,417), issued to George Turner for military services.

The original petition was filed by Wm. H. Beaumont, Charles A. Beaumont, .and Genevieve E. Beaumont, by their next friend, to set aside a sale made by a master commissioner, under orders issued from the Court of Common Pleas of Cuyahoga county, of certain real estate in the city of Cleveland, known as the “Pavilion property.” The plaintiffs are the heirs at law of Genevieve E. Beaumont, and .the facts, so far as they are necessary to the understanding of the case, are, in…

Evans was convicted, at the February term of the Common Pleas of Cuyahoga county, of the crime of arson.

<p>The estimated value of the labor constructing a ditch, awarded to the owner of lands through which it passes, by the commissioners of a county, under the^aet of April 12,1871 (68 Ohio L. 60), is not an incumbrance on such lands, for which a recovery may be had for a breach of the covenant against incumbrances in the deed conveying the same, against the vendor, by a vendee who became the purchaser thereof after the ditch was established and such estimate made, and before such work was let by the commissioners.</p>

On tlie 3d day of June, 1872, the defendants filed their petition in the auditor’s office of Warren county, praying for the alteration of a county road, and the location of the road through the lands of the plaintiff, and for the vacation of certain portions of the road.

The original action was brought in the Court of Common Pleas of Pickaway county, by the plaintiffs in error, to recover from the defendant in error the possession of two-undivided third parts of 606 acres of land, situate in said county, and being part of original survey No. 6,943, in the-Virginia military district.

In the fall of 1871, Shoenfeld, Brothers & Co., of Chicago, had in their hands goods belonging to Alton Pope & Sons, of Cleveland, for sale on their account. The property was destroyed by fire.

Two of- the notes bore six per cent, interest, and the other ten.

<p>Motion for leave to file a petition in error to th'e District ■Court of Hamilton county.</p> <p>The facts are sufficiently stated in the opinion of the ■court.</p>

■Error to tbe District Court of Defiance county. Tbe defendants in error filed their petition in tbe Court of Common Pleas of Defiance county, to restrain the board of commissioners of Defiance county from constructing a bridge across tbe Auglaize river, at the foot of Hopkins •street, in the town of Defiance. Upon the application of ■the defendants in error, a temporary injunction was allowed.

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

Reserved in the District Court. William Mills, as principal, and the plaintiff and the defendant, with Aaron Harlan, as his sureties, on the 28th day of June, 1855, made and delivered their joint and several promissory note, payable in three months after that date, to William H. Knott, or order, for six thousand dollars, with, interest at the rate of ten per cent.

Appeal. Reserved in the District Court of Lake county.. The original petition was filed in the Court of Common Pleas of Lake county. It is averred therein that Samuel.

Mandamus. The relators, B. B. Frost, Henry Stearns, and others, partners as Frost, Stearns & Co., ask for a peremptory writ of mandamus… Held: and to whom payable, as a portion of the debt to be provided for under said act: “This board, without prejudice to the validity of said claim, or the completeness of the vouchers by which it is suppoited, refuses to consider the same, or to exercise any jurisdiction in relation thereto, for the reason that the work for which payment…

On the 27th day of August, 1867, Eelix Saas sold and •conveyed to the Great Western Stock Company, an incorporation of this state, a certain lot of land situated in the city of Cincinnati, by deed containing apt words to convey an estate in fee simple, with covenants of seizin and general warranty of title. At the same time the stock company executed its notes to Saas for a balance of the purchase money, and secured the same by a mortgage on the premises.

On the 12th day of November, 1868, the plaintiff, Wallace W. Templeton, sold and conveyed to the defendant, Solomon Kraner, by deed in fee simple, with covenants of general warranty, certain real estate situate in Hardin county, containing 159 acres.

<p>Motion for leave to file a petition in error to reverse the District Court of Highland county.</p> <p>The original action was brought by Ervin Brown against Hugh Breslin, in the Court of Common Pleas of Highland county. The following is a copy of the petition: “ The plaintiff, for a cause of action against the defendant, states ■as follows : “ The commissioners of Highland county, Ohio, •on the 7th day of June, 1870, on proceedings, before that time conducted before them, ordered a certain road improvement to be made, known as the New Lexington and Clinton county line road improvement; and the engineer of said road improvement having duly advertised, according to law, the said work of and on said improvement to be let to the lowest and best bidder, and invited bids for said work, and the said plaintiff" having made and filed his bid 'for said work, and the defendant being about to make and file his bid for said work, the defendant, on the 3d day of August, 1870, in consideration that the plaintiff then promised the defendant and agreed with him that if the contract for the doing of said work should be awarded to him (the plaintiff) on his said bid, the defendant should be and become an equal partner with him (the plaintiff’) in the said contract and the doing of said work and in the profits to be derived from said contract and the doing of said work, promised the plaintiff, and agreed with him, that, in case the said contract for the doing of said work should be awarded to him on his said bid, the plaintiff’ should be and become an equal partner with him (the defendant) in the said contract and the doing of said work and in the profits to be derived from said contract and in the doing' of the said work. The defendant did, on the said last-named day, make and file his said bid for the contract for said work. On the 3d day of August, 1870, the contract for said work was duly awarded to the defendant on his said bid. But the defendant did not keep his said promise and agreement with the plaintiff, but, on the contrary, though the plaintiff then, and frequently thereafter,, offered the defendant to carry the said agreement out on. his part, and to bear an equal share of the expense of doing said work, the defendant wholly refused to permit th& plaintiff to share or participate in any way in the said contract or the doing of said work ; and on or about the ■ 31st day of March, 1871, without the knowledge or consent of the plaintiff, the defendant sold and set over the said contract for doing said work to one B. E. Dyer, for the sum of one thousand dollars, to be paid in Highland county bonds. The defendant long since, and before the 1st day of October, 1871, received the said one thousand dollars in said Highland county bonds; but, though the plaintiff often demanded of the defendant his one-half of said bonds, the-defendant wholly refused, and still refuses, to deliver or pay to him any of said bonds whatever, or to pay to him,, though often requested thereto, one-half of the value of said bonds, or anything whatever, for his interest in said contract. The plaintiff says that, by reason of the premises, there is clue to him from the defendant the sum of five hundred dollars, with interest from the 1st day of October, 1871. Wherefore he asks,” etc.</p> <p>To this petition a general demurrer was filed by the defendant, which was overruled by the court.</p> <p>Afterward, the defendant having filed an answer denying the allegations of the petition, a tidal was had, and judgment was rendered for the plaintiff for $500 and interest. This judgment, on proceedings in error, was affirmed by the District Court.</p> <p>The questions in the case arise on the overruling of the demurrer to the petition by tbe Court of Common Pleas.</p>

<p>1. An administrator, ordered by tbe court to sell lands of the estate, procured a party to attend the sale and become the purchaser, and no other person being present or bidding at the sale, sold the land at two-thirds its appraised value to such purchaser, who, immediately upon receiving his deed therefor, with the knowledge and consent of the administrator, conveyed the land to a trustee for the use of the administrator’s wife during her life, with remainder to her children begotten by her husband, and with power in the wife to sell the land: Held, that the transaction, upon its face, and in the absence of clear and satisfactory explanation, is fraudulent and void; and that it is a question of fact for the court to decide whether the evidence furnishes such explanation.</p> <p>2. Where the plaintiffs, in an action to set aside fraudulent deeds, whereby they have been divested of their title to land, pray to have the deeds canceled and set aside, and also pray for general relief, it is not an error in the court, on finding the deeds fraudulent, instead of ordering the same to be set aside and canceled, to decree a reconveyance of the land to the plaintiffs upon equitable terms.</p> <p>3. When one of several heirs bringing such an action is a minor, within the saving clause of the statute of limitations, the rights of all are saved thereby from the bar of the statute.</p>

<p>Error to the Superior Court of Cincinnati.</p>

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

<p>1. Where a person is indicted for breaking and entering a railroad car, with intent to steal, and for the larceny of goods contained therein, and is aequitted.of the breaking and entering, and convicted of the larceny only, the judgment of the court will not be reversed, because of the admission, against the objection of the defendant, of evidence for the sole purpose of proving the breaking and entering, whether such evidence was properly admitted or.not.</p> <p>2. The fact that a person is in the employ of a railroad company, as brakeman on a freight train, does not-imply such control or possession of the goods being transported on such train, that he may not be convicted of the larceny thereof.</p>

<p>.Motion for writ of mandamus.</p>

Richard M. Bishop et al., partners as R. M. Bishop & Co., filed their petition, in the Superior Court of Cincinnati, against Henry Speer, Edward D. Speer, and James-H. Speer, late partners, doing business under the name of Henry Speer & Co., to recover upon an account for goods-sold and delivered by the plaintiffs to the defendants. Henry Speer, in his answer, denied that he was a member of the firm of Henry Speer & Co. at the time of the-sale of the goods.

<p>1. By virtue of the act of February 19,1866 (S. & S. 1), a right of action given by a statute, and existing at the time of the amendment or repeal of the statute, is not affected by the amendment or repeal, unless otherwise expressly provided in the amending or repealing act.</p> <p>2. The right to a local bounty given by the act of April 13, 1865 (62 Ohio L. 141), and by the amendatory act of April 6, 1866 (63 Ohio L. 188), tO' “ each re-enlisted veteran volunteer who has been heretofore credited upon the quota of such township, under any requisition of the President of the United States for volunteers during the late rebellion,” is within the above rule, where the amending and repealing act only requires the bounty to be paid “ to each re-enlisted veteran volunteer who has been heretofore credited, as shown by the muster and descriptive roll, upon the quota” of such township.</p> <p>3. In an action to enforce such right, if the muster and descriptive roll does not show such credit, other testimony may be resorted to in order to-show the fact of credit.</p> <p>4 It is not essential to such right that there should have been an unfilled quota existing at the time the re-enlistment was credited to the township- It is enough, if the credit be afterward applied upon a quota arising under a subsequent call for volunteers.</p> <p>6. Where the number of enlistments credited to a township has been in excess of all quotas required from it under the several calls for volunteers, it is the duty of the township to pay such number of bounties as is equal to the credits in fact applied upon its quotas; and for any surplus of credits, provision is made for the payment of bounties out of the state treasury.</p>

Exception by the prosecuting attorney to the opinion of the Common Pleas of Hamilton county. The Cincinnati Fertilizer Company, a corporation of Hamilton county, was indicted under the act of April 15, .1857 (S. & C. 880), for erecting and keeping up a nuisance in the city of Cincinnati.

<p>Error to the District Court of Hamilton county.</p> <p>The original petition was filed February 25, 1869, by Henry A. Mathews, against Thomas Leaman and Matilda his wife, and Jacob Schadel, to enforce the forfeiture of a lease of the premises in controversy, and to recover possession of the premises.</p> <p>The petition states that on the 10th day of October, 1866, Thomas Leaman, who was then the owner of the premises, and Matilda his wife, demised the same to Jacob Schadel for the term of five years, on condition that the lessee would perform the covenants of the lease; that, by the terms of the lease, Schadel was to pay the stipulated rent quarterly to the lessor, Thomas, or his assigns, and was not to assign the term without the consent of the lessor or his assigns; that the plaintiff acquired title to the premises as the assignee of Anna K. Bochman, who was the assignee of Thomas Leaman; and that Schadel had broken his covenants by the non-payment of rent and by the assignment of the term to Matilda,.wife of Thomas Leaman, without the consent of the assignee.</p> <p>The petition also states that Matilda entered into and holds possession of the premises.</p> <p>Thomas and Matilda Leaman and Schadel file separate answers, in which they deny the title set up by the plaintiff'.</p> <p>Thomas accompanies his answer with the following cross-petition :</p> <p>“ The defendant, Thomas Leaman, by way of cross-petition against said plaintiff and various other persons hereinafter named, whom he desires to be made parties to this suit, says, that on or about the 7th day of August, A. n. 1867, while this defendant was the owner in fee simple of said real estate described in said petition of plaintiff, this defendant executed and delivered a deed for the same to a person calling herself Anna K. Boehman, but whose real name was then Anna K. Brenning, and who was then-the Wife of John Brenning, but living separately from him ; that said deed purported to be for a consideration of $700, but was in fact without any consideration whatever; that nothing whatever was paid for said deed; that the same was executed and delivered by this defendant to said Anna K. Boehman, apparently and upon its face as an absolute deed, yet it was then and afterward understood to be, and was in fact, in trust for and to secure the same for this defendant, and for no other purpose, and to be reconveyed to this defendant on demand; that said deed was on the same day put to record, but this defendant collected the rents of said real estate and exei’cised ownership and control over the same with the knowledge of, and without any objection from said Anna N. Boehman, until on or about the — day of May, 1868, when said Anna K. Boehman combined and confederated with her mother, one Dorothea Boehman, and her father, one George Boehman, to cheat and defraud this defendant and deprive him of the use and benefit of said real estate; and they assumed and claimed that the real name of said Dorothea Boehman, wife of said George Boehman, and mother of said Anna K. Boehman, was Anna K. Boehman; and that said deed had been executed and delivered to her, the wife of said George Boehman, and not to said Anna K. Boehman, wife of John Brenning; and said wife of said George Boehman, without the consent and against the will and protestations of this defendant, for a time thereafter assumed control of said real estate, and she and her said daughter, against the will of this defendant, for a time collected some of the rents of said real estate, up to and until October 8, 1868, since which time this defendant has been receiving the rents thereof, and as ever before, claims the right to do so; that said deed was never executed or delivered to said wife of said George Bochman; that she never paid any consideration therefor; that neither she nor her daughter ever became the absolute owner of said real estate, or any part thereof; nor did said George Bochman ever lawfully accpfire any interest in, or title to, said real estate; that on the 8th day of December, a. d. 1868, said wife of said John Brenning, by the decree of this court, was divorced from said John Brenning, and on January 7,1869, she was married to said plaintiff and is now his wife; that by the further combination of said George Bochman, and wife and daughter, to defraud this defendant, and by confederating also with said plaintiff for that purpose, said George Bochman and wife, on the 28th day of January, A. d. 1869, pretended to convey said real estate to said plaintiff', by deed of that date, by them executed and since put to record, for an expressed consideration of one dollar and other unnamed considerations and by covenants of general warranty; but this defendant charges and avers, that said last-named deed was wholly without consideration, and that said plaintiff well knew at the time of the making and delivery thereof, that said grantor had no title thereto, nor right to convey the same, and was fully advised in the premises.”</p> <p>The cross-petition also sets forth that a reconveyance had been demanded before the marriage of the grantee to Mathews, as well as since that time; that she expressed at first a willingness to reconvey, but now refuses to do so.</p> <p>George Bochman and Dorothea, his wife, and Anna K. Mathews, wife of the plaintiff, are made parties, and relief is prayed against them and the plaintiff'.</p> <p>Mathews and wife answer separately. Her answer is a mere denial of the allegations of the cross-petition.</p> <p>His answer states: “First. That it is not true that said Lea-man conveyed to the wife of the plaintiff, then named Anna K. Brenning, the premises described in the petition, without consideration and in trust for the benefit of said Leaman, as alleged in said cross-petition; and that it is not true that the plaintiff had any knowledge of such pretended trust.</p> <p>“ Second,. For a second answer to said cross-petition, the plaintiff says, that on the 28th day of January, 1869, for a good and valuable consideration, by their deed in fee simple and of general warranty, Anna E. Bochman and George Bochmau, her husband, conveyed said premises to the plaintiff, and that he is now the owner of the same.”</p> <p>George Bochman and wife file a joint answer, she answering by the name of Anna K. Bochman.</p> <p>The answer is as follows :</p> <p>“ First. The defendants, George Bochman and Anna E. Bochman, his wife, now come and for answer to the cross-petition of Thomas Leaman, say, that said Thomas Lea-man, on the 7th day of August, 1867, conveyed, by his deed in fee simple and of general warranty, to said Anna E. Bochman, for a good and sufficient consideration, the premises described in the petition; and that on the 28th day of January, 18.69, for a good and valuable consideration, the said George Bochman and Anna E. Bochman, his wife, conveyed said premises to the plaintiff.</p> <p>“ Second. For a second answer, the said defendants deny every allegation contained in said cross-petition.”</p> <p>On the trial of the cause in the District Court, the original petition was dismissed. The finding on the cross-petition is as follows : “And in further consideration of the premises as to said cross-petition, the court find for said Thomas Leaman, the plaintiff therein, and that the facts stated in said cross-petition are true; that said Thomas Leaman conveyed'the real estate in said petition described, by deed to said defendant, Anna E. Bochman, who was then known also by the name of Anna E. Brenning, and Anna E. Brenninger, and who has since become, and now is, the wife of.said plaintiff, Henry A. Mathews; that said deed was wholly without consideration, and in trust to be reconveyed by her to said Thomas Leaman, on demand; that a deed of reconveyance has been demanded from her before her marriage with said plaintiff, and from her and said plaintiff since their marriage, but they have failed to make such deed; that the claim of said defendants, Dorothea Bochman and George Bochman, and that of said plaintiff, under them, are wholly without consideration and without right, and void; that said deed of said Leaman to said Anna X. Bochman, and the deed of George Bochman and his wife, Dorothea Bochman, under the name of Anna Bochman, are each and both without consideration, and by reason of the premises, fraudulent and void; that neither said plaintiff, Henry A. Mathews, nor his said wife, Anna X. Mathews — formerly Anna X. Bochman — nor said George Bochman, nor his said wife, Dorothea Bochman, have any title, right, or interest in said real estate, or any part thereof, but the same, of right, belongs to, and should be vested in, said Thomas Leaman as the owner thereof in fee simple.”</p> <p>On this finding a decree was entered in favor of Leaman for the premises. A bill of exceptions was taken on the trial, which, after stating that the several deeds referred to in the pleadings, and the lease and the assignment thereof, had been given in evidence by the plaintiff, proceeds as follows:</p> <p>“And thereupon the defendant, Thomas Leaman, to maintain the issues on his part arising upon the answers and cross-petition filed herein by said Leaman, and the answers and replies and pleadings filed by the plaintiff and the other several defendants herein thereto, being sworn as a witness in his own behalf, and not having or offering in evidence any memorandum, declaration, paper, writing, or other written evidence tending to prove any of the facts alleged in his cross-petition, did offer parol evidence, tending to prove that previous to, and at the time of, the execution and delivery of the deed marked ‘ Exhibit B,’ by him, the defendant, Anna X. Mathews was a married woman, the wife of one John Brenning, but living separate and apart from him; that her maiden name was Anna X. Bochman, and that she was known by this name as well as by the name of Anna X. Brenning; that Dorothea Bochman was the name of her mother, with whom she was then living; that the defendant, Thomas Leaman, at this time was a married man, but living separate and apart from his wife, was boarding in the same house with Anna E. Brenning, and was cohabiting with her; that she solicited and importuned him to deed her the property described in the petition, and a large amount of personal property; that in compliance with her request, and to keep up a good understanding with her, he executed and delivered to her the deed and a bill of sale; but that she promised at the same time to give him back the property whenever he wanted it; that at that time he was having misunderstandings and disagreements with his wife; that the deed, though absolute on its face, and in consideration of seven hundred dollars, was, in fact, without any consideration whatsoever; that subsequently, and when he became reconciled to his wife, he requested her to give him back the property, and that she did give him back the personal property; and that she at first agreed to give him back the real estate, but subsequently refused.</p> <p>“ To all of which evidence tending to establish a trust by parol, the plaintiff and the other several defendants to said cross-petition objected; and the court, on consideration, did overrule said objection, and admit said testimony to be given, to which opinion of the court the said plaintiff and the other several defendants to said cross-petition, by their counsel, excepted.”</p> <p>The following errors are assigned:</p> <p>1. That the deed from Thomas Leaman to Anna E. Boehman Was executed upon an illegal consideration.</p> <p>2. That the court erred in allowing an express trust to be established by verbal evidence only.</p>

<p>Motion for leave to file a petition in error from Warren county.</p> <p>The plaintiff in error brought an action in the Common Pleas against four persons, to recover'possession of real estate alleged to be owned by him, and wrongfully detained by them. Two of these four defendants were unmarried women, but were married after the commencement of the action, and before judgment taken therein. The plaintiff took judgment by default, without making the husbands of the female defendants parties. The defendants, together with the husbands of the two married women, filed their1 petition, under section 584 of the code, alleging that they had a valid defense to the action; that the plaintiff had no right or estate in the land, and praying to have the judgment vacated. On demurrer to this petition, the court overruled the demurrer as to the married women and their husbands, but sustained it as to the other two original defendants. Without rendering any judgment upon the ruling on demurrer, and without any waiver by either party of the intervention of a jury, the court then proceeded to hear evidence touching the validity of the defense, and, after hearing the same, decided that there was no valid defense to the original action, and adjudged that the petition to vacate be dismissed. On error to the District Court, this judgment of the Common Pleas was reversed; and leave is now asked t'o file a petition here to reverse the judgment of the District Court.</p>

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

. , This case, originally, was an appeal by land-owners from the action of the board of commissioners for Clinton county, in respect to the alteration of a county road.

Reserved in District Court. These eases grow out of the same state of facts, and are so essentially similar, that a statement of one will suffice for a statement of the other.

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

Picksley brought his action against the Marietta and -Cincinnati Railroad Company, to recover for injuries caused by the alleged negligence of the servants of the defendant in operating one of its trains.

<p>1. It is the duty of a person approaching, crossing, or standing upon a railroad track, where cars are being run, to look out for approaching cars, and if he fails to do so, he is prima facie guilty of such negligence as will prevent his recovery for injuries occasioned to him, while so crossing or standing upon the track, by the mere carelessness, negligence, or unskillfulness of the employes of the company, not amounting to willfulness on their part; and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to make or keep such lookout, or such as would ordinarily induce persons of common prudence to omit that precaution.</p> <p>2. Where an infant child, intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence contributing to the result, although the infant may maintain an action for such injury, the father can not, the negligence of his agent, the custodian of the child, being in law the negligence of the father.</p> <p>S. It is not error in the court to refuse to give instructions which require the court to assume or imply the existence of material facts in issue in the case, although such facts are clearly proven by the evidence submitted to the jury.</p>