Volume 25 — Ohio State Reports, New Series

<p>1. Investments in bonds and stocks of foreign corporations by residents of Ohio may lawfully be taxed in Ohio; and the provisions of the act of April 5, 1859 (2 S. & C. 1438),'imposing a tax on such bonds and stocks, are not in violation of the federal or state constitution.</p>

<p>Error reserved in the District Court of Gallia county.</p> <p>The original action was brought on a redelivery bond executed under section 5 of act of February 26, 1840, entitled “ an act to provide for the collection of claims against steamboats,” etc. It was alleged in the petition that the plaintiff, on the 8th of May, 1860, commenced a suit in the Common Pleas of Gallia county against the steamboat “ R. B. Hamilton,” and caused the same to be seized; that to effect the release of the boat the defendants executed the bond sued on; that judgment was afterward rendered in the action against the steamboat, and execution issued thereon ; and that the defendants failed to produce the-boat to answer the judgment, as they were bound to do, etc.</p> <p>To this petition the defendants demurred. The court sustained the demurrer, and rendered judgment against the plaintiff.</p> <p>This petition is prosecuted to reverse the judgment of the Common Pleas, and the sustaining of the demurrer is assigned for error.</p>

<p>Application for writ of mandamus.</p> <p>At the November term of the Common Pleas of Jefferson county, the plaintiff, with one John McClave, was appointed by the court to aid the prosecuting attorney of the county in the investigation and examination of the annual report of the commissioners of the county, touching their official transactions during the year next preceding the second Monday of September, 1873, and their statement of the financial affairs of the county. The appointment was made under the provisions of the seventh section of the act of April 8,1856, as amended March 13,1872. 69 Ohio L. 42. The appointment was accepted, and the duties thereof performed. Afterward, on the 5th day of September, 1874, the plaintiff presented his account for said services, amounting to $300, to the commissioners, for their allowance; and the commissioners then and there refused to audit and allow the same, or any part thereof, on the ground “ that they had no right or jurisdiction to act in the premises.”</p> <p>The aid of this court, by writ of mandamus, is now sought to compel the commissioners to act in the matter.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The original petition was filed by the plaintiff, Seegar, to restrain the defendant, Harrison, from making excavations on, and building a permanent stone wall across a strip of ground described in the petition as Irwin street, in the village of Fairmount. Fairmount was a suburb of Cincinnati, and has since been brought within the corporate limits of the city.</p> <p>The defendant admits the making of the excavations and the intention to build the wall on the ground described in the petition as Irwin street, but he denies that the ground in question constitutes part of a street, and claims the right to improve it as his private property.</p> <p>The plaintiff and the defendant are adjoining proprietors, the lands of the defendant lying north of the plaintiff’s. Both parties derive title either directly or by mesne conveyances from Joseph A. James, who owned a larger body of land from which the parcels, owned respectively by the plaintiff and the defendant, were taken. The defendant’s immediate grantor is Joseph Wilson.</p> <p>On the 24th of July, 1852, James Wilson, and Seegar, together with two others, Bryant and Trevor, executed what the parties call a deed of dedication, the object of which was to appropriate certain ground therein described to streets and highways, having reference to the plats of Eairmount as then laid off.</p> <p>This deed contains the following provision: “ And the parties hereto, and especially the said James Wilson and Seegar, hereby dedicate a certain other street called ‘ Irwin street’ on James’ plat of Eairmount, as laid out by said James, as a public street or highway forever, the width of fifty feet from a point in the old State road, three hundred feet south of Central avenue, with the privilege of changing the same to suit the ground in extending said Irwin street eastward from Charles street to the east line of Dr. Seegar’s lands; and'the said James further dedicates said Irwin street eastwardly through his lands, from the east line of said Seegar’s lands to the northwest corner of the reserved lands of George Luckey, fifty feet wide, as laid down on the plat aforesaid; thence eastwardly thii'ty-five feet wide to the Millcreek road, the said Seegar reserving the right so far as the said Irwin street runs through his lands, of keeping the same closed up for a period not exceeding six years from the date hereof.”</p> <p>It appears from the testimony of James, that before this deed was executed, Seegar, Wilson, and himself went over the ground, and agreed verbally that Irwin street should be located north of the platform connected with Seegar’s stable; and that the street was subsequently graded where they had agreed it should be located.</p> <p>Subsequently, "Wilson and Seegar. entered into the following agreement:</p> <p>“It is agreed on the part of said Wilson to transfer to said Seegar, by an unincumbered warranty deed, the following described lot of ground, situated in Fairmount: Commencing at the junction of the old State road with said Seegar’s west line of a five-acre lot. he now lives on, running in a northwesterly direction along said old State I’oad to Wilson’s west line; thence along said line to the south side of Irwin street, as novo located by the above parties; thence east along Irwin street to Seegar’s west line; thence south to the place of beginning. And in consideration of the above transfer, the said Seegar doth agree to transfer to the said Wilson, by an unincumbered warranty deed, the following described lot of ground, situated in Fair-mount, also commencing at said Wilson’s northwest corner of the lot he now lives on, running west on Central avenue fifty-five (55) feet; thence south to the old State road; thence southeast along said old State road to the north side of ■ Irwin street, as located by the above parties; thence along Irwin street to Wilson’s west line; thence north on said line to the place of beginning.</p> <p>“In testimony whereof, we have hereunto subscribed our names.</p> <p>“ Signed this 22d of March, 1858.</p> <p>(Signed,) “ Joseph Wilson,</p> <p>“J. Seegar.”</p> <p>The testimony shows that a few days before the signing of this agreement, Wilson and Seegar staked off Irwin street on the ground where the plaintiff claims it to be located; and that the agreement was entered into with reference to the street as thus located. The stakes were set so as to make the street fifty feet wide, and the south side of the street came up to the north wall of Seegar’s stable improvements. Seegar has since continued to occupy and improve up to the south line of the street as thus located, part of the improvements consisting of a stone wall built on the line.</p> <p>Testimony was also given as to the extent to which the-street had been worked and improved, and as to the character of the ground, which it is not deemed necessary to state.</p> <p>On the 22d of June, 1859, Wilson conveyed the premises which he obtained from Seegar, under the agreement between them of March 22, 1858, to John Swasey. In this-deed the premises are described as bounded on the south by Irwin street.</p> <p>On the 11th of February, 1861, Swasey conveyed the same premises to the defendant and Wilson, describing the-boundaries as follows:</p> <p>“ Commencing in Central avenue, in the town of Fair-mount, on the line between the ground formerly belonging to Joseph Wilson; thence west on the south line of Central-avenue two hundred and eight and one-half (208J-) feet; thence at right angles to Central avenue two hundred and thirty-three (233) feet, inore or less, to Irwin street; thence-on the north line of Irwin street eastwardly two hundred and fifteen (215) feet, more or less, to the line of Jabez Seegar; thence on the line of said Seegar and Wilson north twe hundred and twenty (220) feet, more or less, to the place of beginning; being the same premises conveyed to the grantor, by deed, from Joseph Wilson and wife, dated the. 22d day of June, 1859.”</p> <p>Other deeds were given in evidence recognizing Irwin street, to which it is not deemed necessary here to refer.</p> <p>Xeziah Wilson, wife of Joseph Wilson, gave evidence to-the effect that after the street had been staked off, Seegar consented that the north line of the street might be moved south, so as to leave the street thirty-five feet wide, instead of fifty feet.</p> <p>As the rights asserted by the defendant, and the structures he proposes to erect, extends south of the thirty-five-feet, it is not material, on the record now before the court., to consider the effect of such consent, if established.</p> <p>In the court below, the petition of the plaintiff' having been dismissed, and a new trial refused, he took a bill of exceptions, setting out all the evidence. The present petition'in error is prosecuted to reverse the judgment.</p> <p>Objects on the ground, fixed by the parties, control course and distance, estimated quantity, plats and surveyor’s returns. Lessee of Alseire v. Hulse, 5 Ohio, 525, 534; Van Wyck v. Wright and Johnson, 18 Wend. 157, 168; Lodge v. Barnett, 46 Penn. St. 477, 484.</p> <p>Seegar and Wilson located Irwin street for their division line; apd Seegar purchased and made expensive improvements up to it, with the understanding that it was a street, and would remain open.</p> <p>“The practical location of aline by adjoining proprietors, upon the faith of which valuable improvements have been made, concludes them and their successors in interest.” Laverty v. Moore, 33 N. Y. 658; Den. of Hanning v. Van Hotan, 2 Zab. 61, 68; Orr v. Hadley, 36 N. H. 375, 378.</p> <p>Seegar was not only an owner of lots abutting on the street, but he gave the right of way across his five acres, and exchanged his property with Wilson for the purpose of having a street, and having it where he claimed it. His right to the injunction sought is clear. Brown v. Manning et al., 6 Ohio, 298; Le Clerq v. Gallipolis, 7 Ohio, 218; Truehart v. Price, 2 Mumf. 468; 4 Bouv. Inst. 141; 23 Ohio St. 610; 11 Ohio St. 274; 18 Ohio, 18.</p> <p>The deeds to Swasey, and from Swasey to Wilson and the defendant, make the north line of Irwin street their southern boundary, and show that the course of Irwin street was not east but easterly. This was notice to both Swasey and Harrison that Irwin street existed, and also the-exact location of Irwin street, if they could have learned where it was by inquiry. Reeder v. Barr, 4 Ohio, 458, 459; Bonner v. Ware, 10 Ohio, 465, 466; Dexter v. Harris, 2 Mason, 536 ; Bush v. Ware et al., 15 Pet. 93 ; Kelley v. Stanbery, 13 Ohio, 408.</p> <p>Joseph Wilson never dedicated Irwin street to the use of the public, as a public highway. The dedication or pretended dedication was neither accepted by the public nor regarded by the parties. There was no acceptance by the public, either through town authorities nor public travel; and without these, one or both, there could be no valid claim that there was a public highway. City of Detroit v. The Detroit and Milwaukee R. R., 23 Mich 173; 36 Ill. 96; 57 Ill. 363; 8 Ohio St. 440.</p> <p>There was only an agreement that Irwin street might be opened in a certain place. But it was not opened, but, on the contrary, was fenced up; and neither the public, plaintiff', nor the defendant, or Wilson, used it, nor recognized it.</p> <p>Before there has been an acceptance by the public, the donor can revoke the dedication, and this may be done by .any act inconsistent with the rights of the public to use the ground as a public highway. Haldam v. Trustees, 21 N. Y. 474; Lee v. Village of Sandy Hill, 40 N. Y. 442; Parsons v. Trustees, etc., 44 Georgia, 529; Trustees v. Walsh, et al., 57 Ill. 526 ; Washburn on Easements, 3 ed. top paging (sec. 10), 185, 195, 210, 222; 26 Barb. 634; 8 Ohio St. 440.</p> <p>The only notice Harrison had, was that the public authorities of Fairmount, and afterward of Cincinnati, had an casement in the strip of land dedicated by said writing of July 24, 1852, which it might or might not insist upon asserting, and he took the land, subject to that right of the public.</p> <p>argued that Irwin street existed only in name, a street in fancy but not in fact ; that stakes, showing the boundary of a street, being driven down, do not make a street. And that this was not a legal street, cited Barclay v. Howell, 6 Pet. 498; Arnold v. Flattery, 5 Ohio, 273; Ingersoll v. Hereider, 12 Ohio, 527; McLaughlin v. Stevens, 18 Ohio, 94; Perquite v. Lawrence, 11 Ohio St. 274; Lane v. Kennedy, 13 Ohio St. 44.</p>

<p>Error to the Court of Common Pleas of Lucas county.</p> <p>Warwick was indicted for perjury, and convicted at the February term, 1874. The perjury is assigned upon an affidavit made by Warwick, on his application to the Probate Court for marriage license. The record shows that the oath was administered to him by Ellen Stranahan, a woman, then acting as deputy clerk of said Probate Court, and who had been theretofore duly and legally appointed and qualified as such deputy clerk, provided a woman is capable of holding that office. It was claimed in the court below, that this was an extrajudicial and unauthorized oath, both because the deputy clerk of the Probate Court has no power to administer oaths, and also because Ellen Stranahan was no lawful deputy clerk. But the court ruled otherwise, and Warwick was convicted and sentenced. This holding of the court, among others which need not be here recited, is now assigned for error.</p> <p>Can a woman, acting as a deputy clerk of a Probate Coui’t, even under appointment, administer a legal oath? Is she legally authorized so to do; and can such an oath so administered, be laid as the foundation of legal perjury ?</p> <p>The office of deputy clerk of the Probate Court is an office recognized and established by law. 2 S. & C. 1224, sec. 10.</p> <p>And if an office, then a woman, not being an elector, is prohibited from exercising the duties of such office. Constitution, art. 5, sec. 1, and art. 15, sec. 4.</p> <p>If not an officer, then she has no power to administer an oath at all. The power to administer oaths is incidental to no office but the judicial. Harmon v. Stockwell, 9 Ohio, 94; Ex parte Logan Branch Bank, 1 Ohio St. 482.</p> <p>One who is prohibited by the constitution from being an officer de jure, can not be regarded as an officer defacto; for that, in effect, would be to nullify the constitution.</p> <p>Upon the general question of her authority to administer the oath, we refer the court to 1 Hawkins’ Pleas of Crown, chap. 69, sec. 4; 2 Russell on Crimes, side paging, 599; Roscoe’s Criminal Evidence, 755; 1 Nott & McCord (S. C. R.), 550.</p> <p>The authority to administer the oath is not collaterally but directly' involved, and no mere assumption of right, no’ colorable authority will do; and I submit that perjury can not be assigned of an oath administered by ap officer de facto who is not also an officer de jure.</p> <p>Is a deputy clerk, appointed by the probate judge, an officer within the meaning of section 4, article 15, of the constitution ?</p> <p>As to what is an office, see Burrill’s Law Dictionary House Journal (Ohio), 1848, 1849, p. 219; 2 Brockenborough, 103; The State ex rel. Attorney-General v. Kennon, 7 Ohio St. 556; 15 Mass. 180.</p> <p>Can a woman be a defacto officer? For what is a defacto officer, see Brown v. Lunt, 37 Maine, 428; Ex parte Strang, 21 Ohio St. 610; King v. Lisle, K. B., Anderson, 165; Burton v. Patton, 2 Jones (N. C.), 124; State v. Anderson, 1 Coxe, 318; Pearce v. Hawkins, 2 Swan, 87.</p> <p>From these authorities, Ellen Stranahan was a de facto officer, and as such, her acts can not be collaterally questioned. They are as binding as though she had been an officer de jure as well.</p>

<p>The act of May 4, 1869, regulating the execution and transfer of notes 11 given-for patent rights,” relates only to the instruments named in the act, when given for an interest in the invention, secured to a patentee by letters patent, and does not include in its provisions negotiable paper, given for machines built under letters patent, nor negotiable paper, given to-secure the agency to sell machines so built, in certain specified territory..</p>

<p>Error to the' Court of Common Pleas of Brown county.</p> <p>The action in the court below was on the bond of the defendants, executed under the provisions of the act of March 12,1831, prescribing the duties of county treasurers (S. & C. 1584), and conditioned for the payment over, by A. J. Parker, according to law, of all moneys which might come into his hands as treasurer of Brown county, during ■ the term of said office to which he had been elected on the ■ 10th day of October, 1871.</p> <p>An issue of fact as to the breach of the bond having been joined, the cause was tried to a jury, which resulted in a verdict and judgment in favor of the plaintiff.</p> <p>Thereupon the defendants demanded a second trial, as provided in the act of April 12,1858, to relieve District Courts, •etc. (S. & C. 1155), and the court, being of opinion that the ■case rvas one in which a trial by jury might be demanded by either party, allowed a second trial to the defendants as • demanded.</p> <p>The order of the court allowing the second trial is assigned for error.</p> <p>The acts of June 1,1831, which provided for appeal from ¡a judgment or decree of the Common Pleas to the Supreme Court, were repealed by section 606 of the code.</p> <p>The code abolished the Supreme Court on the circuit, ■and substituted the District Court in its stead. And on March 23, 1852, an act was passed regulating appeals to the District Court (2 S. & C. 1161), the first section of which provided that all cases formerly appealable either as chancery or law cases, should thereafter be appealable to the District Court.</p> <p>The act (2 S. & C. 1587) under which this action is brought, provides, among other things, that there shall be ■no appeal nor stay of execution, and that the property of the treasurer and his sureties may be sold without appraisement.</p> <p>The treasurer’s act and the act regulating practice at law, already quoted above,uvere passed at the same session, .and took effect on the same day, June 1, 1831.</p> <p>The rule is well settled that both these statutes, so far as their provisions affect cases like the one at bar, are to be •construed together as one act.</p> <p>The practice act allows, as a matter of course, an appeal in civil cases, without exception. The treasurer’s act declares, that in suits on bonds of defaulting treasurers, there ¡shall be no appeal.</p> <p>The two acts taken together must be held to mean, that •as a general rule in suits at law, the right of appeal existed, hut that suits on bonds of defaulting treasurers were excepted from the operation of the general rule. If this be .so, then a case like this could not have been appealed at any time by virtue of the act of 1831, n,or by virtue of the act of March 23,1852, because the treasurers act continued in full force, and was always to be considered a part of the law regulating appeals in suits at law, until appeals in such suits were abolished.</p> <p>The act of April 12,1858 (2 S. & C. 1155), is a substitute for the previous acts regulating appeals. It provides, in substance, that cases which previously might be appealed as civil cases at law, could no longer be appealed, but in lieu of an appeal, provided for a second trial in that class of cases in the common pleas. {■:</p> <p>This case, not belonging to the class of appealable cases, it follows that it is not a case for second trial, as the second trial is only a substitute for appeal.</p>

<p>1. A policy of insurance on a steamboat against loss by fire only, covers a loss by fire caused by collision where collision is not excepted, by the terms of the policy, from the risk named.</p> <p>2. Where the conduct of a pilot results in injury to the owner of the vessel, but is free from fraud, gross negligence, and willful violation of a known positive law, he is not guilty of barratry within the rule of maritime or insurance law.</p>

<p>1. Where a steamboat, injured at or .near its home port by a peril insured against, remains in specie, the assured can not, without abandoning the vessel to the underwriter, claim indemnity as for a total loss, although the cost of repairing the vessel may exceed its value when repaired.</p> <p>2. Where the jury has been misdirected in reference to a controlling question in the case, the judgment should be reversed and a new trial granted, although the weight of evidence may seem to support the verdict.</p> <p>3. The rule that an insurer who has paid the loss resulting from a peril insured against, may be subrogated to all the claims which the insured may have against any person by whose negligence the injury was caused, does not apply in a case where the injury was caused by the negligence of the insured himself. But if the loss was caused by the willful or fraudulent act of the insured, the same may be set up as a defense to an action on the policy, whether the subject of the insurance has been abandoned to the insurer or not.</p>

<p>Writ of error to the Court of Common Pleas of Muskingum county.</p>

<p>Motion for a writ of error to the Court of Common Pleas of Clarke county.</p> <p>Allen v. The State, 10 Ohio St. 287; Thalls v. The State, 21 Ohio St. 233 ; 9 Gray, 108 ; 1 Hale’s P. C. 556 ; Roscoe’s Cr. Ev. 353; Roger’s case, 1 Leach, 104; Carroll’s case, Ib. 272; 2 East, P. C. 501, 502, 506-7; People v. McClosky, 5 Park, 57; People v. Bush, 3 Park. 552; State v. Rand, 33 N. H. 216; Mason v. People, 26 N. Y. 200 ; Rex v. Sifton, 1 Eng. C. C. 202; People v. Fralick, Hill & Denio, 63 ; 1 Whar. Cr. Law, secs. 1569, 1577, 1586-1588; Pendleton Street R. R. Co. v. Stallman, 22 Ohio St. 1; L. M. R. R. Co. v. Wetmore, 19 Ohio St. 110; White v. Thomas, 12 Ohio St. 312; Baldwin v. Bank of Massilon, 1 Ohio St. 140.</p>

<p>Motion for leave to file a petition in error.</p> <p>Jones v. Vorhees, 10 Ohio, 145 ; Davidson v. Graham, 2 Ohio St. 136; 6 How. 344, 383; Veach v. Elliott, 1 Ohio St. 139;, Hoss v. Layton, 3 Ohio St. 352.</p> <p>Jordon v. Norton, 4 M. & W. 154; Grace v. Adams, 100 Mass. 505; Muller v. C. M. & D. R. R. Co., 2 Sup. Ct. Rep. (Cinti.) 280, and authorities cited. Pier v. Finch, 24 Barb. 514; Johnson v. Concord R. R. Co., 46 N. H. 213 ; Boston R. R. v. Proctor, 1 Allen, 268; Barker v. Cloflin, 31 Barb. 557.</p>

On the first day of May, 1878, the defendant in error filed her petition in the Court of Common Pleas of Morgan •county, against the plaintiffs in error, for alimony alone. At the following November term of the court, the case was heard upon its merits, and a judgment rendered in favor of the defendant in error against her husband, James Taylor, one of the plaintiffs in error, for her reasonable alimony, which was made a charge upon his real estate, and for costs.

<p>Motion for leave to file a petition in error, to reverse the judgment of the Superior Court of Cincinnati.</p> <p>The plaintiff in error brought his original action against defendant in error, in the Superior Court of Cincinnati, tO' recover the amount of defendant’s promissory note for $333, dated July 1, 1871.</p> <p>By his answer the defendant alleged that, at the date of ‘ the note, he took from the plaintiff’ a lease, for the term of five years, of a store-house and premises, where the plaintiff' had previously been engaged .in selling meats and provisions, and also purchased of the plaintiff certain fixtures and articles of personal property in the store, of the value of $100 ; that the plaintiff at the same time verbally agreed to sell to the defendant the good-will of the business, and not to engage in the same business during said period of five years, in any place near enough to the premises to interfere with the defendant’s custom; that the plaintiff’fraudulently represented the business to be profitable; that in. consideration of this agreement, and of the fixtures and. articles of personal property, the defendant agreed to pay the plaintiff’ $1,300 ; that of this sum he paid the plaintiff in hand $300, and executed to him his three promissory notes for $333 each, payable at one, two, and three years, the-note in suit being one of said notes; and that the plaintiff’ has not kept his promise to abstain from competition, but, on the contrary, has set up, and is now carrying on, a like business in the neighborhood, whereby the defendant’s-business has been rendered unprofitable. The defendant therefore prays that the plaintiff may be compelled to give up and cancel these notes, and repay to him “ such part ” of said sum of $300 “ as shall be equitable.”</p> <p>To this defense and counter-claim the plaintiff replied as follows: 1. He denied the alleged agreement to abstain from competition. 2. He denied that he had engaged in a •competing business, interfering with that of the defendant. 8. He plead the statute of frauds, the agreement not having been reduced to writing. 4. He denied that this supposed agreement was the consideration of the three promissory notes, without, however, setting forth what was their true consideration. 5. He alleged that the matters set up in the defense and counter-claim had been adjudicated in .a former action brought by the defendant against the plaintiff, to enjoin the plaintiff from carrying on such business in the neighborhood, and to recover damages for breach of said agreement; in which former action the plaintiff had plead the statute of frauds, and the court, on demurrer to that plea, had held the same to be a bar to the .action, and had dismissed the defendant’s petition.</p> <p>The case was submitted to a jury on these issues, and upon certain questions in writing propounded to the jury by the court. The jury by a general verdict found for the ■defendant, “ upon the issues joined in the case,” and returned answers to the questions propounded. Four of these questions were: 1. Did the plaintiff sell to the defendant the good-will of the business? 2. Did he agree not to engage in like business in the neighborhood ? 8. Were the notes given for this agreement and sale of the good-will? 4. Has defendant paid the plaintiff for all he purchased besides the good-will ? These four questions the jury answered in the affirmative. The remaining question propounded was, whether the plaintiff, if he made the agreement in regard to good-will and abstinence from competition, had in good faith kept it, or whether he had violated it. The jury treated this as two questions, and answered “ yes ” to both, thus in effect findiug that the plaintiff had kept the agreement and,also,that he had violated it.</p> <p>The plaintiff moved the court to set aside the verdict, and for a new trial, both on the ground that- the verdict was •uncertain and imperfect, and also, because it was against the evidence. The evidence, including a copy of the record in the former action, is all set forth in a bill of exceptions. This motion was reserved for decision in the general term of the court, where it was overruled, and a judgment rendered that the defendant go hence and recover his costs, and that the plaintiff should surrender the three notes to the defendant, and be forever enjoined from collecting them. To this order and judgment the plaintiff excepted, and he now asks leave to file a petition in error to reverse the same.</p> <p>The assignments of error are sufficiently noticed in the opinion of the court.</p> <p>I. The defendant holds on to the lease and at the same time asks a rescission of the contract. The-defendant has no right to rescind. Hunt v. Silk, 5 East, 449 ; 2 Parsons on Contracts (3 ed.), 192, 278, 281.</p> <p>When the plea confesses the action and does not sufficiently avoid it, judgment shall be given upon the confession without regard to the verdict. Chitty’s PI. 656 ; Tidd’s Pr. (9 ed.) 920, and cases cited in note g.</p> <p>There must be judgment for plaintiff notwithstanding the verdict. 11 Ohio, 299; 12 Ib. 35 ; 17 Ib. 457.</p> <p>II. The verdict can be corrected in matter of form, not matter of substance. 2 Ohio, 31; 3 Ib. 384; 5 Ham. 227; Code, sec. 274.</p> <p>If there is a material repugnance in the verdict, it is not competent for the court to decide which is the truth of the case. Hawson v. Saffin, 7 Ohio (pt. 2), 232; Clark et al. v. Irwin, 9 Ohio, 132.</p> <p>The court could not withdraw the interrogatories. Otter Creek Black Coal Co. v. Rany, 34 Ind. 329; Sage v. Brown, Ib. 464; Vickols v. Weaver, 7 Kan. 373.</p> <p>III. The supposed agreement, as stated in the cross-petition, is void. S. & C., 659, sec. 5; 2 Parsons on Contracts, 316; Bogdell v. Drummond, 11 East, 142, 160; Birch v. Earl of Liverpool, 9 B. & C. 392; The Packet Co. v. Sickles, 5 Wallace, 580; Hill v. Hooper et al., 1 Gray, 133; 19 Pick. 364; 12 Conn. 455; Bartlet v. Wheeler et al., 44 Barb. 162; Smith’s Leading Cases, 432, 438, and cases there cited ; 2 Harr. 27; Dobson v. Collis, 1 H. & N. 81; Blanding v. Sargent, 33 N. H. 239.</p> <p>IV. Bes adjudícala applies. Hinton v. McNeil, 5 Ohio, 509; Ewing v. McNary & Clafflin, 20 Ohio St. 315; Hites v. Irwin’s Adm’r, 13 Ib. 284; Babcock & Co. v. Camp et al., 12 Ib. 11.</p> <p>The plaintiff can not avoid his contract and at the same time recover the consideration money agreed to be paid, therefor.</p> <p>It was wholly unnecessary to answer the third interrogatory at all after the second question had been answered for the defendant. The submission of such question at all was a matter purely within the discretion of the court, and. had it declined to do so, its refusal could not have been assigned as error. C. C. &; C. R. R. Co. v. Terry, 8 Ohio St. 570; Adams Express Co. v. Pollock, 12 Ib. 618; Hopkins v. Shull, 3 West. Law Mo. 609.</p>

Evers was a constable, and having in his hands an execution, levied it upon property claimed by one Eli, a person other than the judgment debtor.

<p>1. A surgeon assumes to exercise the ordinary care and skill of his profession, and is liable for injuries resulting from his failure to do so: yet if his patient neglects to obey the reasonable instructions of the surgeon, and thereby contributes to the injury complained of, he can not recover for such injury.</p> <p>2. The information given by a surgeon to his patient concerning the nature of his malady, is a circumstance that should be considered in determining -whether the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence or not.</p>

The original action was brought by the defendant in error against the plaintiff in error, in the Court of Common. Pleas of Clermont county, to recover contribution on account of money paid by the plaintiff in the action for. the use of the defendant, on a judgment recovered by the personal representatives of William Weyland, against the plaintiff and defendant and one Shaw, in a former action in said court.

<p>The act of April 30,1869, 11 authorizing the building and repairing of levees to protect lands from overflow,” is in contravention of section 19 of the-bill of rights, inasmuch as under its provisions, private property may be appropriated without reference to the public welfare, and also, inasmuch as no provision is made therein for the assessment of compensation by a jury. The body of men provided for in sections 6 and 7 of the act, is not a jury within the meaning of the constitution, because they are not authorized to hear testimony, nor are they subject to judicial direction in the hearing of the case, nor in the making up of their finding or report.</p>

The questions in this ease were raised by a general demurrer to the petition in the original action, which waa brought by defendant in error against plaintiff in error, in the Court of Common Pleas.

Reserved in the District Court of Yintou county. On the 24th of August, 1861, Mary Richmond commenced an action, in the Court of Common Pleas of Yinton county, against Joseph Bobo, to recover possession of about three acres of the west half of the northwest quarter of section 28, in township 11, of range 17, in Yinton county, being a strip of land one hundred rods long, and about six rods wide, along the east line of the west half of the quarter, and described in the…

<p>Reserved in the District Court of Gallia county.</p> <p>In 1828, the First Presbyterian Society of Gallipolis became incorporated under the act of February 15, 1819, having, for some years before, been known as the First Religious Society of Gallipolis. At the time this society became incorporated, there was a Presbyterian church connected with it, duly organized and in connection with the Hocking Presbytery, and, through it, with the Presbyterian Church of the United States of America. The society adopted a constitution for its government, which, among other things, provided that two-thirds of the members must concur to make any change, “ but no alteration shall ever take place so as to change the name, order, or fundamental principles of the society other than the present, or the orders, rules, regulations, and canons of the Presbyterian Church in the township of Gallipolis, and in conformity with the rules, regulations, canons, and customs of the Presbyterian Church of the United States of America.” Without a change in this constitution, and none has ever been made, this indissolubly connected both the Presbyterian Church and the Eirst Presbyterian Society of Gallipolis township with the Presbyterian Church of the United States of America. Erom 1828 to 1855 there was but one church and one society. In 1838 the Presbyterian Church of the United States divided, the seeeders becoming an organized body, with a general assembly and inferior church courts, and each calling itself the Presbyterian Church of the United States of America. The seceding body established a presbytery known as the Atbeus Presbytery. Erom 1828 to 1855, there was but one society and church known as the Eirst Presbyterian Society of Gallipolis. In the latter year there was a division in the church connected with the society; about one-half the-members withdrew, and organizing another church, which they called by the same name, and joined themselves to the Athens Presbytery. Erom this time to the commencement of this action there were two church organizations kept up, each claiming to be the Eirst Presbyterian Society of Gallipolis. The one remaining in connection with the Hocking Presbytery is known as the “Old School,” and the other, connected with the Athens Presbytery, is called the’ “New School ” Church.</p> <p>Mrs. Bethia S. Tupper died in September, 1855, leaving a will dated February 28, 1853, which was probated October 15,1855, by which she appointed William H. Langley her executor and trustee, and directed him, out of funds set apart for that purpose, to invest the sum of $2,000, as a permanent investment for the use “of the Eirst Presbyterian Society of the township of Gallipolis, Gallia county r Ohio, the income of said fund to be applied toward the support and maintenance of a Presbyterian preacher in said society.” At the date of the will there was but one society or church in Gallipolis to which the bequest applied. The “ Old School” has kept up its trustees since the society was incorporated in 1828. The election, after the schism in 1855, was held on the day fixed by the constitution, but without the required notice having been given. The “New ¡School” first elected trustees in 1856, and since that time •each society has kept up its set of trustees, each claiming to be the corporation. The “ New School,” claiming to be the beneficiary and entitled to the income of the trust-fund created by the will of Mrs. Tupper, commenced an action, in the Court of Common Pleas of Gallia county, against William H. Uangley, the executor and trustee, to compel him to execute the trust in its favor. The executor and trustee answered, and by way of cross-petition set up the fact that the “ Old School ” was also claiming to be the beneficiary and entitled to the income of the trust-fund, and asking the direction of the Court in executing the trust. The answer and cross-petition were held bad on demurrer, and a default decree entered in favor of the “New School” against the executor, from which he appealed to the District ■Court of Gallia.</p> <p>The District Court overruled the demurrer to the answer and cross-petition, and ordered the “ Old School ” to be ■made a party, and further ordered the claimants to inter-plead, and set forth the grounds upon which they respectively claimed the trust-fund. Eollowing this direction the “ Old School,” as plaintiff and the “New School,” as defendant, by their pleadings, made the issue as to which party is entitled to the trust-fund.</p> <p>On the trial in the District Court, a special finding of facts was made and certified, and the cause reserved for determination in this court.</p> <p>On the 7th of November, 1873, the “New School” moved this court for leave to file a supplemental answer, setting up facts alleged to have occurred since the cause came into this court.</p> <p>The motion is resisted, and is overruled.</p> <p>We deny that quo warranto is the only form of remedy to try the issues made up by the pleadings; this being a proceeding in equity, involving the mode of administering a trust, chancery has jurisdiction, regardless of the question of who represents the corporation. 1 S. & C. 621; 2 S. & C. 1270, sec. 22 ; Hullman v. Honcomp, 5 Ohio St. 237; Keyser v. Stansifer, 6 Ohio, 365 ; Van Houton v. First Re-formed Church, 17 N. J. 126 ; Att’y-Gen. v. Old South Church, 13 Allen, 474; Kemper v. Lane Seminary, 17 Ohio, 293; Hadden v. Chorn, 8 B. Mon. 78; Bentley et al. v. Kurtz et al., 2 Pet. 566.</p> <p>This will was made Eebruaiy 28, 1853, when there was no New School society or church in Gallipolis, by a member of the church as it then was, and in which doubtless she had been reared, and in which she shortly afterward died.</p> <p>The separation of March 19, 1855, was in the nature of a secession by the New School party, and by well-settled law they have no rights, if this be so. Methodist Church v. Wood, 5 Ohio, 283 ; Wilson v. John’s Island Church, 2 Rich. Eq. 192; App. v. LutheranCong., 6 Barr, 201; Baker v. Fales, 16 Mass. 488; Stebbins v. Jennings, 10 Pick. 171; Smith v. Swanestead, 5 McL. 396; Dere v. Bolton, 7 Halstead, 206 ; Trustees v. Sturgeon, 9 Barr, 321; McGinnis v. Watson, 41 Penn. St. 9 ; Ferraria v. Vascencelles, 23 Ill. 456. See also Harper v. Straus, 14 B. Mon. 48; Venable v. Hoffman, 2 W. Va. 310; Shannon v. Frost, 3 B. Mon. 253; Hadden v. Chorn, 8 B. Mon. 70; Schorr’s Appeal, 67 Penn. 138 (5 Amer. 415); Winebrenner v. Colder, 7 Wright, 244; Brooke v. Sacket, 13 Grattan, 301.</p> <p>The District Court should not have ordered the bill of interpleader to be filed. Section 42 of the code (2 S. & O. 958) provides for the case; and the proceedings here are not in compliance with that section.</p> <p>The question as to which set of trustees have the right to the fund can only be settled on a quo warranto. Trustees in fact have the right to control the corporation until ousted by a writ of quo warranto. Hullman v. Honcomp, 5 Ohio St. 237; First Parish of Sudbury v. Stearns, 21 Pick. 148; Presbyterian Society of Gallipolis v. Smithers et al., 12 Ohio St. 248.</p>

<p>Error to the District Court of Hamilton county.</p> <p>This was- an action brought by the defendant in error against the plaintiff’ in error and others, in the Court of Common Pleas of Hamilton county, to enforce, by a sale of the lots, the collection of certain sums of money assessed thereon by an ordinance passed by the trustees of the special road district of Mt. Auburn, Walnut Hills, and Clintonville, to pay for the grading and improvement of Jefferson street, upon which the lots abutted, under a contract made by the defendant in error with the trustees of the road district.</p> <p>On the trial in the Common Pleas, the court found for the defendant in error, and ordered the sale of the lots so assessed, in default of payment of the amount assessed,, within the time limited in the order. The cause,was appealed to the District Court, where a like finding was had in favor of the defendant in error, whereupon the plaintiff in error moved for a new trial, which motion was overruled. On the trial in the District Court, the plaintiff in error, for the purpose of showing that the work was of little or no' value to him or the property sought to be charged, called Daniel Shanley, who testified that he had for some years lived near the improvement; had been engaged in grading-streets, as contractor and otherwise, and had frequently seen the improvement during the progress of the work, and afterward. The witness was then asked, successively,, the following questions ;</p> <p>“Are you acquainted with the value of the property of W. M. Corry sought to be assessed in this case; and if so, what is its present value without regard to any benefit conferred by making the improvements in question ? ”</p> <p>“Are you acquainted with the value of said property of ~W. M. Corry; and if so, what is its present value with the said improvements ? ”</p> <p>“Are you acquainted -with the improvements in question ; and if so, what, if you know, is their value to said W. M. Corry, or to his property sought to be assessed in this case ? ”</p> <p>To each of which questions the defendant in error objected. The court sustained the objections, and refused to permit the questions to be answered. The plaintiff in error excepted to the rulings, and a bill of exceptions in that behalf was signed and sealed by the court, and ordered to be made part of the record in the case. The plaintiff in error now seeks to reverse the judgment of the District Court for errors assigned in his petition herein filed.</p> <p>I. The act of 1853, 2 S. & C. 1509, sec. 46, provided: ■“ No order shall be made for the improvement or repairs of any road, street, or alley, except on the petition of two-thirds of the resident owners of the lots of land through or by which such road, street, or alley, or part thereof, to be, improved or repaired, shall pass.”</p> <p>The improvement was ordered in violation of that provision. It is not only admitted that the whole number of lot-owners was eleven, of whom but seven signed, but it is also admitted that four of the signers were minors.</p> <p>1. 'The petition was “ a necessary prerequisite to the lawful exercise of the power.” Corry v. Gaynor, 22 Ohio St. 584-593; Covington v. Casey, 3 Bush, 698-701; 16 La. An. 393; Sharp v. Spier, Sharp v. Johnson, 4 Hill, N. Y. 76, 92.</p> <p>2. The petition was a nullity, unless the signature of minors imparted validity to it. But minors could not consent. Cushing’s Law & Pr. Leg. Ass., secs. 24, 25, 56; Cooley’s Const. L. 29, 30, 599; People v. Smith, 45 N. Y. 772-785; 46 N. Y. 110 ; 47 N. Y. 415 ; 1 Parsons on Con. 281; Lawrence v. McArter, 10 Ohio, 37; Blanchard v. Gregory, 14 Ohio, 403.</p> <p>3. G-uarclians have no power to consent (Genet v. Tallmadge, 1 Johns. Oh. 561), except by statute; and no statute had conferred the power in this case. Swan & Sayler, 676, supports this view instead of being in opposition to it.</p> <p>4. It is admitted the requisite number did not consent.</p> <p>(1.) It is averred in the answer, among other things, that the whole number of lot-owners was eleven, of whom four were minors. If the other allegations amounted simply to a denial, that, at least, was a statement of new matter constituting a defense.” Code, sec. 92; Swan’s Pl. 254, note; Northup v. Mississippi Val. Ins. Co., 47 Mo. 435-444; 18 Ohio St. 353; 9 Minn. 194; 2 Nev. 16; 4 Cal. 233. Analogous cases showing what is “ new matter:” Statute of limitations — McKinney v. McKinney, Sturges v. Burton, 8 Ohio St. 423, 215; Huston v. Craighead, 23 Ohio St. 198-209. Statute of frauds — Osborne v. Endicott, 6 Cal. 149; Dinkel v. Gundelfinger, 35 Mo. 17; Livesey v. Livesey, 30 Ind. 398; 31 Mo. 536 ; 35 Mo. 50. Payment — Edwards v. Edwards, 24 Ohio St. 402-411. Fraud — 27 Cal. 656; 5 Bosw. 16 ; 7 Barb. 18. Illegality — 9 Bosw. 79. Coverture—4 E. D. Smith, 425 ; 22 Barb. 647. Want of capacity to sue — 31 Barb. 132 ; 8 Cal. 585. Unworkmanlike manner of doing work — 1 Cal. 371. Usury — 12 Abb. N. S. 5.</p> <p>(2.) There being no reply to the “ new matter,” the answer in that respect must be taken as true, and a general finding in opposition to it can not avail the plaintiff below. Code, secs. 101, 127, 128 ; Bomberger v. Turner, 13 Ohio St. 263 ; Bentley v. Dorcas, 11 Ohio St. 398 ; Mulford v. Clewell, 21 Ohio St, 191-196; Oliver v. Moore, 23 Ohio St. 473-479; 24 Ohio St. 411; 13 Wis. 549.</p> <p>II. It is averred in the answer, and not denied in any reply, that the work was accepted, while in an unfinished condition, by fraud and collusion between the engineer and the defendant in error. That this was “new matter,” and must be regarded as admitted, see authorities under Point I. And that it was a complete defense is clear. Dillon on Mun. Corp., sec. 648; 24 N. J. Eq. 143; and cases cited under the next point.</p> <p>III. It being admitted that the work was accepted, while in an unfinished condition, by fraud and collusion between the defendant in error and the engineer, and evidence having been given tending to show that the work was not done in a good or workmanlike manner, the court erred in excluding the testimony of the witness Shanley, that the ■plaintiff in error was not benefited by the work. The act of 1852, 2 S. & C. 1505, sec. 31 (Municipal Code, sec. 550), provided a remedy where, without the fault of the contractor, the proceedings of the trustees or officers were invalid or irregular; but that provision has no application when the contractor fails to perform his contract, or is guilty of fraud in procuring the acceptance of the work. Northern Ind. R. v. Connelly, 10 Ohio St. 159; Upington v. Oviatt, 24 Ohio St. 232; Witherow v. Witherow, 16 Ohio, 238; Allen v. Curles, 6 Ohio St. 505 ; Ashbrook v. Hite, 9 Ohio St. 357; Larkin v. Buck, 11 Ohio St. 286 ; Stein v. Prairie Rose, 17 Ohio St. 276; Smith v. Brady, 17 N. Y. 179-187 ; Sheldon v. The Mayor, 7 Bosw. 601; Oxendale v. Wetherell, 9 B. & C. 386 ; S. C., 17 E. C. L. 401; Creamer v. Bates, 49 Mo. 523; Bragg v. Bradford, 33 Vt. 38 ; Bryant v. Stilwell, 24 Penn. St. 318; 60 Penn. St. 407; 14 La. An. 297; 36 Mo. 467; 24 N. J. Eq. 143; Dillon on Mun. Corp., sec. 648.</p> <p>IV. The ordinance to grade was void.</p> <p>1. It was not concurred in by all the trustees. 2 S. & O. 1509, sec. 46.</p> <p>2. It is absurd. A pitch down of 143 feet in 210 feet is an impossible grade. In other respects it is insensible. An ordinance is the act of “ a miniature general assembly,” 22 Mo. 105, and must be construed by its words ; and “ undoubtedly must be reasonably certain in its requirements,” 16 Ohio St. 54-62; otherwise it is void. Bishop on Stat. Cr., sec. 77; 7 Cranch, 52; 10 Ohio St. 531; 12 Ohio St. 201; 18 Ohio St. 456; Dillon on Mun. Corp., sec. 245.</p> <p>V. The act of 1866, S. & S. 805, under which the assessment was made, authorized, in form, an assessment of “ fifty per centum of the value of said lot of land, to be estimated after the said improvement has been made.” That is unconstitutional. The right to impose an assessment is based upon an equivalent in the way of benefits; and although it may not follow “ that there must be, in fact, such full equivalent in every instance” (10 Ohio St. 165), yet an assessment without any regard to benefits is confiscation, and an act authorizing it in violation of article 12, section 2, and article 13, section 6, of the constitution of Ohio, and articles 5, 13,14, and 15 of the amendments to the constitution of the United States. Newark v. State, N. J. Court of Errors, 1874, 3 Am. Law Record, 25 ; Clapp v. Hartford, 35 Conn. 66 ; 99 Mass. 627 ; 3 C. E. Green, 518 ; 3 Dutcher, 190; 5 Vroom, 227 ; 10 La. An. 57; 4 N. Y. 419 ; 65 Penn. St. 146; 8 Mich. 274; 19 Mich. 39; 4 Peters, 514, 561, 563 ; 3 Dana, 28 ; 9 Dana, 513; Cooley’s Const. L. 507, 508, 280; Dillon on Mun. Corp., secs. 596, 597; 1 Ohio St. 126; 5 Ohio St. 243, 520; 8 Ohio St. 335 ; 16 Ohio St. 54; 18 Ohio St. 303; 22 Ohio St. 584.</p>

The plaintiffs, by the original action in the Court of Common Pleas, sought to restrain the defendant from collecting certain taxes. On hearing, the action was dismissed. On appeal to the District Court, a like judgment was rendered against the plaintiffs. This judgment is alleged to be erroneous. The cause of action, as stated in the original petition, was substantially as follows: The plaintiffs owned, in 1872, about six acres of land in the city of Columbus.

Gravatt, the plaintiff in error, was convicted of embezzling one hundred and ten dollars as the servant of the Grover and Baker Sewing Machine Company. In the count of the indictment on.which he was convicted, he was charged with the embezzlement, among other things, of one hundred and ten dollars in money; a promissory note for sixty dollars, and a sewing-machine of the value of one hundred and twenty-five dollars.

<p>1. An ordinance of a town (which was afterward, hy the act of May 3,1852, organized as an incorporated village), prescribing the mode of assessing charges for street improvements, continues in force as a valid ordinance of the village, if the mode prescribed is consistent with the powers given to the village, on that subject, by the act named.</p> <p>% The owner of lands taken by a village for a public street, without compensation, who, with knowledge that his predecessor in title had undertaken to dedicate the land for such street, permits the street to be improved, under an ordinance assessing the expense on abutting lots, is estopped, as against a contractor, from resisting the payment of the assessment on the ground that the lands so taken were not legally dedicated to the public for that purpose.</p>

<p>1. Where a partnership intrusts money to a member of the firm to be used in the partnership business, and such member, without the knowledge or consent of his co-partners, forms a new partnership relation with another person, to engage in like business, and pays over the money to the new firm, whereby it is lost, he thereby becomes liable to account to the members of the old firm, as for money converted to his-own use.</p> <p>2. Where a written instrument, not the foundation of the action, is offered. in evidence by a person not a party to the instrument, as an admission of the adverse party, touching a matter in issue, the fact that it is not stamped, as required by the act of Congress, is no ground of objection-to its admission.</p>

<p>Error to the Superior Court of Montgomery County.</p> <p>The following statement is sufficient to an understanding of these cases:</p> <p>As to Hagerman’s case. The Ohio Building and Savings Association claims to be a corporation organized under the act of February 21, 1867, entitled “ an act to enable associations of persons for raising funds to be loaned among their members for building them homesteads, and for other purposes, to become bodies corporate.” Jacob A. Smith, a member of the association, owning fifteen shares of its stock, of the nominal value of $200 each, on the 15th day of April, 1869, obtained a loan from the association, of $1,150, on ten shares of his stock; having bid as premium for the right of precedence in taking the loan $850 ;■ and thereupon executed to the association an instrument in writing, of which the following is a copy:</p> <p>“$2,000. Dayton, Ohio, April 15,1869.</p> <p>“ I promise to pay to the Ohio Building and Savings As» sociation of Dayton, Ohio, the sum of two thousand dollars, value received, in an advanced loan of two thousand dollars, the full amount on ten shares of stock in said association owned by me, on each of which I agree to pay a weekly installment of twenty-five cents, in all $2.50 per week, and on one thousand one hundred and fifty dollars I agree to pay interest at the rate of six per cent, per annum, in equal monthly installments of $5.75 each ; all to be paid until the said association is dissolved according to the constitution and by-laws -thereof.</p> <p>“Jacob A. Smith.”</p> <p>At the same time, in order to secure the association, as well as for other considerations moving from said Smith, Christopher Hagerman executed to the company his certain deed of mortgage on certain lots in the city of Dayton, the condition of defeasance therein written being as follows :</p> <p>“ That if the said Jacob A. Smith should punctually pay said association, or its assigns, the said weekly installments on said ten shares of stock, and the interest as stated in the note aforesaid, the fire insurance on the said premises, and all the fines and forfeitures according to the constitution and by-laws of said association, then these presents shall be void; but if the said Jacob A. Smith shall fail to pay, said weekly installments or the installments’ interest as above stated, the taxes, fire insurance premium, or fines .and forfeitures, when the same respectively are due, then the whole amount of said loan of two thousand dollars shall become due, and this mortgage shall be foreclosed.”</p> <p>On the same day, Smith obtained from the association another loan of $545, on his remaining five shares of stock, for which he gave a premium of $455, and executed to the company another instrument, in form like the above, differing only in amounts.</p> <p>To secure the association on account of this transaction, Eliza Jane Hagerman, with her husband, Christopher Hagerman, executed to the company a mortgage on other real estate, situate in the city of Dayton, containing condi¿ions in all respects similar to that of the above-described mortgage.</p> <p>From and after the 5th of July, 1871, Smith wholl}7 failed to pay the weekly installments on his stock, the interest on said loans, and also the fines and forfeitures assessed against him according to the constitution and by-laws of the association.</p> <p>The following provisions of the constitution, adopted by the association, are considered in the opinion :</p> <p>“Art. IV. No member shall own more than ten shares of stock in his right. Each share shall be two hundred dollars. . . .</p> <p>“Art. X. Each member shall pay into the treasury of this association an initiation fee of twenty-five cents per share, and the sum of twenty-five cents per week on each share as dues.</p> <p>“Art. XI. a. Every week, or as often as there is enough capital at disposal, the money shall be sold to the highest bidder among the members. The member paying the highest premium shall receive payment of as many shares as he owns, at the rate of $200, after deducting the premium, or as many less as he may choose.</p> <p>“ b. The capital loaned out must bring six percent, inter-, est, which shall be paid monthly.</p> <p>“e. If a member becomes entitled to the receipt of an advance of capital he shall, within two weeks from the day on which he purchased the money, give sufficient security for the same. No member can receive such amount until the security has been submitted to the board. In case the said time should expire without- giving such security, the money shall revert to the association, and the member be-fined one dollar for every share. Should the purchaser, however, be able to give sufficient security and refuse to do so, then such purchaser shall pay a fine of fifteen dollars for each and every share so purchased by him. . . .</p> <p>“ e. Should a member who has received an advance on his-share, or shares, neglect or refuse to pay the lawful installments, fines, taxes, and ground rents for the space of thirteen weeks, the board of directors, through the president or vice-president, shall proceed against the mortgaged property according to law.</p> <p>“Art. XII. a. Every member who neglects to pay his weekly dues shall be fined for every share, for the first week, five cents; for the second week, ten cents; for the third and each subsequent week, fifteen cents. Should any member neglect to pay the interest according to Art. XI., he shall pay a fine of twenty-five cents per month for each of his shares. . . .</p> <p>“Art. XX. 'Whenever each shareholder has received on •each of his shares, the sum of two hundred dollars ($200), after deducting an}7 premium which he may have bid on his share or shares, then this association shall be dissolved and cease to exist.”</p> <p>On the 4th of November, 1871, the association commenced the original action to foreclose these mortgages, and prayed an account, in its favor, for the amount of the notes, to wit: $2,000 on the first mortgage, and $1,000 on the second, less certain payments admitted to have been made thereon. The balance thus claimed to be due was $2,347.50, with interest on the money advanced — to wit, $1,695, from July 5,1871, the date of the alleged default in payment of interest.</p> <p>On the 5th of July, 1873, the cause was tried upon the issues joined, and a decree entered in favor of the plaintiff for $1,858.43, and a sale of the mortgaged premises, in case said sum with interest was not paid within thirty days thereafter.</p> <p>It was shown upon the trial, that Smith used the money obtained from the association in the payment of pre-existing debts and in his general business, but not for the purpose of buying, building, or repairing a homestead, and that the association did not know and did not inquire as to the use to which he intended to appropriate the money ; thereupon the defendants offered to prove that it was the •custom of the association to make loans to its members without inquiry as to the object to which the money so loaned was to be applied by the borrower. This testimony was rejected by the court, and defendants excepted.</p> <p>It was also made to appear in the case, that the certificate of incorporation was acknowledged before a notary public, and not before a justice of the peace.</p> <p>As to Mercer’s case. The Concordia Building Association advanced to one Anton Englehart, a member, on the 17th of May; 1869, the sum of $530.50, as a loan on six shares of its capital stock of the nominal value of $150, each; the premium bid therefor was $369.50. Afterward, on the 14th of July, 1870, another loan of $465.75 was advanced on four other shares, at a premium of $134.25. For these loans, Englehart executed notes in form similar to those given in Hagerman’s case, and to secure the company executed mortgages upon like condition with those given by Hagerman and his wife.</p> <p>Afterward, on the 11th of February, 1871, Englehart conveyed his equity of redemption in the mortgaged premises to one W.illiam Sehlotz. June 29, 1871, Sehlotz conveyed to one Anderson. On the 5th of December, 1871, Anderson conveyed to said Mercer. On the 11th of June, 1872, Mercer conveyed a part of the mortgaged premises to Erasmus Tucker, who assumed and agreed, as part consideration therefor, to discharge the lien of the building association. Tucker afterward conveyed to Mowrer upon like agreement.</p> <p>' Default in making payments to the association in accordance with the conditions of the mortgages was made from and after the 6th day of January, 1873.</p> <p>The constitution and by-laws of this association, as to all questions arising in this case, are similar to those of the Ohio Building and Savings Association.</p> <p>On the 21st of June, 1873, the original action was brought on the mortgage, and on the 24th of November, same year, all necessary parties being before the court, the case went to decree; and the court found due the association $577.10, and ordered a sale in default of payment, etc.</p> <p>The amount thus found, was ascertained by adding to the amount of weekly installments, interest on loans advanced and fines assessed against Engleliart prior to the-decree, the estimated present value of dues, and interest that would accrue down to the date of the probable dissolution of tbe association. At the date of the decree, forty weeks had elapsed from the time of the first default, and the future duration of the company’s life was estimated at 116 weeks. The master, to whom the account had been</p> <p>referred, reported as follows :</p> <p>ON THE FIRST CAUSE OF ACTION.</p> <p>Weekly dues for 116 weeks to come.................. $174 OO</p> <p>Interest for same time on $530.50...................... 71 63</p> <p>$245 63</p> <p>$216.41 put at interest for 116 weeks.................. 245 63</p> <p>Present value of anticipated payments............... $216 41</p> <p>Arrearages of weekly dues, 40 weeks at $1.50 per</p> <p>week......................................................... 60 00</p> <p>Arrearages interest, 40 weeks on $530.50............ 25 27</p> <p>Eines on dues, 6 shares, 40 weeks, at 5 cents for first week, and 10 cents second and other weeks,</p> <p>per share.................................................. 23 70</p> <p>Eines on interest, at 25 cents per share per month 15 00</p> <p>The present value of mortgage.................... $330 38</p> <p>ON SECOND CAUSE OF ACTION.</p> <p>Weekly dues for 116 weeks to come.................. $116 00</p> <p>Interest for same time on $465.75...................... 62 91</p> <p>$178 91</p> <p>$157.62 put at interest for 116 weeks.................. 178 91</p> <p>Present value of anticipated payments............... $157 62</p> <p>Arrearages, weekly dues, 40 weeks at $1.00......... 40 00</p> <p>Arrearages for interest, 40 weeks, $465.75........... 23 30</p> <p>Eines on dues as in No. 1, 40 weeks................... 15 80</p> <p>Eines on interest as in No. 1, 40 weeks............... 10 00</p> <p>The present value of mortgage.................... $246 72.</p> <p>The present value of mortgage in No. 1........ 330 38</p> <p>Total present value of both........................ $577 lfr</p> <p>B’pon this decree an order of sale issued, default having-been made in its payment, and a sale of mortgaged premises made.</p> <p>Notice of the time and place of sale was published in the Daily Journal, of Dayton. The first publication of the notice was on Thursday, December 4,1873, and was continued in each Thursday edition of the newspaper, until the 3d day of January, 1874, on which day the sale took place. A motion to set the sale aside was afterward made, on the ground of irregularity and insufficiency of the publication of the notice. This motion was overruled, and defendants excepted. The sale was thereupon confirmed by the court.</p> <p>1. The attempted incorporation of the association was null and void, because the certificate of incorporation was acknowledged before a notary instead of a justice of the peace, as required by statute. Sec. 1, act of February 21, 1867, 64 Ohio L. 18; secs. 63, 64, and 65, act of May 1, 1852, S. & O. 301; sec. 2, act of May 1, 1852, S. & C. 271.</p> <p>The first section of said act of February 21, 1867, by refering to sections 63, 64, and 65 of that of May 1,1852, in the manner and for the purpose it does, incorporates and makes them a part of itself, the same as though they had been enacted at the same time, and as a part of itself; and so, said section 63, by referring to said section 2 of said act of May 1, 1852, incorporates and makes it a part of itself. Turner v. Wilton, 36 Ill. 385; Ludlow’s Heirs v. Johnson, 3 Ohio, 572; Stall’s Lessee v. McCallister, 7 Ib. 22.</p> <p>Such a certificate is fatally defective. Attorney-General v. Lee et al., 21 Ohio St. 662 ; A. & O. R. R. Co. v. Sullivant, 5 Ohio St. 276; Atkinson v. M. C. R. R. Co., 15 Ohio St. 21.</p> <p>A compliance with the requirements of the statute in the act of incorporation, is a condition precedent to corporate existence. Griffin v. C. L. Ex. R. R. Co., 1 W. L. M. 36, 38 ; Angell & Ames on Corp., sec. 83; Bank of Auburn v. Aiken et al., 18 Johns. 137; Fire Department v. Kip, 10 Wend. 266, 268; Attorney-General v. Lee et. al., 21 Ohio St. 662 ; Atlantic & Ohio R. R. Co. v. Sullivant, 5 Ohio St. 276; Atkinson v. M. & C. R. R. Co., 15 Ohio St. 31, 35; Field & Co. v. Cook, L. Ann. 153; Harris & Steckle v. McGregor, 29 Cal. 124; Makelumne, etc. v. Woodbury, 14 Cal. 424.</p> <p>The defendant in error is not and never was a corporation, either de jure or defacto (1 West. Law Monthly, 39, 40), because it never possessed a valid charter, and that without a charter there can no more exist a corporation defacto than one de jure.</p> <p>In an action between a company, claiming to be incorporated, and a third person, the corporate existence may be inquired into when such third person is not estopped by reason of his own acts. Griffin v. C. L. Ex. R. R. Co., 1 W. L. M. 31; Atlantic & Ohio R. R. Co. v. Sullivant, 5 Ohio St. 276; Atkinson v. M. & C. R. R. Co., 15 Ohio St. 31; Lewis v. Bank of Kentucky, 12 Ohio, 149; Angell & Ames on Corp., sec. 635; Field § Co. v. Cook, 16 L. Ann. 153; Harris & Steckle v. McGregor, 29 Cal. 124; Makelumne etc. v. Woodbury, 14 Cal. 424; Carey v. Cincinnati R. R. Co., 5 Clarke (Iowa), 357; Welland Canal v. Hathaway, 8 Wend. 480 ; Williams v. Bank of Michigan, 7 Wend. 540.</p> <p>Are Hagerman and wife estopped from denying the corporate existence of said association ? We think not. They were not members of said association at the time of the ■execution and delivei’y of said mortgages, and in mortgaging their property they did so for the accommodation of ■said Jacob A. Smith, and stand in the position, so to speak, of sureties. Bank of Albion v. Burns et al., 46 N. Y. (1 Sick.) 170 ; Vartie v. Underwood et al., 18 Barb. 561.</p> <p>There is no construction, no equity against sureties. State v. Medary et al., 17 Ohio, 565.</p> <p>. Designating a joint stock company, in a contract, by a name appropriate to a corporate body, works no estoppel, unless it be distinctly stated in the contract that the company is an incorporated company. 7 Wend. 540; 16 L. Ann. 153; Angell & Ames on Corp., sec. 635 ; 8 Wend. 480 ; Herman’s Law of Estoppel, 234.</p> <p>There was no estoppel by deed; and if it should be held that estoppel, in any way, applies, the estoppel is only in pais.</p> <p>An estoppel in pais is a mere matter of evidence, and as such may be effectually rebutted. Angell & Ames on Corp., sec. 635; Griffin v. C. L. Ex. R. R. Co., 1 W. L. M. 36; Welland Canal v. Hathaway, 8 Wend. 480 ; Russell v. Topping, 5 McLean, 194; 2 Washburn on Real Estate, 2 ed. 457; Carey v. Cincinnati R. R. Co., 5 Clarke (Iowa), 357.</p> <p>As to Hagerman’s wife, there can be no estoppel in pais. Morrison v. Wilson, 13 Cal. 494 ; Lowell v. Daniels, 2 Gray (Mass.), 168, 170; Conover v. Porter, 15 Ohio St. 540.</p> <p>If we are correct in the foregoing, it follows that said mortgages are void for want of a grantee. Bank of Augusta v. Earle, 13 Pet. 120; 2 Washburn on Real Estate, 2 ed. 589; Sloane v. McConahy, 4 Ohio, 167; Rupel v. Topping, 5 McLean, 202; Jackson v. Coy, 8 Johns. 385; Hornbeck v. Westbrook, 8 Johns. 73; Bank of Chillicothe v. Swayne, 8 Ohio, 237; Creed v. Commercial Bank, Cincinnati, 11 Ohio, 489; Muskingum Turnpike Co. v. Ward, 13 Ohio, 120.</p> <p>It is averred in the petition that the plaintiff' is a company duly incorporated, etc. This is denied in the answer. It is necessary for a corporation plaintiff to aver its incorporation, and if denied, to prove it. Phenix Bank v. Donnell, 40 N. Y. 410; 1 Nash Pl. and Pr. 348; 5 Ohio St. 276 ; 15 Ohio St. 31; Angell & Ames on Corp., sec. 634.</p> <p>The association had no power to issue to Smith the five additional shares of stock, or to permit him to be the owner thereof; he could notown or be the holder thereof, because the law expressly prohibits it. Hence, said association has no power to compel him to pay up said stock, or, what is the same thing, to compel him to pay said weekly dues until its dissolution. Nor had said association any authority to make said advance loan to him upon said stock so illegally held by him, nor had he any legal right to receive the same. As to said five shares, Smith is not a member of said association, but an outsider, and one to whom said association had no power to loan its money; for it only has power to loan to its members. Being an illegal owner of said stock, how can it be claimed that at the dissolution of said association he would be entitled to receive the par value thereof, to wit, $200 per share? And yet that is the-legal effect of this transaction, the premium bid and the $545 advanced him being in effect an anticipated payment of the par value of said stock. Sec. 1, Stat., 64 Ohio L. 18 ; Straus & Bro. v. Eagle Insurance Co., 5 Ohio St. 62; Bonham v. Taylor, 10 Ohio, 109; Bank of Chillicothe v. Swayne, 8 Ohio, 286.</p> <p>Where an act is prohibited by law, we do not understand how it is possible for parties to make such act legal. Lord Ellenborough, in Langton Hughes, 1 M. & S. 576; Bank of Rutland v. Parsons, 21 Vt. 199.</p> <p>If said contract can not be enforced against Smith, then it can not be against Mrs. Hagerman, who stands in the position of his surety.</p> <p>II. Smith did not obtain the money for any of the purposes for which the association was authorized to loan its-money. The association is only authorized to loan money to its members to enable them to acquire or build themselves homesteads, and to repair their homesteads. Burgett v. Burgett, 1 Ohio, 481; Taylor v. Fitch et al., 12 Ohio St. 171; Cooley’s Const. Lim., 2 ed. 141.</p> <p>The association must show affirmatively that the loans were made for some one, or all of the purposes specified in its charter. McCullough v. Ross, 5 Denio, 567; 9 Paige Ch. 470. But if it is held that the mortgages are primafacie evidence that they were received by the plaintiff in the regular course of its business, such evidence may be rebutted, and if rebutted, the mortgages are nullities. 5 Ohio St. 62. Such prima facie evidence being overcome, the onus is then shifted to the association to prove the validity of the loans, and to show want of notice. Pringle v. Phillips, Sandf. 157; Davis v. Bartlett et al., 12 Ohio St. 534; Bailey v. Smith, 14 Ohio St. 405; 9 Paige Ch. 407.</p> <p>There is no evidence showing that the by-laws were legally adopted by the board of directors. There is no presumption that they were so enacted, because the directors treated them in their business transactions as the by-laws of the association. Durham v. Trustees of Rochester, 5 Cowen, 462; Taylor v. Griswold, 2 Green, N. J. 223.</p> <p>The legal enactment of by-laws is a condition precedent to the right to collect dues, fines, interest, and premiums, and in order to the collection of said premiums and fines, the law must have been strictly complied with. Sec. 1, act of February 21, 1867, 64 Ohio L. 18; Bonham v. Taylor, 10 Ohio, 108; Hall v. State, 20 Ohio, 15; Landon v. Sumner, 10 Ohio St. 77; Conkling v. Porter, 10 Ohio St. 31; Bridgewater and Plk. R. Co. v. Robbins, 22 Barb. 67.</p> <p>All said association was entitled to recover, was the amount of dues and interest that had become due, and payable at the time of commencing the suit, and interest on each installment from the time it become due, and lawful fines that had been then legally assessed.</p> <p>Again, these mortgages are nullities in so far as they attempt to secure the payment of fines. The law does not empower the association to receive a mortgage on real estate as the security for the payment of the fines. Besides, the recitation therein that said Smith has agreed to pay all fines, etc., according to the constitution and by-laws of the association, does not make said paragraph e of article 11, part of the mortgages, or of Smith’s contracts. Robertson v. American Homestead Association, 10 Maryland (Miller), 397.</p> <p>I. Whether the court erred in confirming the report of the master and rendering a judgment, as in cases of debt, in favor of the association, and whether, in cases of default by a member, there is anything more due the association than the difference between the amount received as an advance loan and the dues paid in upon his stock, must depend upon the construction given to the contracts of the parties and the statutes under which this association was organized. As against a corporation, the statute will be strictly construed. Strauss v. Eagle Ins. Co., 5 Ohio St. 59; Bonham v. Taylor, 10 Ohio, 108; Bank v. Ins. Co., 12 Ohio St. 601-625; Bank v. Chillicothe, 7 Ohio, 31, pt. 2.</p> <p>II. The rules adopted in the various states where such associations have been in operation, are conflicting as to the amounts which they are entitled to recover upon these mortgages. Mechanics B. and L. Association v. Conover, 14 N. J. Ch. 219; Bechtold v. Brehm, 26 Penn. St. 269; Denny v. W. Phil. B. A., 39 Penn. St. 154; Houser v. Herrmann B. A., 41 Penn. St. 478; McGrath v. Hamilton L. A., 44 Penn. St., 383; Kupfert v. Guttenburg Ass’n, 30 Penn. 465; North Am. B. Ass’n v. Sutton, 35 Penn. St. 463; Miller v. Second Jeff. B. Ass’n, 50 Penn. St. 32; Robertson v. American H. A., 10 Md. 397; Shannon v. Howard Ass’n, 36 Md. 383; 1 Cin. Sup. Ct. Rep. 469.</p> <p>The public interests require that this court should settle the rule'in these cases.</p> <p>III. One fine only can be imposed. Monumental B. and L. S. v. Lewing, 38 Md. 445; 36 Md. 383; 10 Md. 397.</p> <p>IV. The words, “ at least thirty days,” in section 436 of the code, means thirty clear days, of twenty-four hours each, before the day of sale. 3 Term, 623; Pulling v. People, 8 Barb. 386. The first day is excluded. Thorne v. Mother, 20 N. J. Eq. 257; Walsh v. Boyle, 30 Md. 262; Homan v. Liswell, 6 Cowen, 654; Judd v. Fulton, 4 How. N. Y. 298 ; Phelin v. Douglas, 11 How. N. Y. 193; People v. N. Y. Cen. R. R., 28 Barb. 284; 2 Cowen, 518, 605 ; Code, sec. 597; 6 Cowen, 659; Swan’s Tr. 622; Sedgwick, 419 ; 10 Ohio, 426.</p> <p>The words “ before the day of sale” exclude the last day also; so that in this case only twenty-nine days intervened between the first insertion and day of sale.</p> <p>The popular or received import, of words furnishes the general rule for the interpretation of statutes. Maillard v. Laurence, 16 How. U. S. 251; Potter on Statutes, 127, 132, 143; Harrington v. Heath, 15 Ohio, 484.</p> <p>Now, a week in its ordinary signification is a period of seven days. Five consecutive weeks are therefore five successive periods of seven days each.</p> <p>It is analogous to the word term, during which an estate is to continue. It must have a certain beginning and end. Tyler on Adv. Poss. 208; 8 Ad. & El. 577.</p> <p>In view of the foregoing-authorities, and the provisions of section 597 of the code, we insist that thirty-five entire days must have elapsed after and exclusive of the day of the publication and before the day of sale, and that five insertions of the notice without the requisite lapse of time did not authorize the confirmation of this sale. Gilfillin v. Koke, 1 West. Law Mon. 704.</p> <p>1. As to whether the association was incorporated as far as this case is concerned, the intent of the parties should govern. 2 S. & C. 1172; Warner v. Callender, 20 Ohio St. 190; Hout v. Hout, Ib. 119.</p> <p>2. The association was a corporation de facto. It is sufficient if the corporation show itself a corporation de facto. To do this, it must be made to appear: 1. That there is some law under which the corporation with the powers assumed might lawfully organize; 2. A user by the corporation plaintiff of the rights claimed to be conferred by such law, and the existence of a corporation de facto is established. Warner v. Callender, 20 Ohio St. 190; M. E. Church v. Pickett, 19 N. Y. 485 ; U. S. Bank v. Stearns, 15 Wend. 314; Snyder v. Studybaker, 19 Ind. 462.</p> <p>3. The plaintiff in error is estopped from denying the organization or legal existence of the corporation. Jones v. Cincinnati Type Foundry, 14 Ind. 89; Meikel v. The German Savings Fund Society, 16 Ind. 181; Heaton v. Cincinnati and Ft. Wayne Railroad, 16 Ind. 275; Eaton v. Aspinwall, 19 N. Y. 119; Tar River Navigation Co. v. Neal, 3 Hawks, N. C. 520; Elizabeth City Academy v. Lindsey, 6 Iredell, N. C. 476; Hamtramck v. Bank of Edwardsville, 2 Mo. 169; 6 B. Mon. 601; Dutchess Cotton Co. v. Davis, 14 Johns 239; Jones v. Bank of Tennessee, 8 B. Mon. 122; People’s Savings Bank v. Collins, 27 Conn. 142; Lucas v. Greenville Building Association, 22 Ohio St. 339; Beardsley v. Foot, 14 Ohio St. 414; Herman on Estoppel, 229, 211, 212, ch. 8; Hill v. West, 8 Ohio, 222; Colcord v. Swan, 7 Mass. 291. As to estoppel by way of recitals of mortgage: Herman on Estoppel, 251, ch. 9; Washington Insurance Co. v. Cotton, 20 Conn. 42; Jackson v. Waldroon, 13 Wend. 178 ; Kinsman v. Loomis Wood, 11 Ohio, 479.</p> <p>4. It is the intent, the lawful use of its corporate powers, knowingly, for an unlawful purpose, that vitiates the right of a corporation to recover. White’s Bank v. Toledo Insurance Co., 12 Ohio St. 601.</p> <p>5. The validity of the contract between Smith and the association was not affected by Smith’s owning more shares of stock than the law permitted. Richmond Bank v. Robinson, 42 Maine, 589; Little v. O’Brien, 9 Mass. 423; Stewart v. National Bank of Maryland, 4 Am. L. R. 397.</p>

<p>Error to the Superior Court of Cleveland.</p> <p>8. Burke, with whom was E. J. Estep and W. S. Kerruish, for plaintiff in error :</p> <p>"We claim that, under no circumstances, should the defendant in error be credited with payments on account of stated dues or fines for the non-payment of stated dues, upon a loan. In other words, if h,e borrowed so much money of the company, which he is bound to refund, he must refund that as a loan, and payments made by him for fines upon stated dues, should not be credited to him upon account of his loan.</p> <p>The statute under which this association was organized clearly authorizes the company to make by-laws, and clearly provides that the association may levy, assess, and collect from its members stated dues, fines, and interest upon loans-advanced. The company may also demand and receive such premiums for the right of precedence, in taking loan, as the company, by its by-laws, may adopt; and certainly no premium can be fairer to all parties, than a premium which is fixed by competition among the members. These powers are clearly conferred upon the association by statute, and the association in this case never went beyond the express powers conferred by this statute, inasmuch as associations organized under this act are to be conducted strictly on the mutual plan, and all members are to stand on a perfect equality, and the holding of large amounts of stock is utterly prohibited. The somewhat extraordinary powers granted, it was supposed by the legislature, could not result in harm or oppression. In the construction of this statute, the coui't will consider the purpose of the legislature in enacting it; that purpose is well expressed in the act itself.</p> <p>The interest to.be collected by these associations does not in any respect depend upon the interest laws of the state, but depends upon the by-laws of the association. "Under these by-laws, under the rules and regulations adopted by this association, it is very clear that the interest to be paid was six per cent, upon the par value of the stock, and not six per cent, upon the money actually advanced. That this is legal is, as we understand it, already settled by this court.</p> <p>Again, as to fines. If there is any subject which is entirely within the jurisdiction and powers of the association, it is the subject of fines, whether any fines shall be collected ; if so, for what, and upon account of what, they shall be collected. All this, by the statute, is submitted ta the judgment of the association. It is a subject governed solely by its by-laws.</p> <p>The chartering of banks by the legislature authorizing them to issue their notes intended to circulate as money, and the phrase “banking powers,” as employed in the constitution, includes not only the power to issue bills intended to circulate as money, but also the power to discount notes, buy and sell, exchange and loan money, and transact such other business pertaining to the carrying on of banking as were usually embraced in the phrase “banking powers.” It will be noted that the constitution does not prohibit the legislature from conferring the power upon any corporation to receive and pay out money, upon deposit, nor to loan money, nor indeed does it prohibit the legislature from clothing a corporation with any of these distinctive powers. The thing which the legislature is prohibited from doing is the conferring of “banking powers ” in the aggregate, not a hanking power; not some particular banking power, but the conferring upon any corporation banking powers as understood by the people of this state, at the time of the adoption of the constitution. That this act does not confer banking powers in the sense in which it was then and is now understood is too plain for argument.</p> <p>Undoubtedly, it is perfectly competent for the legislature to prescribe what steps are necessary to be taken by any association in order to obtain corporate rights and powers, and whether, in doing so, an existing law or a lawthat has been repealed is referred to, is a matter of no sort of consequence. There certainly is nothing in the constitution which prohibits the legislature from prescribing the mode in which an association may be incorporated. That is all that is done in this act. Indeed, we do not deem the question of the constitutionality of this law to be an open question in this state. See 22 Ohio St. 339; 1 Cin. Sup. Ot. Eep. 468.</p> <p>I. The laws under which these associations are organized are unconstitutional, because:</p> <p>1. They are contrary to article 2, section 13, of the state constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its. title; and no law shall be revised or amended unless the new act contains the entire act revised, or the section tor sections amended; and the section or sections so amended shall be repealed.”</p> <p>The sections 63 and 65 of the act of May 1, 1852, referred to in the statutes, authorizing these associations, were repealed May 1,1858 (see 55 Ohio L. 145), and were not in existence when the law of 1867 (64 Ohio L. 18), was passed ; so that the law of 1867 was based upon and refers to a statute, the principal part of which was not then- in force, is therefore void; but even if the law of May 1, 1852, was in force when the law of 1867 was passed, the latter bill is contrary to and in contravention of section 16, article 2, of the state constitution, as before referred to, because the new act did not contain the section or sections amended, and because the section or sections so amended were not repealed by the act of 1867. Work et al. v. Detroit Building and Savings Association, Central Law Journal of St. Louis, for January, 1875.</p> <p>2. On the ground that it is a special act conferring corporate powers in opposition to article 13, section 1, of the constitution.</p> <p>3. That it authorizes an association, with banking powers, contrary, to section 7, article 13, of the constitution of the state.</p> <p>The associations were not formed for manufacturing purposes, and can not be said to be incorporated under the provisions of the act of May 1, 1852, with sections referred to, and can be considered in no other light than as special acts conferring corporate powers.</p> <p>II. There is no power conferred upon these corporations.</p> <p>1. To charge and collect a greater rate of interest than is allowed by law to other parties.</p> <p>2. To charge and collect interest on the premium bid by the members for right of precedence in taking loans so advanced.</p> <p>3. To discount their loans, or to deduct the premium bid for the right of precedence in taking loans from the loans so advanced.</p> <p>4. To collect interest on money withheld after it becomes' due, under the name of fine or penalty.</p> <p>III. When the plaintiff took from the defendant his stock and canceled it, the" defendant ceased to be a member, and the only relation existing between them was that of debtor and creditor; and the only amount which the plaintiff' could claim from the defendant, was the amount actually loaned, and legal interest thereon. 2 Casey, 463; 6 Casey, 465; 5 Wright, 478; 14 Wright, 32; 33 Barb. 103.</p>

<p>Error to the Common Pleas of Clark county.</p> <p>The indictment is for obtaining goods by false pretenses, and was found at the January term of the Court of Common Pleas of Clark county, Ohio, a. d. 1874, under a statute passed and took effect February 21,1873 (70 Ohio L. 39), which provides:</p> <p>“ That if any person, by any false pretense or pretenses, shall obtain from any other person any money, goods, chattels, etc., . . . with the intent to cheat and defraud the owner of said money or property, ... he shall, on conviction thereof, if the value of said money or property so obtained . . . shall be equal or exceed $35, be imprisoned in the penitentiary not more than three years, nor less than one year,” etc.</p> <p>The substantive part of the indictment under which the prisoner was tried, convicted, and sentenced, is as follows :</p> <p>“ That John T. Norris, late of the county of Clark aforesaid, on the 24th day of September, A. D. 1873, at the county of Clark aforesaid, did unlawfully, feloniously, and falsely pretend to the Akron Sewer-pipe Company — the said Akron Sewer-pipe Company then and there being an incorporated company, and doing business as such incorporated company under and by virtue of the laws of Ohio— that he, the said John T. Norris, was then and there the owner of a farm, known as the Mohawk Small Fruit Farm, one and a half miles east of the city of Springfield, in said county of Clark, and on the' Charleston pike, and did then and there unlawfully and feloniously and falsely pretend that he, the said John T. Norris, was then and there a person of good financial responsibility by referring the said Akron Sewer-pipe Company to any business firm of the city of Springfield, and did unlawfully, feloniously, and falsely pretend that any of the business firms of the said city of Springfield would indorse and recommend the said John T. Norris to the said Akron Sewer-pipe Company as a person then and there worthy of credit and trust by said Akron Sewer-pipe Company, by which said false pretenses the said John T. Norris then and there unlawfully and feloniously did obtain from the said Akron Sewer-pipe Company certain sewer-pipe of the value of $41.90 of the property, goods, and chattels of the said Akron Sewer-pipe Company, with the intent then and thereby, by the said false pretenses aforesaid, to induce the said Akron Sewer-pipe Company to deliver to him, the said John T* Norris, the sewer-pipe aforesaid, without making any inquiry as to the financial responsibility of him, the said John T. Norris, and with intent then and there, and by the false pretenses aforesaid, to cheat and defraud the said Akron Sewer-pipe Company of the said sewer-pipe aforesaid, whereas, in truth and in fact, the said John T. Norris was not then and there the owner of the said farm known as the Mohawk Small Fruit Farm, one and a half miles east of the city of Springfield, in the county of Clark; and, whereas, in truth and in fact, the business firms of the city of Springfield would not then and there indorse and recommend the said John T. Norris then and there to be a person of good financial responsibility; and, whereas, in. truth and in fact, the business firms of the city of Springfield would not then and there recommend him, the said John T. Norris, to the said Akron Sewer-pipe Company to be a person then and there worthy of trust and credit by said Akron Sewer-pipe Company, and the said John T. Norris was not then and there a person of good financial responsibility, and the said John T. Norris, at the time he so falsely pretended as aforesaid, well knew said false pretenses to be false, contrary, etc.”</p> <p>I. When the word “person” is used in a statute, especially a criminal statute, a natural person is intended, unless something appears in the act to show that it applies to artificial persons. Blair v. Worley, 1 Scam. 178; Betts v. Menard, 1 Breese, 395.</p> <p>Section 227 of the criminal code, and the acts defining certain crimes (S. & C. 409, see. 22; 412, 421, 422, 426; 408, see. 18; 439, sec. 15; and S. & S. 265, 269, 273), clearly show that the general assembly has not, except by special provision, construed the word person, in criminal acts, to include coi’porations. We claim for the plaintiff' a strict construction of the statute under which he is indicted.</p> <p>The indictment is defective in this: it does not set forth that the owner of the property relied upon the false representations, and was induced by means thereof to part with his property. State v. Philbrick, 31 Maine, 401; Com. v. Strain, 10 Met. 521; People v. Skiff, 2 Park. Cr. 140; People v. Herrick, 13 Wend. 87; People v. Stetson, 4 Barb. 151; Enders v. People, 20 Mich. 233; State v. Evers, 49 Mo. 542; State v. Green, 7 Wis. 676; Rex v. Goodall, Brit. Cro. Cas. (R. & R.) 461.</p> <p>The indictment should aver all the material facts which it is necessary to prove to produce a conviction, and with such reasonable certainty as to advise the accused what he may expect to meet on the trial. Dillingham v. State, 5 Ohio St. 280; Lamberton v. State, 11 Ohio, 282; Farris v State, 3 Ohio St. 171; Robbins v. State, 8 Ohio St. 114.</p> <p>II. The court erred in charging the jury as to the venue. Bodily presence in a county is not essential in determining the place of trial. People v. Adams, 3 Denio, 190; Adams v. People, 1 Com. 173.</p> <p>Norris was to pay the freight; the goods were shipped at his risk, and he had specially pointed out the carrier.</p> <p>Delivery of goods to a carrier in the usual course of business, is equivalent to a delivery to the purchaser.</p> <p>The carrier is always considered the agent of the buyer. Story on Sales (Perkins, 3 ed.), sec. 306, and notes 2, 3, and 4 to said section ; Hooben v. Bidwell, 16 Ohio, 510; Com. v. Taylor, 105 Mass. 172; Redfield on Carriers, sec. 302; People v. Haynes, 14 Wend. 546; Magruder & Bro. v. Gage, 3 Am. Rep. 177; Story on Sales, sec. 306, note 4; Brown on Carriers, 477; Hooper v. Chicago & N. W. R. R. Co., 9 Am. Rep. 439; Dunlap v. Lambert, 6 Cl. & Fin. 600.</p> <p>As to when title to goods passes by delivery to a carrier, see 5 Ohio, 89; Story on Sales, secs. 321, 342; Newhall v. Varges, 15 Me. 314; Kendler v. Ellison, 47 N. Y. 36 ; 2 Kent Com. 433 ; Mills v. Ball, 2 B. & P. 461; Openheim v. Russell, 3 B. & P. 54; People v. Haynes, 14 Wend. 5, 46, and cases there cited; Com. v. Taylor, 105 Mass. 172.</p> <p>The crime is only complete when and where the goods are obtained. 1 Bish. Cr. Pro., secs. 69,70, 73; 1 Bish. Cr. Law, secs. 79-83, 107; 2 Whar. Cr. Law, secs. 2141, 2142; Adams v. People, 3 Denio, 190; Same, 1 Comst. 173 ; Com. v. Taylor, 105 Mass. 172; People v. Haynes, 14 Wend. 546; Griffin v. State, 26 Ga. 493; People v. Rathbun, 21 Wend. 509; Com. v. Blanding, 3 Pick. 304; People v. Griffin, 2 Barb. 427 ; People v. Sully, 5 Park. 142 ; Whar. Cr. Law, sec. 154; Com. v. Gillespie, 7 S. & R. 469; Reg. v. Leech, Dears. 642; Rex v. Brisac & Scott, 4 East, 163, 171; Scurry v. Freeman, 2 B. & P. 381, 382 ; Rex v. Garrett, 22 Eng. L. & Eq. 607; Rex v. Johnson, 6 East, 583; Regina v. Jones, 1 Den. C. C. 551; Regina v. Jones,1 Eng. L. & Eq. 533.</p> <p>There is no analogy between the larceny of goods and-the obtaining of goods by false pretenses in one county and carried by the offender to another, as to where the offender might be apprehended and tried. In the latter case, it must be in the county where the goods were obtained. Regina v. Stanberry, 9 Cox C. C. 94; Fisher’s Digest, 169.</p> <p>III. The court erred in its charge to the jury on the question of the value of the goods.</p> <p>If the court erred in charging upon the question of venue,, then the charge was right on the question of value. But' if the court was right in its charge on the former question, then it follows that it erred in its charge on the latter.</p> <p>If the goods were not obtained, by the accused until they reached him in Clark county, then their value must be ascertained in their condition where so obtained.</p> <p>The price agreed to be paid for the goods is immaterial,. as it is their real market value at the time they are obtained, which the jury must find and act upon in fixing the punishment under the law.</p> <p>1. “Person” is a technical word, and comprehends in its definition artificial as well as natural persons.</p> <p>And where a word of a fixed meaning is used in a statute, the legal presumption is that the legislature intended-to use it in its legal sense. Turney v. Yeoman, 14 Ohio, 207; Anderson v. Milliken et al., 9 Ohio St. 568. Courts will look to the object of a statute. Burgett v. Burgett, 1 Ohio, 469 ; Ohio Digest, 570, and authorities cited. The question raised here, has been decided in Allen v. The State, 10 Ohio St. 287.</p> <p>2. The act 30 Geo. 2, c. 24, is identical with ours in not fixing the venue, etc. Under it, it was held that the prosecution should be had at the place where the goods were obtained, to wit, received, and not where the false pretenses were made. 1 Chitty Crim. Law, 191; 2 Ib. 998 ; 4 Barn. & Ad. 179. See Roscoe’s Cr. Ev., 6 ed. 453; People v. Sully, 5 Parker, 142, 170 ; 2 Whar., secs. 2142, 2081; 21 Wend. 507; 9 Gray, 97; 3 Greenl. Ev., sec. 153 ; 11 Ohio, 438. A portion of these authorities are in point on the hypothesis that this offense is akin to larceny.</p> <p>The relation of agent for vendor or vendee of a carrier is one created by law, and only exists when there is a sale or other legitimate transaction between the contracting parties. But in this instance there was no sale. There was neither vendor nor vendee. The crime of the defendant vitiated the whole transaction. The title of the property never passed to Norris, but remained in the company even after actual delivery to Norris at Springfield. When he took — “obtained”—the goods at Springfield, he took them animus furandi, from the company.</p> <p>The law creates, as has been said, the relation of agent between the carrier and vendor or vendee, etc. It would not, it is submitted, interpose to create that or any other ■relation between a carrier and a. criminal, to enable the latter to carry off his plunder.</p> <p>There is no necessary logical connection, as it seems to me. between the question of venue, and that of the place where the goods must be valued. There is none such in larceny, .aud why should there be here? If the position assumed by counsel for plaintiff in error be correct, then all a criminal would have to do to escape the penalty of the law in •6ueb case, would be to ship the goods to different counties in quantities of less than $85 worth to each. In other words, the question of the defendant’s guilt would depend upon his disposition of the goods — upon whether he scattered or kept them together.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The original petition was filed by the defendant in error,. John B. Purcell, in the Superior Court of Cincinnati, to-enjoin the collection of the taxes levied upon various parcels of real property, which he claimed to be exempt from taxation.</p> <p>The defendant in error is the archbishop of the Roman Catholic Church for the diocese of Cincinnati, and the-property which is the subject of controversy, is held by him in trust, for the sole use and benefit of said church, as places of public worship, for its public schools, parsonages, and other purposes. As to a part of the property embraced in the petition, a perpetual injunction was-granted, and as to the remainder the petition was dismissed.</p> <p>The principal grounds of error are: 1. That the court erred in enjoining the collection of the taxes levied on the parochial school-houses and the play-grounds connected' therewith; and, 2. Iu enjoining the taxes levied on the property used as parsonages. The schools are distributed among the different parishes of the Catholic Church. The school-houses are, in some instances, upon the same premises as the church edifices, and in others upon grounds obtained and used for that exclusive purpose. To some of the school-houses is attached a limited amount of land, used as a play-ground by the children attending the school.</p> <p>The average attendance in these schools, as appears from the evidence, is about fifteen thousand children. The course of instruction is substantially the same as that pursued in the common schools; but a leading purpose is to educate the children of Catholic parents so as to keep them within the fold of the Catholic Church. Accordingly, religious services, such as are required by the Catholic Church,form part, although a small part, of the daily exercises of the schools. At these exercises the children of Catholic parents are expected, and other scholars are merely permitted, to be present. The schools are open for the admission of children of parents of all denominations, and the instruction afforded by them is substantially gratuitous, no compensation being exacted, and no conditions imposed, except those of good behavior and the observance of the rules and discipline of the school. Small contributions of twenty-five or fifty cents per month are expected from parents who are able to contribute; but the aggregate amount of these contributions is small. The schools are substantially supported out of the revenues of the church. They are not established or carried on with a view to profit.</p> <p>The parsonages are usually, though not invariably, built on the ground attached to the church edifice. The grounds thus occupied are not more extensive than they might be, and be exempt from taxation, if used for'no other purpose than as connected with the church edifice as a place of public worship. These houses are sometimes separated from the church edifice, and in others are directly connected with it. They are the residences of the priests, for which they pay no rent, and from which source the church derives no profit, otherwise than saving the expense of providing such residences elsewhere.</p> <p>I. Has the Superior Court of Cincinnati jurisdiction to enjoin the collection of taxes assessed upon real estate?</p> <p>That court lias a limited jurisdiction, not only as to territory, but as to the subject-matter of the litigation ; and when the legislature, in the act which took effect May 1, 1856 (53 Ohio L. 178), confined the jurisdiction therein conferred, to Courts of Common Pleas, it meant no less than the clear intendment of the language of the act. Chatfield, Adm’r, v. Faran, 1 Disney, 448.</p> <p>But does the act in question confer jurisdiction upon any court to enjoin the collection of taxes upon real estate? Does it not refer exclusively to chattels ?</p> <p>The treasurer is empowered to collect taxes upon personalty by the summary process of distraint — to seize and sell it.</p> <p>To enable the courts to give redress against an arbitrary exercise of this power, the act in question was passed.</p> <p>In this case no irreparable injury will result from the act complained of, and as the injury about to be done can be compensated in damages, equity will not intervene by injunction. Fisher v. Murdock, 1 Handy, 544; Van Doren v. Mayor of N. Y., 9 Paige, 388 ; 1 Swan & Critchfield, 389, sec. 14; Mechanics and Traders’ Banker. Debolt, 1 Ohio St. 591; Brooklyn v. Meserole, 26 Wendell, 132; Bouten v. Brooklyn, 7 Howard, 206-208; Van Rensselaer v. Kidd, 4 Barb. 16; McCoy v. Chillicothe, 3 Ohio, 370; Banks & Hayne v. Busey, 34 Maryland, 439 ; Lucas v. McBlair, 12 Gill & J. 1; O’Neal v. Bridge Co., 18 Maryland, 1; Stoddard v. Ward, 31 Maryland, 563; Erie Canal Co. v. Lowrie, 5 Penn. L. J. 464 ; Audenried v. Phila. & Reading R. R. Co., 68 Penn. St. 370.</p> <p>II. If the act of March 21, 1864 (S. & S. 761), is to be interpreted as claimed in this case, the legislature, in its enactment, exceeded the power delegated by the constitution, art. 11, see. 2; 2 Smith’s Debates Con. Con. 15, 41, 43, 44, 46, 698, 702, 723, 734; C. W. & Z. R. R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 77; and may be treated as void without affecting the validity of the remainder of the act. Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.</p> <p>The Cincinnati College case, 19 Ohio, 110, was decided under the provisions of the act of 1848, an act almost identical with the one we criticise, and was passed under the sanction of the constitution of 1802, which left, without restriction, the power of taxation and exemption in the hands of the general assembly.</p> <p>The power of taxation being a sovereign power, can only be exercised by the general assembly when and as conferred by the constitution. Mays v. Cincinnati, 1 Ohio St. 268.</p> <p>The spirit of the constitution is to be ascertained through the letter of the instrument. State v. Cincinnati, 19 Ohio, 197.</p> <p>III. The theory that the question of how much of its ■property should be exempt from taxation, should be submitted to each religious association in the state, is illogical and irrational. Cincinnati College v. The State, 19 Ohio, 110; Orr v. Baker, 4 Ind. 88.</p> <p>Archbishop Purcell, holding the property in question in trust for the benefit of the church, stands in the relation of the representative of a private corporation. All the grounds which he holds in trust belong to the pope, who is the church, a corporation sole, a private corporation. In no sense are his houses, monasteries, schools, and colleges public; audit matters not whether he sets that property aside for uses and purposes assumed to be charitable, or otherwise. Dartmouth College case, 4 Wheat. 634.</p> <p>IV. In no legal sense are the schools of the Roman Catholic Church public and within the exemptions of the act, nor are they free. Revenue is derived from them, and whether the amount is sufficient to maintain them is immaterial.</p> <p>For a definition of “ public,” “ common,” see "Webster, Walker, and Johnson. If these words are to be differently construed, then there is no exemption for common or state schools, and public schools owned by private individuals or corporations are.</p> <p>It seems to us that the words “ public ” and “ common,”' as used in connection with the schools in the 6th and 12th articles of the constitution, were intended to refer to the same schools, to have the same significance; and that the general assembly, in the enactment of section 3 of the amendatory act of 1864, as well as the framers of the constitution, contemplated no different meaning to be attached to the words; and that no other “ school-houses ” should be exempt, except such as were supported by the “ income arising from the school trust-fund,” and by taxation. The words common and public mean purely and simply state schools, to foster and support which all the property in the state is taxed. There is nothing private in their organization ; no private interests of any sort are connected with them; and the organic law excludes the possibility of these schools, or the fund supporting them, ever being controlled by any sectarian denomination. They are free, common, public to all.</p> <p>The Catholic schools of the defendant in error are purely private and sectarian. They are controlled, conducted, fostered, and supported by Catholic authority and Catholic means — Catholic, as contradistinguished from Protestant, in a religious, sectarian sense. No teachers of the Protestant faith are employed; none but Catholic. Can such schools, with reason, be said to be free, common, or public ? Jenkins v. Andover, 103 Mass. 98; Board of Education of Cincinnati v. Minor et al., 23 Ohio St. 211; The People v. Board of Education of Brooklyn, 13 Barb. 409; Allen v. McKeen, 1 Sumner, 296.</p> <p>The act of February 21, 1849 (47 Stat. 22), examined in conjunction with legislation on the same subject subsequent thereto, shows the convertibility of the terms “common” and “public,” as used in relation to schools in Ohio;, that they are used to designate the same object — that is, the state school.</p> <p>It is clear that the schools of the defendant in error do not fall within the class referred to in these enactments, or within any class of schools legislated for by any act of the Ohio legislature. There is no responsibility to the public for the proper administration of their affairs, nor have the state authorities any right of visitation or criticism; so to-all intents and purposes they are private, not public schools.</p> <p>The system of public education in Ohio is the creature of the constitution and statutory laws of the state. State v. McCann, 21 Ohio St. 205; Van Camp v. Board, of Education of Logan, 9 Ib. 406.</p> <p>If honestly entertained religious convictions prevent the Catholic powers from permitting the use of the public schools to the children of Catholic parents, and they insist upon establishing denominational schools for the dissemination of the doctrines of their church, they have no just right to complain of injustice or oppression if the state exacts the payment of the same proportion of taxation which holders of other property are compelled to pay. O’Kane v. Treat et al., 25 Ill. 561.</p> <p>The fixed, unbending rule of taxation, made part of our fundamental law, is, that all property (except that belonging to the public or used exclusively for religious worship) shall be taxed by uniform rule. Exchange Bank of Columbus v. Hines, 3 Ohio St. 1; Zanesville v. Auditor of Muskingum Co., 5 Ib. 592; Maloy v. Marietta, 11 Ib. 638; Weaks v. Milwaukee, 10 Wis. 242.</p> <p>The construction insisted on by counsel for defendant is opposed to this rule. 3 Kernan, 230; Chegary v. City of New York et al., 13 N. Y. 220.</p> <p>V. There is no constitutional sanction looking to the exemption of the vacant ground, and play-grounds for the children attending these schools, and the construction sought to be put upon the act of March 21,1864, is wrong. Section 7 of the bill of rights declares that “ it shall be the duty of the general assembly to pass suitable laws to protect religious denominations . . . and to encourage schools,” etc. "What is meant by this? Nothing more than simply to declare that no one religious society should have superior advantages over another, and to declare the intention to make perpetual the wise and beneficent system of public (or “ common ”) schools then being established. Trustees M. E. Church v. Ellis et al., 38 Ind. 3.</p> <p>I. Sections 14 and 26 of the act to estaplish thé Superior ■Court of Cincinnati, passed April 7, 1854 (1 S. & C. 388), give that court jurisdiction of this case,</p> <p>This act was amended March 17, 1856, and February 10, 1857 (1 S. & C. 391), so that it has been twice, as it were, re-enacted, since its original passage — an amendment, like a ■codicil to a will, being equivalent to a republication or second adoption of the act, as amended. McKibben v. Lester, 8 Ohio St. 627. So that, in legal effect, this act dates both before and after the act of April 10, 1856, authorizing injunctions against illegal taxes. 2 S. & C. 1151.</p> <p>As the property in controversy is within the city of Cin■cinnati,. and both Treasurer Grerke and Auditor Teatman were served with summons within the city, and have answered to the merits, the requirements of the act are complied with, and there seems to be no room for a successful •denial of jurisdiction.</p> <p>II. As to the power to enjoin the illegal taxation of real ■estate.</p> <p>The act, 2 S. & C. 1151, does not discriminate between real and personal property. The reasons for enjoining the illegal taxation of personalty, apply with added force to realty. Burnet v. Cincinnati, 3 Ohio, 73 ; Culbertson v. Cincinnati, 16 Ib. 574; Jonas v. Cincinnati, 18 Ib. 318.</p> <p>III. As to the construction of the exemptions in the act of March 21, 1864 (2 S. & C. 761), and in the constitution. There are four- classes of property, the taxation of which is in dispute in this case : 1. The Roman Catholic parochial school-houses ; 2. The play-grounds connected therewith ; 3. Two vacant lots used in connection with church-edifices; 4. Priests’ dwellings.</p> <p>The play-grounds are “ lands connected with public institutions of learning, not used with a view to profit.”</p> <p>They are also necessary for the proper occupancy, use,, and enjoyment of the same. On both these grounds they are exempt. Cincinnati College v. The State, 19 Ohio, 114.</p> <p>It is just as true that the dwellings of the clergy are necessary to the proper occupancy, use, and enjoyment of the churches and schools of the Roman Catholics. These-clergymen are celibates, wedded only to the service of Christ, and their dwellings are not the abodes of families or homesteads, as in 38 Indiana, but edifices, of which the-title is held in trust, for ecclesiastical uses, as resting places-of men whose only and constant office is to serve the-church. This court will recognize the usages of this and every other denomination (Watson v. Jones, 13 Wal. 679),. and so far as not required by some paramount rule of the civil law, protect and enforce them. This duty is required-by the constitution. There is, there can be no Roman Catholic church without an ordained priest, to offer upon-its altar the sacrifice of the mass.</p> <p>, In the higher sense of the necessities of spiritual-culture,, according to the usages of the denomination, they are indispensable and essential parts of the churches. Mass. Gen. Mospital v. Somerville, 101 Mass. 319; Wesleyan Academy v. Wilbraham, 99 Mass. 599; Matlack v. Jones et al., 2 Disney, 2.</p> <p>1. The word “public,” as used in this act, and in the-constitution, does not refer here to the nature of the title-to the property, but to the character of its uses. It is “ public ” not because owned by the state, city, county, or' school-district, but because open for public use.</p> <p>The words “ public worship ” and “ public charity ” ares used in the same sense, and public school-houses in no other. Philips v. Bury, 2 Term, 353.</p> <p>2. Contemporaneous construction proves this. From the .adoption of the present constitution, it has, until recently, been held, in all the departments of the state government, that these Roman Catholic schools are exempt from taxation.</p> <p>The words of the constitution, “ public school-houses,” must be construed to include institutions of higher as well as lower grades. Contemporaneous construction has defined them in this larger sense. The first tax law, passed in 1852, and every subsequent tax law, has exempted ■“ public colleges,” as well as school-houses of other grades. And that these “ colleges” did not, in the acts of 1852 and 1853, refer exclusively to institutions owned by the state, is very clear from the language of exemption there used: “ All colleges, academies; all endowments made for their support” 50 Ohio L. 137; Swan’s Stat. of 1854, p. 924.</p> <p>The provisos to the act of 1864 also prove our propo.sition.</p> <p>3. The word “ colleges ” has no application to any institution owned by the public.</p> <p>There are no “public academies” in the sense in which our learned antagonists use the word “ public.” There are union schools and high schools, but no academy can be shown, the title to which is held by the public, so far as we know.</p> <p>4. The constitution uses this word “ public ” to define the school-houses exempt from taxation, but the word “common” to define the schools supported by taxation. Art. 6, sec. 2.</p> <p>Had the language of the exemption been “ common ■school-houses,” there might have been some force in our learned friend’s objection. In statutes, and, a fortiori, in constitutions, every word must receive its proper force, and where two different qualifying adjectives have been used, what rational purpose can we suppose to have been designed, except to express two different meanings ? Is the public school of article 12 identical with the common school of article 6? If so, why not have used the same adjective? If not, it is easy to understand why. If the word “ public,” in article 12, to qualify the word “ school-houses,” is used in the same sense as when, in the same juxtaposition, it qualifies the words “ worship ” (houses used exclusively for public worship ”) and “ charity ” (“ institutions of purely public charity ”), then the reason is supplied for using the word “ public ” in this article, and “ common” in article 6, where reference is exclusively had to schools supported by taxation,,or “the income from the school trust-fund.”</p> <p>If the court finds that some or all of this property is properly taxable by the constitution, but has been improperly exempted by the statute, it by no means follows that Auditor Teatman and Treasurer Gerke have the right to correct the errors of the general assembly, and make a law of taxation, where none exists on the statute-book.</p> <p>The true rule on this subject was announced by Judge Welch, in Frazer et al. v. Siebern et al., 16 Ohio St. 614, 622.</p>

<p>Error to the Court of Common Pleas of Hamilton county.</p> <p>The plaintiff in error was indicted and convicted under the first section of the act of April 11,1856 (S. & C. 879), which provides, “ That any house or building situate within this state, used or occupied as a house of ill-fame, or for the purpose of prostitution, shall be held and deemed a public nuisance; and any person owning or having the control of, as guardian, lessee, or otherwise, such house or building, and knowingly leasing or subletting the same in whole or in part for the purpose of keeping therein a house of ill-fame, or knowingly permitting the same to be used or occupied for such purpose, or using or occupying the same for such purpose, shall for every such offense be deemed guilty of a misdemeanor,” etc.</p> <p>Section 2 of the act provides, “ That the use or occupation by the lessee or tenant of any house or building, or any part thereof, for the purpose prohibited in the first section of this act, shall be held by the courts of this state good cause on the part of the owner or lessor to avoid the agreement of lease or renting, and to re-enter at any time and take possession of such house or building.”</p> <p>The indictment, after stating the time and place of the alleged offense, charged as follows: “He, the said E. C. Crofton, whose more full Christian name is to the grand jurors aforesaid unknown, then and there being the owner of a certain house there situate, unlawfully and knowingly did then and there permit one Mitchell, a female, whose Christian name is to the grand jurors aforesaid unknown, to use and occupy said house for the purpose of keeping therein, then and there, a house of ill-fame, and therein, then and there, to keep divers, to wit, five female persons, whose names are to the grand jurors aforesaid unknown, for the purpose of prostitution, with intent that they, the five female persous aforesaid, whose names are to the grand jury aforesaid unknown, should therein, then and there, have illicit carnal intercourse and commit whoredom with divers, to wit, ten men whose names are to the grand jury aforesaid unknown, contrary,” etc.</p> <p>To this indictment the accused interposed a demurrer, which was overruled.</p> <p>Afterward, the accused pleaded “ not guilty,” and on the trial it was proved that in December, 1869, the accused rented the house in question, of which he was the owner, to Mitchell for the term of one year, at the rate of $50 per month, which was the reasonable rental value of the premises. That he did not lease the property for the purpose of keeping therein a house of. ill-fame. It was shown, however, that during the term, Mitchell, the lessee, used the house for the purpose of prostitution ; that the accused was informed of the fact that it was being so used; and,, though requested so to do, he refused or neglected to avoid the lease and to re-enter and take possession of the property.</p> <p>No other testimony was offered tending to show that the' accused “ knowingly permitted ” the house to be used for1 purposes of prostitution.</p> <p>In its charge, the court instructed the jury that “if the defendant found that Mrs. Mitchell was keeping a house of ill-fame in the premises, and, after his attention was called to it by remonstrances from people living in the neighborhood, refused to take any steps to determine the tenancy, or to induce Mrs. Mitchell, to move or to abstain from such use of the premises, such refusal would amount to an acquiescence in her keeping such house.”</p> <p>The following are assigned for error : 1. The overruling the demurrer to the indictment; 2. The charge as given to the jury; 8. The refusal to set aside the verdict and grant a new trial.</p> <p>The indictment is defective, in not stating that the house was used and occupied as a house of ill-fame. If this appear at all in the indictment, it is by implication, which is ■not sufficient. Hall v. The State, 3 Ohio St. 575; 1 Bishop, (3 ed.) 225; 1 Chitty’s Crim. Law, 141.</p> <p>In order to convict the owner of a house of the crime of permitting a tenant to keep a house of ill-fame, the landlord must do some act which amounts to an agreement that the tenant may so use the house.</p> <p>Having once fairly rented it for an honest purpose, his control has ceased during the existence of the lease, and is not embraced within the statute. 6 Iowa, 118. He is not obliged to institute proceedings to abate the nuisance, McAlister v. Clark, 33 Conn. 93; nor to remonstrate, 1 Vroom, 105.</p> <p>1. Under the act making houses of ill-fame public nuisances, 1 S. & C. 879, where a landlord rents his house in good faith for a specified time, but not for the purpose of prostitution, but the house is thus used, and he becomes informed of it, and takes no steps to avoid the contract of rental, he is criminally liable for permitting the house to be so used, especially if he fail to object or protest. The sec■ond section of the act referred to, makes it incumbent on the landlord to bring suit to eject the tenant in order to avoid personal liability.</p> <p>2. If a landlord be not reasonably diligent in selecting his tenant, and she proves to be guilty of illegally using the premises, he is chargeable.</p> <p>3. Under this act, the landlord reserves so much control of his property by operation of law as to give him authority to interfere, and if he fail to do so, he will he held to consent or permit the use. 4 Iowa, 541; 6 lb. 118; 1 Leigh & Cave, 263.</p>

<p>Error to the District Court of Athens county.</p> <p>This was an action by Hudnall against the plaintiffs in error, for trespasses committed by their cattle upon Hudnall’s premises. The defendants (plaintiffs in error) denied the alleged trespasses. The cause was submitted to the court, a jury being waived, and the court found the facts specially, as follows :</p> <p>“ 1. That the plaintiff sustained damages to the amount of twenty dollars, by reason of the trespass of some twelve head of cattle, as in the petition set forth.</p> <p>“ 2. That said three defendants lived on a farm which they owned and cultivated in common, whereon said cattle were kept.</p> <p>“ 8. That the said cattle that committed the trespass were owned by the defendants.</p> <p>“ 4. That there was no joint ownership in said cattle, hut that each defendant owned a part of said cattle in his or her individual right, each owning certain ones of said cattle separate from either of the others of said defendants.’</p> <p>Upon this finding the court rendered a judgment for the plaintiff and the same was subsequently affirmed on proceedings in error in the District Court, and it is now sought to reverse this judgment of affirmance, and also the judgment of the Common Pleas.</p>

<p>Information in the nature of quo warranto.</p> <p>The terms of office of all the local directors in the three sub-districts, 1, 4 and 6, expired when the change in the* subdistrict was made, and the board should have ordered an election forthwith in the two new subdistricts. 7(1 Ohio L. 203, sec. 32.</p> <p>Out of the three subdistricts two were formed; one sub-district has disappeared. This is the consolidation contemplated by the above cited section 32. It is as much a consolidation as if only one subdistrict had been formed out of what had before constituted three. In this case a part of subdistrict No. 4 was attached to No. 1, and the remaining part was attached to No. 6, and we insist that the directors of No. 4 are as much entitled to act as directors in the respective subdistricts to which they were attached, as the directors of the original Nos. 1 and 6, but there can be but three directors in a subdistrict. It follows that all must go out, and by section 32 their terms are declared to expire at the time of the change.</p> <p>This is but justice to the director of the dismembered subdistriet as well as to the inhabitants thereof, whose right to a voice as to who shall be their directors is thus, preserved ?</p> <p>The territory of which subdistricts one and six are composed remains intact. No part of it is detached; additional territory, a part of another subdistriet, is added. This is no. more than a change, an alteration in the subdistricts; but there has not been “ a consolidation of two or more sub-districts to form a new subdistrict.”</p> <p>As there has not been such a consolidation as is provided by the statute, the defendants are rightfully exercising their several offices. A new election under the facts shown would be invalid, for the reason that it would be without authority of law.</p>

<p>1. A copy of the probate and record of a will duly certified by the probate-judge, is conclusive evidence of the validity of the will, on the trial of a collateral issue, between a stranger and the devisee respecting the-property devised; and is admissible as evidence on the trial of such issue, notwithstanding proceedings to contest it may be pending at the-time it is offered and admitted as evidence.</p> <p>2. In an action of forcible detainer, a complaint alleging “that the said O. W. B. has, ever since the 1st day of January, 1870, unlawfully and forcibly detained, and still doth detain from the undersigned possession, etc.,” of the premises, is sufficient to give a justice of the peace jurisdiction of the case.</p> <p>8. Where a testator died seized of an estate in fee, and before his deviseeentered, O. W. B., who had no right, made an entry and got possession of the lands devised, and continued to hold the same without right. This constituted him “ an occupier without color of title,” within the meaning of the act, and the devisee can maintain forcible detainer against him to obtain possession.</p> <p>4. The fact that the plaintiff in detainer, in order to show his right to possession, had to prove his title as devisee by a certified copy of the will, constituted no objection to the jurisdiction of the justice.</p>

<p>Motion for leave to file a petition in error. The facts shown by the record in this case are these: In January, 1867, W. M. Peters and others, heirs of William C. Peters, filed their petition for partition in the Common Pleas of Hamilton county, making Lucy D. Peters, one of the present defendants in error, who claimed dower in the premises, a party to the proceeding. Lucy D. Peters put in an answer, asking to have dower assigned to bier, either by metes and bonds, or in the form of a charge upon one or more of the lots sought to be partitioned. The usual order for partition and assignment of dower was made by the court, and the appraisers, being of opinion that the premises could not be divided without manifest inj ury, assigned to the widow, as her dower in all the lots described in the petition, the sum of eight hundred dollars per annum during her life, to be charged or made a lien upon lot No. 6, one of the parcels sought to be partitioned, and made return of this assignment, with an appraisement of the several lots, to the court — lot No. 6 being appraised subject to the dower charge. On return of the appraisement and assignment of dower, the same were approved and confirmed by the court, and W. M. Peters elected to-take one of the lots (No. 4.) at its appraisement, and it was adjudged to him. Afterward, and while the other lots remained unsold, and neither of them had been taken by the parties, the court, on motion of said Lucy D. Peters, made the following order: “ It is hereby ordered that the said sum of eight hundred dollars per annum, heretofore fixed by said commissioners as the dower interest of said Lucy D. Peters in the premises described in the petition and order of partition herein, and subsequently confirmed by the court and made a lien on the premises described as No. 6, . . . shall be paid by the said plaintiffs and defendants (heirs of William C. Peters, deceased), or their legal representatives or assigns, to the said Lucy D. Peters, or upon her written order, in equal quarterly installments of two hundred dollars each, on the 26th days of January, April, July, and October of each and every (year) during her natural life, . . . and upon default of any of said installments, . . . that execution issue therefor, as upon judgments at law.”</p> <p>Subsequently all the other lots were taken by the several parties at their appraisements, and adjudged to them respectively by the court. Said lot No. 6, subject to the dower lien, was taken by W. M. Peters, and a deed therefor was duly executed to him by the sheriff, which deed recites that the lot is taken and conveyed subject to the lien aforesaid. Soon after the conveyance by the sheriff, "W. M. Peters conveyed the lot, subject to the same lien, to the plaintiff in error, Mary E. Miller. For several years after purchasing the lot, Mary E. Miller paid the dower installments -as they fell due, according to the order of the court. On the 3d day of September, 1874, one of the installments being then due and unpaid, an execution therefor was issued by the clerk, at the instance of the said Lucy I). Peters. This execution commands the sheriff that he cause said unpaid installment of two hundred dollars to be made of goods and chattels of the said heirs of William C. Miller (the plaintiffs and defendants in the partition suit), and that for want of such goods and chattels he cause the same to be made of said lot No. 6.</p> <p>Upon this execution the sheriff made return that no goods and chattels of said heirs were found, and that he had levied the writ upon said lot No. 6.</p> <p>A motion was then made on behalf of Mary E. Miller to set the execution and levy aside, on the ground that they were not warranted by the judgment or order of the court, and were without authority of law. This motion was overruled by the court. Upon error to the District Court the order overruling the motion was affirmed ; and leave is now sought to file a petition in error to reverse the judgment of the District Court.</p> <p>1. As Mrs. Miller is the owner, and in possession of the property levied on, she may move to set aside the execution, though not a party to the suit. Civil Code, sec. 503.</p> <p>2. The proceeding was strictly under the statute relating to partition, and hence there could be no assignment of dower, except by metes and bounds. 1 S. & C. 898, sec. 13 ; S. & S. 310; 2 Swan’s Pr. & Pr. 1234; 2 Nash’s Pr. 1351; 16 Ohio St. 443; 21 Ohio St. 527. And although this “ special statutory proceeding ” (15 Ohio St. 460) may be entirely regular and valid as to the partition, still the assignment and confirmation of dower in this form, in such proceeding, is a nullity. Gilliland v. Sellers, 2 Ohio St. 223; Ludlow v. Johnson, 3 Ohio, 553, 561; 5 Har. & Johns. 130; 5 Foster, 302; 6 Wheat. 119-127; 27 Ala. 391-396, 675; 2 Yerges, 493 ; 33 N. H. 228 ; 25 Texas Sup. 132 ; 8 Howard, (U. S.) 495-543; 18 Wallace, 457.</p> <p>3. Even if the assignment of dower is valid, the personal judgment awarding execution is void for uncertainty.</p> <p>4. The execution can not be sustained as an order of sale.. Where land is to be sold to satisfy a decree, the court makes an order directing that some person or officer, in the-event the money is not paid, shall sell the property; and the process to be issued is called an “order” (15 Ohio St. 451); and that order must contain a description of the-property. Where an order was, like this, a paper “ containing no description of the land, except by reference to-other parts of the record, a sale thereupon made, though not void, was irregular, and rightfully set aside.” 9 Ohio-St. 336. Besides, the record contains no authority for any such order. 2 Howard, (U. S.) 43-60 ; 10 G. & J. 11; 25 Barb. 440. And an inspection of the record shows it was-not the intention of the court to order a sale. What sort of title would be conveyed to the purchaser? Would he-take the property discharged of the whole claim for dower, or would it still exist for the payment of other installments ?' Can the sheriff sell, on such execution, anything else than a legal title? What is to be done with the money arising from the sale ? Is the balance, after satisfying this execution, to be paid over to Mrs. Miller, or must it be invested for the benefit of Mrs. Peters, to meet the installments of the dower charge as they become due, depriving Mrs. Miller of any further benefit from the property until the death of Mrs. Peters ? Or is the money to be in some way divided ? All this, and other matters readily suggested, would have been provided for in the decree, if it had been the intention to order a sale, in any event, without further proceedings, either in this case or by independent suit.</p> <p>5. As an execution, the writ is irregular and ought to be •set aside. It directs a levy on the goods and chattels of the parties in the partition suit, and in default of such property, the officer is commanded to levy on Mrs. Miller’s lot. But the deci’ee awards execution “ as on judgments at law,” which, if this judgment has any validity, is an execution, as applied to this case, commanding the sheriff to make the mbney out of the goods and chattels of the parties in the partition suit, and in default of such property, then out of their lands and tenements. Civil Code, sec. 428. Not oñly is it true that “ there must have been a seizing in execution upon authority to seize ” (Bool v. King, 6 Ohio, 11), but that authority must be found in the judgment'; for the clerk, being a ministerial officer, can only issue such execution as the court awards; and hence the execution must pursue the judgment and requirements of the statute ■strictly, in all matters of substance, and generally even in matters of form; and if any modification is desired, it can only be obtained by application to the court, in due form, •on ■ notice to all parties in interest, either in the same suit ■or an independent action, according to the nature of the defect to be i’emedied. Herman on Executions, sec. 65; Rorer on Jud. Sales, sec. 966; Billingheimer v. Richey, 2 Superior Court Rep. 492; 39 Geo. 565; 44 Geo. 616; 45 Geo. 610; 27 Ark. 20-22; 29 Iowa, 176; Martin & Yerger, 45; 10 Cal. 411; 27 Mo. 293; 2 Conn. 462; Busbee L. 262-264 ; 4 Howard, (U. S.) 58 ; 6 Johns. L. 282; 24 Ark. 496; 8 Rich. L. 345; 8 Mass. 79; 8 Ired. L. 1; 5 Hill, (N. Y.) 501; 10 Howard’s Pr. 215 ; 32 Barb. 277; 4 Scott’s N. R. 678.</p> <p>6. If either the judgment or execution is invalid, there is no estoppel.</p> <p>The dower was regularly assigned, and the decree for it is clearly valid. Partition act, 1 S. & C. 898, secs. 8, 12, 13 ; dower act, 1 S. & C. 521, secs. 11, 13, 14; S. & S. 310 ; Bank U. S. v. Dunseth, 10 Ohio, 18. Our statutory provisions relating to dower are to be construed together. Besides, W, M. Peters, and Mrs. Miller, who claims under him, are estopped. 2 Scribner on Dower, 80, 82, secs. 31, 37. Moreover, the judgment is in proper form, and is ample authority for the execution, which is in conformity to it. The intention was, that in case of non-payment of any installment of the dower charge, lot 6 might be sold to satisfy it. Any other construction of the judgment renders it nugatory; whereas, the construction .should be such as to uphold instead of destroy the judgment.</p>

The action below was upon a promissory note made by Eewster to Goddard. In his petition Goddard set forth a copy of the note, and alleged that the whole amount. thereof was due to him from Eewster. By his answer Eewster denied that anything was due on the note, and alleged that he had paid it in full. No replication was filed to this answer.

judgment of the District Court of Eulton county. ' This was an action upon an injunction bond, and the-only question is whether the plaintiff in the action was entitled to recover for attorney’s fees paid by him in the case in which the injunction was allowed.

Information in the nature of quo warranto. The information charges the defendants with usurping the franchise of being a corporation of Ohio, by the name of The Speer Manufacturing Company,” and by that name ■of pleading and being impleaded, answering and being answered, contracting and being contracted with, and of .acquiring, holding, using* selling, conveying, and otherwise •disposing of property, real and personal, as well without as within the State of Ohio.

Appeal reserved in the District Court of Hamilton, -county. On the 15th of April, 1888, the last will and testament of 'Thomas Williams was probated in Hamilton county, Ohio. The following are among the devises contained therein: “ Fourth. To my friend, Isaac G-.

During the pendency of the original action in the Court of Common Pleas of Madison county, which was brought by defendants in error against the plaintiffs in error, for the recovery of money only, and after the issues of fact had been made up, to wit, on the 3d of February, 1868, the defendants below, by their attorneys, served upon the attorney for plaintifis an instrument in writing, of which the following is a copy: “ Stephen Phifer and Joseph Plowman against Eli H. Adams…

This was an action brought by the plaintiff against the defendant to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant.

<p>1. To give the county commissioners authority to proceed under the act of. April 5, 1866 (63 Ohio L. 114), entitled “ an act to authorize county commissioners to construct roads,” etc., it was essential that the petition presented to them, asking for the improvement, should have been “signed by a majority of the land-owners resident within said county, whose lands will he assessed for the expense of the sameand the law on this-subject, as subsequently re-enacted and amended, still requires the signatures of such majority, before the order for the improvement can be-legally made.</p> <p>2. The report of the viewers and surveyor appointed for that purpose, showing the estimated expense of the improvement, and the lands within two miles of the line of the road, which will be benefited thereby and ought, to be assessed for the expense of the same, together with the names of the owners of such lots of lands respectively, furnished the legal data, from which the commissioners, hy comparison, were to determine-whether the required majority had, in fact, so signed the petition.</p> <p>3. An order for the improvement of a road, made hy the commissioners,. ■without a petition signed by the reauired majority, is irregular and unauthorized.</p> <p>4. The power of the legislature to pass curative statutes, retrospective in their nature, which do not impair contracts, nor disturb vested rights, is not inhibited by section 28, article 2, of the constitution.</p> <p>■5. Where it appears, in an action to enjoin the collection of a tax irregularly assessed to pay the expense of a road improvement, that the lands assessed were benefited by the improvement, and ought to have been assessed, and that the assessment made was equitable and just, an injunction will not be granted. Act of May 18, 1868.</p>

<p>Error to the District Court of Seneca county.</p> <p>Samuel M. Chilcote was indebted to Elisha MeRill, on-contract not in writing, in the sum of $200. Being about to leave home for a few days, and thinking that MeRill would probably want the money, instructed his (Chilcote’s,. wife to pay the money to him if be called for it in his absence.</p> <p>On the 13th of April, 1869, James Conley commenced an action and proceedings in attachment against MeRill before a justice of the peace, and caused garnishee process to issue against Chilcote, and on the evening of that day the constable served the same, by leaving a copy of the-order and notice p at his place of residence with his wife,, to whom he explained the nature of the proceedings. On the following morning MeRill called on Mrs. Chilcote and demanded the money, and in pursuance of her husband’s-instructions, she paid it to him. Chilcote returned on the evening of that day, and first had actual notice of the garnishee process and payment of the money to MeRill.</p> <p>As required by the notice, he went before the justice,, and in his answer set up the facts above stated and claimed to be discharged. The justice found against his claim, and entered an order requiring him to pay the money into court.</p> <p>The case proceeded to judgment against McRill, and Chileote failing to pay in the money as ordered, an action was commenced against him by Conley, under the 43d section of the justices act, to recover the amount. On the trial, judgment was entered against Chileote, from which he appealed to the Court of Common Pleas, where he set up and relied upon two defenses: First. That the money was not in his hands at the time, or after he had actual notice of the garnishee proceedings against him. Second. That McRill was entitled to the money under the exemption laws of the state, and that it was not therefore liable to be taken to satisfy Conley’s judgment. The Court of Common Pleas found and gave judgment in his favor. A motion for a new trial was made by Conley, which, being overruled, he took a bill of exceptions, and the case went on error to the District Court, which court affirmed the judgment of the Common Pleas. The petition in error in this court is prosecuted to reverse the j udgment of the District Court and Court of Common Pleas, because of alleged errors of fact and law occurring in those courts.</p> <p>Mr. Chileote, from the time process was left at his residence, became liable to Conley for all money due from him to McRill. 1 S. & C. 778, 780.</p> <p>The law of principal and agent applies. The testimony shows that Chileote made his wife his agent to pay McRill the money. 'When the authorized act of the agent results-in injury to third persons, the principal is liable. Story’s-Agency, sec. 452. Mrs. Chileote had notice that the money was attached. Notice of facts to an agent is notice to th& principal. Story’s Agency, 140.</p> <p>The process in attachment may be served upon the garnishee personally, or it may be left at his usual place of residence. The statute makes no distinction between the modes of service; none can be made by the court. The one is as •good as the other, and either is valid for every purpose.</p> <p>Mr. Chilcote does not stand in a position to have the benefit of the statutes exempting property from sale for the payment of debts. This is a privilege which is personal, ■and can not be used or claimed, save by the debtor or the head of a family.</p> <p>1. The defendant in error can not be made liable as a garnishee, because no sufficient notice was brought home to him until after the money had been paid over, all without fault or neglect on his part. We deny that he was ■liable from the time notice was left at his house.</p> <p>On the subject of garnishment, see Childs v. Digby, 24 Penn. St. 23 ; 3 Binney, 394; Hoffman’s Pro. Rem. of the Code, 444, 506, and authorities there cited; 11 Howard, 520 ; 17 Conn. 259.</p> <p>2. The money having been duly claimed as exempt in lieu of a homestead by McRill, it could not be subjected by the attachment or garnishment to the payment of Conley’s judgment. Section 4, act of April, 1869, 66 Ohio L. 50, exempts this fund if properly construed. It falls short of its purpose without this construction. 3 Ohio St. 270; 12 Ohio St. 431; 14 Ohio St. 298; 15 Ohio St. 279. And Chilcote can set up any defense the debtor could set up. 'This defense was set up by McRill himself.</p> <p>The statute authorizes only such property to be attached as is not exempt. 1 S. & C. 776, sec. 30; Comer v. Dodson, 22 Ohio St. 616.</p> <p>The legislature never intended that the garnishee should be liable when it would be a loss or detriment to him.</p>

In the Court of Common Pleas of Erie county, Theodosia Monaghan, defendant in error, in a suit for alimony .against her husband, John Monaghan, plaintiff in error, obtained a decree in her favor for five hundred dollars and ■costs, payable in five semi-annual installments of one hundred dollars each, commencing December 1, 1872. The •'costs were ordered to be paid in ten days.

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

<p>Error to the District Court of Lawrence county.</p> <p>The original action was brought by the plaintiff' against the defendant, in the Court of Common Pleas of Lawrence county, to recover the balance due on an account.</p> <p>A summons was regularly issued in the action, which was afterward returned by the sheriff indorsed: “Received January 18, 1868. In obedience to the command of this summons, I, on the 20th day of January, a. d. 1868, served on the defendant by leaving a true copy at his place of business.”</p> <p>At the February term, 1868, the following entry was made on the journal of the court:</p> <p>“And now comes the said William Lambert, and George Sample having failed to answer or demur to said petition of said plaintiff, it is considered that said plaintiff ought to recover the said sum of eight hundred and eighty-one dollars and twenty-six cents, which the court finds due as prayed for in said petition, together with his costs in and about this suit in this behalf expended, taxed at $-.”</p> <p>At the following September term, the plaintiff filed a motion to . correct the entry,' in which the entry was described as having been made aft the May term, 1868, and the court having'found that notice of the pendency of the motion had been given to the defendant, and that there was. “ a mistake and omission in the former entry in this ease,, made at the May term, 1868,” ordered that the same be-corrected so as to read as follows:</p> <p>“And now comes the said William Lambert, and the said George W. Sample having failed to demur or answer to-the petition of the said William Lambert, it is considered that the said William Lambert ought to recover the said sum of $872.54 so demanded in his petition, together with the sum of $43.63, which the court finds due as the interest thereon, as prayed for in said petition. It is therefore considered that the said William Lambert recover against the said George W. Sample the said sum of $916.17, so found due as aforesaid, together with his costs in and about his-suit in this behalf expended, taxed at $-.”</p> <p>The District Court, at its April term, 1870, on a petition in error filed therein by the-defendant against the plaintiff, reversed the judgment of the Court of Common Pleas and rendered a judgment for the plaintiff and against the defendant for $994.69 and costs, and remanded the cause to-the Court of Common Pleas to carry the judgment into execution. The plaintiff now seeks, by his petition in error in this court, to reverse the judgment of the District Court.</p>

<p>Error to the District Court of Seneca county.</p> <p>At the March term, 1869, of the Court of Common Pleas-of Seneca county, the defendant in error as indorsee of a promissory note, recovered a judgment against the plaintiffs in error for $255 and costs. The issuing and service of' process were waived, and judgment was taken by confession under a warrant of attorney attached to the note. By its-terms, the note was payable to N. O. Eausler or order, sixty days after date, and was indorsed to the plaintiff in the action after maturity. The power of attorney was to John C. Lee, or any attorney at law in the United States, with authority to • appear in any court of record in the United States, after maturity of the note, and, waiving the issuing- and service of process, to confess a judgment for the amount of the note against the defendants below (the makers), and in favor of the holder of the note.</p> <p>After the term at which the judgment was rendered, the-■defendants therein proceeded under sections 534 and 536, by petition in the same court, to vacate the judgment so rendered.</p> <p>The petition to vacate set forth, in substance, that the note, on which the judgment was taken, had been fully paid, etc., and that the judgment had been taken on a warrant of attorney, without process; and that the power to confess judgment under the warrant had become wholly inoperative after the note had passed out of the hands of the payee. The prayer of the petition was that the judgment might be set aside and that the defendants might be ■allowed to answer and otherwise defend the action.</p> <p>Afterward the defendants in the action moved the court, under section 535, to set aside the judgment on the ground that the power of attorney attached to the note was not negotiable; and that the note had been fully paid to the payee, long before it had been transferred to the plaintiff.</p> <p>Afterward, at the November term, 1868, the court, upon submission, found the facts stated in the petition to vacate to be sufficient in law to set aside the judgment; and thereupon ordered, “that all other questions of law and fact .arising out of the several matters and things alleged in said paper be and the same are hereby continued for trial and judgment.”</p> <p>At the November term, 1869, the court, upon hearing of the said motion of defendants, found “ that the judgment had been irregularly obtained against the said defendants; that neither of the said defendants was summoned. or otherwise legally notified of the time or place of hearing ■.said case, or taking said judgment, and that nothing was due the plaintiff at the time of taking said judgment, the said note having been fully paid as alleged in said motion by the defendants.” It was therefore ordered that the judgment be set aside and held for naught, and that defendants recover of the plaintiff their costs.</p> <p>Thereupon the plaintiff moved the court to place the case on the trial docket for trial, and that the defendants be required to answer his petition and that he have leave to reply. This motion the court overruled, and on its own. motion dismissed the action ; to all which the plaintiff duly-excepted.</p> <p>On petition in error by the plaintiff below, the District Court reversed the judgment and order of the Common Pleas dismissing the action, and ordered that the-original action of the plaintiff against the defendants be set. down for trial in the Court of Common Pleas upon its merits,, and remanded the cause to the Common Pleas for further-proceedings.</p> <p>To reverse this judgment of the District Court, this petition in error is now prosecuted.</p> <p>1. Where a plaintiff illegally and fraudulently obtains a judgment in his favor without notice to the defendant, and the defendant procures such judgment to be vacated and set aside, the plaintiff is not entitled to have his case docketed and tried, but must commence de novo. 6 Johns. 331; 24 Penn. St. 289.</p> <p>2. The power of attorney was not negotiable. Osborne v. Hawley, 19 Ohio, 130, and no jurisdiction was obtained of the person of the defendants below: hence the judgment of the Common Pleas was right. Dunn v. Hazlett, 4 Ohio St. 435.</p> <p>If, in passing upon the validity of the defense, it was possible for the court to have before it such evidence as would authorize the court to vacate or strike off" the judgment, or warrant a refusal of the motion to docket the case and set it down for hearing, the presumption is that such evidence.was before the court, and the finding of the court is final.</p> <p>I. A court, upon vacating its judgment, rendered upon-a warrant of attorney, at a former time, should retain the-case for trial upon its merits. Civil Code, secs. 534, 542. The code has no provision as to the duty of the-court, or the rights of the parties, after the judgment is vacated.</p> <p>Under the common-law system of pleading and practice, upon setting aside a judgment, rendered upon a warrant of attorney, the action was set down for trial on the merits,, with leave to plead. This practice is contemplated by the code, and is, we think, observed, generally, in the courts of the state.</p> <p>II. Is it contended, that as the code requires the court, before vacating a judgment, to try and decide that there is a valid defense to the action, that this trial involves the merits of the case, and therefore the decision is final between the parties.</p> <p>This position can not be maintained:</p> <p>1. Upon such a trial, if the decision is final, either party may, of right, demand a trial by jury. The code makes no provision for a jury, but obliges the parties to submit their controversy to the court.</p> <p>2. If the decision is final, the party aggrieved should have, as in other cases, the right to appeal, or to a second trial, or to review upon the facts.</p> <p>3. In Taylor v. Fitch, 12 Ohio St. 169, it is held that a proceeding to vacate a judgment is not appealable. The statute allows a second trial, in a civil action, where an issue of fact has been joined. In Taylor v. Fitch, the court hold, that a proceeding to vacate a judgment is not a civil action. In the case at bar no issue of fact has been joined. "While the decision may be reviewed upon the facts, yet the rule that a finding of facts will not be disturbed, unless it is clearly against the evidence, makes this remedy of little avail. Pomeroy v. Drake, 1 Western Law Monthly, 282.</p> <p>III. If the decision is not final, the court erred in refusing to retain the ease for trial:</p> <p>1. Upon a reversal of a justice’s judgment the case is retained for trial and final judgment. Code, sec. 532. ■</p> <p>2. The action in which the judgment was rendered, was properly commenced, and is still pending, with both parties before the court.</p> <p>3. Another action between the same parties, in the same ■court, upon the same subject-matter, is avoided by retaining the pending action for trial.</p> <p>IY. If the decision is not final, the court erred in dismissing the action in which the judgment was rendered :</p> <p>1. The action was not dismissed upon the motion of ■either party.</p> <p>2. The court of its own motion has no power to dismiss an action, except in cases provided for in section 372 of the code.</p> <p>Y. The eases in which the court may dismiss an action are:</p> <p>1. Where the plaintiff fails to appear on the trial.</p> <p>2. Eor the want of necessary parties.</p> <p>3. On the application of a defendant where there are ■others whom the plaintiff fails to prosecute with diligence.</p> <p>4. Eor the disobedience by the plaintiff' of an order concerning the proceedings in the action.</p>

<p>In an action to recover money due on contract, it is a sufficient defense to, show that the money sought to be recovered has been attached by process of garnishment duly issued by a court of a sister state, in an action there prosecuted against the plaintiff by his creditors, although it appear that the plaintiff and such creditors are all residents of this state.</p>

This action came into the Court of Common Pleas of Morrow county, by appeal from the judgment of a justice of the • peace. The summons in the original action was issued on the 19th of October, 1869, and on the 21st of the same month was returned “ served,” as to the defendant, Noble C. Hair,. and “ not found,” as to the defendant, Hamilton Johnson. The action was founded on a promissory note, of which ■ the following is a copy: “ Bennington.

The plaintiff in error instituted a proceeding in forcible detainer, against the defendant in error, to obtain possession of certain real estate, known as the Vandalia Hotel. The proceeding before the justice of the peace resulted in a judgment in favor of the complainant, and order of restitution.

The original petition was filed by Shade, the defendant, in error, to enjoin Tucker, the plaintiff in error, from subjecting to sale on execution certain real estate, of which. Shade held the legal title and had the possession. Judgment was rendered in favor of Shade, quieting his title-. Theobjeet of this proceeding in error is to reverse that judgment.

Thomas Emery’s Sons, plaintiffs in error, a firm doing business in Cincinnati, Ohio, had, before the dates hereinafter named, transacted business with one Mirrielees, a pro-duce broker in the city of New York, which, resulted in leaving a balance due from Mirrielees to the plaintiffs in error.

The plaintiff in error was .tried on an indictment for murder in the first degree, and was convicted of murder in the second degree, and sentenced. He now alleges that there were errors in the proceedings relating to the summoning and impaneling of the jury by whom he was tried, and also in the instructions given by the court on the trial.

Reserved in tbe District Court. Tbe original case was a proceeding, by citation, in tbe Probate Court of Brown county, by tbe plaintiff, as one of tbe beirs at law and distributees of tbe estate of Tbomas T. Phillips, deceased, against tbe defendant, as administrator of Tbomas T. Phillips’ estate, to compel him to account for $414, assets of tbe estate, which came into bis bands as such administrator, and which were not included in tbe inventory, nor charged to him in tbe…

<p>Motion for leave to file a petition in error, to reverse the judgment of the District Court of Van Wert county.</p> <p>The defendant in error, Alexander R. -Strother, being a creditor of the firm of Rockwell, Dong & Co., sued Trimble, the plaintiff in error, to recover the amount due him from Rockwell, Dong & Co. His cause of action against Trimble is founded upon a written agreement, entered into between Trimble and Rockwell, Long & Co., whereby the-former, in consideration of the sale and transfer of the firm assets, assumed to pay the liabilities of the firm.</p> <p>The answer set up two defenses.</p> <p>The substance of the first defense is, that at the time of the-making of the agreement, and for the purpose of inducing Trimble to enter into it, Rockwell, Long & Co., made a statement to him of the persons to whom they were liable, and the several amounts of such liabilities; that Strother was not. among the persons thus named, and that they represented to Trimble that Strother held no claim against them; that these-representations were false, and were made with intent to deceive Trimble, and to induce him to enter into the agreement, and that, relying on the truth of such representations, he was induced to sign the agreement.</p> <p>The second defense is, in substance, that before Trimble had notice of the claim of Strother against Rockwell,. Long & Co., the agreement by which Trimble assumed to pay the liabilities of Rockwell, Long & Co., had, by the consent of all the parties to it, and upon certain considerations in the answer set forth, been rescinded.</p> <p>A general demurrer was filed to the answer. The demurrer was sustained by the Court of Common Pleas, and, without further- pleading, judgment was rendered on the-■petition.</p> <p>On error the judgment was affirmed by the District-Court.</p> <p>To reverse these judgments, application is now made for leave to file a petition in error.</p> <p>I. Trimble, if his contract with Rockwell, Long & Co. had not been rescinded was only bound to pay the debts, that were mentioned to him as being the debts of Rockwell, Long & Co.</p> <p>The rule laid down in Thompson v. Thompson, 4 Ohio St. 333, is prevented from operating by a proper application of the doctrine of estoppel. 7 Ohio St. 105 ; 8 Ohio St. 281; 14 Ohio St. 414; 5 Ohio, 194.</p> <p>Strother, by operation of law, is privy to the contract of Rockwell, Long & Co. He is trying to enforce their contract made for his benefit, as he alleges, and is subjected to all the consequences of their fraudulent acts and representations. Judson v. Gray, 17 How. Pr. 289.</p> <p>II. The contract between Trimble and Rockwell, Long & Co. was rescinded before Strother had knowledge of it, accepted it, or .acted upon it, and hence Strother has no rights under the rescinded contract. Auburn City Bank v. Leonard, 40 Barb. 119 ; 4 C. & P. 93; 1 Parsons on Contracts (ed. of 1860), 190 and note; 24 Wend. 260; 1 Swan’s Pr. & Pr. 37, 38; 16 Barb. 561; Butterfield v. Hartshorn, 7 N. H. 345. And there was no fund in Trimble’s hands, to pay over. 3 Barb. 209; 1 Gray, 317.</p> <p>Strother had a clear right of recovery in this case. Chitty on Pl., 8 Am. ed. 4 et seq.; Crumbaugh v. Kugler, 3 Ohio St. 549; Brewer v. Dyer, 7 Cushing, 337, and cases there cited; Thompson v. Thompson, 4 Ohio St. 333; Bagley v. Waters, 7 Ohio St. 367; 17 Mass. 400; Starkie v. Starkie, Styles, 296; Green v. Hoen, Campb. 219.</p> <p>The doctrine of estoppel does not apply. 2 Smith’s Leading Cases, 6 Am. ed. 665; Stevens on Pl. 239; Coke Litt. 352a.</p>

<p>On bill of exceptions taken by the prosecuting attorney to the ruling of the Court of Common Pleas of Lorain ■county.</p> <p>The defendant was indicted for the unlawful sale of intoxicating liquors. The errors alleged relate to the first-count of the indictment. In that count the defendant was charged with furnishing to John Johnston, a minor, intoxicating liquors, contrary to the act of April 5, 1866. S. & ■S. 748.</p> <p>On the trial, it appeared, from the testimony, that Johnston was a minor, and that defendant knew it. Also, that Johnston and two others, Bishop and McCoy, appeared .at the counter of the defendant’s saloon; that McCoy called for three glasses of intoxicating liquors, which the defendant drew and set out upon the counter, each of the three persons taking and drinking a glass of the liquor so set out, which was paid for by McCoy. In its charge, the court instructed the jury, if they found from the evidence, “ that either Bishop or McCoy stepped up to the counter and called for and bought three glasses of intoxicating liquor ■of the defendant, which three glasses were then and there •drank by Bishop, McCoy, and Johnston, and the same was paid for by Bishop or McCoy, such sale to Bishop or McCoy would not be a furnishing to Johnston, within the meaning of the statute, although said defendant knew that he was .a minor, and that one of said glasses of liquor was to be then and there drank by him.”</p> <p>This instruction was duly excepted to. Exceptions were •also taken to the ruling of court in excluding evidence, which it is unnecessary to notice, as the same question .arises on the charge,</p>

<p>1. Under the act of March 14, 1850, allowing parties to contract' for any rate of interest, not exceeding ten per cent., a note calling for interest at a rate higher than six per cent, carries the agreed rate after due, and until paid, as well as during the time it is made to run.</p> <p>2. An agreement to pay interest semi-annually, at the rate of ten per cent-per annum, is not usurious within the meaning of said act.</p>

<p>1. In the act of Eebrury 21, 1873 (70 Ohio L. 39), malting it an offense to procure by any false pretense or pretenses the signature of a person to a promissory note “ as the maker thereof,” the words, as the maker, constitute a material part of the description of the offense, and must be-averred in the indictment.</p> <p>2. Under this act, in a .prosecution for such offense, it is not necessary that the value of the note be found by the verdict of the jury, the amount of the note, and not its value, being the basis upon which the grade of the offense, and the punishment on conviction, are to be determined.</p>

In July, 1866, Dowell & Bowman, N. M. Florer, and' sundry other parties, severally instituted suits, in the Superior Court of Cincinnati, under the water-craft law,, against the Steamboat Melnotte. Under warrants issued in these suits the boat was seized, and subsequently judgments* were rendered on d efault.

At the January term, 1875, of the court below, the grand jury presented an indictment, containing three counts, against the plaintiff’. This indictment was signed at the end thereof by A. Kraemer, assistant prosecuting attorney* Ottawa county, Ohio, and was indorsed “ a true bill ’.by Ohalon Gordon, foreman of the grand jury. The first count charged the offense of maliciously stabbing with intent to kill, under the 24th section of the crimes act.

At the June term, 1874, of the court, the plaintiff in error was tried and convicted of an assault with intent to commit a robbery upon the person of John Hughes, and sentenced to imprisonment in the penitentiary for three years, and to pay the costs of prosecution.

Court of Scioto county. The original action in the Court of Common Pleas of ■Scioto county was brought by Crawford against Bell, to .foreclose a mortgage given to secure the payment of four promissory notes for the sum of $5,000 each. At the time suit was commenced, two of the notes had been paid. One was due and unpaid, and the fourth had not matured.

Andrew Kilgore executed to Richard Dempsey the note upon which this action was brought, of which the following is a copy: “ $7,000. Piketon, O., May 29, 1856. “ Two years after date I promise to pay to the order of Richard Dempsey the sum of seven thousand dollars, at the Bank of Pennsylvania, Philadelphia, with interest at the rate of ten per cent, per annum — the interest to be payable semi-annually, at the end of every six months from this date, at said bank.

Tbis was an action brought by tbe defendants in error, who are tbe lreirs at law of William Reed, against John Reed, tbe administrator. Tbe petition charges that tbe defendant some years previously, and when tbe plaintiffs were minors, bad procured tbe probate judge to sanction and approve a false and fraudulent settlement of tbe defendant’s accounts as such administrator, which fraud the plaintiffs bad only lately discovered.

<p>Under tlie act of April 12,1871, relating to ditches (G8 Ohio D. 66), no appeal is allowed from the decision of the commissioners of two or more counties establishing a ditch which is partly located in their respective counties. Under section 22 of the act, the finding of a majority of the commissioners of each county, when in joint session, that the ditch is necessary, and conducive to public health, convenience, or welfare, is final.</p>

<p>Error to the Common Pleas of Hamilton county.</p> <p>What we claim is that the act of May 7, 1869, is a law of a general nature, and being such must operate uniformly throughout the state; that by it the first section of the act of March 7, 1885, is repealed; that the highest punishment by way of imprisonment under the act of May 7, 1869, is thirty days; that the police court exceeded its jurisdiction inflicting a sentence of imprisonment for a longer time, and hence the sentence is void, and Yan Hagan should have been discharged on habeas corpus.</p> <p>The act of May 7, 1869, is a law of a general nature. Allbeyer v. The State, 10 Ohio St. 588; Cass v. Dillon, 2 Ohio St. 617; 1 Disney, Sup. Ct. of Cin. 205. And must operate uniformly throughout the state. Constitution, Art. 2, sec. 26; Kelly v. The State, 6 Ohio St. 269. It repeals the first section of the act of March 7, 1835. Nusser v. Commonwealth, 25 Penn. St. 126. Hence the sentence passed by the Police Court was in excess of its jurisdiction, and void for the whole. O’Neil v. People, 15 Michigan, 275; Elliott v. People, 13 Ib. 365; Ex parte, 49 Mo. 294. And the prisoner is entitled to be discharged on habeas corpus. Ex parte Shaw, 7 Ohio St. 81.</p> <p>If the proceedings had been by a' writ of error, the sentence would have been reversed, but the case could not have been remanded for sentence, nor could the court, reversing the sentence, have passed a proper one; the prisoner would have been entitled to his discharge. Where the sentence imposed by an inferior court upon a prisoner is an excess of authority, and therefore unlawful, the Superior Court can not substitute for such sentence a lawful one; and if there is no error, except in the judgment, there can be no new trial; nor can the court below give a second judgment; hence, the prisoner must be discharged unless the execution of the sentence has been suspended pending the proceedings in error. King v. Ellis, 5 Barn. & Cres. 395; King v. Bonne, 7 Adol. & El. 58; Elliott v. People, 13 Mich. 365; O’Neil v. People, 15 Mich. 275; Picket v. The State, 22 Ohio St. 405.</p> <p>On error the prisoner must have been discharged, for to pass another sentence would be to punish twice for the same offense, ho having been imprisoned for thirty days. Ex parte Lange, 18 Wallace, 163. The court should discharge the prisoner on habeas corpus. Feeley’s case, 12 Cush. 598.</p> <p>I. Repeals by implication are not favored in law, and the statutes in question here indicate no legislative intent to repeal. Dodge v. Gridley, 11 Ohio, 178; Cass v. Dillon, 2 Ohio St. 607; Hall v. The State, 20 Ohio, 7; Raudebaugh v. Shelley, 6 Ohio St. 307; Fosdick v. Perrysburg, 14 Ohio St. 485; Brown v. County Commissioners, 21 Penn. St. 43.</p> <p>II. Section 26, article 2, of the constitution, is prospective in effect, and not retroactive, with reference to the time of the adoption of the constitution. Cass v. Dillon, 2 Ohio St. 607: Allbeyer v. The State, 10 Ohio St. 588; Fosdick v. Perrysburg, 14 Ohio St. 485.</p> <p>III. Petitioner has mistaken his remedy. If entitled to relief at all, his proceeding should be in error, and not habeas corpus.</p> <p>The police court of Cincinnati has jurisdiction to try cases of petit larceny, and petitioner stands committed for that offense. Vide Municipal Code, Walker’s ed., secs. 166-181; Dillingham v. State, 5 Ohio St. 280-282; Ex parte Scott, 19 Ohio St. 581; Ex parte John Kellogg, 6 Vt. 509-511; Ex parte James McGehan, 22 Ohio St. 442; Le Grange v. Ward, 11 Ohio, 257-261; In re Harris, 47 Mo. 164.</p>

<p>1. A forged instrument was in the following terms: “Akron, May 2,1874. Mr. Schroeder: Please let Mr. Borswick have his clothes, and I will hold his pay till next Tuesday, and will see that paid for. — J. Butler.” Held: That such instrument may bo described in an indictment as an “order for the delivery of goods and chattels” within the meaning of the statute.</p> <p>2. The word “value,” in section 93 of the code of criminal procedure, is used in that section in the sense of “effect,” “import,” and not in the sense of “ worth in money.”</p> <p>3. On the trial of a defendant, charged in an indictment with having forged such instrument, where evidence has been given tending to show that the defendant was not present when the forged instrument was made, it is error for the court to refuse to instruct the jury that if it be found by them that the defendant was not so present, he can not be convicted of the offense charged in the indictment; or to instruct the jury that if it be found that the forged instrument was made by another person, by the procurement of the defendant, although he was not present at the forgery, he might be convicted of the offense charged in the indictment.</p>

<p>Motion for allowance of a writ of habeas corpus.</p>

The plaintiffs in error were jointly indicted, tried, and convicted of the crime of procuring one Baish to commit the crime of arson. Several matters were assigned for error, all of Avhieh have been determined by the court against the plaintiffs in error. The only question deemed of sufficient importance to report, is fully stated in the opinion.

The original action was commenced on the 9th day of October, 1872, in the Court of Common Pleas of Cuyahoga county, by Jane Dawson, against • James ~W. Dawson and Martin D. Dawson and their sureties, on the bond given by said James and Martin to secure the performance of their duties as executors of Robert Dawson, deceased. The object of the suit was to recover a legacy of a thousand dollars, bequeathed by the testator to the plaintiff.

<p>Error to the Superior Court of Cincinnati.</p> <p>The facts of this case are briefly these.</p> <p>Asbury Young being seized, by purchase, of the property now in controversy, died August 4,1861, without issue, and intestate. Hnder the statute of descents (April 17, 1857) then in force, the property descended to his wife and relict, Eliza Young, who held it until November 2,1868, when she died, intestate, and leaving no issue nor husband surviving her.</p> <p>The plaintiffs, who are her brother and sisters, or their representatives, became possessed of the property, and brought this action to be quieted against the title 'claimed by the defendants, who are the brother and sisters of Asbury Young, from whom it had thus descended. Their petition, setting out these facts, was dismissed, on demurrer, the defendants being held entitled to the inheritance under paragraph 5 of section 1 of the statute of descents, as amended March 4, 1865, as brother and sisters of the ancestor from whom it descended to Eliza Young.</p> <p>To reverse this judgment the present petition in error is prosecuted.</p> <p>I. This case can not be distinguished from Brower v. Hunt, 18 Ohio St. 311, except that in that case the intestate died before, and in this case the intestate died after. the amendment of March 4, 1865. S. & S. 304. That amendment simply incorporates into the first section of the statute of descents certain additional provisions, none of them applicable to cases like this, in which the persons intended to be benefited by such additional provisions can, from the nature of the case, have no existence. Of course, the legislature never intended, by these additional provisions, to give the statute a new meaning in cases to which they can never, by any possibility, be applied. It is impossible to decide this case against the plaintiffs without overruling Brower v. Hunt.</p> <p>II. The statute has always divided estates, for the purposes of descent, into two classes. The words “ from any ancestor,” although they do not appear in the second section, are clearly implied. This is clear from the fourth section, which refers to the second as prescribed for estates “ which came not by descent, devise, or deed of gift from any ancestor.” The second section covers all estates not described in and covered by the first. Little v. Lake, 8 Ohio, 289; Brewster v. Benedict, 14 Ohio, 368; Penn v. Cox, 16 Ohio, 32; Birney v. Wilson, 11 Ohio St. 433; Brower v. Hunt, 18 Ohio St. 311.</p> <p>The distinction between these two classes of cases is that between estates which came to the intestate by right of blood, and estates which came to the intestate otherwise than by right of blood.</p> <p>III. This appears both from the history and the structure of the statute. In the earlier history of the statute, as at common law, there was no descent except by right of blood. In 1824, the statute provided for the vesting of the estate in the husband or wife, relict of the intestate, in default of any kindred of the intestate. This was the first provision for the vesting of the estate in .one not of the blood of the intestate. An estate which passed from husband to wife by virtue of this provision, descended from the wife, not as ancestral, but as non-ancestral property. Little v. Lake, 8 Ohio, 289 ; Penn v. Cox, 16 Ohio, 32; Birney v. Wilson, 11 Ohio St. 433.</p> <p>In 1857, the law was amended. What was the innovation? Not that it provided for the vesting of an estate of inheritance in one not of the blood of the intestate, for that had been provided for by all the legislation of the state since 1824. The change was simply this : That, while prior •to 1857, all the kindred of the intestate had been preferred to the relict husband or wife, in the amendment of 1857 the relict husband or wife is .preferred to some of the kindred of the intestate. This was the only change, and it was made, as Judge Matthews conceded in his able argument on the other side of this question, in Brower v. Hunt, “ without a critical adjustment of the new and old parts of the law, perhaps without full foresight of the necessary effects it must work; but certainly without any intention to obliterate the long-established difference between ancestral property and that acquired by purchase.”</p> <p>Here we may refer to the rule of construction stated in Conger v. Baker, 11 Ohio St. 13.</p> <p>IV. The word “ ancestor,” when this statute was first framed, meant, at common law, and in the statute, any one from whom an estate descended (or might have descended) by act of law and night of blood. There is no such fixed connection, or correlation between the words “ ancestor,” “ descent,” and “ heir,” that if the meaning of one be changed, all must change. If Eliza Young took the estate of her husband by “ descent,” there are two kinds of descent— descent by right of blood, and descent otherwise than by right of blood. If she took it as “ heir,” there are two kinds of heirs. But it does not follow that there are two kinds of “ ancestors.” The legislature continued to use that word in the sense in which it had always been used, as meaning one from whom the estate came to the intestate by act of law and right of blood. Wharton’s Law Diet., tit. Ancestor; Springer v. Fortune, 2 Handy, 56. The court will not assume that the legislature intended to change its meaning because the sense of some other word may have varied. Turney v. Yeoman, 14 Ohio, 218.</p> <p>V. The first section is clearly formed upon the idea that there shall be a community of blood between the ancestor and the intestate; that both shall have descended from the same stock. Brower v. Hunt, 18 Ohio St. 340.</p> <p>The requirement of the first section, that the estate of the intestate “ shall descend to his or her kindred,” shows that the legislature intended that all the persons described in the succeeding paragraphs, should be kindred of the intestate, and it excludes from the operation of that section all persons who are not his or her kindred.</p> <p>VI. The words “ kin” and “ kindred” are treated both by lexicographers and lawyers as synonymous. Clayton v. Drake, 17 Ohio St. 371, et seq.; 4 Kent’s Com. 439 (394); 2 Black. Com. 504, 505 ; Webster’s Dictionary. That they mean, in the statute, descendants from the same stock, is clear from the frequency with which the word “ consanguinity” is used in the sixth, eighth, and twelfth sections.</p> <p>After Asbury Young’s decease, there was no relationship or connection between his widow and the brothers and sisters of her deceased husband, either by consanguinity or affinity. Birney v. Wilson, 11 Ohio St. 431; 1 Bish. on Mar. and Div., sec. 314, and note; Tyler on Inf. and Coverture, 839. The word “kindred” can not, upon any valid rule of construction, be disregarded,, or its meaning varied. Allen v. Parrish, 3 Ohio, 193 ; Bloom v. Richards, 2 Ohio St. 402; Turney v. Yeoman, 14 Ohio, 218.</p> <p>VII. The position of defendant’s counsel, that “ for all legal purposes of descent, marriage is kinship,” is a two-edged sword. If the brothers and sisters of Asbury Young are “ kindred in law” to his widow, her brothers and sisters are “kindred in law,” — “of the blood of” — Asbury, and as such entitled to the estate, under the third clause of the first section.</p> <p>VIII. If the estate should descend according to the first section, the proper construction of that section would require it to pass to the plaintiffs under the third clause.</p> <p>The first claus^, casting the descent upon the children of the intestate, who can not, in a case of this kind, be of the blood of the “ ancestor,” and the closing paragraph of the fifth clause, show that tljere is no intention on the part of the legislature that the estate shall, in every case, vest in the blood of the ancestor.</p> <p>The statute prefers the 'brothers and sisters of the whole blood of the intestate to those of the half-blood (see second section), except when, in ancestral estates, both are in the same degree of consanguinity to the ancestor.</p> <p>If the brothers and sisters of the whole blood of the i ntestate could not take under the third clause, they would be nowhere specially provided for, and the effect would be to prefer brothers of the half-blood to the relict of the intestate, and to postpone the brothers of the whole blood to all classes, permitting them to come in only under the designation of “ next of kin^I at the bottom of the list.</p> <p>Such was not the intention of the legislature. They intended, in the third and fifth clauses, to provide for all the brothers and sistfers of the intestate, both of the whole and half blood, and in the third clause, to prefer the brothers and sisters of the intestate of the whole blood, in every "case, to all the classes specified in the succeeding clauses.</p> <p>The yords “ who may be of the blood of the ancestor from whom the estate came,” in the third clause, were used only to exclude from the operation of that clause, brothers and sisters of the half-blood of the intestate not of the blood of the ancestor, and they should be restricted to that use, and should not be made to defeat the manifest intention of the lawgiver.</p> <p>IX. We mention the following as a few of the many absurdities and inconsistencies developed by an attempt to apply the first section, as construed by the defendants, to cases of this nature.</p> <p>1. The children of the intestate are first in the order of preference, although in such a case they must necessarily be, not of the blood of the “ancestor,” but the issue of an earlier or later marriage. Yet defendants claim this estate on the theory that the brothers and sisters of the intestate are excluded from the operation of the third clause because not of the blood of the ancestor.</p> <p>2. Notwithstanding the requirement of this section, that the estate of the intestate “ shall descend to his or her kindred,” the brothers and sisters of the ancestor are second in the order of preference in cases of this kind, although not of the blood of the intestate.</p> <p>8. Notwithstanding the second section of the act prefers the whole to the half-blood of the intestate, and notwithstanding the brothers and sisters of the whole blood of the intestate are excluded because not of the blood of the ancestor, the brothers and sisters of the half-blood of the intestate not of the blood of the ancestor are third in the order of preference in cases of the nature of this.</p> <p>4. Fourth in the order of preference in such cases (under the third section of the act), and preferred to the brothers and sisters of the whole blood of the intestate, is the relict of the intestate, successor to the “ ancestor” husband or wife, and of the blood of neither ancestor nor intestate.</p> <p>5. Last in the order of preference are the “ next of kin” of the intestate not of the blood of the ancestor, under which designation the brothers and sisters of the whole blood of the intestate must take, if at all.</p> <p>Many other absurdities might be specified. Are not these enough ? That interpretation of the statute should be preferred which will avoid such absurdities. “ The law-maker must be presumed to have intended to be consistent with himself throughout.” State v. Blake, 2 Ohio St. 151.</p> <p>X. The statutes of adoption are considered by the defendants’ counsel to have an important bearing on the question at issue. These statutes were discussed in Brower v. Hunt, 18 Ohio St. 323, 341, 342.</p> <p>The statutes of adoption make the adopted heir, in contemplation of law, -of the blood of the adopter. Descent from adopter to adopted is, in legal effect, descent by right of blood. No absurdity can arise in such a case that would not arise if the adopted heir were- in fact of the blood of the adopter. The effect of each clause of the statute is to be determined by considering who would take the estate if the adopted heir had been the child of his adopter, “ born in lawful wedlock.”</p> <p>I. The construction in Hunt v. Brower, 18 Ohio St. 311, was upon the statute of 1857, and therefore not decisive of this case, which is governed by the amended acts of 1862 and 1865. S. & S. 304, 306.</p> <p>The court, in holding that the first section of the act of 1857 did not apply to the case of a descent from husband to wife, seem to have been mainly influenced by the consideration that otherwise, under the terms of that act, all collateral relatives of the intestate would be disinherited, as not of the blood of the ancestor, and those of the ancestor would be excluded because not of kindred to the intestate. Thus escheats would happen, though numerous kindred on both sides might exist. To avoid this, the first section of that act was construed to apply only where the intestate had inherited the estate in right of blood.</p> <p>But the amendments of 1862 and 1865, especially the former, have removed all difficulty. Ancestral estates are made inheritable, not only by any relative of the intestate, but by connections having no trace of the blood either of the ancestor or intestate.</p> <p>II. The question, therefore, is open, whether the first section of the statute of descents, as modified by these changes, will not extend to any case in which the estate has come to the intestate by inheritance, whether in right of blood or not. We submit that such must be the construction, by reason of other legislation, in pari materia. The acts of April 29, 1854, and March 29, 1859 (1 S. & C. 509), providing respectively for “ designating an heir” and “adoption of children,” merely clothe these new classes of heirs with the legal capacity of children of the declarant or adopter. They do not confer any estate, or prescribe any inheritance or course of descent. As to all that, these, like other heirs, are remitted to the statute of descents. They simply fix the status of the designated heir or adopted child, as that of a child of the vicarious parent. “ The rules of inheritance, it is expressly provided, shall be the same as if so born.” Any estate, therefore, descending to such heir from such ancestor, must, in the event of his dying intestate and without issue, go back to the kindred of such ancestor, and not to the kindred of the blood of such intestate.</p> <p>The decisive point is that this must be accomplished by and through the first section of the statute of descents. Whenever the case arises, this section must be applied to any estate thus descending to a designated or adopted heir who has died intestate and without children. And the ancestral principle will have to be enforced by wholly excluding the blood of the intestate.</p> <p>How can it be maintained, then, that the terms of this section will not admit of being applied where the estate has descended otherwise than in right of blood, and that no one can inherit under its provisions unless of a common blood with both the intestate and the ancestor?</p> <p>The postulate of the argument for plaintiffs is that there can be no inheritance under this section when there was no consanguinity between the ancestor and the intestate. But the statutes just referred to repel such a construction, show-mg that the legislature contemplated no such restriction. Nor is the argument answered by saying that these are special exceptions; for the question throughout, it must be observed, is only as to the capability or scope of the terms employed in the first section of the statute of descents. If they eaxi apply in the case of descents to a designated heir or adopted child having no community of blood with the ancestor, why not as well to a descent from. husband to wife ? The status of the latter, in the course of descents, is as clearly designated as that of the former; and as to the anomalous consequences supposed to follow from treating extraneous heirs as part of the common family, they are no more formidable as to husband and wife than in the inevitable case of adopted heirs. “ To avoid absurdities, we are to reflect that all rules of succession to estates are creatures of civil polity and jurisdiction merely.” 2 Black. Com. 211.</p> <p>III. If consanguinity were the exclusive test, the husband or wife must be disinherited as to ancestral property in all cases where they are not relatives. Thus the wife’s relatives are here claiming to' succeed by a construction which would cut off the wife herself. It is said that the ease of husband or wife is made exceptional. But the statute does not so say. Nor can it be argued from the fact that they do not take an “ estate of inheritance ” these words in the text have no such purpose; They denote the subject-matter of the entire section, not the tenure or interest which either class, under it, takes.</p> <p>IV. The theory that the estate cast by the statute upon the husband or wife is not a “ descent,” and therefore does not create, as between them, the relation of ancestor and heix*, assumes that there is no title by descent in Ohio, save by right of blood, but is not warranted by any statute or decision. It grows out of prepossessions bred by the familiar canon of the common law of England. But the Ohio system of descexxts is xxot of common-law origin, which is essentially feudal. Cliver v. Sanders, 8 Ohio St. 501, 507; Drake v. Rogers, 13 Ohio St. 21, 35. The difference is radical. “By the common law,” says Coke, “'he is only heir who succeeds by right of blood.” Co. Lit. 237a. But ours partakes more of the type and analogies of the Roman law, where the scheme of the family and of successions embraced all the relations of blood, marriage, and adoption.</p> <p>At first, descents in Ohio were based exclusively upon blood relations; but in 1824 the intestate’s husband or wife was admitted as heir, if there were no surviving kindred of the blood, and in 1853 was advanced to a life estate if there were no child. In 1854, the designated’ heir was put upon equality with children. By the act of 1857, the husband or wife, if there was no child, took the entire estate when acquired by purchase, and a life estate in ascestral property. In 1859, the adopted child, like the designated heir, was let in, to the exclusion of all heirs by blood or marriage, except children; and now, by the act of 1862, connections merely nominal are incorporated into the course of descents and kindred.</p> <p>Through all these changes the operative terms used in the statute have remained nearly the same as in the first act, passed in 1805. Unquestionably, so long as heirship consisted in consanguinity only, the words ancestor, descent, and kindred denoted that tie; but when new members, by marriage and adoption, were thus step by step in-grafted with blood relatives as heirs in a common stock and patrimony, the same terminology being preserved, is it not equally unquestionable that these words acquired a new and expanded sense? Nevertheless, the coincidence between heirship and blood, which was the work of legislation merely, is now insisted upon as though established by some law superior to all these changes.</p> <p>Every estate which the law casts, immediately atthe death of the owner, upon another, is by descent. He who takes is heir. He from whom it passes is ancestor. Brewster v. Benedict, 14 Ohio, 385; Penn v. Cox, 16 Ohio, 30; Curren v. Taylor, 19 Ohio, 36; Prickett v. Parker, 3 Ohio St. 394. Judge Peck was constrained by these authorities to admit, in Birney v. Wilson, 11 Ohio St. 426, that it had becomé “ the settled law of Ohio that the word ancestor, as used in our statutes of descent, means any one from whom the estate was inheritable by the intestate.”</p> <p>Little’s Lessee v. Lake, 8 Ohio, 290, has been construed as deciding that the estate derived by a wife from her husband, under the act of 1824, was non-ancestral. It does not appear that the point was raised. The decision was that the estate acquired by an illegimate son, who survived his mother, did not, upon his dying intestate and without issue, pass to his mother’s kindred, under the provisions of the statute respecting bastards. As there was no possible claimant on the ancestral side, the estate was awarded to the heirs of the wife, this being, as the court expressly said, “ the contingency upon which the widow becomes heir.” The inference that the court must have regarded it as non-ancestral is irreconcilable with this intimation. It is much more probable that literal effect was given to the broad phraseology in favor of “ brothers and sisters” of the intestate, in this act of 1824 — a peculiarity which continued until the act of 1865.</p> <p>Nothing in the statute, nor in any parallel legislation, places inheritance by marriage upon any different footing from inheritance by blood or adoption. For all purposes of descent it treats marriage as. kinship, and contemplates all heirs, by whichsoever of these modes related, as of equal worth and excellence in their several degrees.</p> <p>In this case, therefore, the estate descends from Asbury Young; as ancestor, to Eliza Young, as his heir, and under the express terms of the first section of the statue, ought to go to his brothers and sisters, who were her kindred in law, in this ancestral relation, no matter what absurdities might happen in some other remote case. Upon no principle consistent with the well-defined line between the first and second sections of this statute, can the brothers and sisters of the ancestor, from whom this estate descended to the intestate, be ousted by persons not of the ancestral blood.</p> <p>V. It was declared in Brewster v. Benedict, and has ever since been steadily maintained, as the intent and policy of the Ohio system of descents, that as to property which came to the intestate in the regular course of descents, the blood of the ancestor was to be regarded, but the blood of the intestate as to that which he acquired by his industry. It is a policy about which there is no uncertainty, and founded upon a principle deeper than legislation. In obedience to a law of human nature, it confirms ancestral property to the family from which it came, or, as said by Swan, J., in Cliver v. Sanders, 8 Ohio St. 508, “ the statute, in disposing of ancestral estates, would, as we think it has done, respect the natural wishes of the ancestor from whom the estate came, and devolve it upon the half-blood of the ancestor rather than upon strangers in blood.”</p> <p>Under these clearly announced expositions of the statute, which has so long and steadily upheld the distinction between the course of ancestral and non-ancestral property, how can it be inferred that the legislature designed to create an anomaly in the case of a descent to husband or wife ?</p>

<p>Error, to tbe Court of Common Pleas of Hamilton county.</p> <p>George Rufer and Andreas Egner (together witb one Ered Egner), having been jointly indicted for tbe murder of Herman Schilling, were, at tbe January term of tbe Court' of Common Pleas of Hamilton county, separately tried and convicted of murder in tbe first degree. Tbe following iff a copy of tbe indictment: “ Tbe grand jurors of tbe county of Hamilton, in the name and by tbe authority of tbe State of Ohio, upon their oaths and affirmations present that Andreas Egner, Ered Egner, and George Rufer, on tbe seventh day of November, in tbe year eighteen hundred and seventy-four, witb force and arms at tbe county of Hamilton aforesaid, in and upon one Herman Schilling then and there being, did unlawfully, willfully, purposely, and feloniously, and of deliberate and premeditated malice, make an assault in a menacing manner, with intent him the «aid Herman Schilling unlawfully, purposely, willfully, feloniously, and of deliberate and premeditated malice, to kill and murder, and with a certain club and pitchfork which they, the said Andreas Egner, Ered Egner, and George Rufer, in their hands then and there had and held, they, the said Andreas Egner, Ered Egner, and George Rufer, with the club and pitchfork aforesaid, him the said Herman Schilling, in and upon the head and body of him, the said Herman Schilling, then and there unlawfully, purposely, willfully, feloniously, and of deliberate and premeditated malice, did beat, bruise, strike, and penetrate, with the intent aforesaid, thereby then and there giving to him, the said Herman Schilling, in and upon the head and body ■of him, the said Herman Schilling, several mortal wounds ■of the length of three inches and of the depth of six inches, of which said mortal wounds he, the said Herman Schilling, then and there at the time aforesaid, and at the county ■of Hamilton aforesaid, died; and so the jurors aforesaid,” etc.</p> <p>The further statement of the cases, necessary to an understanding of the points decided, will be found in the opinion.</p> <p>I. Rufer, on his trial, had testified that on the night of the murder he had been discharged from his employment, and that on the same night Egner had informed him that Schilling was the cause of his discharge.</p> <p>It was error in the court, on the trial of Egner, to admit testimony as to what Rufer had said when on the stand in his own behalf, and when Egner was not present. This declaration of Rufer was not admissible to prove the body ■of the crime against Egner, or the existence of an alleged conspiracy between Rufer and Egner to kill Schilling.</p> <p>On the trial of a party charged with crime, evidence of the declarations of a conspirator with the accused for the ■commission of such crime, when made in the absence of ■the accused, is not admissible against him to prove either the body of the crime or the existence of the alleged conspiracy, unless they either so accompany the execution of the common criminal intent as to become a part of the res gesta, or in themselves tend to further the execution of the common criminal intent. Clawson v. The State, 14 Ohio St. 234.</p> <p>Surely, this was not the case as to the declarations of Rufer. They were merely narrative of a past occurrence, and as such are not admissible, even to show malice on the part of Rufer against Schilling, so as to raise the presumption that he and Egner conspired to kill Schilling. Patton v. The State, 6 Ohio St. 467.</p> <p>Admitting that a conspiracy between Egner and Rufer was proved, the declaration of Rufer, having been made after the conspiracy was at an end, is not evidence. 56 N. Y. 95; 6 A. & E. (N. S.) 126; 49 N. H. 39; 3 Daly, 136; 13 Ired. 63.</p> <p>II. The state had introduced witnesses who testified that, some time prior to the murder, Egner and his son came to the place where the deceased was at work, and made an unprovoked attack upon the deceased, and made certain threats against him. The defense offered the defendant, Andreas Egner, for the purpose, among other things, of showing the nature and cause of the said attack, and explaining the same, and thereby showing to the jury that such difficulty was in no way indicative of malice. This was objected to by the prosecuting attorney, and the objection was sustained by the court. In this the court erred. Janvrin v. Fogg, 49 N. H. 340; 11 Am. Law Reg. (N. S.) 268; 12 Ib. 118; Dolan v. Fagin, 63 Barb. 73.</p> <p>III. The indictment should have contained an allegation that the wounds were given with a design to produce death. Hagan v. The State, 10 Ohio St. 459.</p>

<p>1. In the construction of a will, the sole purpose of the court should he to ■ ascertain and carry out the intention of the testator.</p> <p>2. Such intention must he ascertained from the words contained in the will. ■</p> <p>3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear ■ from the context that they were used by the testator in some secondary sense.</p> <p>4. All the parts of the will must he construed together, and effect, if pos- - sible, given to every word contained in it.</p> <p>6. If a dispute arises as to the identity of any person or thing named in the - will, extrinsic facts may he resorted to, in so far as they can he made • ancillary to the right interpretation of the testator’s words, hut for no other purpose.</p>

<p>Motion for leave to file a petition in error.</p> <p>The contract between the parties was substantially as follows: Van Nest, who is a carriage-maker, agreed with Shawhan, on the 1st of August, 1871, that for the sum of seven hundred dollars, he would furnish the materials and make for Shawhan a two-seated carriage in accordance with his directions, and.have the same completed and ready for delivery at Yan Nest’s shop on the 1st day of October following, in consideration of which Shawhan agreed to accept the carriage at the shop, and pay Yan Nest the contract price for it.</p> <p>In his petition in the Court of Common Pleas, Yan Nest set out the contract in terms, and averred that he had complied with it in all respects on his part, and that on the 1st of October, 1871, he tendered the carriage to Shawhan at' his shop, and requested him to accept and pay for it, which he refused to do. Judgment was asked for the contract price, with interest. The answer denies each and every allegation of the petition.</p> <p>On the trial, the evidence established the contract and other allegations of the petition, and also showed that the-plaintiff was still keeping the carriage subject to the defendant’s order.</p> <p>The court instructed the jury that if they found the issues for the plaintiff, they should give him a verdict for the contract price of the carriage, with interest from the time the money should have been paid. To the charge thus-given, no exceptions were taken; but Shawhan, by his counsel, requested the court to give to the jury the following special instructions:</p> <p>1. “ If, in this case, the evidence shows that the defendant ordered the plaintiff to make for him a carriage, and agreed to take or receive it, when finished, at the plaintiff’s-shop, and to pay a reasonable price therefor, and the plaintiff did, in pursuance of such order and agreement, make such carriage of the value of seven hundred dollars, and have the same in readiness for delivery at his shop, of which the defendant had notice; and the defendant then failed,, neglected, and refused to take, receive, or pay for said carriage, though requested so to do by the plaintiff, these will not authorize you to render a verdict for the plaintiff for the price or value of the carriage.”</p> <p>2. “ If the plaintiff has proved the making of the carriage for the defendant, and the refusal of the latter to receive and pay for it, as alleged in the petition, then he can only recover for the damages or losses he has actually sustained by reason of this refusal of the defendant, which is the difference between the agreed price and the actual value.”</p> <p>These instructions the court refused to give, and Shawhan excepted.</p> <p>The jury found for Yan Nest, and gave him the contract price of the carriage, with interest.</p> <p>Shawhan moved to set aside the verdict, and for a new trial, on the ground that the court erred in refusing to give the instructions requested. Which motions were overruled by the court, and he excepted; and judgment was entered on the verdict for the plaintiff.</p> <p>The case was taken to the District Court on error by Shawhan, where the errors assigned and relied on were that the Court of Common Pleas erred in refusing to give to the jury the special instructions above set forth. The District Court affirmed the judgment of the Common Pleas. 'Shawhan now moves this court for leave to file a petition in error to reverse the judgment of the District Court, on the ground that it erred in affirming the judgment of the ■Common Pleas.</p> <p>The measure of damages in a case like this, is the loss sustained by the vendor on account of the failure of the vendee to accept and pay for the property which was the subject of the contract. If the plaintiff’s theory, that the measure of damages is the price of the property, is correct, it must be because such a contract as that set forth in the petition vests the title of the property contracted for in the defendant, and passes it from the plaintiff. But the contract set forth in the petition was merely executory, and the petition avers there was no delivery or acceptance of the goods; so no title did or could pass to the purchaser. Ormsby v. Machir § Renick, 20 Ohio St. 295; Downer v. Thompson, 2 Hill, 137; Hague v. Porter, 3 Hill, 141; Moody v. Brown, 34 Maine, 107; 10 Bing. 512; Atkins v. Bell, 8 Barn. & Cres. 277; Benjamin on Sales, 215; Allen v. Jarvis, 20 Conn. 37; Lang on Sales, 476, and eases cited; Nixon v. Nixon, 21 Ohio St. 114; Doolittle v. McCullock, 12 Ohio St. 360; Sedgwick on Damages, 43; 5 Serg. & Rawle, 17;. 5 American R. 478; 11 Am. Law Reg. (N. S.) 271; Jones v. Patton, 3 Ind. 107.</p> <p>The recovery should he for the contract price. Eor the-rule when an article is bargained and sold and not delivered, the court is referred to Swan’s Treatise (9 ed.), 590; Sadly v. Pugh, Wright, 554; Story on' Sales, sec. 314; Sedgwick on Damages, 280; Story on Contracts, see. 845 ;. 3 Parsons on Contracts (ed. 1873), 208, 209; 1 Parsons on Contracts, 535; Dustan v. Me Andrew, 44 N. Y. 72. Eor a mechanic’s remedy, who makes an article to order and his-customer refuses to receive it, see Bement v. Smith, 15 Wend. 493; Thompson v. Alger, 12 Met. 428.</p> <p>These authorities establish the right of Van Nest to treat the carriage as his own, or as Shawhan’s. If he elects to-keep it, he may do so, and sue for the difference between the agreed price and the value. If he chooses to consider1 it as Shawhan’s, he may do so; resell it, and sue for the difference between the value and the agreed price, or hold it subject to Shawhan’s order, and sue for the price. The-universal rule, that those who make contracts must perform them, unless legally excused, should be ‘ applied to-this case.</p>

<p>1. Under the amendatory act of April 18, 1870 (67 Ohio.L. 113), husband and wife are competent witnesses for and against each other, except as to communications made by one to the other, and acts done by one in. the presence of the other during coverture, and not in the known presence of a third person.</p> <p>2. And the act is applicable to cases pending and causes of action existing' at the time of its passage, notwithstanding the provisions of the act of February 19, 1866 (S. & S. 1), declaring the effect of repeals and amendments.</p> <p>3. Evidence that a third person was present, and known to be present, at' the time of making such communications, or doing such acts, is for the' court and not for the jury, and, on error, will be presumed to have been given to the court, unless the contrary appears.</p> <p>4. Where a motion is made to exclude the entire testimony of a witness,. part only of which testimony is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule the motion.</p> <p>5. Under the act of May 1, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the separate property of the wife is primarily liable, as between her and the husband, for the satisfaction of judgments recovered in actions brought against them upon causes existing against her at their marriage; and the husband, when compelled to pay any such judgment, becomes, in equity, a creditor of the wife to the amount paid, and entitled to charge the same upon her separate property, and for" that purpose to set aside fraudulent conveyances thereof made in contemplation of marriage.</p> <p>6. A creditor may avoid or set aside a fraudulent conveyance of his debtor’s property for the satisfaction of his debt, without first exhausting the debtor’s other property, or showing that the debtor has no other property liable to be taken.</p>

<p>Motion for leave to file petition in error.</p> <p>The action in the Superior Court of Cincinnati was brought by the defendant in error, as administrator of Robert J. Harris, deceased, against Henry Grotenkemper ;and others, plaintiffs in error, to recover damages under the statute, for wrongfully, negligently, and carelessly causing the death of the deceased.</p> <p>The statute reads as follows:</p> <p>“ Sec. 1. That whenever the death of a person shall be •caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action ■and recover damages, in respect thereof; then, and in every ¡such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to .-an action for damages, notwithstanding the death of the person injured, and although the death shall have been •caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter'.</p> <p>“ Sec. 2. Every such action shall be brought by and in •the name of the personal representatives of such deceased person, and the amount recovered in every such action shall he for the exclusive benefit of the widow and next of kin ■of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal estates left 'by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, with reference to the pecuniary injury resulting from such death to the wife ;and next of kin to such deceased person.”</p> <p>The plaintiffs in error (defendants below), at the time of "the accident-which caused the death of Robert J. Harris, were the owners and engaged in managing and operating .an inclined plane tram-way in Cincinnati, which they had ■constructed and were using for the purpose of private gain.</p> <p>A car loaded with stone, through the alleged carelessness, negligence, and default of defendants, broke from its cable near the top of the inclined plane, and running down the tram-way with great velocity, at the foot struck a bumper with such force that the stones were thrown in all directions, one of which struck and killed the deceased, who was between four and five years of age, and left two sisters and a brother older than himself, for whose benefit the action was prosecuted.</p> <p>The jury found for the plaintiff below.</p> <p>A motion for a new trial was overruled, and exceptions saved by defendants below.</p>

<p>Motion for leave to file a petition in error to tbe District Court of Licking county.</p> <p>On tbe 27th day of December, 1873, tbe defendant in error commenced an action in tbe Court of Common Pleas, of Licking county, against tbe plaintiffs in error, to enjoin them from proceeding in an action then pending in Ohio county, in tbe State of West Virginia, wherein tbe plaintiffs in error were plaintiffs, and the defendant in error was defendant, to subject tbe earnings then due to him from tbe Baltimore and Ohio Railroad Company for services rendered as tbe conductor of a freight train of tbe company, to the payment of tbe amount due on a judgment recovered by tbe plaintiffs in error against tbe defendant in error, before a justice of tbe peace of Newark township, in tbe said county of Licking, for tbe amount due on a promissory note, given by him to tbe plaintiffs in error, for tbe sum of eighteen dollars^ dated June 2,1866, and payable one day after date. A temporary injunction was allowed, and tbe allowance thereof duly indorsed on tbe summons issued in tbe action.</p> <p>It is averred in tbe petition that tbe parties to these actions all reside in tbe city of Newark, in tbe county of Licking; that the defendant in error is tbe bead of a family; that tbe action pending against him in Ohio county, West Virginia, was commenced by tbe plaintiffs in error on the 28th day of November, 1873; that the process served upon .the railroad company requires it to answer as garnishee, on the 30th day of December, 1873 ; that the earnings sought to be subjected in the action to the payment of the judgment, are the earnings due to him for services rendered, the railroad company, as the conductor of a freight train on its road, during the months of October and November, 1873; that such earnings are necessary for the support of his family, and that the action is prosecuted against him by the plaintiffs in error in the State of West Virginia, for the purpose of evading the exemption laws of this state, and preventing him and his family from having the benefit thereof.</p> <p>On the 21st of August, 1874, a supplemental petition was filed in the action, of the filing of which the plaintiffs in ei'ror were duly notified, in which it is averred, that after the plaintiffs in error had been duly notified of the allow■ance of the temporary injunction, they, in disregard of the •order of the court, prosecuted their action then pending in 'Ohio county, West Vii’ginia, against the defendant in error, to final judgment, and received of the garnishee, the Baltimore and Ohio Railroad Company, $40.25, the full amount •of the judgment. The answer of the plaintiffs in eiTor .denies the averments of the original and supplemental petitions.</p> <p>The issues ai’ising upon the pleadings were found by the •court for the defendant in error, and a judgment was rendered in his favoi', against the plaintiffs in error, for the .amount received by them of the railroad company, with interest and costs.</p> <p>A motion for-a new trial was filed and overruled, to which ruling the plaintiffs in error excepted, and presented their bill of exceptions, which was allowed, signed, and •sealed by the court.</p> <p>The judgment of the Court of Common Pleas was afterward affiimed by the District Court, on a petition in ei’roi filed therein by the plaintiffs.</p> <p>The injunction should not have been allowed. U. S. Con., art. 4, sec. 2, construed in Corfield v. Coryell, 4 U. C. C. 380; 2 Parsons on Contracts, 100, and notes h and s; Ex parte Simeon Bushnell et al., 8 Ohio St. 599; Mead v. Merritt & Peck, 2 Paige, 402; Peck v. Jennings, 7 How. 612; Keating v. Spink, 3 Ohio St. 126; 31 Barb. 364.</p> <p>A court of equity will interfere, in a proper case, to prevent the prosecution of a suit in a foreign court when it has jurisdiction of the parties, Story’s Equity Jurisprudence, sec. 899; even after suit has been commenced in the foreign court, Engel v. Scheuerman, 40 Ga. 206; Dehon v. Foster,. 4 Allen, 545; and to secure to an individual the-benefit of the laws of the state in which he resides, Vail v.. Knapp, 49 Barb. 299; Dehon v. Foster, 7 Allen, 57.</p>

<p>Application for writ of mandamus.</p> <p>On the 20th of August, 1875, the common council of the «city of Cincinnati passed an ordinance levying a tax for municipal purposes, to be placed upon the duplicate for the year 1875, of sixteen mills on the dollar, and apportioning the same as follows:</p> <p>“For redemption park bonds, .02 mill; for general city purposes, 4.40 mills; for support of police department, 2.05 mills; for interest on city debt, 3.80 mills; for superior court, .10 mill; for support of fire department, 1.50 mills; for lighting the city, 1.20 mills; for support of workhouse, .20 mill; for sanitary purposes, .25 mill; for park purposes, .20 mill; for repairing and cleaning sewers, — ; for street-cleaning department, .78 mill; for redemption of city debt, 1.00 mill; for hospital purposes, .45 mill; for infirmary purposes, .40 mill; for house of refuge purposes, .15 mill. Total, 16.00 mills.”</p> <p>On the same day the council passed a separate ordinance, levying a tax of four mills on the dollar, “ to be placed on the duplicate for the year 1875, for interest on Southern Railway bonds.” These so-called “ Southern Railway bonds ” are bonds issued by the city under and by virtue of the act of May 4,1869, authorizing cities of a certain class to construct railways.</p> <p>Both of these ordinances were duly certified to the defendant, then and still being the auditor of Hamilton county, on .the 26th of August, 1875, by the city clerk; but the auditor refuses to place upon his duplicate the taxes so levied, on the ground that they exceed in amount the aggregate of sixteen mills on the dollar, the maximum amount allowed by law to be levied for municipal purposes, but is willing to place upon the duplicate a levy of sixteen mills; and the city now seeks by mandamus to compel the auditor to place upon his duplicate the whole amount so levied by the two ordinances, making in the aggregate twenty mills on the dollar.</p> <p>Does section 648 of the municipal code, as amended May 2,1871, fix the maximum of taxes at sixteen mills ?</p> <p>It would seem that the plain interpretation of this section as a whole, is that the aggregate of all taxes levied by authority of the council, for the several departments of the-city government, exclusive of the department of schools, shall not, with the taxes levied for general purposes, exceed sixteen mills.</p> <p>The taxes raised are to be distributed “ among the several departments, in such proportion to their needs as said council shall deem necessary.” Evidently the taxes spoken of are-those which may be levied or ordered at the discretion of council, and subject to its distribution. That this was the intentioxi of the legislature is shown by the exclusion of the-school tax, which, by subdivision 9 of section 641, must besueh a rate as may be prescribed by law, and by the power-given in subdivision 20 of section 644, to make a levy “ to-pay the interest on the public debt of the corporation, and to provide for a sinking fund for the same a sum sufficient to satisfy the same as it accrues annually, to be applied to-no other purpose.”</p> <p>Any other construction would be inconsistent with section 642, which provides that the limitations for the specified purposes shall not be construed to prohibit the levy of a tax to raise means for the payment of the interest and principal of the debts of the cox’poi’ation, nor of any tax authorized by law for special pux’poses. It would also nulify chapter 48 of the muxxicipal code, which authorizes a tax to create a sinking fuxxd, “ in addition to the other-taxes ” of the coi’poration. See Peck’s Code, 227-230, 237. Effect must be given to every part of a statute. State v. Blake, 2 Ohio St. 147-151; Medical College v. Ziegler, 17 Ohio St. 52, 64; Stone v. Elliott, 11 Ohio St. 252, 258 ; Messenger v. Pressler, 13 Ohio St. 255.</p> <p>A comparison of the fifth section of the act of April 80, 1862, “ prescribing the rates of taxation for state, county, township, city, and other purposes” (59 Ohio L. 72, 78),. as amended February 7, 1866 (63 Ohio L. 7), and May 14, 1868 (S. & S. 772), with chapter 41 of the municipal code,, will show that the limitation of section 648, as originally enacted, and as amended April, 1870, and May 2, 1871 (Peck’s Code, 229, and notes), should he construed to-apply only to levies for village and city purposes, and was not intended to include taxes for school and school-house purposes; nor for the payment of the principal and interest of the debt of the corporation; nor to prohibit special assessments on property for local improvement; nor any tax authorized by law for special purposes. See Butz v. Muscatine, 8 Wall. (U. S.) 575.</p> <p>2. The taxes for the interest and principal of the bonded debt of the corporation are not, legally speaking, levied or ordered hy the corporation or council. When a loan is-provided by means of bonds, they become the commercial obligations of the corporation, and without express enactment the authority to borrow carries with it the power and duty to tax for the payment of the interest as it accrues, and for the principal when due. White v. Railroad Co., 21 How. (U. S.) 575; Vermilye v. Express Co., 21 Wall. (U. S.) 138, 144; Gelpcke v. Dubuque, 1 Wall. (U. S.) 176; Mercer County v. Hacket, 1 Ib. 83; Loan Association v. Topeka, 20 Wall. (U. S.) 655. What is implied in a statute is as much a part of it as what is expressed. United State v. Babbit, 1 Black, 61; Butz v. Muscatine, 8 Wall. (U. S.) 581.</p> <p>In the case at bar the power and the duty are both expressed in the act of May 4, 1869 (66 Ohio L. 80), authorizing the levy for the Southern Railway, and in regard to-all bonds the municipal code and prior statutes are imperative as to the levies for payment of the principal and interest. If the council fails in its duty, the courts are authorized by the mandamus act of Eebruary 16, 1866, to levy the necessary tax. S. & S., 604. These taxes may therefore be said to be levied or ordered by the state.</p> <p>If the city is limited to sixteen mills in its levy, then the levy for interest and sinking fund of the municipal debt must be taken out of the sixteen mills, and the residue applied to other city purposes. Hence it is immaterial whether the Southern Railway bonds were issued before or after the act of May 2, 1871, limiting the rates of taxation. 68 Ohio L. 133 ; Peck’s Code, 223-229.</p> <p>1. A peremptory mandamus will not be issued on the relation of the city, until she shows, not only that she has powers of taxation, but that she has exercised those powers within the restrictions of form, time and substance, imposed by law.</p> <p>She must also show the auditor is required by law to place all taxes levied by her on the duplicate. Eor without these, she shows no clear, legal right. Code of Practice, sec. 572, 2 S. & C. 1127; State v. Yeatman, 22 Ohio St. 546; Constitution, art. 12, sec. 5, and art. 13, see. 6; 3.lays v. Cincinnati, 1 Ohio St. 268, 273 ; Supervisors v. United States, 18 Wall. 71, 77.</p> <p>The relatrix is not entitled to her writ if she has any other specific remedy at law. Has she such remedy ? Section 646 of the municipal code directs, if a levy of sixteen mills be not enough, she must apply to her electors for more money, at an election for that purpose. This, we think, is her remedy, and she is not entitled to a writ of mandamus to compel the auditor to put upon the tax duplicate a levy •she has no power to make without the sanction of her taxpayers.</p> <p>2. That in relation to taxation is this: By the act of May .2,1871 (68 Ohio L. 133), the relatrix can levy a tax of sixteen mills for city purposes. This tax levy she can certify to the auditor to place upon the tax duplicate. By this act she can certify no other tax levy to him to be placed on this duplicate, and there is no other law under which she can certify a tax levy to the auditor, nor is there any other by which he is required to place upon the duplicate any other tax levy for interest on city bonds.</p> <p>The act of May 4, 1869, authorizes a tax levy to secure the interest and sinking fund for the purposes specified therein. It gives no power _ to the relatrix to certify the ¡same to the auditor to place on his duplicate, nor to the treasurer to collect; and without a law, no such certificate can be made, nor can any such tax be placed upon the duplicate by the auditor, nor collected by the treasurer. The court can not supply these defects in this law. If the tax can be collected, it must constitute one of the components of the sixteen mills, authorized to be levied, certified to the auditor, placéd upon the duplicate and collected as other taxes are collected. Either of these points are sufficient to quash the writ of mandamus.</p>

<p>1. The proviso contained in section 539 of the municipal code, as amended April 12, 1873, does not affect the authority conferred on municipal corporations to raise by general levy the necessary amount of money to pay the cost and expenses of widening and opening streets. The object of referring in section 539 to section 583, is to enable the council, when it determines to make the improvements named in the proviso, by special assessment, to avail itself of the means provided by section 583 for executing the assessment.</p> <p>2. Taxes raised by general levy for the improvement of streets, are included in the aggregate amount of taxes, to the levying of which corporations are restricted by section 648 of the municipal code.</p>

<p>Error to tbe Court of Common Pleas of Ashland county.</p> <p>Tbe plaintiffs in error were indicted below for obstructing ;a public highway. Leaving out tbe formal parts of the Indictment, tbe charge is as follows: “That Chester C. Matthews and Benjamin Buzzard, late of said county, on the thirtieth day of November, in the year of our Lord one thousand eight hundred and sixty-nine, and from that daj until the commencement of proceedings herein — to wit, on the twenty-eighth day of March, A. d. 1870 — with force and arms, at Jackson township, in said county of Ashland and State of Ohio, knowingly and unlawfully did obstruct and incumber the public highway, to wit, a certain county road, ■duly, lawfully, and regularly laid out, opened, worked, and used as a public highway by the people and citizens of the State of Ohio, and which said public highway is situate in the township of Jackson, and in said county of Ashland And State of Ohio, by then and there causing and permitting to stand and remain in said public highway a fence of rails, which said fence the said Chester C. Matthews and Benjamin Buzzard placed and caused to be placed in said public highway, knowingly and unlawfully, and with intent to obstruct And incumber the same, to the great damage and common nuisance of the citizens and people of the county of Ash-land, and the citizens and people of the State of Ohio.”</p> <p>To this indictment the defendants below interposed a general demurrer, which was overruled. On a plea of not guilty, they were tried and convicted. Motions for a new trial, and in arrest of judgment, were made and'overruled, And exceptions saved on the record. Thereupon, the defendants were sentenced to pay a fine and costs, and as a part of the judgment, it was ordered that the nuisance be abated, and that an order issue to the sheriff of said county commanding him to cause said nuisance to be abated as required by law. No bill of exceptions setting out the evi■dence was taken.</p> <p>The errors assigned and relied on are: First, that the court erred in overruling the demurrer to the indictment; second, that the court erred in overruling the motion in arrest of judgment.</p> <p>The indictment is insufficient to authorize a conviction. There is no sufficient description of the location of the alleged nuisance. The nuisance to be abated is simply described in the indictment as a fence in Jackson township, Ashland county. The description must be such as to apprise the sheriff of the locality, without possibility of mistake. Wood v. The State, 5 Ind. 433; The State v. Jackson. 2 Western Law Monthly, 149 ; Cox v. The State, 3 Blackf. 193; 1 Russell on Crimes, 326; Anson v. Stewart, 1 Term, 754.</p>

<p>Motion for leave to file a petition in error to the District ■ Court of Cuyahoga county.</p> <p>The original action was brought by plaintiffs against de.fendants to recover possession of certain real estate. Both -parties claimed title through Peter P. Perry, who died in.testate in the year 1844. The plaintiffs, heirs of Perry, claim by descent. The defendants claim under a judicial -sale.</p> <p>On the 12th of May, 1840, one Richard Lord recovered a judgment in the Court of Common Pleas of Cuyahoga county •against Peter P. Perry, for $856.88.' On the 27th of April, 1841, a fieri facias issued on this judgment, was duly levied upon the land in controversy, and the same was duly appraised. This writ being returned without sale, was followed by divers writs of venditioni exponas during the lifetime of the judgment debtor, which were also returned without sale. On the 21st of March, 1845, after the death ■of Perry, a pluries vendi was issued, and under this writ, on the 12th of May, 1845, the land was sold to John Newton. This sale was confirmed, and in pursuance thereof, a deed was executed by the sheriff' to the purchaser on the 8th of July, 1845. The defendants have succeeded to* all the rights thus acquired by John Newton, and claim to be «eized under a perfect legal title.</p> <p>Section 89 of “ an act to regulate the practice of judicial -courts,” passed March 8, 1831, applies to this case and requires that the heir should be made a party to the judgment before sale. ■</p> <p>The question of the true interpretation of this act resolves itself into two others:</p> <p>1. To what cases, where the defendant in a judgment was deceased, does the statute apply ?</p> <p>2. "What is its effect upon those cases to which it does •apply ?</p> <p>I. The answer to the first of these questions is very explicit. The statute applies to all cases before satisfaction of the judgment. The term satisfaction, as applicable to a judgment, is a legal term, having a legal and technical signification, and as such must be understood here. 1 Kent Com. 462; Clark v. Utica, 18 Barb. 451; Potter’s Dwarris, 273, note 3, citing authorities. In a legal sense, a levy on lands is not a satisfaction of a judgment (Reynolds v. Rogers, 5 Ohio, 169, and cases there cited; Ladd v. Blunt, 4 Mass. 402; Patterson v. Swan, 9 Serg. & Rawle, 16), unless in a technical sense. Bouvier, tit. Satisfaction.</p> <p>II. The judgment, then, was not satisfied and is within-the statute cited. What is the effect of that statute upon it? I maintain that the proceedings described are made-necessary to the enforcement of the judgment in all the-cases included by the statute.</p> <p>The statute only says “ it shall and may be lawful for the plaintiff',” etc. But what is meant by “ may be lawful ?” Is it only a permission imposing no restriction ? May execution be just as well resorted to without these proceedings ?’ If it may, the statu.ee achieves absolutely nothing, except the most useless privilege of laborious preliminaries to the accomplishment of what can just as well be accomplished with none at all.</p> <p>It is clear that these measures are provisions made for the-benefit of the successors to the judgment debtor’s title, and being given for their benefit, it is to be understood, not that' they are permitted to the judgment creditor, but that they are required of him.</p> <p>The language of this section is substantially the same in this respect as is the language of a previous statute, that of February 18, 1824, section 82 (Chase, 1288), providing-in regard to judgments upon which execution has not issued for five years.</p> <p>In the case of Lytle v. The Cincinnati Manufacturing Co., 4 Ohio, 459, 466, the Supreme Court held that this language was mandatory.</p> <p>If I am right in the foregoing, the only remaining question is whether a sale in disregard of these provisions is-voidable only or is absolutely void.</p> <p>And this, it seems to me, is conclusively determined by the consideration that the proceedings are entirely without' party defendants. The -persons in interest are in no way before the court. The title to the property, by operation-of law, has passed in succession. To any previous proceedings the successors to the title arc in no manner parties. When it is required that they be made parties before further proceedings, the proceeding without must be attended with all the infirmities of other cases where jurisdiction of the parties is not acquired.</p> <p>The judicial sale was legal and valid. The land was levied upon, appraised, and repeatedly advertised for sale in the lifetime of the debtor, and was finally sold upon a venditioni exponas after his death, and the sale duly confirmed. And it constitutes no objection to the sale that no proceedings had been taken to revive the judgment. Lessee of Massie v. Long, 2 Ohio, 290; Taylor v. Doe, 13 How. 287; Mitchell v. St. Marent’s Lessee, 4 Wal. 237.</p>

Grunkemeyer was convicted and sentenced, in the police court of Cincinnati, on an information charging that he had “furnished” a glass of intoxicating liquor to a minor.

<p>1. The act in relation to chattel mortgages, as amended May 7,1869, requires a mortgage given to indemnify the mortgagee against a liability as surety for the mortgagor, to have entered thereon a true statement of such liability, and that the instrument was taken in good faith to indemnify against any loss resulting therefrom; and the omission of such statement renders the mortgage void as against the creditors of the mortgagor.</p> <p>2. A mortgage void as to creditors is void as against an assignee in trust for the benefit of creditors.</p> <p>3. "Where a mortgage is good as against the mortgagor, but void as to creditors, in replevin by the mortgagee to. recover the mortgaged property, brought against the assignee of the mortgagor for the benefit of creditors, it is error, in assessing damages to the assignee, to include the value of property which the assignor is authorized to select as exempt from the payment of debts, where such property had been selected and set apart by the assignor, although, at the time of the replevin, it had not been appraised.</p>

<p>Motion for the allowance of a writ of error.</p> <p>It appears from the record in this case that, after the verdict of guilty was returned, the defendant filed his motion in writing for a new trial; but it docs not appear what disposition, if any, was made of the motion. Afterward, upon inquiry, the defendant stated to the court that he had nothing further to say why sentence should not be pronounced; and thereupon the court, without objection from tho defendant, proceeded to judgment and sentenced the defendant to imprisonment in the penitentiary for a term of years.</p>

On the trial in the court below, at the June term, a. d. 1875, one William Eenton was called as a lalcsman juror, and, the panel being full, the court inquired of the jury whether any of them had served as talesmen in the trial of any cause in any court of record in said Hamilton county, within the preceding twelve months, and directed those jurors who had so served as talesmen to stand up.

<p>Motion for leave to file a petition in error to the Superior Court of Cincinnati.</p> <p>The original proceeding was a petition by the defendant in error for assignment of dower. The estate of which the demandant was dowable was entire, and could not be divided by metes and bounds. The commissioners and sheriff to whom the order to assign was directed, proceeded to assign dower, in a special manner, as of a third part of the rents, issues, and profits. In computing and ascertaining the dower interest, they awarded to-the dowress one-third part of the gross rents of the estate. The plaintiffs in error claim that the assignment should have been made of one'.hird of the rental value of the property after deductions for reasonable repairs, taxes, expenses for water-rent, insurance, etc.</p> <p>The rule seems to be established not only that dower shall be estimated, where it can not be assigned by metes and bounds, according to the value of the land at the time of the assignment, but that necessary expenses for taxes, repairs, etc., sliall be deducted. 2 Scribner on Dower, 601 (5), 602 (6); Dunseth v. TJ. S. Bank, 6 Ohio, 34, 79; Hale v. Jones, 6 Johns. 258; Riley v. Clamorgen, 15 Mo. 331; Beavis v. Smith, 11 Ala. 32.</p>

<p>Where the plaintiff, on the trial, introduced in evidence a portion of an entry in the minute book of the defendant (a corporation), for a particular purpose, the latter properly introduced the remaining portion of it, without thereby precluding itself from asking, or relieving the court from the duty of giving to the jury a proper instruction requested, in reference to the entire entry; and it was error frr the court to refuse to give such instructions, when requested.</p>

<p>1. A county treasurer’s bond, conditioned that he will pay over according to law all moneys which, in his official capacity, shall come into his hands for state, county, township, and free turnpike road purposes, and faithfully and impartially discharge and perform all the duties-of his office, is substantially in conformity to the statute (S. & C., 1584, section 2), the condition for the discharge of the general duties of the office being equivalent in legal effect to the statutory condition that he will pay over all moneys received for “other purposes” than those specifically named.</p> <p>2. The provision of the statute requiring the indorsement of the certificate of the prosecuting attorney upon the bond of the treasurer is merely directory, and the want of such indorsement does not invalidate the bond.</p> <p>5. Two of the county commissioners constitute a board, and their acceptance and approval of such bond is a legal acceptance and approval thereof, although- not indorsed upon the bond, or entered on their journal.</p> <p>4. Where a county treasurer-elect failed to execute his official bond and take the oath of office on or before the first day of his term, and the office, by virtue of the provision of the statute (2 S. & C. 1479, section 15), thereby became vacant; but four days thereafter, having entered upon the duties of the office, he gave the necessary bond as treasurer of the county, and continued thereafter to act as such treasurer, with the assent of the commissioners of the county — Held, that in an action against him and his sureties upon the bond, the defendants were estopped from denying that he was the treasurer-elect at the date of the bond, or from setting up the fact of such vacancy as a defense to the action.</p> <p>6. The recital of one’s name in the body of a bond, as one of the obligors, implies that the other obligors expect him to sign it, and the attaching of his signature to the bond, after it has been signed and delivered by the other obligors, will, in the absence of proof to the contrary, be presumed to have been done with their consent, and will not vitiate the bond.</p> <p>6. The statute (2 S. & 0.1587, section 25) allowing a penalty of ten per cent. to be recovered on money withheld by the treasurer, makes no discrimination as to the form of the bond on which the money is recovered, and applies as well to a recovery had upon a common-law bond as to a recovery upon a bond made in strict conformity to the statute.</p> <p>7. Where a treasurer holds his office for several consecutive terms, and is found to he a defaulter at the end of his last term, it will be presumed, in the absence of proof to the contrary, that the entire default originated and occurred within his last term.</p> <p>8. The State of Ohio is a proper party plaintiff in an action on the treasurer’s bond, and the designation, in the entitling of the case, that the action is brought “ for the use of the county commissioners,” does not vitiate the proceeding, nor is it error in the court, to the prejudice of the defendants, to refuse to strike the designation out on motion.</p> <p>9. A party on whose motion a cause has been referred without objection from the opposite party, can not, after the parties have been heard before the referee, and his report has been made, have the report set aside on the ground that the order of reference was not made by “agreement,” as required by section 281 of the code of civil procedure.</p>

In March, 1878, the defendant in error, Dorman, purchased of one Blakley, a hotel known as the “ Tremont House,” situate in the village of Conneaut, and, in part payment therefor, Dorman sold to Blakley the Commercial House, theretofore used as a hotel, situate in the same village, and formerly known as the Randolph House.

At the October term, 1870, of that court, the plaintiff in error was indicted for a violation of section 3 of the act to provide against the evils resulting from the sale of intoxicating liquors, passed May 1,1854. S. & C. 1431. The trial, which was had at the same term, resulted in a verdict' of guilty.

<p>Information in the nature of a quo warranto.</p> <p>Section 6 of the act to provide for the establishment • and government of reform schools (S. & S. 728) is as follows r “ The board of commissioners shall continue to consist of those members now appointed for the period of their ap- • pointment, and their powers and duties shall be as designated by this act. Their successors shall be appointed by the governor, by and with the advice of the senate. One-of their number being designated by the appointing power aforesaid, acting commissioner, and all of them to hold their office for three years from the day of their appointment, and until their successors are appointed and qualified,, unless vacancies occur from death, resignation, or removal for cause, as herein provided.”</p> <p>Harper was appointed to the office which the defendant occupies under the authority of section 3, article 7, of the • constitution.</p> <p>The term of the commissioners is not fixed by the constitution, but by section 6, S. & S. 723. The clause of that-section, “ and until their successors are appointed,” etc., is-not to be construed as enlarging the term of office, but only to provide for the temporary discharge of the duties ■ until a successor should be appointed to fill the vacancy created by the expiration of the term of office of the incumbent.</p> <p>It by no means follows that the office may not become ■ vacant by reason of some other cause for removal than that specified in the statute. The constitution being silent, not designating upon what condition a vacancy in the office in. question shall be said to exist, but declaring that the governor shall have power “to fill all vacancies that shall, occur,” it must be left to him, in the exercise of a sound discretion, to determine, upon well established principles,. when a vacancy does exist. The State, ex rel., etc. v. The Governor of Ohio, 7 Ohio St. 372; The State, ex rel., etc. v. Taylor, 15 Ohio St. 144.</p> <p>The statutes of New York and Virginia are not like ours, and the decisions of those states do not apply.</p> <p>If the law creating or regulating an office fixes the term of service, as in this case, for “ three years from the day of the appointment,” when that time has expired the office is vacant. The incumbent holding over until his successor is appointed is merely locum tenens, assigned by law to perform the duties ad interim.</p> <p>The authority of the governor to appoint a successor to this man Howe, if his term of office had expired while the general assembly was in session, is express. If he had so done, it would not have been for the reason that there was no one in to perform the duties of the office, but because it was vacant by reason of the expiration of his term. If this be so, then the fact that his term expired after the adjouxmment of thé genex-al assembly can not change the legal effect of such expiration. Thex’e is a vacancy.</p> <p>The chief executive of the state being a co-ordinate branch of the state government, great respect is due to the acts thereof. It is only when manifest assumption of authority, and a clear and unmistakable absence of warrant in law appear, that such acts will be interfered with. 1 Ohio St. 77; 21 Ohio St. 14.</p> <p>I. The appointment of Harper was “ for the full term, -commencing on the 16th day of April, 1875, vice George E. Howe, whose term expires on that day.” Howe’s term was for three years, commencing April 16,1872.</p> <p>Assxxming that a vacancy occurred on the expiration of of Howe’s term, we claim—</p> <p>i 1. That no commission issued to fill it. The commission to Harper is for the full term, and is void because the appointmexxt was made without the consexxt of the senate.</p> <p>It is simply void, and can not be aided by parol, because testimony showing an intention on the part of the governor to fill a mere vacancy would be in palpable contradiction to the express language of the instrument.</p> <p>2. The commission issued prematurely. An appointment in anticipation of a vacancy is simply void. Riddle v. Willard, 10 Ind. 62.</p> <p>3. The statute requires the assent of the senate to an appointment on the expiration of the regular term. Act of April 2, 1858, and amendment to section 6, of that act, April 1,1866, and section 7 of the same act.</p> <p>Expiration of term is not one of the cases named authorizing the governor to appoint without the concurrence of the senate.</p> <p>Sections 6 and 7 are to be taken together, and such construction given as that both may stand, if possible; and so construed, the statute prohibits the appointment attempted by the governor in this case.</p> <p>4. • The statute does not conflict with section 27, article '2, and section 3, article 7, of the constitution.</p> <p>Had there been no provision for holding over, a complete vacancy would have occurred on the expiration of the term. In that event, the best the governor could do would be to appoint some one to discharge the duties during the interim. This was done by the governor when he made the original appointment.</p> <p>II. There was no vacancy. The term fixed by the statute is three years, “ and until their successors are appointed and qualified.”</p> <p>Section 20, article 2 of the constitution confers upon the legislature power “ to fix the term ” of this office. The grant is general and unlimited. . The legislature may fix it by days or years, or make it uncertain and conditional. In the case at bar, the term is prolonged beyond the three years to a future and uncertain period, viz.: until a successor is confirmed and qualified.</p> <p>III. If the governor had power to remove Howe, it was by express grant, or as an incident to an express grant. There is no such express grant. There is no authority for him to make a vacancy, in order that he may fill it. The exercise of this limited power can only be evoked by reason of a pre-existing vacancy. Page v. Hardin, 8 B. Monroe, 648; Dubul v. Voss, 19 La. An. 210.</p> <p>On the general doctrine involved in this discussion, we refer to 10 Cal. 49 ; 9 Penn. St. 513; 18 Mo. 333; 37 Cal. 614; Ib. 639; 45 Mo. 58.</p> <p>C. N. Olds, also for defendant, cited the constitutional and legislative provisions cited by associate counsel, and. made the following points:</p> <p>1. By the constitution and laws of this state, the governor has no power to appoint, without the confirmation of the senate, except to fill a vacancy where the senate is not in session.</p> <p>2. Vacancy in this office can only occur from death, resignation, or removal for cause.</p> <p>3. The expiration of a term does not create a vacancy in this office. The vacancy intended to be provided for, in the statute, is an uncertain, if not an unexpected, contingency.</p> <p>On the question of what does or does not create a vacancy, the court is referred to 9 Penn. St. 513; 18 Mo. 333; 37 Cal. 614; 10 Cal. 38; 21 Barb. 500; 8 B. Mon. 648; 9 Paige, 509 ; 11 Ohio, 515.</p>

<p>1. Where the statute required the oath to be administered to the jury in the following form: “You shall well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar (giving his name), ‘so help you God,'” and the record shows that “the jury were sworn to well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar,” it will he presumed that the statutory form was observed in administering the oath.</p> <p>2. Where a person purposely and maliciously strikes with intent to kill one person, and the blow takes effect upon and kills another, the slayer is gui',y of murder.</p>

<p>The act of May 7,1869 (66 Ohio L. 131), as explained, by the act of April 29, 1871 (68 Ohio L. 91), does not authorize or require the county commissioners to j)ay the cost of building bridges or culverts which constitute a part of the improvement for which adjoining proprietors have been assessed under act of March 29. 1867, as amended March 81, 1868 (S. & S. 673-675). The bridges and culverts which section 12 of said act of 1869 makes it the duty of the county commissioners to build, are those which become necessary after the improvement for which the assessment was made has been completed, and the road accepted.</p>

<p>Motion for leave to file a petition in error to reverse the-judgment of the District Court of Madison county.</p> <p>A. J. Brock and Marion Slaughter were partners dealing-in hogs and cattle, and the firm, as well as both partners,, became and are still insolvent. Each of the partners, and also the firm, made a general assignment for the benefit of creditors, the defendants in error being the assignees of Brock and also of the firm, and E. G. Coffin being the: assignee of Slaughter.</p> <p>The assets of the firm amount to only $6.85, a sum insufficient to pay the costs of administering the trust. The assets of A. J. Brock amount to $27,241.18, and are in the hands of his assignees ready for distribution; and there is also a large amount of assets of Slaughter in the hands, or to ■come into the hands, of his said assignee. There are numerous creditors of each of the partners and also of the firm.</p> <p>The original petition in this case was filed by the assignees of Brock and of the firm against Brock, Slaughter, the ■creditors of Brock, the creditors of the firm, and the assignee of Slaughter, setting forth the facts aforesaid, and praying the court to make such order as to marshaling ■•and distributing the funds so in their hands as equity and justice require.</p> <p>The defendants waived the • issuing and service of process, and by their written agreement submitted the cause to the court “ upon the facts so stated in the petition, and without further answer on their part.” The cause was accordingly heard in the Common Pleas upon the petition .alone, and was taken by appeal to the District Court, where the defendants made a motion for leave to file an answer and ■cross-petition, controverting material facts stated in the petition. This motion the court overruled, and on the hearing rendered a decree to the effect that the creditors of the firm should share equally with the individual creditors of ■each member of the firm in the distribution of the individual assets.</p> <p>The individual creditors of Brock now ask leave to file a petition in error to reverse the judgment of the District •Court, alleging that the court erred in overruling their motion for leave to file the answer and cross-petition, and also in adjudging that any part of the individual assets should he distributed to the creditors of the firm, until after the individual creditors should be paid in full.</p> <p>For the effect of appeal, see Teaffr. Hewett, 1 Ohio St. 511.</p> <p>I. The motion to set aside default, and for leave to plead, like motions to set aside judgments, etc., is addressed to the sound or legal discretion of the court, which should be ■exercised so as to promote justice. Sheets v. Baldwin’s Adm’rs, 12 Ohio, 131; 4 Ohio, 67. An abuse of such discretion is reviewable upon error and appeal. Newsom’s Adm’rs v. Rose, 18 Ohio, 240; Freeman on Judgments (2d ed.), sec. 106 ; 29 Cal. 72, 422 ; 7 Minn. 291; 13 Wis. 539; 15 Ib. 355; 19 Ib. 232; 22 Ib. 297; 23 Ib. 468; 19 Ib. 499 ; Rogers v. Bradford, 1 Paige, 418; 1 Wis. 17 ; Ib. 209; Ib. 70; 3 Ib. 573; 6 Ib. 199 ; 5 Ib. 270; 2 Ib. 437; 5 Ib. 107; 6 Ib. 57; 20 Ib. 388; 6 Ohio, 405; 24 Ohio St. 457.</p> <p>In this case, the merits are apparent; for if the firm had .•assets, as shown in the proposed answer, the partnership creditors would have been excluded from showing the individual assets of the partners, had the court permitted it to be filed. The. answer sufficiently excuses the default in the •Common Pleas, if excuse was necessary, by stating that fihe defendants were ignorant of their defense till after judgment.</p> <p>II. Is the rule laid down in Rogers v. Meranda, 7 Ohio St. 179, settled and established ? Is it just and equitable ? In that case the partnership, and the partners, each had distributable assets; and the opinion was, therefore, but dictum.</p> <p>The principles suggested, approved, and adopted by the court in that case antagonize and negative the rule.</p> <p>The rule, too, if it be a rule, is arbitrary, technical, and ■delusive. Why should partnership creditors be excluded from separate assets when the partnership assets divide, it may be, but the one-tenth of one mill per cent. ? And why •should separate creditors he excluded from partnership, when there are no separate assets ?</p> <p>The rule is, in principle, and it ought to be in precedent, strictly and fully correlative. If separate creditors can resort only to surplus partnership assets, partnership creditors should be permitted to resort only to surplus separate assets.</p> <p>Rut, conceding that where there are no joint assets, partnership creditors may properly share with separate creditors the separate assets of the partners, they ought so to share equally, and without advantage. If one partner only has assets, it would be equal, of course, for the joint and separate creditors to share them pro rata; but when each of two partners has assets, it would be unequal and unjust, as by the decree sought to be reversed in this case, to give-the partnership creditors a pro rata dividend upon the full amounts of their claims, in pari passu with the separate-creditors, out of the separate estates of both the partners. As between the partners themselves, if one partner has paid-part of a partnership debt, he and his copartner, jointly and severally, would be liable only for the residue; and, upon, principle, it would seem that in case of the insolvency of the partnership without assets, and of the partners each-with assets, to be due to the partners respectively, and to-their separate creditors, that proportionate credit and reduction upon and of partnership debts should be entered and made for and on account of what is paid thereon from the separate assets of the partners respectively. Otherwise, the partnership creditors would be doubly paid, pro tanto;- and they might even be paid more than the whole amount due them; depending upon whether the assets of the partners respectively would average more than fifty per cent, of the aggregate of the partnership and the separate debts.</p> <p>The assets and the debts, partnership and separate, ought-to be aggregated; and an average dividend only should be paid to the partnership creditors, which should be apportioned upon the assets of the partners respectively; and the separate creditors of the partnei’s respectively should-share equally the residue.</p> <p>The District Coux-t had authority to allow the answer and cross-petition to be filed. Code see. 721; 14 Ohio, 487.</p> <p>The whole subject, however, rested in the sound discretion of the court, and where the exercise of such discretion-is reviewable. See Beaumont v. Herrick, 24 Ohio St. 458.</p> <p>If the proposed answer of the plaintiffs in error would, if the facts alleged therein he true, have caused the court to make a different order of distribution of the assets in the ■hands of the assignees, then the plaintiffs in error were denied a fair trial. If the rule in Rogers v. Meranda applies to this ease, then there was an abuse of sound discretion in refusing to allow the answer and cross-petition to be filed.</p> <p>The rule of equity in the distribution of joint and separate .assets of insolvent partners does not apply when there is no joint estate for distribution, and no living solvent partner.</p> <p>According to the rule of distribution ordered by the District Court, the partnership creditors may receive full •payment of their claims, and possibly more than is due them, while the individual creditors will receive but a small per cent. But if there was but a small per cent, of partnership assets, the partnership creditors would be held to that fund exclusively. It does not seem that any such rule of mere chance ought to be the rule in equity in a case like the present.</p> <p>The most the partnership creditors ought to expect is to ■receive the average per cent, of the two ■ estates, or the highest per cent, paid by either individual estate.</p> <p>"When the firm has no assets at all, it seems doubtful whether or not the rule applies, but the general rule is not to be abandoned so long as there is any joint estate, no matter how trifling. Collier on Part. sec. 926; Story on Part. sec. 880; 10 Cush. 600; 44 Penn. St. 507; 1 Harris & Gill, 96; 2 Rose, 54.</p> <p>I. Section 650 of the code can not be so construed as to permit the proposed answer and cross-petition to be filed. It is not an alteration of the pleadings on the part of the plaintiffs in error, for no pleadings had been filed" by them to alter.</p> <p>The statutory thing to be altered or amended must exist before the alteration can be made. Shamokin Bank v. Street, 16 Ohio St. 10; Wisewell v. First Cong. Church, 14 Ohio St., 34; Beaumont v. Herrick, 24 Ohio St. 445-457; Horton v. Horner, 14 Ohio, 437.</p> <p>To permit this answer to be filed is to ignore the agreement of the parties as to the facts upon which the case should be-decided; to permit a new issue when no isssue was presented below, and to entirely deprive the adverse parties of a hearing upon such new issue in one of the tribunals in which they were entitled to a hearing. It is, in effect, conferring original, and not appellate, jurisdiction upon the District' Court.</p> <p>The application for leave to file the proposed answer and’ cross-petition, as amended, was too late, after final judgment had been rendered.</p> <p>The whole subject of allowing the proposed pleading to-be filed rested in the sound discretion of the court, and is not reviewable on error. Legg v. Drake, 1 Ohio St. 286; Spice & Son v. Steinruck, 14 Ohio St. 213; Clark v. Clark, 20 Ohio St. 128; Beaumont v. Herrick, 24 Ohio St. 445-457; Horton v. Horner, 14 Ohio, 437.</p> <p>II. The order of distribution made by the District Court is right.</p> <p>1. The partnership creditors are entitled to share in the-distribution of the individual assets, because these partnership debts are, in equity, several as well as joint, and because thei’e is no joint estate for distribution, and no living solvent partner.</p> <p>2. The joint estate is only $6.25. This is not, as alleged and admitted, enough to pay the costs of recording the deed of assignment, and other costs of executing the trust. The insolvent debtors’ act requires that the costs and expenses of administering the trust shall be first paid out of the trust fund before any dividend is declared. 1 S. & C.,. 711, sec. 11. There is, therefore, no joint estate for distribution among the creditors.</p> <p>3. The partnership creditors are entitled to dividend® from the separate estate, of each of the partners, upon the whole amount of the partnership debts, pari passu with the individual creditors.</p> <p>It is well settled that, in equity, partnership debts are several as well as joint; and that each partner is individually liable for the whole amount of the partnership debts.</p> <p>The separate estate, then, of each member of the firm is-liable for the whole amount of the partnership debts, where there is no joint estate for distribution; and they stand on an equal footing with the separate creditors in the distribution of each of the separate estates.</p> <p>The rule of distribution which the courts below followed may sometimes operate harshly. All general rules do. But the rule is clear, well defined, and easily applied, and generally operates at least as justly as any rule that can be applied to the subject.</p> <p>And the rule is abundantly settled by authority. Grosvenor & Co. v. Austin’s Adm’rs, 6 Ohio, 103; Sumner v. Humpson, 8 Ohio, 365; Commercial Bank v. Western Reserve Bank, 11 Ohio, 451; Rogers v. Meranda, 7 Ohio St. 179; Tucker v. Oxley, 5 Cranch. 34; Bordwell v. Perry et al. 19 Vt. 292; Ladd v. Griswold, 4 Gilman, 25; Exparte Wyldman, 2 Ves. sr. 113; Sohier v. Loring et al., 6 Cush. 537; Fuller et al. v. Hooper et al., 3 Gray, 334; Collyer on Partnership, secs. 580, 923; 4 Kent’s Com. 64; 1 Story’s Eq. Juris., secs. 162, 576; 2 Leading Cases in Equity, 313 et seq.</p>

Greene county, in .an action of forcible detention. The judgment of restitution was rendered by the justice ■on the 24th of August, 1875. Leave was refused to file a petition in error in the Court of Common Pleas, by a judge of that court, and the defendant in the action now makes application for leave to file a petition in error in this court.

Daniel T. Enyart was elected treasurer of Hanover township, Licking county, on the 3d day of April, 1871; and on the eighth day of the same month gave bond and took the required oath. He was his own successor in the office. On the 14th day of April, 1871, his house was burglarized,, and $1,580 of the funds in his hands belonging to the township were stolen.

This case has already been before this court and is found ¡reported in 23 Ohio St. 255. As the case then came before the court, the present plaintiffs in error were the defendants in error. On the application of the then plaintiffs in error, the present defendants in error, the judgments of the courtsJbelow were reversed, .and the cause remanded to the Court of Common Pleas for further proceedings.

<p>1. Under the act of May 4, 1869, parties may stipulate in a note for any • rate of interest not exceeding, eight per cent, per annum, and such note, after maturity, without an express agreement to that effect, will' continue to hear the stipulated rate until payment.</p> <p>:2. Under section 1 of the act, a note made payable three years after date, with “interest at the rate of seven per cent, per annum, payable quarterly,” is not usurious.</p> <p>'3. A judgment taken on such a note for the amount due, including unpaid interest, will bear the stipulated rate of interest only, without rests, until payment.</p>

Joseph Williams was convicted in the police court of Cincinnati, under the act of April 11,1878, for promoting a scheme of chance called “ lottery.” On the trial, a bill of exceptions was taken, in which all the testimony was set out. A motion for a new trial, on the ground that the conviction was contrary to the evidence, was overruled and exception taken. An application was made to the Court of Common-Pleas for a writ of error, which was refused.

<p>1. Under the “act requiring compensation” for causing death by wrongful act, neglect, or default (S. & C. 1139,1140), which gave a right of action, provided such action should be commenced within two years after the death of such deceased person, the proviso is a condition qualifying the right of action, and not a mere limitation on the remedy.</p> <p>2. The amendment and repeal of the section containing the proviso, during the existence of the right of action, and the omission of the proviso in the section as amended, did not have the effect of extending the time within which the action should have been brought.</p>

<p>Motion for leave to file a petition in error to the District Court of Ross county.</p> <p>The action was originally brought by .the plaintiff in error against the defendant in error before a justice of the peace •of Paxton township, in the county of Ross, to recover the •amount claimed to be due on an account for work and labor •done and performed by the plaintiff for the defendant, and for goods sold and delivered to him by the plaintiff. A trial was had to a jury, who returned a verdict in favor of the plaintiff, upon which, and for the costs in the action, judgment was rendered against the defendant, who thereupon appealed the cause to the Court of Common Pleas, where, at the October term, 1872, a judgment was rendered by the court in favor of the plaintiff against the defendant for '$211.63 and costs of suit.</p> <p>On the 22d of January thereafter, a motion was filed by the defendant to vacate the judgment for reasons therein •stated, which was overruled by the court, and the ruling ■excepted to by the defendant.</p> <p>The District Court of that county, at its September term, 1873, on a petition in error filed therein by the defendant in error as plaintiff, against the plaintiff’ in error as defendant, reversed the judgment of the Court of Common Pleas and remanded the cause for further proceedings.</p> <p>The object of the present proceeding is to reverse the judgment of the District Court, on the ground that the court erred in reversing the judgment of the Court of Common Pleas.</p> <p>The record is silent as to whether evidence was or was not heard by the court rendering the judgment.</p> <p>It is an established rule that, in order to reverse a judgment for error, the error assigned must affirmatively appear on the face of the record; it will not be presumed. 17 -Ohio, 440; 12 Ohio, 14; 11 Ohio St. 397; 15 Ohio St. 514; 13 Ohio St. 217.</p> <p>The court could render judgment upon the default without evidence. Code, sec. 127; McKenzie v. Perrill, 15 Ohio St. 168; Harris v. Ray, 15 B. Mon. 630; Francis v. Francis, 18 B. Mon. 60.</p> <p>Eor a method of pleading on an account, see Code, sec.. 122; Swan’s PI. & Pr. 183.</p>

This was an action by Euhrman against the plaintiffs in error, to recover damages for neglect of the latter to repair a sewer in the city of Cincinnati. Euhrman alleged in his petition that it was the duty of the plaintiffs in error to repair that part of the sewer passing through their premises, and that by neglect of that duty the sewer became gorged, and the premises of Euhrman were overflowed, to his damage.

<p>1. "Where a defendant in his answer, by way of cross-petition, set up an equitable interest in certain real estate, the legal title to which was in the wife of the plaintiff, who, having been ordered by the court to he made a party, applied, by her attorney, and obtained leave to answer— Held, that the wife, by obtaining such leave, effected her appearance as a party to the suit; and that a purchaser, who afterward acquired title to the property from the husband and wife, is chargeable with notice of the suit.</p> <p>2. The order vacating, for irregularity, an order entered at a previous term, dismissing an appeal, will be presumed, in the absence of a showing to the contrary, to have been made on sufficient grounds; and a motion to sot it aside comes too late after the trial of the case upon the merits.</p> <p>3. The effect of vacating the order of dismissal is to bz-ing the ease again before the couz-t for trial; and a finding of the merits, on the final trial, in favor of the party against whom the ii'regularity was committed, is a sufficient compliance with section 538 of the code.</p>

<p>Motion for leave to file a petition in error to the District Court of Hamilton county.</p> <p>The original action was prosecuted by tbe defendant in error against tbe plaintiff in error to restrain tbe keeping of a toll-gate, and tbe collecting of tolls witbin tbe corporate limits of tbe village, or witbin eighty rods of such limits. On appeal from tbe Court of Common Pleas to tbe District Court, a restraining order was made by tbe appellate court, which it is now sought to reverse.</p> <p>I. Section 34 of tbe act of May 1, 1852 (S. & C. 295), -does not apply to cases like tbe one at bar’ but has reference to turnpikes to be constructed through towns, etc., already ineoporated at tbe time of laying out a turnpike road, and not to cases where tbe turnpike has been already constructed. Tbe section is directory in its meaning.</p> <p>It would be unreasonable for tbe legislature to say that a village or city might take upon itself tbe form of a municipality, and, by so doing, swallow up tbe franchises and property of a corporation prior in existence. It would be contrary to tbe whole spirit and tbe analogies of tbe law to infer that the legislature intended to say that vested rights, property, and franchises might be taken away by a municipal corporation without first making compensation therefor.</p> <p>But tbe legislature, it would seem, m order to guard against any such construction of this 34th section as that claimed by tbe village, passed a law April 15, 1857, entitled “ an act supplementary to the ‘ act to provide for the creation and regulation of incorporated companies in tbe State of Ohio,’ passed May 1, 1852.” S. & C. 339.</p> <p>It was enacted by tbe law authorizing tbe surrender of this road to its bondholders and creditors that tbe surrenderees might “ become incorporated under tbe provisions of so much of tbe act of May 1, 1852, entitled ‘ an act to provide for tbe creation and regulation of incorporated companies/ etc., and the amendments thereof, as relate to turnpike and plank-road companies/’ etc. The supplemental act of April 15,1857, which says that, in cases like the one at bar, the municipal authorities “shall condemn” turnpikes in the same manner as private property, was an “ amendment ” to the general incorporation act. The plaintiff in error came into being as a corporation May 28,, 1859, not simply under section 84 of the general act, but under the general act and its amendments, including the' act of April 15,1857. Hence, the rights of the turnpike-company, as a corporate body, vested under and by virtue of the general law and this amendment. There can be no-doubt, then, as to what rights the legislature intended should belong to a turnpike company in Ohio on the 15th day of April, 1857, and when the plaintiff in error was incorporated. “ And the said city, town, or village shall-cause the same to be condemned and appropriated for use-as such, according to the laws regulating the appropriation and condemnation of private property for similar uses.”</p> <p>Section 600 of the municipal code, passed May 7,1869,, which reads as follows, “ The right of any company to-take toll at any toll-gate established in the corporation shall not be impaired by anything in this act contained,”' shows what the intention of the legislature was upon this-subject.</p> <p>We submit that the words “ shall be authorized,” in section 34 of the act of May 1,1852, must be understood as-repeated before the words “ receive tolls.” By such understanding, we have the erection and the keeping up of tollgates, and the reception of tolls, all referable to the original-authorization of the county commissioners provided for in the next succeeding section.</p> <p>' These two sections construed together show that it is the-original authorization that is spoken of, or rather referred to, in the proviso of section 34, and that subsequent changes in the limits of a city or village can not affect it.</p> <p>These two sections, 34 and 35, are so intimately connected that they ought to he read as one; and that one prescribing how the road shall be constructed, how the company shall be authorized to erect gates, and where the gates shall be originally placed. And by understanding .the repetition of the words “ shall be authorized,” as above indicated, the meaning is plain.</p> <p>Section 600 of the municipal code (66 Ohio L.) shows the legislative construction of the proviso of said section 34.</p> <p>The only property right of a turnpike company in its pike is its franchise to take tolls; and if a city or village shall extend its limits so as to take in the whole of a turnpike, then the construction of the law which the plaintiffs below obtained in the District Court would deprive the turnpike company of all its property — of its entire franchise — and the latter clause of section 510 of the municipal code would be meaningless.</p> <p>The only question is, could Riverside enjoin the collection of tolls, or compel the removal of the gate, under the law of May 1,1852 ? 1 S. & C. 295.</p> <p>That law provides against two things: 1. They shall not •“ erect ” gates; and 2. The turnpike shall not “ keep up ” any gate “ or receive tolls.”</p> <p>There is no need for these words “ keep up,” except in cases where the right to keep the gate is ended by the incorporation of a village. The phrase means that that which has been heretofore done, shall no longer be done.</p> <p>If the words “ keep up ” do'not apply to just such a case ;as this, to what do they apply?</p> <p>Suppose a turnpike is incorporated near an existing village. It could not take a street of that village as part of its turnpike, put a gate thereon, and collect tolls. It could not erect a gate within the municipal limits, and surely it could not “ keep up ” one which had never been erected. As it could not “ erect ” a gate in an existing village, the words “ keep up ” can not apply to villages in being before the turnpike. They must therefore apply to villages created after the turnpike. Regina v. Cottle, 4 Eng. L. & E. 474.</p> <p>So with the power to “ receive tolls.” If Riverside is a “ village ” the turnpike can not “ receive tolls ” within its limits, without doing away with the force of words. The plain and obvious import of the words “ any,” “ all,” and “ every,” as employed in these sections, is to extend their provisions to all turnpike and plank-road companies, etc. Lorain Plank-road Co. v. Cotten, 12 Ohio St. 270.</p> <p>Section 84, before referred to, has no intimation on the-subject of condemnation. But no question of condemnation can arise in this case. The village of Riverside has. taken no portion of this road, and deprived the turnpike of no right, franchise, or interest whatever, nor has the village-removed the gate; it is the act and operation of law that does that. Any citizen of Riverside who had to pass the-gate, could have maintained this petition for an injunction. Adams v. Beach, 6 Hill, 271; 21 Ohio St. 256.</p> <p>No rights vested under the law of April 15, 1857, which may not be taken away. Constitution, art. 13, see. 2.</p> <p>Section 600 of the municipal code has no application to this case. "What we claim is, that by the very law of the existence of this turnpike, it has no right to take toll in this village. If this be so, the municipal code gives nothing-</p>

<p>Motion for leave to file petition in error.</p>

<p>Motion for leave to file a petition in error.</p>

<p>Exceptions of the prosecuting attorney to the ruling of the court.</p> <p>Criminal Code, see. 90; Calkins v. The State, 18 Ohio St. 371; 2 Bouvier’s Law Dic. 122; Griffin v. The State, 18 Ohio St. 438; S. & C. 439, sec. 157; The State of Iowa v. Chambers, 2 Green, 308; Dawood v. The State, 1 Hunt (Miss.), 262; 4 Beach, 457; 12 Johns. 239; 4 Black. Com. 229; 3 Binney, 546; 4 Wash. 700.</p>

<p>Motion for leave to file a petition, in error to reverse the-judgment of the District Court of Pike county.</p> <p>James Davis died testate, in 1854, leaving a large estate,, both real'and personal. By item first of his will, he provides as follows:</p> <p>. “ My will is first that my funeral charges and just debts-shall be paid by my executors hereinafter named. The residue of my estate and property which shall not be required for the payment of my just debts and funeral charges and, the expenses attending the execution of this my will and. the administration of my estate I give and devise and dispose thereof as follows I give devise and bequeath unto-my beloved wife Caziah Davis all my personal property and real estate wheresoever situated of which I shall he seized and possessed or to which I shall be entitled at the-time of my decease to have and to hold the same unto her-the said Caziah Davis and to her use for and during her natural life.”</p> <p>By the second, third, fourth, fifth, and sixth items of the-will, the testator devises to different persons the remainders-in fee, after the death of his wife, in several specified parcels - of the real estate, and then by item seven provides as follows r.</p> <p>“ My will is further that all the rest and residue of my' real estate shall he disposed of by my wife Caziah as she • may think proper if she should outlive me if not then it* shall go to my heirs generally.”</p> <p>The will makes no farther disposition of the personal, estate, and is utterly silent as to any reversion or remainder therein.</p> <p>The wife survived the testator, and elected to take under will; and having taken possession of the personal estate, ■and used and enjoyed it during her life, at her death she ■disposed of the same by will; and the case here sought to be reviewed was an action brought by the heirs at law of the testator, the plaintiffs in error, against the defendants in error, who are executors of Keziah Davis, deceased, to ■compel them to account for this personal estate.</p> <p>The case was heard in the Common Pleas upon demurrer to the petition, which set forth substantially the facts aforesaid, and resulted in a judgment of the court sustaining the demurrer, and dismissing the petition. On appeal to the District Court a like judgment was rendered, and the object of the present motion is to reverse both these judgments.</p> <p>This suit is maintainable upon the ground that it is a suit in equity. The property which the defendants now hold under the will of Keziah Davis was, in her hands, trust property, and plaintiffs call for an account, etc.</p> <p>Courts of equity exercise concurrent jurisdiction with all ■other courts, in all matters relating to trusts, where an .account and the execution of a trust is prayed for. 1 Story’s Equity, 593; 6 Ohio, 119; Ib. 430; Stiver v. Stiver, 8 Ohio, 217.</p> <p>This personal property has already been the subject of administration by the administrator of the testator, who accounted for it as having been turned over by him to Keziah Davis as directed by the will; and when she took it, she took it solely under the will. Nothing remains to be done, so far as the estate of the testator is concerned, and it is well settled in Ohio that where there are no debts to be paid or adjusted, and administration would be dilatory and expensive, equity has ample jurisdiction to enforce trusts. Taylor v. Huber, 13 Ohio St. 288; 23 Ohio St. 198.</p> <p>This mode of enforcing the plaintiffs’ claim is within the .spirit and purpose of the code.</p> <p>II. "Whatever estate Keziah Davis took in the personal property disposed of by the will of James Davis is to be determined by a construction of the will.</p> <p>The limitation as to all his personal property and real ■estate is “to her” . . “for her use for and during her natural life.”</p> <p>The intention of the testator was simply to do what he, in unequivocal language, expressed in his will.</p> <p>The clause of the will, “ the residue of my estate and property I dispose of as follows,” can not do away with or control the language that follows, “ to her use for and during her natural life.”</p> <p>Having referred to his personal property, the presumption of law that he did not intend to die intestate as to that property, does not apply to this case; for the rule only applies in construing a will, the language of which is of equivocal or doubtful import. Gilpin v. Williams, 17 Ohio St. 412. There is no equivocal or doubtful language in the portions of the will referred to.</p> <p>The rule is well settled that theheir can not he disinherited hut by express word or words of necessary implication. 1 Jarman, 441, 445, 465 ; 1 Ohio St. 283.</p> <p>This was not intestate property as to Keziah Davis. The testator devised to her a life estate in the whole thereof.</p> <p>The testator coupled the personal, property with the real estate all in the same sentence, and then limited the whole to a life use.</p> <p>The words, “ wheresoever situated, of which I shall he seized and possessed, or to which I shall he entitled,” apply as well to the personal property as to the real estate.</p> <p>The word “ possessed ” evidently was intended to relate to the personalty, because by construing the word as applying exclusively to the real estate, the devise would only relate to such as he was both “ seized and possessed ” of, which evidently was not the intention.</p> <p>If the testator had intended to give the personal property to the widow absolutely, there could have been no object in connecting it with the real estate and the words creating a life use. To first say she should have a life use, and mean by that that she should take the full ownership, is folly. And having first expressly limited both the personal and real estate to a life use in the same sentence, and then subsequently taking up the subject again and singling out the real estate, and leaving the personalty as it stood before, shows he so intended it.</p> <p>I. The action can not be maintained by the present plaintiffs. Upon the death of a man, all rights to his personal estate vest in his personal representative, and he alone can sue for and recover it, and convert it into money. 4 Ohio St. 360; 4 Paige, 47; 4 Sand. Ch. 31; 2 McCloud Ch. 168; 5 Mon. 574; 7 Ib. 215.</p> <p>II. All the personal property claimed in the action, was given to Mrs. Davis by the will absolutely.</p> <p>The testator must be presumed to have intended all that, his language naturally imports, and this will should be read keeping constantly in view at least the following rules:</p> <p>1. The whole will, and all that it contains, must be considered in construing every part of it, and such a construction must be adopted, if possible, as will give effect to all that is said in it.</p> <p>2. As a necessary consequence of this rule, no sensible language used in the will can be rejected, restrained, or perverted, unless other language found in other parts of the will requires it, to make the whole consistent and effectual to carry out the plain intention of the testator. And as no-language can be rejected, so no construction is allowable which makes it useless, as that would be equivalent to rejecting it.</p> <p>3. “ It is a settled rule of construction, that a testator is never presumed to intend to die intestate as to any part of his estate to which his attention seems to have been directed ; and a court of equity will put such a construction upon equivalent words as to prevent such a result.” Collier v. Collier, 3 Ohio St. 373.</p> <p>The only language in the whole will expressly referring to his personal property, is found in the second clause, and is as follows: “ I give, devise, and bequeath unto my beloved wife, Keziah Davis, all my personal property.” These words are sufficiently comprehensive, clear, and explicit to invest her with a full title to the whole of it, unless restrained by what follows.</p> <p>¥e insist that they are not so restrained. It is neither the natural nor necessary application of the language following this absolute disposition. All the words are fully satisfied when applied to the' real estate; and the claim that they are so restrained, is in violation of the rules of construction before cited, and therefore inadmissible.</p> <p>First. The real and personal estate are not blended in the disposition made of each. It is not called his personal and real estate, as the natural and usual expression would be, if he intended to blend them and subject both to the same limitation; and the words of limitation at the end of the clause are only such as technically and properly belong to the real estate.</p> <p>Second. But if doubt exist upon this clause of the will, the rules above stated require us to go to other parts of the will to solve it. Indeed, when the three clauses which stand consecutively in the will are read together, they contain the plain, sensible, and consistent statement of the testator, that by the will he disposes of all his property, whether real or personal; that he does it by giving to his wife all his personal property, and a life estate in all his real property ; and that having thus disposed of everything except the remainder in his real estate, he proceeds to do that. Any other construction would be contrary to the presumption of law, which equally disposes of this question, and shows that he did not intend to die intestate as to any part of his estate.</p>