Volume 26 — Ohio State Reports, New Series

M otion for leave to file a petition in error to reverse the judgment of the District Court of Hamiltou county. The plaintiffs in error were defendants in the action below, and on return of a verdict against them they moved for a new trial, on the ground of newly discovered evidence; and they now assign for error the overruling of that motion.

<p>-On the trial of a civil action wherein the claim or defense is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of evidence, whether the facts constituting the alleged fraud do, or do not, amount to an indictable offense.</p>

<p>1. The neglect of a justice of the peace to file a transcript and other papers in a bastardy proceeding with the clerk of the Court of Common Pleas within thirty days from the date of the examination, as provided in the sixth section of the bastardy act (70 Ohio L. 112), does not necessarily defeat the prosecution.</p> <p>2. If, at the trial term, the justice’s transcript and written examination be lost, a motion by the defendant to continue the cause until such lost papers be found, is addressed to the discretion of the court, and the overruling of the motion is no ground for error.</p> <p>S. Where the original transcript filed in the Court of Common Pleas is lost, it is proper to allow a new one to be substituted.</p> <p>4. Where the written examination taken before the justice is lost, its contents may be proved, and the complainant is a competent witness for sucF purpose.</p>

The action was brought in the Superior Court of Cleveland, to recover of the plaintiffs in error for slanderous words uttered and published by Catherine Eowler, wife of Marvin Eowler, imputing to the defendant in error want of chastity.

At the June term, 1875, of the court below, the plaintiff in error was convicted of the crime of larceny, and sentenced to imprisonment in the penitentiary for a term of years. The testimony offered on the tidal- showed, that in the month of April preceding, the prisoner had obtained $280 in bank-bills, from the prosecuting witness, under the following circumstances.

Information in the nature of quo warranto. The information, filed September 25,1874, charges that the defendant, on the 27th of February, 1874, became a corporation of this state, under and by virtue of 'the act entitled “ an act supplementary to an act entitled 11 an act to provide for the creation and regulation of incorporated companies in the State of Ohio, passed May 1, 1852;’” and that, as such corporation, it has misused its corporate authority, franchises, and…

The facts appear in the opinion of the court. The charges against the relator were based upon acts occurring prior to the passage of the act of March 21,1874. The relator was denied the privilege of being present during the investigation of the charges against him— except as a witness—and cross-examining the witnesses.

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

This was an action, brought by Koch, Mayer & Goldsmith against Holzworth, Sebastian, and Doering, upon a promissory note for $368.60, payable six months after its date, made by Holzworth, Sebastian, and Doering to Koch, Mayer & Goldsmith.

<p>Motion for leave to file a petition in error.</p> <p>The plaintiff in error was convicted and sentenced for an alleged violation of an ordinance of the city of Newark. This sentence is alleged to have been affirmed, on error, by the Court of Common Pleas and by the District Court. Application is now made for leave to file a petition in error to reverse these judgments of affirmance as well as the sentence of the mayor. A complete transcript of the record of the ease is not presented.</p>

<p>Where, in a deed of conveyance, the middle of a known stream is called for as the boundary line between adjacent proprietors, the thread of such stream, notwithstanding it may have been changed in its location by attrition and accretion, will control the courses and distances named in the conveyance, and will continue to be the boundary line between the lands of the respective proprietors.</p>

<p>Motion for leave to file petition in error to the District Court of Ashtabula county.</p> <p>cited Putnam v. Dike, 13 Gray, 535; Bennett v. Cook, 43 N. Y. 537; Bulger v. Boche, 11 Pick. 35; Olcott v. Tioga B. Co., 20 N. Y. 210.</p>

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

<p>Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.</p> <p>cited Shaver v. Murdock, 36 Cal. 298; Hendly v. Wadsworth, 38 Cal. 356; Hevelin v. Mack, 2 Daly, (N. Y.) 94; Oster v. JRabeneau, 46 Mo. 595.</p>

<p>A judgment rendered against a husband and wife in a civil action, under section 7 of the act to provide against the evils resulting from the sale of intoxicating liquors, may, on error, be reversed as to the wife, and affirmed as to the husband.</p>

<p>Error, to tbe Superior Court of Cincinnati.</p> <p>This was au action brought by the city against Bickett and Purcell, to recover an assessment made upon their lots for the construction of a sewer; and Ashman & Scully, for whose use the suit was brought, were the contractors who did the work. Erom the record, it appears that the city council, on the recommendation of the commissioners of sewers of the city, on the 15th of July, 1870, adopted a resolution to make the improvement in question, and on the 7th of October following, duly passed an ordinance for that purpose, two-thirds of all the members of each branch of the common council concurring in both the resolution and ordinance. Subsequently an advertisement for bidders was inserted, for the period prescribed by law, in two newspapers published and in general circulation in the city, only one of which papers, however, was published in the English language, the other being a German paper. Ashman & Scully were the lowest bidders for the work, and the city council, by resolution which was concurred in by a majority less than two-thirds of its members, authorized the city auditor to contract with Ashman & Scully to do the work. This contract was accordingly entered into, and the work was completed by Ashman & Scully in all respects agreeably to the contract, and to the acceptance of the city engineer. The contract was reasonable and fair, and the work done and materials found were well worth the prices agreed to be paid. On the completion of the work an ordinance was duly passed by the council, two-thirds of the members concurring, for an assessment upon the abutting lots, to pay for the improvement, agreeably to an estimate of the city engineer. The lots of Bickett and Purcell abutted on the lower side of the alley, and the cellars of their houses were deeper than the sewer, so that it can not serve effectually to drain their cellars, -and is therefore less valuable to them than to others who are assessed no higher than they. The assessment was at the rate of two dollars per front foot; but whether this assessment of two dollars per front foot exceeds thepro rata amount which would fall upon these lots as their share of the aggregate cost of all the sewers constructed, or to be constructed, in the entire sewer district to which they belong, as required by the statute in such case, the record does not show. -It shows, however, and defendants insist that this is a good defense to the action, that some four or five years previously to the date of this assessment, the city council had passed an ordinance for the construction of other sewers, which would effectually drain the defendants’ lots, and render the sewer in question useless to them; and that said ordinance, although never carried into execution, is still unrepealed.</p> <p>Opon these facts the court in special term gave judgment for the defendants, and its judgment was affirmed by the •court in general term ; and the plaintiff in error now seeks to reverse the judgment of affirmance.</p> <p>The particular ground of defense upon which the court below rendered its judgment for the defendants does not appear from the record, but counsel now insist that there are four several grounds upon which the judgment of the court is maintainable. These are: 1. Two-thirds of the members of the city council did not concur in the resolution awarding the contract to Ashman & Scully; 2. One of the papers in which the advertisement for bids was published was a German paper; 3. These lots were already -provided with drainage, and therefore exempt; 4. The assessment was excessive.</p> <p>I. The improvement in this case was made under section 562 (67 Ohio L. 81), which provides that “ when a municipal corporation shall make any improvement, etc., it shall .advertise for bids for the period of two weeks in some newspaper published or of general circulation in said corporation, and two, if there are so many.” In the city of Cincinnati there are four newspapers published in the English language of general circulation in the city. Was an advertisement for bids in one English and one German newspaper a legal advertisement under said section 562? We think the intent of the law was thereby secured. Upington v. Oviatt, 24 Ohio St. 232.</p> <p>II. We claim that it does not require two-thirds of the members of the council to pass a resolution to contract. Because : 1. When two-thirds of all the members elected to-each of the boards composing the common council have concurred in a resolution declaring the necessity for the improvement, and two-thirds of all the members elected to each of the boards composing the common council have concurred in the passage of an ordinance (law) declaring that the alley be improved in accordance with the resolution, it is a compliance with the statute. This section simply means that no improvement shall be made, or in this case the sewer shall not be constructed, unless two-thirds of the members elected to council say it shall. By the passage of the resolution and ordinance council has spoken, has^ said the improvement shall be made. 2. The ordinance is the essential. Council has already concurred in declaring the necessity for the improvement and in passing a law to improve. They are fully committed to the work. Their 'action, so far as the improvement is concerned, is completed, and the question now is not, shall the improvement be made, but whom shall we employ to do the work ? It is the agreement to make the improvement that coupcil are to concur in by ordinance by a two-third vote, and not the order to the auditor to make a contract to do the work. 8. The resolution to contract is not a resolution of either a genei’al or permanent nature.</p> <p>III. The assessment was a proper charge against the defendant. Northern 1. R. R. Co. v. Connelly, 10 Ohio St. 160.</p> <p>But if the court should find the assessment informal in any material particular; that the sewer is of no use, and that it is of no direct benefit to these defendants, still we claim that section 550 (66 Ohio L. 242) authorizes a judgment for the plaintiffs. The question now is, is this “ a proper charge ” against the defendants ? "We think it is.</p> <p>1. - Because council said the defendants and the other property-owners abutting on the alley should pay for it by the feet front abutting on said sewer. Upington v. Oviatt, 24 Ohio St. 282.</p> <p>2. Because the question for the court under this section is not what benefit was conferred, but what expense was incurred in making the improvement. The Upington ease. above cited.</p> <p>3. Because this defendant had legal notice of the passage, -of the resolution and ordinance, both of which specified that ■ he would be taxed by the front foot for this very improvement. He lived right in the vicinity. He knew of the improvement. He applied for no injunction. He filed no protest. He filed no claim for damages. He stands by .and sees the improvement made, and when it is to be paid for, then it is we find him formally objecting to the work.</p> <p>4. Because the term “ proper charge,” as used in section .550, means a charge which council declared should be such, and which would have been, had the proceedings of council been in all respects regular. Had the proceedings been regular this assessment would have been a legal charge, simply because council in the exercise of its discretion made it so. Northern Indiana B. B. Go. v. Connelly, 10 Ohio St. 160.</p> <p>5. Because the question for the court is, has the contractor done the work called for by his contract according to .his contract ? If so, the cost of the work at the contract price will be a proper charge against the defendant. Steese et al. v. Oviatt et al., 24 Ohio St. 248.</p> <p>The sewer assessment in this case was illegal, and could ■not be enforced, because, first, the city failed to follow the ^provisions of the municipal code, sections 603, 605, 615.</p> <p>This sewer was constructed in Bickett alley, which was-a part of a certain sewerage district, and an assessment was levied by the foot front to pay the cost of this pai’ticular sewer. There is no law for this proceeding. Council has no power to assess the entire cost of a particular piece of sewer upon the lands by which it passes. It can only assess the pro rata share of the cost of sewering the entire district, and not the entire cost of any particular main or branch sewer.</p> <p>2. Under sections 613 and 629 of the municipal code, this property being provided with proper drainage, and with a-sewer which, when constructed, will be complete and ample, the council has no power to construct a sewer along the line of this land, which can not be used, and tax the property with its cost.</p> <p>No such injustice was ever intended, and the provisions of the municipal code creating a sewerage fund was intended to meet just such a case as this.</p> <p>3. Two-thirds of all the members elected to council did not concur in the making of the improvement and the assessing of the- cost upon the abutting lands, as provided in section 540.</p> <p>Under that section it is necessary that the determination of the council to do the work and asséss the cost upon the abutting lands shall precede the actual making of the improvement, and where the council has failed in either of these particulars it is not a mere irregularity, but goes to the power of the council to do the work and -afterward levy a valid tax.</p> <p>Now it appears to me that when this section provides that ño improvement, the cost of which “ is to be specially assessed,” etc., “shall be made unless two-thirds concur',” that it is evidently the intention of the legislature both that the determination to do the work and the determination to tax the adjacent property with the cost after it is done, must necessarily precede the doing of the work, and that not only must the two-thirds concur in the determination that it must be done, but that the cost will be so assessed after it is done. So, therefore, where the proceedings of the council fail to show that it was ever determined to assess the cost of this work upon the abutting lands previous to its actual performance, the fact that two-thirds of the members elected to council concurred in an ordinance that the work should be done is not sufficient.</p> <p>4. If the council has a right to publish in one German paper, it has a right to make all the publications in a foreign language. When the law speaks of a newspaper of general circulation, it means one published in the legal language of the state, which is the English language, and all others can only be of special and not general circulation.</p>

<p>Motion for leave to file a petition in error to the District •Court of Jefferson county.</p> <p>In. the Court of Common Pleas, McConnell, plaintiff, recovered a judgment against the Cleveland and Pittsburg Railroad Company for the value of a horse belonging to the plaintiff, alleged to have been killed by a train on defendant’s road, through the negligence of the defendant.</p> <p>Among other things, it was alleged that the injury was caused by the neglect of the defendant to maintain fences along the sides of its road as required by statute.</p> <p>On the trial to a jury, testimony was offered tending to prove that the horse was killed by a train of defendant’s cars at a point within the limits of the village of Hammondsville. One witness testified that the place where the animal was killed was “ about the public part of the town —in the heart of the town.” It was also shown that the railroad was not fenced on either side at the place where the animal went on the track and was killed.</p> <p>The court was requested to charge the jury “ that the defendant was not liable in this action for want of having constructed fences or for want of cattle-guards, if the accident occurred within the town of Hammondsville.” The court refused to so charge, but did charge “ that the statute of Ohio made it the duty of railroad companies to construct fences and cattle-guards as well iii towns and cities as in the country, and therefore it could make no difference whether the failure to fence occurred in the town of Hammondsville or elsewhere; that if they found the animal got on the track and was killed for want of fences or cattle-guards, and they further found the plaintiff was not guilty of negligence, their verdict should be for the plaintiff.” To the refusal to charge as requested, and to the charge as given, the defendant excepted.</p> <p>On error, the District Court affirmed the judgment below, and this motion is made with a view to obtain a reversal of the judgment of affirmance, and also the original judgment.</p>

. Motion for leave to file a petition in error to the District Court of Summit comity. On the 25th day of February, 1868, Philip Cramer executed his note to Samuel C. Taylor for $2,500, payable-five years after date, with interest at the rate of ten .per cent, per annum, payable annually; and,to secure payment of the note, executed a mortgage on certain real estate situate in Summit county.

<p>Under section nine of the act regulating the mode of administering assignments in trust for the benefit of creditors, the priority of judgment liens is to be determined as the liens existed at the time the assignment took effect.</p>

<p>1. Under the act of February 24, 1846 (S. & 0. 475), and the amendments thereto, the office of the county recorder is made the place for the deposit of chattel mortgages only when the instrument is executed by a resident of the township where such office is kept, and, if the mortgagor be not a resident of the state, when the mortgaged property is in such township at the time of the execution of the mortgage.</p> <p>.2. Where a township or a part of a township is annexed to the corporate limits of a city or village wherein the office of the county recorder is kept, but is not a part of the township in which the office is kept, such recorder’s office does not become the place for deposit of chattel mortgages executed by residents of such annexed territory.</p> <p>8. Where the corporate limits of a city or village become identical with those of a township, and the office of the township clerk is thereby abolished, as provided in section 475 of the municipal code (66 Ohio L. 229), ■ the office of the clerk of such city-or village, under the provisions of section 477 of the same code,.becomes a depository for chattel mortgages.</p> <p>4. Where an infant purchases a chattel, and, at the same time in performance of the contract of purchase, executes to the vendor a mortgage on the purchased chattel to secure the payment of the purchase-money, he can not, on the ground of infancy, avoid the mortgage without also avoiding the purchase.</p> <p>6. Where the mortgage in such case has been properly deposited, a subsequent purchaser of the mortgaged property from the infant, takes it subject to the mortgage.</p>

<p>1. The knowingly taking or receiving by a national bank of a rate of interest greater than is allowed by law upon a loan of money, does not en title the person paying the same to have it applied as a payment of so much of the principal, in an action brought to recover the principal debt more than two years after such payment was made.</p> <p>2. The rights and liabilities of the parties in such case are prescribed in the national bank act, and can not be controlled by state legislation.</p> <p>3. Before judgment, the penalty allowed for the taking or receiving of usurious interest by a national bank does not bear interest.</p>

<p>Error to the Court of Common Pleas, reserved iu the District Court of Gallia county.</p> <p>This was an action of slander, in which there was a verdict and judgment for the defendant in the court below. The words for the speaking of which the action was brought, were as follows : “ Do you go and get Amanda Hamm to swear another--lie.” “ She ” (meaning Amanda Hamm) “ did swear a lie,--, she did.”</p> <p>One Frances McKinney had ■ caused the arrest of Isaac Wickline before a justice of the peace on a charge of bastardy. On the preliminary hearing of the case, the justice of the peace assumed jurisdiction to try and determine the case on its merits. Mrs. Hamm was sworn and examined as a witness for the prosecutrix on the trial.</p> <p>The words spoken by the defendant had reference solely to the testimony given by Mrs. Hamm on this trial.</p> <p>On the trial in the Court of Common Pleas, the plaintiff requested the court to charge the jury substantially as follows :</p> <p>1. That if the justice of the peace decided that he had jurisdiction to try and determine the case on its merits, and subpenaed and required Mrs. Hamm to give testimony, and she did give material testimony on the trial, and the defendant, believing she had legally testified on the trial so as to be guilty of the crime of perjury if she had knowingly and willfully testified falsely, spoke the words in reference to her testimony so given, intending thereby to charge her with the crime of perjury, and those hearing the words •so understood it, then the words are actionable and the ver■dict must be for the plaintiff.</p> <p>2. That the words are actionable if the defendant knew that the justice had no authority to administer the oath, .and maliciously made the charge, knowing that those who heard it would .understand it as a charge of perjury.</p> <p>8. That the words are actionable if the defendant maliciously intended to charge perjury, and those hearing so understood the charge.</p> <p>4. That the words are actionable if the defendant in ■speaking them referred to her testimony given on the trial, without explanation, and knew that the hearers understood it as a charge of perjury.</p> <p>5. That the words are actionable if the defendant in speaking 'them supposed the oath was valid, and that if her testimony was false she would be guilty of perjury, and vthose hearing so understood it.</p> <p>6. That- the words impute to her the crime of perjury, and are actionable per se.</p> <p>All of which the court refused to give as requested, and exceptions were saved.</p> <p>The District Court reserved the case for hearing here.</p> <p>The plaintiffs in error ask a reversal of the judgment of the Court of Common Pleas. The errors assigned and relied on are, that the Court of Common Pleas erred in refusing to give the special charges requested.</p>

<p>Consolidated railroad companies, organized • in pursuance of the act of April 10, 1856 (4 Curwen, 2791), are corporations formed under a. general law, within the meaning of article 13, section 2, of the constitution of 1851, and as such are subject to the limitations and reservations contained in that section, and in article 1, section 2, of that instrument; and the general assembly has power to alter and regulate rates of fare chargeable by such companies.</p>

<p>The dedication of a street, as laid out on a town plat which is not executed in accordance with the statute, may, as against the corporation within which the land is situate, be revoked at any time before its acceptance by the corporation or by the public, notwithstanding lots laid out on the plat may have been sold; and a conveyance of the land in fee simple, by a deed of general warranty, operates, in law, as a revocation.</p>

<p>Motion for leave to file petition in error to reverse the judgment of the Superior Court of Cincinnati.</p> <p>Henry Huntemann, a contractor and builder, entered into a written agreement with Moses Goldsmith, a lot-owner, by which the former agreed to furnish all the materials and build for the latter a house on his lot, in which to carry on .the business of wholesaling and retailing dry goods, aecording to plans and specifications which were made part of the contract. The price agreed on for completing the house-according to contract, was $13,000; about $10,300 of which was to be paid during the progress of the work, and the residue in a specified manner after the work was completed. There were also stipulations as to the price to be paid for' certain kinds of work, in excess of the quantity named in the contract, if the same was found necessary and should be performed.</p> <p>Huntemann, as he claims, built the house in accordance with the terms of the contract. Goldsmith went into possession of the building, and is using it for the purposes intended.</p> <p>Huntemann claimed to have done extra work in pursuance of verbal instructions given by Goldsmith during the progress of the -work, of the value of $780, in completing the house. Including this sum for extra work, he claimed that there was a balance due of $2,782.79, for which sum he perfected his mechanic’s lien under the statute; after which he assigned the claim and the lien securing it to Sylvester Hand in trust for all the unpaid material-men. Hand sued Goldsmith to recover the amount claimed to be-due to his assignor. The petition contains two causes of action. The first founded on the written contract, as verbally changed by consent, and alleging a compliance with the same in every respect by Huntemann. The second is founded on the account for extra work.</p> <p>The answer admits the execution of the contract, and agreement to pay; alleges the payment of over $11,000 on the contract, and denies all other allegations of the petition, and also sets up a counter-claim for damages on account of delay in the completion of the work, and for defective materials and unfinished work.</p> <p>On the trial, a bill of exceptions was taken by the defendant below, which sets out the tendency of only so much of the testimony as was deemed necessary to show the pertinency of the legal questions made in the case.</p> <p>The defendant requested the court to give the following instruction to the jury:</p> <p>“ 1. The plaintiff in this action can not recover the contract price for putting up the building stated by him in his petition herein to have been built, unless he prove that Henry Huntemann, his assignor, has fully completed his said contract, and each and every obligation imposed on him by the terms of his said contract set up in his petition.” 'Which the court refused to give, and the defendant excepted.</p> <p>In its general instructions the court charged the jury as follows: “ If Huntemann had not performed his agreement to build said house fully, but had substantially completed it, and leaving little only to be done, and so far performed it as to erect a structure useful to the defendant Goldsmith, then they should allow the plaintiff the contract price for building the same less such amount as it would take or require to construct those parts by said Huntemann omitted or neglected to be built or constructed; aud if said Huntemann had, by the consent or agreement of both parties, during the progress of the work, constructed some parts of said building of materials different from that required by his agreement, or of size and form different from that by said agreement required of him, but yet if, as constructed and made in consequence of said agreement, the same were useful to the defendant Goldsmith, then the plaintiff should recover the contract price for erecting said building less the difference in the value of those parts so constructed, and their value as the contract required them to be constructed.” To which instruction the defendant excepted. The jury gave the plaintiff $2,535.10.</p> <p>A motion for a new trial was overruled, and judgment entered on the verdict; to all of which the defendant excepted.</p> <p>On error to the general term of the Superior Court, the judgment of the special term was affirmed.</p> <p>This, is a motion by the plaintiff in error for leave to file a petition to reverse the judgment oí the general term of the Superior Court.</p> <p>There are a number of errors assigned, but only those relating to the charge of the court will be particularly noticed.</p>

<p>Motion for peremptory mandamus.</p> <p>This is a motion, for the allowance of a mandamus to compel the city solicitor of the city of Cincinnati to deliver to the city auditor proper vouchers, and to compel the auditor to receive the vouchers and issue warrants on the city treasurer, one in favor of Ryan for $4,606.41, and the other in favor of Nicholas Longworth’s executors for $5,693.59, making $10,800, which was the amount of a verdict rendered in the Court of Common Pleas of Hamilton county, in a proceeding to appropriate real property for the extension of Sloo street, in Cincinnati. Ryan was the owner of a leasehold for twenty years in the premises, with privilege of purchase, and the reversionary fee was in the executors of Longworth. The ordinance to condemn,. passed by the council September 6,1872, directed the city solicitor to institute proceedings for the purpose of appropriating the property. Proceedings were accordingly commenced in the Probate Court of that county on February 24, 1873, and a verdict and judgment were rendered March 31, 1873; whereupon Ryan appealed to the Court of Common Pleas. In the latter court, a verdict was rendered June 6, 1874, assessing the value of the property at $10,300, as above mentioned. On March 29, 1875, an ordinance was passed by the council, authorizing the auditor of the city “ to draw his warrant on the city treasurer for the above-named amount, in favor of proper parties, upon receiving proper vouchers therefor from the solicitor.” And on November 16, 1875, the Court of Common Pleas, by consent of parties, heard the evidence, and thereupon ascertained the portion of the verdict to be paid to each of the parties, being the sums for which they desire warrants, as above mentioned.</p> <p>The city had caused a four-inch water-main to be laid in Sloo street, through the premises in question, but this did not interfere with Ryan’s occupancy.</p> <p>The auditor refused to issue the warrant, notwithstanding funds were in the treasury applicable to its payment; and hence this application for a mandamus.</p> <p>I. The fact that the city auditor is, by the ordinance, only authorized to draw his warrant on the city treasurer for the amount of the verdict, “ upon receiving proper vouchers therefor from the solicitor,” affords no answer to our application for a mandamus, because—•</p> <p>1. The ordinance vests no discretion in the city solicitor. His duty is simply to furnish receipts to be signed by Ryan .and the executors of Longworth. Whitwell v. Willard, 1 Met. (Mass.) 216 ; The State v. Hickman, 3 Halsted, 299.</p> <p>2. It is admitted by the respondents that the auditor ■“ has at all times refused to receive from said Strong, city •solicitor as aforesaid, the vouchers mentioned in said ordinance.” How could he refuse unless Strong offered to furnish them ? It is not stated anywhere that Strong refused to furnish the vouchers. The propriety of making him a party at all may be questionable, as we only ask that he deliver the voucher to the auditor.</p> <p>3. Where, as in this ease, the duty is ministerial, the officer who refuses, whether solicitor or auditor, will be compelled by mandamus to perform it. Smith v. Portage Go., 9 Ohio, 25-28; Burnet v. Portage Go., 12.Ohio, 54; State ex rel. v. Burgoyne, 7 Ohio St. 153; Seney’s Code (2 ed.), sec. 569, and notes. Here the facts are agreed upon, and hence the writ will issue if the ground of refusal to deliver or receive the vouchers, or issue the warrants, be insufficient. “If the reasons assigned for non-performance be insufficient, the writ will be made peremptory.” Tillson v. Putnam Go., 19 Ohio, 415-417; Civil Code, sec. 572.</p> <p>II. The proceeding was not void, under section 537 of the municipal code (66 Ohio L. 240), on the ground that the city failed to pay for or take possession of the property within six months after the assessment, because—</p> <p>1. That section had its origin in the act of 1867 (S. & S. 894, sec. 323), which was suggested by the remarks of the .court in The State ex rel. v. Cincinnati and 2nd. 22. B. Co., 17 Ohio St.-103-109. However that may be, the provision as to time was evidently inserted for the benefit of the landowner, and hence may be waived with his consent. Observe the language: If the city “ shall fail to pay for or take possession of the same within six months, . . . the right of such corporation to make such appropriation on the terms of the assessment so made, shall cease and determine,” etc. Instances are numerous where, notwithstanding stronger language than is found in that section, the proceeding or act has not been held wholly nugatory. Thus, the statute against fraudulent conveyances provides that they “ shall be deemed utterly void and of no effect,” yet they are held to be entirely valid, except as to creditors and bona fide purchasers. Burgett v. Burgett, 1 Ohio, 469. The purchase by an appraiser, though the statute declares-it shall “ be considered fraudulent and void,” is nevertheless held to be voidable only. Terrill v. Auehauer, 14 Ohio St. 80. And the word “ all ” is sometimes considered in a general, instead of a universal sense. Stone v. Elliott, 11 Ohio St. 258. Here, if the proceeding was susceptible of ratification, the acts of the parties, disclosed in this case, amounted to a ratification.</p> <p>2. But six months had not elapsed from the “ appropriation ” before the passage of the ordinance. The time is to be computed, not from the return of the verdict, but from the entry of judgment thereon. Perhaps there is no power in the court to set aside the verdict on the ground of difference with the jury as to the value; yet if the jury or parties should misbehave, the court would certainly interfere. But that is not the test. The provisions of the statute are clear that the six months commence to run from the entry of judgment on the verdict. 66 Ohio L. 145-286, sees. 531, 582, 584, 537. .</p> <p>Any other construction of those provisions leads to absurdity. If the verdict is the only matter of importance in such case, how could error in the proceedings be corrected in this court, which can only review cases wherein judgments have been rendered or final orders made ? Again, the verdict was rendered June 6,1874. The city could not then pay either Ryan or Longworth’s executors, for the amount due each had not been found by the jury or ascertained by the court; and, for the same reason, neither Ryan nor the executors could make demand of the city; nor could the city deposit the amount, except by order of court (66 Ohio L. 238, secs. 227, 228), and none was made. Surely it could not have been intended that delay for six months to hear the evidence, or render final judgment or order, or make an order to deposit, should defeat the proceeding.</p> <p>Nor does The State ex rel. v. Cincinnati and Indiana Railroad Company, supra, lend support to the respondents. There the company gave notice, before the confirmation of the verdict, that it abandoned the proposed appropriation; the Probate Court refused to enter an order for the payment of the money to the owner; and the company never took possossion of any portion of the land, but located, built, and operated its road elsewhere. Here the city consented to the entry of judgment on the verdict; it passed an ordinance to pay the amount of the verdict, and it has taken partial possession of the property.</p> <p>III. It is urged that the act of 1874 (71 Ohio L. 80, sec. 3) is in our road to relief; and this clause is relied on, that “ no such ordinance or order shall take effect until the auditor shall certify to the city council that there is money in the treasury especially set apart to meet such expenditure.” But—</p> <p>1. "We may fairly assume that such certificate was furnished. It is agreed “ that at the time of the passage of said ordinance, No. 2099—that is to say, on the 19th day of March, 1875—and at all times during said month of March, and at all times since, there has been and still is money in the treasury of said city, and in the general fund aforesaid, amply sufficient to pay, and applicable to the payment of, said sum of ten thousand three hundred dollars to the plaintiffs herein.”</p> <p>It is further agreed that the “ordinance was duly adopted by said common council, the same having been adopted by the board of aldermen on the 12th day of March, 1875, and by the board of councilmen on the 19th day of the same month, pursuant to the proceedings to appropriate.” And it is further agreed that “ on the 20th day of the same month of March, Hon. Gr. W. C. Johnston, mayor of said city, approved said ordinance, and the same has been duly published and recorded, and is now in full force and effect; all of which will more fully appear by the records of said city in the office of its clerk remaining.”</p> <p>To this state of facts we may well apply the principle, that “ acts done which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Ward v. Barrows, 2 Ohio St. 241; Coombs v. Lane, 4 Ohio St. 112; Seovern v. State, 6 Ohio St. 288. And, as was held in the same cases, “ facts presumed are as effectually established as facts proved.” Consequently, the conclusion is fairly reached, that the auditor furnished the proper certificate.</p> <p>We deny that this is merely technical; but if it is, so is that clause of the act of 1874 (71 Ohio L. 80), when applied to a case where it is admitted that the money is in the treasury applicable to the payment of the claim. “ Technicality is never more appropriately resorted to than to meet and put down technical objections.” Forsythe v. State, 6 Ohio, 19.</p> <p>2. The above-mentioned act (71 Ohio L. 80) has no application to this ease. That act was passed April 16,1874. The ordinance declaring the intention to appropriate the property, and directing the solicitor to institute proceed-ings to condemn it, was passed in 1872, and all the proceedings to condemn were had in the Probate Court, and the ■appeal to the Common Pleas was perfected in 1873. The language of the act (sec. 3), and the reason of it, are entirely inapplicable to the ordinance of March, 1875.</p> <p>IV. Respondents say that the acts of the parties can not amount to a bargain and sale, because no conveyance has ■'been made by the relators. But here also they are in error. Delivery of possession, upon payment of the money, would -operate as a conveyance and estop the parties, even if the proceedings were defective. Smart v. Portsmouth § C. B. R., 20 N. H..233; Chicago v. Wheeler, 25 111. 478; Fmbury -v. Conner, 3 Comstock, 511; Buell v. Lockport, lb. 197; Huston v. Gin. $■ Z. R. R. Co., 21 Ohio St. 235.</p> <p>Respondents insist, however, that if the acts of the parties only amount to a bargain and sale, the adjacent property-owners can not be charged with the cost of the improvement, and consequently the expense must be borne by the city. No doubt that is true; and it is also true that the city must bear the expense, even if this was, as we <elaim, strictly a condemnation, for the preliminary steps to ■charge the property-owners were not taken. But, however that may be, the objection can have no legitimate effect in this case, for no such question is presented.</p> <p>As it appears from the motion and agreed statement of facts, the auditor was required by the ordinance to issue his warrant for the money upon the certificate or voucher of the solicitor; and as it is not alleged that the latter has issued any voucher, the auditor can not be required to issue the warrant, unless the solicitor can be required to issue the voucher. The solicitor is the law officer of the corporation, and it is to be presumed that it was intended that he should look into the validity of the proceedings, and be satisfied as to the title, and that his voucher should be given to. satisfy the auditor that the proceedings were correct and the title good. We claim that the true construction of the ■ordinance to appropriate, is that the solicitor should only issue the voucher in case he was satisfied that the title would be good and an assessment could be levied upon the benefited property, -to collect the amount paid for the property. If, then, this was the intention of the council in passing the -ordinance to appropriate, the question of title was intended to rest upon their legal adviser’s opinion, and in case his opinion was adverse to the title, the property was not to be taken. The event upon which the voucher of the solicitor was to issue—to wit, a favorable opinion of the title—not having occurred, he was not bound to issue it, and can not be required to do so.</p> <p>The solicitor was right in refusing to issue the voucher, because no title to the property could be acquired under the condemnation proceedings. Section 537 of the municipal code provides, that the right of the corporation shall cease and determine “ six months after the assessment of compensation shall have been made, as above provided.” •Observethe language : “ six months after the assessment;” not .after final order or judgment, but after the assessment.</p> <p>It is provided by the constitution and the statutes pursuant thereto, of which chapter 47 of the municipal code is one, that the value of lands' appropriated to the public shall be determined by the verdict of a jury. That is the great point, the object toward which all the statutes are directed ; and all the proceedings prescribed by the statute show that the object of all is to secure a verdict. Upon the verdict, the court may (see. 324) enter an “order” as to time and manner of payment, the proportion payable to each, and may require adverse claimants for part of the money to interplead; and (sec. 525) may direct the time and manner of delivering possession of the property condemned. These are all the matters as to which the court may “ order.” They are all formal or collateral matters, and it is obvious that no judgment in any proper sense was intended to be entered. These orders only regulate the time and manner of exercising the right secured by the verdict of the jury. They conferred no additional right upon the corporation. It is clear that no order or judgment, requiring the corporation to take the property or pay the-money, could be entered, and that no such order or judgment could be enforced if entered.</p> <p>The case of the State ex rel. Hayes v. C. § I. It. It., 17 Ohio St. 103, settles the question, that where the corporation declines to take the property, it will not be required to do so by mandamus. In this case it is true that the council indicated its willingness to take, by the passage of the-ordinance to appropriate after the last verdict; but it was more than six months after the verdict, and the proceedings had become void by lapse of time, so that no title could be secured to the property, nor any assessment levied upon the abutting property, to pay the cost of the property appropriated. The right to make such an assessment is only given the corporation in case the land was taken by proceedings to appropriate. Municipal Code, sec. 583.</p> <p>The assessment could not be sustained in case of a purchase, and to pay the money and take the property after the expiration of the six months, would only be a purchase--of the property. Now the ordinance to condemn provides that the cost of the appropriation shall be assessed upon the property abutting or benefited thereby. The solicitor, then, had not only to look forward to the title, but also to look forward to the assessment. The defects in the title might have been cured by a deed, if any had been tendered, which is not the case ; but the defects with regard to the assessment are incurable, and the corporate treasury would have had to bear the expense instead of the benefited property. On that ground, therefore, in addition to the other, the solicitor was right in declining to issue the voucher.</p> <p>The act known as the Worthington law (71 Ohio L. 80, sec. 3) does apply. It requires that the auditor shall certify that there was money in the treasury especially set apart to meet the expenditure. It is agreed that there was money in the treasury applicable to the payment of the plaintiffs, but there was no such certificate as required by the act, nor has there been any such certificate delivered since the passage of the ordinance. The act provides that no ordinance for the expenditure of money shall take effect “ until the auditor of said city shall certify to the city council that there is money in the treasury especially set apart to meet the expenditure.” The certificate is made an essential condition precedent to the taking effect of the ordinance, as the negative words and impex’ative language of the act show. The ordinance never having taken effect, it can not be enforced by mandamus.</p>

This is an action by the defendant in error against the plaintiffs in error, to recover damages for the killing of a horse of the defendant in error, by reason of the careless .and negligent management of a locomotive and train of •cars of the plaintiff' in error by its servants and agents, over that part of the line of their road which passes through the land of the defendant in error.

. The original action was brought by defendant in error against the plaintiffs in error. The issue was tried by a jury. The pleadings in the case, omitting the formal parts, were as follows: FOURTH AMENDEB PETITION. Plaintiff says there is due to him from the defendants, for money had and received, the sum of two thousand dollars, with six per cent, interest thereon from February 11, 1869, which has never been paid, nor any part thereof, though often demanded.

The original action was commenced December 21, 1870, in the Common Pleas of Belmont county, by James Kinsley against Richard V. Whelan. Both parties are since deceased, and this proceeding is conducted by their personal representatives.

<p>1. Under section 307 of the code, cases on demurrer may, in the discretion of the court, be heard out of the order in which they stand on the trial docket.</p> <p>2. In the business of banking, the purchasing and discounting of paper is only a mode of loaning money; and a national bank is authorized thus to acquire notes and bills which are perfect and available in the hands of the borrower, as well as his own paper made directly to the bank.</p> <p>3. Where a note or bill is an existing security in the hands of the holder, the usury .exacted by the bank in its acquisition, is not available, by way of defense, to the antecedent parties. Their rights and liabilities are not affected by the usurious character of a transaction in which they did not participate.</p> <p>4. The party with whom the bank had the usurious transaction, is the party to whom, under the national banking act, the forfeiture of interest is to be adjudged; and who, in case the interest has been paid, is authorized to recover back twice the amount.</p> <p>5. Where a separate action might have been maintained against a party, a separate judgment, under section 371 of the code, is proper.</p>

<p>Motion for leave to file a petition in error to the Superior Court of Cincinnati.</p> <p>On the 5th day of September, 1874, the defendant in error, plaintiff below, filed her petition in the Superior Court of Cincinnati, in which she alleges, in substance, that on the 1st day of November, 1860, Cornelius W. Lane^ for a valuable consideration, conveyed to her by deed in fee-simple, with covenants of general warranty, a certain lot on Front street, in the city of Cincinnati, of which she is now the owner, and which has been in her possession as the owner thereof since the date of the conveyance to her; that on the 25th day of November, 1852, Samuel Ward and Mary A. Ward, his wife, who were then in possession of the above-described lot, duly executed and delivered to John II. Lane, the grantor of her grantor, their deed, whereby, in consideration of $2,055, they intended and attempted to convey the same to John H. Lane in fee-simple, which deed was duly recorded in the record of deeds of Hamilton county; that the deed was prepared with the intention and for the purpose of conveying the full title to the premises to John II. Lane, and was signed, sealed, acknowledged, and delivered by Samuel Ward and Mary A.y his wife, in the full belief and .understanding on their part, and that of John H. Lane, that the same fully and truly expressed their intention by conveying to John H. Lane the entire fee-simple interest of Samuel Ward and Mary A., his wife, in the premises, in full faith whereof, John H. Lane paid to them the full consideration therefor, accepted the deed, and entered into the possession of the premises; that the deed was in all respects properly executed and acknowledged by the parties thereto, but the officer before whom the acknowledgment was made, by inadvertence or mistake, omitted to certify the separate examination of Mary A. Ward, the wife of Samuel Ward, as required by statute, by reason whereof, and contrary to the understanding and agreement of the parties to the deed, the same does-not have the legal effect intended by them ; that after discovering the mistake in the deed, the plaintiff called upon the grantoi’s, Samuel Ward and Mary A., his wife, and also upon the defendants, and requested them to correct the same, which they refused to do; and that the defendants, as heirs at law of Samuel and Mary A. Ward, in consequence of such omission, claim title to and possession of the premises. She prays judgment for the correction of the deed so as to make it conform to' the intention of the parties, to the end that the fee-simple of the premises be conveyed to her, etc.</p> <p>The defendants filed an answer and a cross-petition.</p> <p>The answer denies that Mary A. Ward made any contract or agreement with John H. Lane to convey to him the fee-simple title to the premises described in the petition, or that she united with her husband in the execution of the deed of November*25, 1852, to John H. Lane, for any purpose other than to convey to him whatever right Samuel Ward had in law in the premises as her husband. It also denies “that there is any defect, omission, mistake, or departure in the terms expressed in the deed from the contract, agreement, or intention of the parties thereto; but the same truly and fully, and in due and legal form, expresses the only contract, agreement, and intention the parties had, at the time of making the same, in respect thereto.” It also denies the averments of the petition as to any inadvertence, omission, or mistake on the part of the officer before whom the deed was acknowledged, and as to her examination separate and apart from her husband. The cross-petition sets out that the defendants are the children and grandchildren of Mary A. Ward, the issue of a former marriage, and are her only heirs at law; that Mary A. Ward died on the 3d day of June, 1874, leaving no issue of her marriage with Samuel Ward, and was at her death seized in her own light, in fee-simple, of the premises described in the petition; that the title to the same did not come to her by deed of gift from her husband, Samuel Ward, nor was the same devised or conveyed to her by deed of- gift from any of his ancestors; that as the only heirs at law of Mary A. Ward, the defendants, are legally seized of the title to the premises in fee-simple, and are entitled to the immediate possession of the same; that the plaintiff has no title or claim to the premises other than that derived under the conveyance from Samuel Ward and Mary A., his wife, to John H. Lane, and as that conveyance was not acknowledged by Mary A. Ward in the manner directed by the statute, the mere signing and sealing of the deed did not divest her of title. They pray judgment for the recovery of possession of the premises, etc.</p> <p>The reply specifically denies every averment of the answer .and cross-petition which are inconsistent with the allegations of the petition.</p> <p>At the June term of the court, 1875, after the parties Lad produced all their evidence, it appearing that there were important questions of law and fact in °the case, the same was ordered by the court to be reserved upon the testimony, for decision in general term. At which term, held on the 23d day of the same month, the court, on the hearing, found in favor of the plaintiff’ on all the issues joined, and that she was entitled to the relief prayed for in her petition, and decreed accordingly, to which the defendants excepted, and thereupon filed their motion for a new trial, for reasons therein stated, which was overruled by the court, and the ruling excepted to.</p> <p>A bill of exceptions was presented by the defendants, containing all the evidence and the rulings of the court on the trial, which were excepted to by them, which was signed and sealed by the court, and made part of the record in the case. It appears from the admissions of the parties set out In the bill of exceptions, that on the 25th day of August, 1847, Samuel Ward and Mary Ann Ward, his wife, conveyed the premises described in the petition, the grantee in the deed not being named in the admission, for the con.sideration of two thousand dollars; that on the 5th day of September, 1851, James Carroll and wife conveyed the same premises to Mary Ann Ward for the consideration of one thousand nine hundred dollars ; that by virtue of an order of tbe Court of Common Pleas of Hamilton county confirming a sale of the same premises, made by the sheriff of that county to Cornelius W. Lane, on an execution issued against John II. Lane, in case No. 16,979, pending in that court, wherein William L. Lane, administrator, was plaintiff, and John H. Lane et al. were defendants, the sheriff' conveyed the same to Cornelius W. Lane for the consideration of one thousand six hundred dollars, that sum being two-thirds of their ajjpraised value ; that the plaintiff holds the title to the premises by a regular chain of title under the conveyance from Samuel Ward and Mary Ann Ward, his wife, to John H. Lane, of November 25, 1852, and that the defendants are the only heirs at law of Mary Ann Ward, and are her children and grandchildren, the issue of a former marriage.</p> <p>It also appears from the bill of exceptions, that the plaintiff offered in evidence a deed, properly executed by Cornelius W. Lane, dated November 1, 1860, conveying to her, in fee-simple, the premises described in the petition, for the consideration of two thousand five hundred dollars; admitted copies of an original and an amended petition, filed in the Court of Common Pleas of Hamilton county, in an action commenced in that court on the 11th day of September, 1874, by the present plaintiffs in error as plaintiffs, against the present defendant in error as defendant, to recover the possession of the premises and damages for their detention, on the ground of the omission in the deed from Samuel Ward and Mary Ann Ward to John H. Lane, of which petition a copy of the deed was made a part and thereto attached, and the record of the same deed; and also produced testimony tending to show the loss of the original deed from Samuel Ward and wife to John H. Lane; the continued occupancy of the premises, by the plaintiff below, from November 25,1852, the date of the conveyance from Ward and wife to John H. Lane, to the commencement of the present action, first as lessee of John II. Lane and afterward as grantee of Cornelius W. Lane; the erection of valuable improvements thereon by her during such-■occupancy; the continued residence of Samuel "Ward and Mary Ann Ward, his wife, in the vicinity of the premises, from the time of the conveyance to John H. Lane until the death of Mary Ann Ward, which occurred on the 8d day of June, 1874; that the consideration paid by John H. Lane to Ward and wife for the premises was their full value at that time; and the admission and declaration of Mary Ann Ward that the premises had been paid for by Lane, that she had deeded them to him, and “that she had no further claim upon them, and would have none.”</p> <p>I. The defendant in error has not shown any title, not having produced the original deed. Lessee of Johnson v. JIaines, 2 Ohio, 55. There has been no regular and proper record of the deed in this case, and no authorized certified •copy.</p> <p>Without the original deed, we have nothing to start from. The copy and record offered are of no avail, as they are made without any authority, as the statute only authorizes the recording of duly authenticated deeds.</p> <p>II. Parol testimony can not be received to supply the defect in the acknowledgment of a deed. Mliott v. Per sol, 1 Peters, 333.</p> <p>If such parol proof can be received, the evidence offered for that purpose here is incompetent; because—</p> <p>1. They can not be admitted as declarations against interest ; for such declarations, when made by one not in possession, merely go to abridge or incumber the estate, 1 Taylor on Evidence, 597, sec. 620; Queen v. Bliss, 7 A. & E. 550; 1 Greenl. on Evidence, sec. 109.</p> <p>2. Nor can they be admitted as declarations of intentions, because such declarations are only admitted “ when extrinsic evidence has shown that a description in the instrument is alike applicable to two or more pei’sons or things.” 2 Taylor, 1017, see. 1092; Loe v. Hissocks, 5 M. & W. 363.</p> <p>3. The acknowledgment is itself the best evidence of what took place. 10 Irish Rep. (N. S.) 245.</p> <p>III. The act of April 17,1857 (S. & C. 694), does not provide a remedy for the defect in this deed; for, as we claim, there is no deed to correct. Foster’s Lessee v. Dennison, 9 Ohio, 125 ; Miller v. Hiñe, 13 Ohio St. 565 ; Smith v. Turpin, 20 lb. 478; Goshorn v. Purcell, 11 lb. 641; Winkler v. Higgins, 9 lb. 599; Garr v. Williams, 10 Ohio, 305.</p> <p>made the same points in their brief as Mr. Wilby.</p> <p>I. We claim that the intention to convey the fee-simple in this ease is made manifest from the sweeping and unmistakable words of the conveyance of the entire premises, and the further fact that a full consideration therefor was paid. See Goshorn v. Purcell, 11 Ohio St. 647, 648. The case of Goshorn v. Purcell becomes especially applicable to this case when we consider that the fee-simple, before and at the date of the defective conveyance, was in fact in Mrs. Mary Ann Ward.</p> <p>In addition to what the deed itself shows as to the intention to convey, the testimony on the triahis conclusive. It shows that Mrs. Ward had said, subsequent to the conveyance, that “ she had no claim in the property, and would have none.”</p> <p>II. It is well settled in Ohio, we think, that courts of equity, under the law of 1857 (S. & 0. 649), will give effect to the manifest intention of the parties in cases of this kind. Goshorn v. Purcell, 11 Ohio St. 641, 646, 648, 649 ; Smith v. Turpin, 20 lb. 478; Miller v. Hiñe, 13 lb. 565; Hout v. Hout, 20 lb. 119.</p> <p>TTT- The declarations and admissions of a grantor against his or her title are always competent. Tipton, Lessee, v. Boss, 10 Ohio, 273; Greenl. on Ev., secs. 109,147,153; Taylor on Ev., secs. 1090, 1095; Gillisvie v. Moore, 2 Johns. Oh. 584.</p>

<p>Error to the Common Pleas of Logan county.</p> <p>Marts was tried at the November term, 1874, on an in•dictment for murder, and was convicted of manslaughter, .and sentenced to the penitentiary. The only defense set up -on the trial was, that the homicide was justifiable under the law of self-defense. The evidence' tended to show that death was caused by a stone thrown from the hand of the prisoner; and there was also evidence tending to show that at the time the stone was thrown the deceased was armed with a pistol, and in the act of drawing the same, threatening that he would “ fix ” the prisoner. The evidence also showed that the deceased had previously threatened the prisoner’s life, and that the prisoner had knowledge of that fact. Eor the purpose of further showing the imminence of prisoner’s danger, and that his act was justifiable on the ground of self-defense, his counsel offered to prove that the deceased was a man of violent, vicious, and dangerous character, and that the prisoner, at the time of the rencontre, had knowledge of the fact. This evidence the court rejected, and the prisoner’s counsel excepted to the ruling of the court.</p> <p>The record also shows that, after the defense had closed its testimony, the state recalled one of its witnesses, who had been examined in chief, but who had testified to nothing that was disputed or denied by the prisoner or his witnesses, and by this witness contradicted material parts of the testimony of the prisoner and his witnesses. The prisoner’s counsel thereupon offered testimony to prove the bad character of the witness for truth and veracity. But the court rejected the evidence, on the ground that it came too late. This ruling of the court was also excepted to by the counsel for the prisoner.</p> <p>After the evidence had closed, the prisoner’s counsel .asked the court to instruct the jury as follows:</p> <p>“ If Marts procured the stone he threw only for purposes of lawful self-defense, and if Brooks was armed with a deadly weapon and was turning to attack him, and if an attempt to flee by Marts would endanger his life, and he believed and knew all this in good faith, and if Marts threw the stone in good faith, believing it was the only mode by which he could avoid great bodily harm, then his act was not unlawful, and he could not be convicted of manslaughter.”</p> <p>The court refused so to charge, but did charge as follows :</p> <p>“If you are satisfied, from the testimony, that the defendant had good cause to fear death or great bodily harm, from the deceased, and the danger was imminent—so much so that retreat would increase the danger—this act would* be excusable. You will look to the evidence, and see whether there was danger.' The palpable fact must exist that there was danger; and the fact that the defendant believed he was in danger of great bodily harm will not excuse him, unless in fact he was in danger of such bodily harm.”</p> <p>The prisoner’s counsel also asked the court to instruct the jury that, if in their opinion the evidence warranted it,, they might bring in a verdict for assault and battery only. The court refused to give this instruction, and said to the-jury that if they failed to find the prisoner guilty of murder or manslaughter, they should return a verdict of not guilty generally.</p> <p>In these several rulings of the court, and in others which-need not be specified, it is now claimed that the court’ erred.</p> <p>If Marts threw the stone against his assailant then arcned' with a deadly weapon, in good faith believing it was the only mode by which he could avoid great bodily- harm,- his act was not unlawful, and the court erred in refusing to so charge. Stewart v; State, 1 Ohio St. 72; 2 Moak’s English Rep. 163.</p> <p>1 Bishop Criminal Law (5 ed.), sec. 303, collects the authorities: Way land Moral Science, 81; Reg. v. Thurborn,, 1 Den. C. C. 387; 1 Alison Crim. Law, 565; 1 Hume Grim. Law (2 ed.), 449; McDonald’s case, 1 Brown, 238; ■ The State v. Scott, 4 Ired. 409; Rex v. Scully, 1 Car. & P. 319; State v. Field, 14 Maine, 244; Grainger v. State, 5 Yerg. 459; State v. Rutherford, 1 Hawks, 457; State v. Roane, 2-Dev. 58; Rex v. Holloway, 5 Car. & P. 524; 1 East P. C. ■273-277; 1 Hale P. C. 42; Broom Leg. Max. (2 ed.) 200, 201; 1 Gab. Crim. Law, 13; Oliver v. State, 17 Ala. 587; United States v. Wiltberger, 3 Wash. C. C. 515; State v. Shippcy, 10 Minn. 223 ; State v. O’Connor, 31 Mo. 389; Yates v. People, 32 N. Y. 509; Smaltz v. Commonwealth, 3 Bush, 32; Isham v. State, 38 Ala. 213. Contra, majority of the court, in People v. Shorter, 4 Barb. 460. And see McDaniel v. State, 8 Sm. & M. 401; Fahnestock v. State, 23 Ind. 231; State v. Rutherford, 1 Hawks, 457; State v. Scott, 4 Ired. 409; United States v. Wiltberger, 3 Wash. C. C. 515; Shorter v. People, 2 ■Comst. 193; People v. Shorter, 4 Barb. 460; Oliver v. State, 17 Ala. 587; Carroll v. State, 23 Ala. 28; People v. Sullivan, 3 Seld. 396; Monroe v. State, 5 Ga. 85. See Grainger v. State, 5 Yerg. 459; State v. Clements, 32 Maine, 279; State v. Harris, 1 Jones N. C. 190; 2 East P. C. 273; People v. Austin, 1 Parker, 154; Meredith v. Commonwealth, 18 B. Mon. 49; Teal v. State, 22 Ga. 75; Keener v. State, 18 Ga. 194; McPherson v. State, 22 Ga. 478; Commonwealth v. Fox, 7 Gray, 585; Lingo v. State, 29 Ga. 470; Parsons, C. J., in the Massachusetts court, charge to the grand jury in Self-ridge’s case, Whart. Horn. 417, -418; Lloyd’s report of the case, 7-160; Logue v. Commonwealth, 2 Wright (Penn.), 265, 268; S. P., People v. Cole, 4 Parker, 35; Pond v. People, 8 Mich. 150; Schnier v. People, 23 111. 17; Maher v. People, 24 111. 241; Hopkinson v. People, 18 111. 264; Washington Territory v. Fisk, 3 Am. Law Record (Nov. 1874), 303; Coffman v. Commonwealth, 4 lb. 438.</p> <p>II. Where a party assailed by an adversary, armed with .a deadly weapon, and under the sole influence and impulse of fright, brought on by the wrongful act of the assailant, without any formed purpose, inflicts a mortal injury on the assailant, the party so assailed is excused.</p> <p>This the court refused to charge, and in this there is error. Broom Legal Maxims (2 ed.), 226, 232, 239, 275, 633, ..and note; Bishop Crim. Law (5 ed.), sec. 288, and note.</p> <p>III. The defense had a right to prove that the deceased was a dangerous, violent, and vicious man, and that this was known to the accused.</p> <p>The character of the attack may he proved. It is, in fact, a part of the res gestee. Net the character of the attacking party is equally so. It is a part of the information on which the party assailed judges of his danger and his duty. 5 Ga. 85; Dusenberry v. State, 8 Stew. & Port. 808; State v. Tackett, 1 Hawks, 210; Oliver v. State, 17 Ala. 599; Com. v. Seibert, "Wharton on Homicide, 227; Wright v. State, 9 Terg. 842; Franklin v. State, 29 Ala. 14; Cotton-v. State, 31 Miss. (2 George), 504; Pritchett v. State, 22 Ala. 39; State v. Hicks, 6 Jones (Mo.) 588'; Payne v. Com.., 1 Met. (Ky.) 370.</p> <p>IY. The jury should have been instructed that they might find the accused guilty of an assault and battery. 1 Chitty Grim. Law, 250, 638; Stewart v. State, 5 Ohio, 242; Sharp v. State, 19 Ohio, 379; 2 Campb. 84, 583; 1 Leach, 36, 88; 2 East P. C. 516-518; 2 Hale, 352; Hawkins, b. 2, c. 47, secs. 4-6; 1 Burr. 399; Hudson v. State, 1 Blackford, 318; Durham v. State, 1 Blackford, 33; Morris v. State, 1 Black-ford, 37; State v. McCoy, 2 Aiken (Yt.), 181; Roscoe Big. Grim. Ev. 74; 1 Stark. Ev. (5 Am. ed.) 418; State v. Burt, 25 Yt. (2 Beane), 373; Foley v. State, 9 Ind. 363; State v. Bowling, 10 Humph. 52. This was expressly decided in State v. Steedman, 7 Porter, 495; Clark v. State, 12 Ga. 350; 1 Bishop Grim. Procedure (2 ed.), sec. 478; 1 Wharton Grim. Law (5 ed.), secs. 383-385, 560-565, 617-627; R. v. Mitchell, 12 Eng. Law & Eq. 588; Carpenter v. State, 23 Ala. 84 State v. Kennedy, 7 Blackford, 233; McBride v. State, 2 Eng. (Ark.) 374; Reynolds v. State, 11 Texas, 120; Com. v. Kirby, 3 Cush. 577; Fanned v. Com., 12 Met. 240; Carpenter v. People, 4 Seam. 197; Gillespie v. State, 9 Ind. 380; Johnson v. State, 14 Ga. 55; Cameron v. State, 8 Eng. (13 Ark.) 712.</p> <p>Y. The refusal to receive evidence of the bad character of the acting and de facto wife of the accused was a denial of justice. The offer to impeach was at the first moment when it became material and possible. Judicial discretion can never be allowed to defeat the ends of justice.</p> <p>The court erred in excluding testimony as to the violent, vicious, and dangerous character of the deceased.</p> <p>For the rule as to the admissibility of such testimony, see 1 "Wharton Crim. Law, sec: 641, and eases there cited.</p> <p>The court erred in its instructions to, and in its refusal to instruct the jury.</p> <p>It seems to us a monstrous doctrine that if a man is misled concerning facts, without his own fault or carelessness, he is nevertheless criminally responsible if it should turn out that he was mistaken. To establish such a principle is to remove the foundation-stone of all criminal jurisprudence, for “ the doctrine of intent, as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal,” etc. 1 Bishop Crim. Law, see. 287 (5 ed.)</p> <p>For the rule, see 1 Bishop Crim. Law, secs. '303, 305 (5 ed.); and also see Territory of Washington v. Fisk, Am. Law Rec. for Nov., 1874; Coffman v. Commonwealth, Am. Law Ree. for Jan., 1875; Wharton on Homicide, 418.</p> <p>The decisions cited are so consonant with natural reason, that it is difficult to see why the doctrine has ever been doubted. They are in accordance with the maxim—“Actus non faeit reum, nisi mens sit rea.”</p>

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

<p>Application for a writ of mandamus.</p>

<p>Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument.</p>

<p>Error to the Court of Common Pleas of Ashtabula county.</p> <p>The plaintiff in error was indicted under the first section of the act of April 15, 1857 (S. & C. 74), which l’eads as follows: “ That if any person or persons shall willfully and maliciously kill or destroy any horse, mare, foal, filly, mule, ass, goat, sheep, cow, ox, steer, bull, heifer, or swine, the property of another or others, of the value of thirty-five dollars or upward, or shall willfully and maliciously injure any such animal or animals, the property of another or others, to the amount of thirty-five dollars or upward, the person or persons so offending shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned in the penitentiary and kept at hard labor not more than three years nor less than one year.”</p> <p>The indictment contains four counts, the first of which, omitting the formal parts, charges that “ George Brown, late, etc., on, etc., in, etc., unlawfully, knowingly, willfully, maliciously, and feloniously, did injure a certain mare, the property of Hiram Lake and Hiram J udson, to the amount of thirty-five dollars and upward in the value thereof—to-wit, to the amount of one hundred dollars in the value thereof-—by then and there injecting into the sides of said mare, near the shoulders of the said mare, by means of a certain syringe, which said syringe he, the said George Brown, then and there had and held, a large quantity of some poisonous substance, to wit, one ounce of said poisonous substance, the name of which poisonous substance is to the jurors of the grand jury unknown, which said niare was of the value of one hundred and fifty dollars before- and until said injury; contrary,” etc.</p> <p>The other counts are in substance the same. After the testimony was closed, the counsel for the defendant be~ low requested the court to give to the jury several special instructions, of which the following is the substance: In order to constitute the offense charged in the indictment, it must be proven that the defendant committed the alleged injury maliciously, and that the element of cruelty, in addition to malice, does not essentially affect the character of the alleged act; that malice, passion, or anger toward the animal injured does not make the injury criminal unless there existed personal malice toward the owner, and the latter is the gist of the offense.</p> <p>Which special instructions the court refused to give as requested, but on this point did charge the jury in these words: “ If you find from the evidence that the injury was a serious one, and was inflicted by the defendant; that it was a wanton and cruel act and done by the defendant for the purpose of gain by getting the mare to doctor, and was without any lawful excuse, then you would be warranted in finding that the injury was inflicted maliciously.” The defendant excepted to the refusal to give the special instructions as requested, and to the charge as given.</p> <p>On the trial the state introduced testimony tending to prove that within a fortnight before the animal was injured ■as alleged in the indictment, the defendant, wTho is a professional veterinary surgeon, had repeatedly announced to many persons that a new epidemic horse disease, of which he gave a particular description, was raging at Buffalo, where he had been and treated it successfully; that the ■disease had reached Ashtabula and Akron, and would reach Conneaut in a few days, and nearly all the horses would have it, etc. That about the same time that the animal mentioned in the indictment was discovered to be ailing, a number of other horses in the same village were found to be affected in the same way; all of which the defendant had seen, examined, and declared to have the new disease which he had been predicting was coming. "Whereupon the court permitted the state, against the defendant’s ■objections, to introduce testimony tending to prove that the mare mentioned in the indictment, and the other horses above indicated, were each afflicted with a-swelling on one or both sides immediately back of the shoulders, and that in each instance the center of the swollen parts had been punctured with a sharp-pointed instrument. To all of which testimony in reference to horses, other than the one mentioned in the indictment, the defendant excepted:</p> <p>A motion for a new trial was overruled, to which the ■defendant excepted.</p> <p>Quite a number of errors are assigned on the record, of which only the following will be particularly noticed.</p> <p>1. That the court erred in admitting testimony in reference to injuries inflicted on horses other than the one mentioned in the indictment.</p> <p>2. That the court erred in refusing to charge the jury as requested, and in the charge given.</p> <p>The state was permitted to introduce evidence of other distinct and independent offenses to procure the conviction of the defendant. This was the design and purpose of the evidence. It could have no other animus.</p> <p>This is in violation of the rules of the criminal law, and ■compels the prisoner to meet on his trial any number of felonies. 1 Wharton Grim. Law, 648; Farrer v. The State, 2 Ohio St. 55; Shaffner v. Commonwealth, 72 Penn. St. 60.</p> <p>The court erred in refusing to charge the jury that they must find from the proof that the defendant did the alleged injury with malice toward the owner of the property. 2 Cooley’s Blackstone, book 4, p. 243; 2 Bishop Crim. Law (5 ed.), 996; Bishop on Statutory Crimes, 434,437; 3 Cush. 558; 12 Ired. 329; 13 lb. 53; 7 Ala. 728; 10 Iowa, 115 ; 1 Bishop on Crim. Law, 596; 1 Minn. 293.</p> <p>That testimony tends to prove another crime is not objectionable on that account, if it tended to prove the crime charged in the indictment. 3 Parker’s Crim. 681; 1 Wharton Am. Grim. Law, sec. 650; Collins’ case, 4 Rogers’ Rec. 143; 1 Camp. 399; 1 Ar ebb old’s Crim. P. & P. 397, note; 1 Johns. 199; 2 Johns. Cases, 193; 2 Hay’s Cases, 205; 2 Ohio St. 500.</p> <p>The court was right in refusing to charge, as requested, upon the subject of malice.</p> <p>The defendant was indicted for a statutory offense. The wording of the statute is: “ If any person or persons shall willfully and maliciously injure any such animal or animals,” etc.</p> <p>The statute defining arson is : “ That if any person shall willfully and maliciously burn,” etc. Must a person, in order to be guilty of a crime in burning buildings, have a particular malice toward the owner of such building ?</p> <p>Ho the statutes in relation to trees, fruits, etc., use the words “ willfully and maliciously ? ” Are arson and cutting, or stealing timber, any less “malicious mischiefs” than injuring animals ?</p> <p>If there must be a particular malice toward the owner of the property in the one ease, then there must be in the others, in order to make out a crime. If such a doctrine is to be sanctioned, then a man would be safe to commit the worst of crimes, simply because he had gone among strangers, and did not know the individuals he was injuring.</p>

This was an action by Mara against the plaintiff in error, for injuries received by Mara’s wife while in the act of leaving the company’s car, on which she had been a passenger.

<p>1. A partner, in the absence of an agreement for compensation, is not entitled to charge for services rendered in discharging his duties as a member of the firm; and it mates no difference whether the services are rendered before or after the dissolution of the firm.</p> <p>2. But where a surviving partner is under no obligation to continue the business, '¡sit does so at his own peril, if the representatives of the deceased partner elect to share in the profits, a reasonable allowance may be deducted from such profits as a compensation to the survivor for bis services.</p> <p>•8. Where a firm was dissolved by the death of one of its members, and the surviving partners, for the preservation of the good-will, and to enable the entire property and business of the firm to be sold as a going concern, continue to carry on the business at their own risk, until such sale was effected: Held, that the amount thus saved to the firm from the goodwill is in the nature of profits, and that, on settlement of the partnership, an allowance may be made therefrom to the surviving partners, for their services in continuing the business after the dissolution.</p>

<p>Motion for a writ of habeas corpus, from Gallia county.</p>

Section 9 of the act of March 8, 1881 (S. & 0. 428), does-not apply to the office of supervisor of roads and highways. The statute was intended to reach only judicial officers, and persons connected with the administration of justice. If it was intended to cover all grades of officers—municipal, township, county, and state—why did the legislature-enact the law of March 3, 1831 (S. & C. 1421), to punish resistance to a county surveyor ?

<p>Section 8 of the “act to prescribe the duties of the attorney-general,” which authorizes certain actions on behalf of the state to be prosecuted in the Court of Common Pleas of Pranklin county, although neither of the defendants may reside or be found in that county, is not repealed by section 47 of the code of civil procedure.</p>

<p>Error to the District Court of Scioto county.</p> <p>Before the passage of the act of February 18, 1848, money paid upon a promissory note given entirely for interest in excess of six per cent, upon a loan of money by the maker to the payee, could not be recovered back. Grayham v. Cooper, 17 Ohio, 606.</p> <p>If a recovery can be had, it is not by force of the statute, but upon common-law principles. To warrant a recovery at common law, the money must have been paid on a usurious contract.</p> <p>Our statute fixing the rate of interest is not a statute against usury, technically so called. Rcdns v. Scott, 13 Ohio, 114; Selser v. Brock, 3 Ohio St. 305.</p> <p>Even if the act of paying interest in excess of six per cent, were illegal, or the contract under which the payment was made was technically usurious, there can be no recovery unless the payment was involuntary or coerced. For what is an involuntary or coerced payment, see 1 Ohio St. 278; 6 Ohio St. 471.</p>

The plaintiff in error, at the May term, 1875, of the court below, was indicted for the crime of murder in the second degree, and was afterward found guilty of manslaughter and sentenced to imprisonment in the penitentiary for the term of two years. On the trial, as the record shows, the case was submitted to the jury for their verdict at five o’clock in the evening, and the defendant was remanded to the jail of the county.

On the 25th day of January, 1851, William M. Johnson executed his last will and testament, in which, after making provision for his wife and a sister-in-law for their natural lives, he directs that the remainder of his property, after the death of his sister-in-law and wife, be sold and the proceeds applied as directed in the following clause of his will: “ Item 3.

The original action was brought by plaintiff in error to recover for injuries to domestic animals, caused by the negligence of .the defendant in constructing and maintaining good and sufficient fences between the line of its road and an adjacent inclosure of the plaintiff.

Had the act creating the office and providing for the election of director of the infirmary referred to the election act, and placed the election under that act, the right of contest might well be conferred by it, because the same act gives the right of contest. But this act does no such thing.

In March, 1872, the plaintiff in error brought its action,, in the Court of Common Pleas of Wood county, against defendants to recover $1,000 and interest, alleged to be due it on a written instrument, of which the following is a copy: “ Weston, May 17,1871. “We, the undersigned, heirs of Alex.

The original action was brought, in the Court of Common Pleas of Henry county, by the plaintiff in error to recover^ as successor to the Mansfield, Coldwater and Lake Michigan Railway Company, on an alleged subscription to the capital stock of the latter company.

Error reserved in the District Court of Wood county. Held: after consolidation was consummated—an event, upon the occurrence of which alone the right of the-plaintiff to sue on the cause of action stated in the petition could accrue.

Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Holmes county. The defendant was indicted in the Court of Common Pleas of Holmes county for embezzlement.

■ Motion for leave to file a petition in error to reverse the-judgment of the District Court of Hamilton county. The original petition in this case was filed in the name of the city of Cincinnati, for the use of George M. Gardner and W. H. Malone, partners under the firm name of George M. Gardner & Co., against Erasmus Gest, plaintiff in error,, and others, to recover an assessment for the improvement of West Eighth street.

<p>An insolvent debtor purchased real estate for his wife, talcing the title in her name, and as a gift to her advanced and paid $2,460 of the purchase money 'and cost of the property, the wife paying the balance, which was $4,000. On a bill filed by a creditor of the husband, to subject the property to the payment of a debt of less than 532,460, the court ordered the property to be sold, and that twenty-four hundred and sixty sixty-four hundred and sixtieths of the proceeds of sale be applied in payment of the debt. Held, that this decree was not erroneons to the prejudice of the wife, and that she was not entitled to be first paid her $4,000 out of the proceeds.</p>

<p>Motion for leave to file a petition in error to the District Court of Hamilton county.</p> <p>1. The judgment of the Court of Common Pleas was for too large an amount. It followed the jury, as shown by their first and second findings. It should have been controlled by the seventh finding. It was grading alone that was authorized by the ordinance. The culvert was at an intersection, and was, by the ordinance, paid for by the-city. The judgment was therefore for $666.25 too much.</p> <p>2. The charge of the court that the defendant was chargeable with his due proportion of the cost of the whole street was incorrect. It was against public policy. If the council or court can skip a square, it can skip a mile—a third of a mile in this instance—and moi’e. If it can skip in this way, it can jump from one street to another. This-was forbidden in a mere branch to a street in Arnold v. City of Cambridge, 106 Mass. 352.</p> <p>referred the court to their brief' in Gest v. City of Cincinnati, ante, 275.</p>

<p>1. Where the makers of a promissory note are sued jointly, an answer by one of the defendants, setting up as a defense that the consideration of the note was illegal interest, inures to the benefit of all the defendants.</p> <p>2. Where in such case there was a joint finding and judgment against all the defendants on the first trial, and they were allowed a second trial under the statute, the extent of their liability is the amount of the recovery on the second trial, notwithstanding the second trial proceeding may have been erroneously dismissed as to all except the defendant in whose name the answer was filed.</p> <p>3. The judgment rendered on the first trial was vacated, if not entirely, at least to the extent that it was in excess of the amount recovered on the second trial.</p> <p>4. The more appropriate remedy, where an execution has been erroneously issued, is by application to the court from which it issues to set it aside. Yet, where it has been sent to another county, and suit has been brought to enjoin its enforcement, to which suit the execution creditor appears and answers to the merits, making no objection to the jurisdiction or mode of proceeding, relief will be granted by injunction.</p>

The original action was brought by the plaintiff in error, in the Court of Common Pleas of the county above named, against the defendants in error, to subject certain lands, the-legal title to which are in Lydia C. Moore, the wife of Charles L. Moore, to the payment of a judgment recovered by the plaintiff in error against the defendant, Charles L. Moore, in the Superior Court of Cincinnati, at its January-term, 1867, for $18,105.20, and which lands, the petition avers, were…

<p>Under the statute allowing appeals from the Superior Court of the city of Cleveland to the District Court, passed January 30, 1875 (72 Ohio D. 189), an appeal was properly taken from a judgment rendered by the Superior Court at the term during which the act was passed, although the judgment was rendered before the date of its passage.</p>

<p>1. A general demurrer to an answer which contains new matter and a specific denial of certain allegations of the petition should be overruled, if the allegations denied are material to the plaintiff’s right to recover.</p> <p>2. Under sections 6 and 7 of the act of May 1, 1852, to provide for the creation and regulation of incorporated companies in this state, S. & 0. 271, where a railroad company sues to recover unpaid installments of stock, an allegation in the petition, that its board of directors required subscriptions to its stock to be paid in installments of a certain amount, at. a certain time and place, is material to its right of recovery.</p>

Adam Burkett obtained a judgment in the Common Pleas of Hamilton county against John D. Eiedeldey for some $1,800 due on a mortgage, and an order for sale of the mortgaged premises for its satisfaction. The defendant in error was appointed special master commissioner in the case. An order of sale was duly issued to him, and he made return thereon that he ■ had made sale of the mort•gaged premises to Joseph Longworth for the sum of $6,000.

1. The taxes and assessments against an individual are a personal debt.' Greps v. Baird, 3 Ohio St. 277. 2. Under the laws of 1866 and 1867 assessments were to be collected as other taxes. S. & S. 672, sec. 7. 3. How were other, taxes collected ? First. Either by distraint; or, second, sale of the land. S. & C. 1586, sec. 15; S. & C. 1588' see. 25. 4. Up to the passage of the act of 1874 the county treasurer was limited either to distraint or sale at delinquent sales. 5.

At the November term, 1875, of the court above named,, the plaintiff in error was indicted and convicted of burglary and larceny, and sentenced to imprisonment in the penitentiary. The indictment, in apt words, charges the crimes to have-been committed by the plaintiff in error, by breaking and entering the storehouse of Edward Kaufman and Samuel Straus, Jr., in the night season, and taking and carrying away certain goods and chattels of Kaufman and Straus,.

<p>T. The payee of a negotiable promissory note, who, on transferring it to a third party, writes his name on the back and guarantees its payment at maturity, is a party to such note within the meaning of section 38 of the code, and may be sued jointly with the maker.</p> <p>2. The liability of such party is, within the meaning of the section of the code above referred to, substantially the same as that of an indorser who has waived demand and notice.</p>

<p>1. Where a party makes an offer to sell on specified terms, giving the proposed purchaser the option to accept the terms within a limited period, time is to be regarded as of the essence of the offer, and an acceptance of the terms after the period limited will not be binding.</p> <p>2. United States treasury notes are a lawful tender upon contracts stipulating for the payment of money generally, whether made before or after the date of the law under which the notes were issued; and this rule applies as well in equity as at law, and as well where by the contract the payment is optional with the party and his rights made to depend upon it, as where the payment is required by the contract.</p> <p>3. Where a tenant in common of land contracts for the sale and conveyance of the entire land, with a purchaser who in good faith believes him to be the sole owner, on a bill filed by such purchaser for a specific execution of the contract, equity will decree a conveyance by the vendor, of his interest in the land, and a compensation in money for the value of the outstanding interest.</p>

<p>For tire purpose of connecting two public thoroughfares, a street improvement was ordered, which was to be paid for by assessment on the owners of the abutting property. After the work had been completed part of the way, it was suspended or abandoned, leaving a part of the proposed street wholly unopened—Held, That an assessment for the work already done was premature and unauthorized.</p>

This was an action brought by Thomas to enjoin the treasurer of Franklin county from collecting an assessment made upon Thomas’ land, and charged upon the duplicate, under the act “ authorizing the building and repairing of levees to protect lands from overflow,” passed April 30, 1869 (66 Ohio L. 73).

<p>1. A policy of insurance, which contains a condition that the insured property shall not be alienated or incumbered, may be avoided by the insurer where a sale or incumbrance is effected without his consent, although it is stipulated in the policy that consent to an assignment of the policy will be given by the insurer if requested within a certain time after sale of the insured property. Such stipulation binds the insurer to consent to an assignment of the policy to the purchaser, only in case his consent has been given to the sale of the property.</p> <p>2. In an action on a policy of .insurance which contains a condition that, in'case of loss, proof of the loss shall be made and delivered to the insurer within thirty days after the loss occurred, the petition, which does not allege performance of such condition, or a waiver on the part of the insurer, is bad on demurrer.</p>

<p>The provisions of section 534 of the code of civil procedure, as extended hy section 542 to probate courts, do not confer power upon a probata court, in proceedings instituted under section 536, to vacate or modify its own orders previously made in the settlement of the accounts of executors and administrators.</p>

<p>Mandamus.</p> <p>The sole question is, whether the treasurer of Hamilton county is entitled to he compensated by the county for the expenses incurred by him as treasurer, in the prosecution of suits in his official capacity.</p> <p>That he should be compensated is expressly provided by the statutes of this state. 67 Ohio L. 36; 2 S. & C. 1476, sec. 114; lb. 780; lb. "1460, sec. 58; lb. 1454, sec. 38.</p> <p>While it is true that “ where a service for the benefit of the public is required by law, and no provision for its payment is made, it must be regarded as gratuitous, and no claim for compensation can be enforced.” Anderson v. Foard, of Comm’rs, etc., 25 Ohio St. 12. It is not true that either a county or municipality can require an expenditure of money or the employment of the services of others for the benefit of the public without compensation. If the statutes were wholly silent upon the subject of the compensation to the treasurer for attorney’s fees paid by him for services rendered by such attorneys for him in his official capacity, we insist that he would still be entitled to be repaid the amount of such fees.</p> <p>To hold otherwise would be to take private property for public use without compensation, and therefore repugnant to section 19, article 1 of the Constitution of Ohio. Fang-don v. Castleton, 30 Vt. 285; 45 N. Y. 196.</p> <p>The duty of protecting public property carries along with it the duty to employ the usual means of protecting it, Smith v. Mayor of Francisco, 13 Cal. 533; Hornblower v, Duden, 35 Cal. 670; Campbell v. Norwich, 2 Mylne & Or. 407; Lewis v. Rochester, 99 Eng. C. L. R. 400; Dillon on Mun. Cor., sec. 399.</p> <p>The board of commissioners is a body of very limited powers. It can only exercise such powers and perform such duties as are strictly enjoined upon it bylaw. Comm’rs Gallia Co. v. Holcomb, 7 Ohio, 232; Mighels v. Comm’rs Hamilton Co., 7 Ohio St. 109-115; Boalt v. Comm’rs Williams Co., 18 Ohio, 13; Hunter v. Comm’rs Mercer Co.} 10 Ohio St. 520, 521; Treadwell v. Comm’rs Hancock Co., 11 Ohio St. 190.</p> <p>Nowhere is the board of commissioners, in any act defining its powers and duties, authorized to pay any such claim. While it might be true, that, should the treasurer of any county incur any obligation which he was, by law, authorized to incur, the board of commissioners would then be required to allow such claim in the annual settlement; in this case the treasurer incurred an obligation which the law nowhere authorizes him to contract, and consequently the county can not be held liable.</p> <p>There is no provision for the allowance of counsel fees in cases where the treasurer may make himself plaintiff in an action. From the fact that the law expressly provides that in actions against the treasurer, counsel fees are to be allowed him, it does not follow, by implication, as argued by relator’s counsel, that there is any authority for an allowance of counsel fees where the treasurer sues to collect taxes.</p> <p>Section 38 of the general tax law (S. & C. 1454), provides how the county treasurer shall collect taxes, when unable to do so by distress or otherwise. It is silent as to counsel or counsel fees.</p> <p>In section 58 (S. & C. 1460), is the only place in the law where there is a provision made for payment for legal services rendered to the county treasurer, and the court •will particularly notice that such allowance is confined to legal services in actions against the county treasurer.</p> <p>The law, then, not providing for an allowance of counsel fees in actions brought by the treasurer, while it expressly provides for such allowance in actions against the treasurer, is it not the presumption that the legislature, having the whole matter before it, intended to deny and has denied the same ?</p> <p>Fees and charges against the county do not arise by implication. Debolt v. Trustees Gin. Tp., 7 Ohio St. 237; 25 Ohio St. 14, 15.</p>

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

<p>1. The sections of the code providing for taking exceptions, have no application to final judgments or orders.</p> <p>2. Where a tenant- forfeits his rights to the demised premises under the seventh or tenth section of the act to provide against the evils resulting from the sale of intoxicating liquors, by using the premises for the unlawful sale of such liquors; and he refuses to surrender the premises to the lessor, the latter may recover possession in an action of forcible detention.</p> <p>8. Tinder section 7 of said act, the use of the premises by the tenant for the unlawful sale of intoxicating liquors, renders the lease void at the election of the lessor; but, where the lease was made for the purpose of having the premises so used, and this purpose is afterward accomplished by the tenant, the lease, under section 10, becomes void as to both parties. Zinh v. Grant, 25 Ohio St. 358, explained.</p> <p>4. In an action against the tenant to recover possession, it is no defense to show that the parties were in pari delicto in the unlawful use of the premises.</p>

<p>Parties have not the right to a rehearing after the decision of a cause by this court, unless the application comes within the provisions of section-642 of the code of civil procedure. Nor can such rehearing be ordered by the court after the term at which the judgment was entered, if the-case is not within the provisions of the code referred to.</p>

<p>1. In an action for the price of goods alleged to have been sold by the-plaintiff to the defendant, and delivered to a third person in aecordancewith the terms of a written instrument signed by the defendant, purporting to be a contract of sale, it is not necessary, in order to defeat the action on the ground of fraud, to allege or prove that the goods-were returned, or offered to be returned upon the discovery of the fraud, where it is shown that the goods were so delivered by the plaintiff' without the authority of the defendant, and that the defendant signed the instrument in ignorance of its contents, on the false representation, of the plaintiff that it was a mere recommendation of the goods described therein.</p> <p>2. Such instrument in the hands of an assignee is subject to the same defenses that might be made to it in the hands of the person to whom it was delivered. -</p>

<p>Error to the District Court of Greeue county.</p> <p>The essential facts of the case are these: Calhoun as principal, and Thomas I. Lucas and Henry 0. Blessing as his sureties, made their note to the bank for $737. Shortly before the maturity of the note, Blessing gave verbal notice to the cashier of the bank that he wished the note collected at its maturity, and that he would stand surety upon it no longer. The cashier, four days before the note matured, informed Calhoun of this request of Blessing, and insisted that Calhoun should consent to the payment of the note out of his funds which the bank then had in its possession. This Calhoun objected to, and proposed to get another surety upon the note in place of Blessing, and to have the time extended some ten days. With the consent of the cashier, Calhoun then took the note, and after erasing the name of Blessing, which was written in pencil, procured Boteler to sign his name to the note in place of Blessing’s, •and then returned the note to the cashier, who thereupon, in consideration of $3.75 paid to him as interest, agreed to -extend the time of payment for ten days. At the time Boteler signed the note he was falsely assured by Calhoun that Lucas had consented to the extension of the time of payment. He also objected to this form of renewing or changing the contract, but was told by Calhoun that the •cashier said it would be all right. Calhoun, on returning the note to the bank, represented to the cashier that Lucas had consented to the arrangement.</p> <p>The note not having been paid at the end of the ten •days, an action was brought thereon by the bank against ■Calhoun, Lucas, and Boteler, and the court held that neither Lucas nor Boteler were liable upon the note, and gave judgment in their favor. This judgment was afterward affirmed by the District Court, and it is now claimed that both judgments are erroneous.</p> <p>Calhoun did not act as plaintiff’s agent, nor did Boteler -.treat him as acting in that capacity.</p> <p>The bank on the one side, and the makers—whether by -original or secondary signature, or alteration—on the -other, were adverse parties in negotiation, and, when the note was accepted, in the contract. Calhoun, therefore, in procuring Boteler’s signature for his own accommodation, was necessarily acting only for himself; and, having procured the erasure and substitution, became, and was, Boteler’s agent in the further negotiations and contract with the plaintiff. Fullerton v. Sturges, 4 Ohio St. 536; Selser v. Brock, 3 Ohio St. 302.</p> <p>By erasing the name of Blessing, and substituting his -own at the instance of Calhoun, and by intrusting Calhoun with his signature, Boteler enabled Calhoun to defraud the plaintiff', if there was vice in the transaction ; and in such case Boteler should bear the loss. Selser v. Brock, 3 Ohio •St. 302; Story on Agency, sec. 56; 4 Ohio St. 534.</p> <p>Having erased Blessing’s name, and inserted his own at the request of Calhoun, and Calhoun as his agent having procured the acceptance of the altered note, an extension -of time, and the discharge of Blessing by the plaintiff, Boteler ought now to be estopped from denying his liability. 1 Greenleaf’s Ev., see. 207; Douglass v. Scott, 5 Ohio, 197; Morgan v. Spangler, 14 Ohio St. 119; Beardsley v. Foot, 14 Ohio St. 416.</p> <p>As to Boteler, the note was a novation, and was as if he had signed a new note to be negotiated by Calhoun. 8 Ohio St. 409.</p> <p>This note did not go abroad as a blank in the hands of the principal to obtain names of sureties upon which the principal would make a loan from a payee, lending his money on the faith of paper fair upon its face, and without notice of defects or infirmities. That state of facts had passed nearly two months before, when the plaintiff' bought and paid for the note. It was a perfect instrument, .and the property of plaintiff'. The relation between the makers, as principal and sureties, was known to plaintiff'. Any ■alteration of the note, or tampering with it, by plaintiff, or with his consent or privity, was at his peril. He could not, with respect to this, his own property, ignore the rights of the sureties, or at will assume the position of a disinterested person, and send, or suffer Calhoun to take, the note abroad, and upon its return, altered materially, receive it as his own, with new parties and new rights, and himself be exonerated from the .duty of inquiry, except of the man whose statements he was bound by legal principles not to take. Me Cramer v. Thompson, 7 Am. Law Reg. 98 (Iowa Rep.)</p> <p>The maxim, “ sic utere tuo ut alienum non laedus,” should be applicable.</p> <p>The note came back to its owner altered by the obliteration of the name of one maker, and the substitution of another. Plaintiff' saw it, and was at once put upon inquiry. 2 Lead. Cas. in Eq. 154,159.</p> <p>Calhoun was not the agent of Boteler, but was of the plaintiff'.</p> <p>The fraud of an agent is that of his principal. Story on Agency, sec. 250; 6 Mann & Grange, 236; 1 Parsons on Con. 50; Kerr on Fraud, 112.</p> <p>The maxim, “when one of two innocent persons must suffer from the act of a third,” etc., invoked by plaintiff, applies to our side, for the plaintiff enabled Calhoun to deceive us.</p> <p>As to alteration of a note and its effect in discharge of parties, see 21 Ohio St. 163; 2 Parsons on Notes and Bills, 544, 558, and 571.</p>

The original case was an action by Spangler to set aside a conveyance of real estate made by Brown to his wife, and to subject the same to the payment of a judgment which-had been recovered against Brown as principal and Spangler as surety, and which Spangler had been compelled' to pay.

<p>'The defendant, being the owner of a lot of ground, erected thereon a storehouse, and afterward leased the store-room and agreed with the lessee to construct therein cornices, shelvings and fixtures, in a secure, safe, convenient and proper manner for the sale of dry goods and groceries, and to keep the premises in good order. The fixtures put up under the agreement were unsafe and insecure from the want of sufficient fastening to the walls of the building—all of which was known to defendant, who, on request of the lessee, refused and neglected to repair. Afterward, and while the room and fixtures were in the possession of the lessee, the shelvings fell and injured the plaintiff, who was, at the time, in the store-room as a customer of the lessee. Held, the facts stated do not constitute a cause of action against the defendant and in favor of the plaintiff</p>

<p>Under the criminal laws of this State, a dog is not the subject of larceny, and, therefore, an indictment charging that the defendant broke and entered a stable, in the night season, with intent to steal a dog, is not a good indictment for burglary.</p>

The original action was brought by plaintiffs in error against the defendants in error, to set aside a deed of conveyance of real estate from the common ancestor of the parties to the defendants. The grounds upon which.it was Bought to have the deed set aside were: 1. Mental incapacity of the grantor; 2. fraud and undue influence on the part of the grantees.

On the 28th of December, 1872, the plaintiff in error, Elizabeth Olippinger, administratrix, etc., brought suit in the Court of Common Pleas of Allen county against the defendant in error, the Missouri Yalley Life Insurance Company, to recover upon a policy of life insurance. The amount claimed was. $2,000.

John Bunnell died in 1862, leaving a will by which he-devised certain real estate to his son John Milton Bunnell “through his natural life, and then to his heirs.” The will contains various other devises and bequests among his-children and others, and at the end of them is a provision, that if any of the “ above-mentioued heirs shall bring in an account against the estate for labor or services, his share of the estate shall become forfeited, and be distributed among the…

<p>County commissioners, having ordered a certain improvement under the-road improvement act of March 29, 1867, and the amendments thereto, on April 28,1870, appointed an engineer to contract for the construction of the work and to superintend its performance. The engineer, having advertised for sealed proposals, accepted, with the approval of the commissioners, the proposal of the lowest bidder, and awarded the contract to him, and notified him thereof. Afterward, with like approval, the engineer tendered to.the contractor a formal written contract for his signature. This contract, which contained certain stipulations not before named, the contractor refused to sign—Held: 1. The contract between the parties was complete upon the acceptance of the proposal and notice to the bidder. 2. The contractor was not bound to execute thereafter a written contract which contained stipulations not expressed or implied in the advertisement, the proposal, or in the records or files relating to the improvement. 3. There being no stipulation, so expressed or implied, that the grade or line of the improvement might be changed when, in the judgment of the engineer, a change would be proper, the contractor was justified in refusing to sign a contract containing it. 4. No time being previously named for the commencement or completion of the work, the contractor was not bound to agree to any specified dates in lieu of the reasonable time therefor, which is fixed by implication of law.</p>

<p>Motion for a writ of error to the Common Pleas of Gallia county.</p> <p>On the construction of statutes, Bishop on Stat. Crimes, secs. 193, 194, 196, 220; Muer v. The State, 1 Conn. 502; Nevil & P. 375.</p> <p>As to description of building, Thollis v. The State, 21 Ohio St. 233.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Auglaize county.</p> <p>The action was brought by the plaintiff below (defendant in error) against the defendant below (plaintiff' in error) on a written contract, dated October 6, 1873. The contract was for teaching a sub-district school for seven months; part of the services were rendered and paid for. The teacher was then dismissed by the local directors “ without any probable cause or sufficient reason,” and although he tendered full performance of his contract, his services were rejected. After the time covered by the contract had elapsed, this action was commenced for the recovery of the contract price for the full term, less the amount that had been paid for the services actually rendered.</p> <p>A general demurrer to the petition was overruled, and defendant excepted. Judgment was rendered in favor of the plaintiff for the balance claimed to be due at the .contract price.</p> <p>On error, the District Court affirmed the judgment of the Court of Common Pleas. This is a motion for leave to file a petition in error to reverse the judgments of the .courts below, on the grounds that the Court of Common Pleas erred in overruling the demurrer to the petition, and entering judgment for the plaintiff, and that the District Court erred in affirming the judgment thus entered.</p>

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

The president of the company had no authority to execute the deed. In every case of agency a purchaser of realty must look to the authority of him who executes the deed; and a deed ddly executed by such an agent is prima faeie good, and forces the company to prove want of authority, yet when such want of authority is proved the title fails. Angelí on Corp., ch. 7, sec. 7; 7 S. & Rawle, 530; 1 Ves. & Ben. 226; 6 S. & Rawle, 12; 4 Yerg. 7.

The action was brought by the defendant in error, who* was plaintiff below, against the plaintiff in error, defendant. below, to recover damages for a breach of the covenants of warranty in a deed conveying the “ N. E. qr. of the N. E. qr. of sec. 28, etc.” The answer impliedly admitted the facts stated in the petition, and by way of cross-petition set up the fact that there had been a mutual mistake of the parties in the description of the land, and that the mutual…

<p>1. The plaintiff sued the defendant to recover damages for fraudulent representations in the sale of lands; also to recover in the same suit on the covenants of warranty for the failure of title of one of the tracts. Afterward, the claim for damages on account of the failure of title was withdrawn from the suit—Held, that such withdrawal did not preclude the defendant from showing the character of the tract as to which the title failed, in connection with the character of the other tracts, as bearing on the question of fraud, and the extent of damages in case the fraud should be established.</p> <p>2. In such action it is competent for the defendant to prove that one of the tracts actually sold was by mistake omitted from the deed, and another inserted in its stead; and as the alleged fraud .exists independent of the deed, the latter forms no impediment to inquiring into the real transaction between the parties.</p> <p>Z. The defendant requested the court to mstruct the jury: “ That to constitute fraud there must have been bad faith on the part of the defendant; that is, the representations by the defendant must have been not only false, but known by the defendant to be false, or such as he had no good reason to believe to be true.”</p> <p>This instruction the court refused to give as asked, but gave it with thé following addition: “or did not know to be true”—Held, that the instruction as given was calculated to mislead the jury by giving them to understand that representations which were untrue in fact would give a cause of action, although they may have been founded in mere mistake.</p> <p>4. If the representations on which the action is founded were, when made, believed to be true, and the facts of the case were such as to justify the belief, there would be no fraud and there could be no recovery.</p>

This was a proceeding by the board of commissioners of Crawford county, to locate and establish a ditch, petitioned for by John Koch and others, through certain lands described in the petition, under the act of April 12,1871, “ relating to ditches ” (68 Ohio L. 60), as amended by the net of March 28,1873 (70 Ohio L. 79).

<p>In an action brought for tbe settlement of a partnership, to which all the members of the firm were parties, and the pleadings made no issue as to the partnership property or the necessity of its sale, and tbe only issues made related to the state and subject-matter of the accounts between the parties, which issues were referred to a master for finding and report. Held, that a decree made on the hearing of exceptions to the master’s report, some of which were sustained and others overruled, confirming the report as thus modified, and finding the amount due from the firm to the parties respectively, and for the payment thereof ordering the property to be sold, is a final decree from which an appeal may be taken; and the overruling of a motion made at a subsequent term to open up such decree, is not the subject of appeal.</p>

<p>1. Whether the materials used in paving the sidewalks of a street in a city belong to the city or to abutting lot owners, subject to the public easement, is not a question of law merely. It is only upon the facts and circumstances of a given case, that the ownership becomes a question of law.</p> <p>% A bill of exceptions, taken on a trial before a justice of the peace, which contains the testimony offered on the trial, but does not show any question of law decided by the justice, is unauthorized, and can not be considered by a reviewing court.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Wyandot county.</p> <p>The judgment complained of was in affirmance of the judgment of the Court of Common Pleas of same county.</p> <p>The error, assigned upon the record of the Common Pleas, was the overruling of a demurrer to the petition in the original action wherein the defendant in error was plaintiff', and the plaintiff' in error was defendant.</p> <p>The action was brought to recover contribution for money ■claimed to have been paid by the plaintiff' for the use of defendant. The cause of action was thus stated: “ That on the 12th day of May, 1872, John D. Sears, R. McKelly, C. Berry, Jr., Henry Maddix, and D. D. Hare recovered a judgment in the Court of Common Pleas of Wyandot county, in the State of Ohio, against the plaintiff' and the ■defendant, Robert Gaster, for the sum of $1,206 debt, and costs of suit amounting to $6.96. That on or about the 1st day of June, 1878, the plaintiff, with her own means, paid off said judgment and costs in full,-whereby the defendant, Robert Gaster, became indebted to the plaintiff in the sum ■of $606.48, with interest from May 12, 1873,” etc.,</p> <p>It should affirmatively appear from the petition for contribution, that the defendant was beneficially interested in the consideration of the joint liability upon which the judgment was obtained in order to raise an implied promise to contribute. No inference can be drawn from the judgment per se as to the equitable relations of the defendants to such judgment.</p> <p>The amended petition demurred to is defective in not stating the nature of the cause of action that produced the judgment. 1 Greenl. on Ev., sec. 528 ; 4 Geo. 548 ; Santvoord’s Code PI. (N. Y.) 159.</p> <p>1. The judgment itself is a “ contract of record,” and purports a joint liability.</p> <p>2. The judgment was for debt, and must have been rendered in an action upon contract. Metcalf on Contracts, 10, 11; 1 Parsons on Contracts, 31, 34, 37.</p>

<p>Reserved in the District Court of Huron county.</p> <p>This is a petition in error, filed in the District Court of Huron county, seeking to reverse a judgment of the Common Pleas of that county, and reserved by the District Court for decision in this court. The plaintiffs in error were plaintiffs below, and the defendants in error were defendants below. To the petition in the Common Pleas the defendants demurred generally—alleging that it did not state" facts sufficient, to constitute a cause of action. The-demurrer was sustained, and judgment thereupon rendered for the defendants; and this ruling on the sufficiency of the petition is now here assigned for error.</p> <p>In substance, the material allegations of fact in the petition are as follows :</p> <p>At the township election in April,'’1868, the first three defendants above named were elected as trustees of the township, and served as such for the ensuing year.</p> <p>Under the act of April 2, 1866 (S. & S. 788), and in ac■cordance with its provisions, the electors of the township had, in April of the preceding year (1867), decided in favor of. levying a tax for the erection, etc., of a town hall. Taxes were accordingly duly levied and collected for that purpose.</p> <p>There was no land belonging to the township on which to erect a town hall; but Albert White, the defendant last ■above named, being the owner of real estate within the vil iage and township of New London, and being about to construct an extensive brick building thereon, the first-named three defendants, being and acting as trustees of the township, entered into articles of agreement with said White, under seal, to construct for the purpose of a town hall an extensive apartment in the second story of such building, for the exclusive use of the township—said articles of agreement containing full and carefully worded provisions for such exclusive use, for ingress to and egress from it, and also minute specifications as to plan, material, character of workmanship, and means of ingress and egress. These articles also contain a stipulation on the part of White to make to the township a warranty deed of conveyance of said hall, its belongings and appurtenances.</p> <p>Under these contracts various payments were by the defendant trustees made to White, the builder, from the township funds raised for that purpose.</p> <p>At the April election, 1869, the defendant trustees were superseded by the plaintifis herein ; and in the petition they allege that the contracts and payments made by their predecessors were unauthorized by law; that the defendants knew them to be so unauthorized, and, on their part, fraudulent; and they demand judgment against the defendants in their individual capacity for the amounts thus paid and expended.</p> <p>The only question is: Were the acts of the defendant trustees, as set forth in the petition, legal or authorized by law?</p> <p>The act of April 2,1866 (S. & S. 784), confers all the-power the trustees have in the premises.</p> <p>Indeed, there is nothing certain about this statute except that the trustees must buy a lot to put the hall on; and I insist that the town hall must be erected upon the ground. The statute says: “ And the ground upon which it is erected.” It can not be erected upon the top of any other person’s building. It is the ground, and nothing less than that, which is to be under the control of the trustees. Nothing less than a fee-simple title will do.</p> <p>There is no specific power given to the trustees to build the hall or make a contract; but the legislature did try to-make it certain that a lot should be bought.</p> <p>They know, of course, that, in this town hall, the elections of the people would be held.</p> <p>If there is any place or thing that needs the most perfect protection in this land of ours, it is the place where the elections are held, and the ballot-box, on which the liberties of the people depend; and the necessity is apparent that the absolute control of the town hall should be in the-trustees.</p> <p>It Avould seem that there can be no mistaking the meaning of the words “ if necessary.” It amounts to this: that there would not in every case be a necessity to purchase a lot, for the reason that the town had already a public square, which was, to all intents and purposes, under the control of its council, but if they did not have this,. then “ upon such property as they might purchase.”</p> <p>It was not for the trustees to create, avert, or even judge of the necessity. Goff v. Inhabitants of Eekoboth, 12 Met.. 26 ; Norton v. Mansfield, 16 Mass. 51.</p> <p>On the question of the corporate powers of trustees of township, see Hopple v. Brown Township, 13 Ohio St. 324; 8 lb. 568.</p> <p>The question in the case is : Were the actings and doings of the defendant trustees in the premises authorized by law ? Eor the solution of this question we must, in the first, place, resort to the statute (S. & S. 788). That statute, section 1, simply authorizes the levying of a tax “ for the purpose of erecting a town halland section 2 simply authorizes “ the trustees of such township . '. . to purchase a lot, if necessary, upon which to erect said hall.” And section 3 provides “ that said hall and the ground upon which it is erected shall be under the control of the trustees of the township.” And that is all there is of it.</p> <p>There was not imposed upon them by the terms of the statute any obligation to buy lands on which to erect a hall from the ground upward. That is left to the discretion of the trustees. They may do it “ if necessary.” They found no such necessity, but they accomplished all that was desirable for use as a town hall in the erection of an apartment of the second story of a large building, ample in size, of easy access, more pleasant in locality than a ground-floor could be, more still and quiet for either business or amusement, and evidently at much less cost to the township, because they saved the expense of a ground foundation and a roof.</p>

<p>G. devised to his daughter H. certain real estate for her life, remainder to ■ her children, and remainder over to her brothers and sisters in the event she should die without issue surviving her, with like remainder over if she should die leaving issue, and such issue should die under the age of twenty-one years without issue. H. still survives at the age of sixty,. and has children living, each of whom is over twenty-one years of age, but none of them has issue. B'eld:</p> <p>1. The effect of the devise over to the brothers and sisters of H. in the event of her death without surviving issue, was to'make the devise to the children of H. contingent upon her death leaving issue surviving her.</p> <p>2. The subsequent devise over, in the event that H. should die leaving issue and such issue should die under the age of twenty-one years without, issue, did not discharge the devise to the children of H. from the contingency of her death without surviving issue. ,</p> <p>3. A deed of conveyance by H. and her children, would not pass an absolute estate in fee simple to the grantee.</p>

. This was an action in the Court of Common Pleas of -Cuyahoga county, brought by Burton against the insurance company named, upon a policy of insurance. The policy contained a provision that no action should be maintainable thereon unless brought within twelve months next after the happening of the loss. Burton filed his petition, against the company within the time limited.

Peters and wife executed a mortgage upon their homestead, to secure the payment of certain money to James Posey. This mortgage confessedly is the first lien on the premises. A mechanic’s lien in favor of Miller & Bro. was next secured upon the homestead.

<p>Motion for leave to file a petition in error to the District •Court of Shelby county.</p> <p>The issues in the Court of Common Pleas related to the execution of a contract by the defendant for the delivery of ■one hundred head of hogs to the plaintiffs, and an alleged breach of the contract by the defendant, for which the plaintiffs sought to recover damages. Judgment was rendered in favor of the plaintiffs. The plaintiff in error was defendant below, and the defendants in error were plaintiffs below.</p> <p>On the trial of the case to a jury, a bill of exceptions waa •taken by the defendant, which, omitting the formal parts, is us follows: ' -,</p> <p>“ The plaintiffs to maintain the issue on their part called; as a witness on their behalf one William Johnson, and (he being first duly sworn) asked him to state to the court and jury what offer, if any, said defendant had during the last week of the month of November, or first week of Decern-’ her, 1874, made to said plaintiffs, or either of them, to compromise the matters of dispute between the parties to this-cause growing out of the contract set out in the petition.. Towhich question (not to its form) the defendant objected, which objection the court sustained so far as related to the-terms of any offer of compromise which may have been offered; but overruled the objection so far as related to the-fact of the offer to compromise, and allowed the question to' be asked to that extent, and allowed the witness to answer and state whether the defendant had made to plaintiffs, in his presence, in general terms, an offer to compromise the-said matters, which the said witness then and there proceeded to- give in evidence, and said that defendant about the time above stated, in his presence, offered to settle by compromise the said matters, to all of which . . . the-defendant excepted.”</p> <p>The defendant moved for a new trial on the ground that the court erred in admitting this evidence. The motion was overruled.</p> <p>In the District Court the same error was assigned. The judgment of the Common Pleas was affirmed. This is a motion for leave to file a petition to reverse the judgments of the courts below, on the grounds that the Court of Common Pleas erred in admitting the testimony, and the District Court erred in affirming the judgment of the Court of Common Pleas.</p>

The original action was brought by Motter against Latimer before a justice of the peace to recover possession of certain articles of personal property, which were claimed to be unlawfully detained by Latimer, and which were valued by the appraisers, summoned' by the constable, at $295. The property was delivered to Motter, who entered into-an undertaking as required by statute.

The Home Building and Saving Association of Dayton, Ohio, was 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 other purposes, to become bodies corporate.” (64 Ohio L. 18.) The certificate under which the association was organized was defective, in being aeknowledge*! by tbe corporators before a notary public, instead of a justice of the…

The original action was brought in the Court of Common Pleas of Shelby county, against the commissioners of the county, to recover the price and value of a newspaper publication of the report of the examiners appointed by the Court of Common Pleas to investigate the annual report and statement of the county commissioners of their official transactions during the year ending on the second Monday of September, 1874.

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

<p>"Where a trustee holding the legal title for tenants in common of lands purchased, mortgaged the lands to secure their separate notes given for their respective shares of the purchase money, the notes being of even date and each having three years to run, with interest payable annually, the condition of the mortgage being that the makers respectively should' pay their respective notes and interest; on foreclosure and sale of the mortgaged premises before the maturity of tbe notes, for unpaid installments of interest on one of them, after paying the installments due and ■■.osts, the amount remaining for distribution was insufficient to pay the' notes. He Id, that in equity the balance for distribution should he applied pro rata as payment upon the notes, notwithstanding the makers' of one of them had, subsequent to its execution, become insolvent; and that the mortgagee had no right to direct the application otherwise.</p>

<p>- Motion for leave to file a petition in error to reverse judgment of the District Court of Eranklin county.</p> <p>Kanmacher & Stark, having been employed by the board of trustees of the Ohio Agricultural and Mechanical College, by special contract, to furnish the materials for and perform the labor of constructing the college building, subcontracted, in writing, on the 23d of December, 1871, with Dunn & Witt, for the material and labor of the slating, galvanized iron, and tin work necessary in the completion of the building.</p> <p>On the 14th of November, 1873, Dunn & Witt, having performed the contract on their part, and claiming a balance of $l,958.67'to be due them from Kanmacher & Stark, under favor of section 2 of the mechanics’ lien act, filed with the board of trustees of the college an attested account of the amount and value of the work and labor performed and materials furnished in the construction of the college building, and remaining unpaid, under their contract with Kanmacher & Stark.</p> <p>Afterward, on the 23d day of May, 1874, Dunn & Witt commenced the original action in the Court of Common Pleas of Eranklin county against Kanmacher & Stark and the board of trustees of the college, alleging in their petition the contract between them and Kanmacher & Stark, its performance on their part, and the breach thereof by Kanmacher & Stark in neglecting and refusing to pay the balance of $1,958.67 due thereon; also the relation between the board of trustees and Kanmacher & Stark as builders and contractors; the filing of their attested account with the board; the retention by the board from Kanmacher & Stark of a sum of money sufficient to satisfy their claim; the unwillingness of the board to pay the same to the plaintiffs on account of notice from Kanmacher & Stark of their disagreement with amount of plaintiffs’ claim, and praying as follows : “ Plaintiffs, therefore, ask judgment against the said Kanmacher & Stark for the said sum of $1,958.67, with interest from the said 14th day of November, 1873, and that the said board of trustees, etc., be ordered to bring the said sum into court to abide the judgment and order thereof, and an order that the same be applied on the claim of plaintiffs and for other proper relief.”</p> <p>The hoard of trustees made default, but Kanmacher & Stark answered the petition, denying all indebtedness in excess of $864.27, and demanding damages by reason of the wrongful detention of their moneys in the hands of the board of trustees.</p> <p>The issues in the case were submitted to the court, neither party demanding a jury. On consideration, the court found the issues joined in favor of Kanmacher & Stark, and found the balance due the plaintiffs on the 14th of November, 1873, to be $864.27, and no more. The court also found that there was in the hands of the board of trustees, belonging to Kanmacher & Stark, at said date, the sum of $1,958.67, which sum, with interest, the board was •ordered to pay to the clerk of the court within thirty days, and in default thereof that execution issue therefor at the instance of either Dunn & Witt or Kanmacher & Stark; that of said sum the clerk pay the amount found due to plaintiffs, and the balance to Kanmacher & Stark; and it was also ordered and adjudged that the plaintiffs pay one-half the costs in the case, and that Kanmacher & Stark pay the other half thereof.</p> <p>Thereupon the plaintiffs gave notice of their intention to appeal to the District Court, and the court fixed the amount of their appeal bond at $200.</p> <p>The appeal having been entered in the District Court, the said court at its April term, 1876, on the motion of Kanmacher & Stark, dismissed the appeal, on the ground that the action was not one in which the plaintiff had the right to appeal from the Court of Common Pleas to the District Court.</p> <p>This proceeding is prosecuted to obtain a reversal of the order of District Court dismissing the appeal.</p> <p>The statute (S. & S. 589) provides when an appeal is allowed.</p> <p>i The motion to dismiss the appeal in this case was based on the alleged ground that in this action the parties had the right by law to demand a trial by jury.</p> <p>On the subject of jury trial the court is referred to sections 263 and 264 of the code.</p> <p>This was an action under the mechanic’s lien law. 68 Ohio L. 107, sec. 2; S. & C. 834, secs. 3 and 5.</p> <p>The practical question is : Is the right or lien, provided for by these statutes, in the nature of an equitable right or lien, or is it simply a claim as for money at law ? Copeland v. Mantón, 22 Ohio St. 398; Superintendent, etc. v. Heath, 15 N. J. Eq. 22..</p> <p>- It is true, that from the petition may be abstracted statements of fact sufficient to constitute a cause of action for money against Kanmacher & Stark; but when the whole petition is taken together it is very apparent that while the ultimate purpose of the action, like most suits in equity, is for the recovery of money, the immediate purpose of the action is to obtain payment of a particular fund, appropriated, set apart under the mechanic’s lien law, and in the hands of the college trustees for the benefit of the plaintiffs, which the trustees refuse to pay.</p> <p>,- The prayer of the petition does not determine the nature of the proceedings, or whether the remedy is at law or in equity; but the statements of the petitiou is what gives character to the action as being one in which the parties are or are not entitled to a jury trial or an appeal. Corry v. Gaynor, 21 Ohio St. 280.</p> <p>urged substantially the same points as given above.</p> <p>An issue of fact was joined upon the cause of action by the answer of Kanmacher & Stark.</p> <p>Either party to the issue so joined had the right to demand a trial of the same by a jury.</p> <p>Therefore there could be no appeal in the action.</p> <p>The action nncler the mechanic’s lien law is a legal, not an equitable cause of action. S. & C. 834. See. 5 of the mechanic’s lien law.</p> <p>But if we consider the cause of action against the board as equitable, and one for further relief strictly equitable in its nature, still the case is not appealable, for it is joined with a causé of action at law in which a personal judgment is sought and demanded against Kanmacher & Stark, and to which judgment the plaintiffs are entitled upon the factB stated in their petition. The case, therefore, falls within the ruling in the case of Ladd v. James, 10 Ohio St. 437.</p> <p>Under the code, both a legal and an equitable cause of action may be alleged, and both a legal and an equitable remedy obtained. And in this case the prayer for a general judgment against Kanmacher & Stark is a prayer for the recovery of the legal judgment to which the legal cause of action as set forth in the first division of the petition entitled the plaintiffs.</p> <p>It is plain that the plaintiffs set forth and rely upon a legal primary right, and upon that demand a remedy.against Kanmacher & Stark, which is purely legal. As ancillary to this right and remedy, the plaintiffs invoke the aid of a further remedy, based also, we think, upon a legal right, but which they assert is founded upon an equitable right. So far as the question before this court is concerned, it is wholly immaterial whether the same is legal or equitable. The material and controlling Consideration affecting the question now in hand, is that, upon the facts stated in the first division of the petition, a legal remedial right arose and was asserted against Kanmacher & Stark. ' Some of these facts were denied by. them in their answer, and thus an issue of facts was joined which either of the parties had the right to demand should be tried by a jury. Smith v. Anderson, 20 Ohio St. 76; Massie v. Stradfórd, 17 lb. 596; Taylor y. Leith, ante, 428</p> <p>If the allegations of the petition did not show unmistakably that the action was for the recovery of a personal judgment as well as for other "«lief, and the nature of the action upon the allegations were doubtful, the prayer for relief should settle the doubt. For, while the prayer for relief does not in general furnish a test or criterion by which to determine the nature of the action, yet it may be appealed to as the test by which the nature of the action can be determined in all cases where the pleader has, by his mode of alleging the facts, left the intention in doubt. Gillett v. Treganza, 13 Wis. 472 ; 1 Whitaker’s Pr. and PL, sec. 124; Meed v. Heed, 25 Ohio St. 422.</p> <p>It was not an action to enforce a lien. Sedgwick on Intp. of Stat. 402.</p>

The plaintiff in error was tried upon an indictment -charging him with the murder of Misha Davidson and was convicted and sentenced to be hung. On the trial the evidence proved, or tended to prove, a murder committed by the prisoner upon one JElijah B. Davison.

The plaintiff in error was indicted and convicted, under section 22 of the crimes act, as amended by the act of March 24, 1865 (S. & S. 264), for uttering and publishing as true and genuine a certain false, forged, and counterfeited promissory note for the payment of $300, knowing the same to be false, forged, and counterfeited, with intent to defraud a certain person named in the indictment.

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Butler county.</p> <p>Buckner sued Mear in the Court of Common Pleas of Butler county to recover for the breach of the covenants in a deed of conveyance executed by Mear to Buckner.</p> <p>The breach consisted in the eviction of the plaintiff from part of the premises.</p> <p>The answer denied the eviction, and in a counter-claim ■set up that the covenants were inserted in the deed by mutual mistake, and asked for the correction of the deed in this respect.</p> <p>The counter-claim was controverted by a reply.</p> <p>The Court of Common Pleas found the issues on the counter-claim for the defendant, and granted the relief prayed for.</p> <p>The plaintiff gave notice of appeal, which he duly perfected.</p> <p>In the District Court the defendant moved to dismiss the appeal, on the grounds that the case was not appealable.</p> <p>The motion was granted, and judgment rendered accordingly.</p> <p>Leave is now asked to file a petition in error for the reversal of the judgment of the District Court.</p> <p>The issues joined by the eross-petition and reply are purely equitable, and are not triable by a jury. A jury can not correct a deed.</p> <p>The cross-petition does not set out simply an equitable defense, and hence the case of Smith v. Anderson, 20 Ohio-St. 76, does not apply.</p> <p>The cross-petition asks for an equitable decree reforming a deed, and this decree might have been obtained in a separate suit, and before proceedings by the plaintiff.</p> <p>After the defendant obtains this decree (if he is entitled to it), be can then plead the decree in bar of the plaintiff’s-recovery. But this decree is more than a mere plea in bar. By the contract, he was to give the plaintiff' a warranty deed, with a correct description. He can not do this until the deed is reformed in equity; and, until a deed or instrument is reformed, the court is bound to act upon it as'it exists. Re Malet, 30 Beav. 407; Kerr on Fraud and Mistake, 429.</p> <p>The pase is one that can be appealed. Massie v. Stradford, 17 Ohio St. 597; 18 Ohio St. 1; Code, sec. 640.</p> <p>. Neither party could have demanded a jury, because a jury could not afford the relief asked by the defendant.</p> <p>This is not a case for appeal. Smith v. Anderson, 20 Ohio St. 76: Ladd v. James, 10 Ohio St. 437; Maginnis v. Schioab, 24 Ohio St. 336; S. & O. 1157, secs. 294, 694; S. & S. 589.</p>

<p>Motion for leave to file a petition in error to the Superior Court of Montgomery county.</p> <p>The admission of the opinion of witnesses as to the •dangerous character of the place was clearly error. Hartford, etc., Ins. Go. v. Harmer, 2 Ohio St. 452; SI Wis. 179; 102 Mass. 581; 23 Wend. 424 ; 17 lb. 136 ; 1 Phillips’ Ev. 778-784; 1 Allen, 33; 4 Denio, 31Í; 1 G-reenl., sec. 440; 1 Smith’s Leading Cases, 760-798; 3 Am. L. J. 274; 5 •Cush. 590; 15 N. H. 109.</p> <p>Insisted that this was a ease in which witnesses might give their opinion as to the dangerous character of the road, and cited Stewart v. The State, 19 Ohio, 307. And they might be considered adepts. Steamboat Clipper v. Lewis Logan, 18 Ohio, 396.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Montgomery county.</p> <p>The original action was brought by the plaintiffs, in error, who are the widow and children of Frederick Weidner, deceased, in the Court of Common Pleas of Montgomery county, to recover damages for the negligence of the-defendants in causing the death of said Frederick.</p> <p>On issue joined, a trial was had, which resulted in a verdict and judgment for the plaintiffs.</p> <p>Afterward, at the same term, the defendants moved the court to vacate the judgment; and, notwithstanding the verdict, to render judgment for the defendants, on the ground that the plaintiffs were not authorized to sue on the cause of action set out in the petition.</p> <p>The motion was overruled. And it being made to appear that during the pendency of the suit Mary Weidner, one of the plaintiffs, had been appointed administratrix of said Frederick, deceased, she was ordered by the court, on her motion, to be made a party plaintiff as such administratrix.</p> <p>To the action of the court the defendants excepted.</p> <p>On error, the District Court reversed the judgment and dismissed the suit.</p> <p>The present proceeding is instituted to obtain the reversal of the judgment of the District Court.</p> <p>1. The action was well brought in the name of the real parties in interest. Act of March 25,1851 (S. & C. 1139, sec. 1); Code, secs. 25, 27; lb., secs. 603, 605.</p> <p>The statute is remedial, and should be liberally construed. 23 N. Y. 476; Potter’s Dwarris on Stat. and Con. 73; Sedgwick on Stat. and Con. 41, 359, 360, 361; Adm’x of Tracy v. Adm’x of Cord, 2 Ohio St. 438.</p> <p>2. If the action was not well brought, the defendants, by failing to make the objection by special demurrer or answer, have waived it. Code, secs. 87, 88, 89; Hoskins v. Alcott ‡ Horton, 13 Ohio St. 217; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People v. Crooks, 53 N. Y. 648 ; Phomix Bank v. Donnell, 40 N. Y. 410; Nash’s Pr. 153 Bank of Tonisville v. Edwards, 11 How. 216; Myers v. Mechodo, 6 Abb. 198; Hobart v. Frost, 5 Duer, 672.</p> <p>Under the statute of March 25,1851 (S. & C. 1139), and. the amendment of section 2, March 7,1872 (69 Ohio L. 22), the action can not be brought by. or in the name of the widow and next of kin of the deceased, but must be brought by and in the name of an administrator. If not, who is to receipt for the money recovered on the judgment, if one is obtained ? Who is to make distribution of the money, if any is recovered ? It seems plain that this duty belongs to an administrator.</p> <p>The remedy in this case is purely statutory. The statute must be construed strictly. It is in derogation of the common law. Safford v. Drew, 3 Duer, 634; Worley v. The G. II. $ D. R. R. Go., 1 Handy, 490; Campbell v. Rogers, 2 lb. 117; Quinn v. Moore, 15 N. T. 435; Lyons v. The G. $ T. R. R. Co., 7 Ohio St. 339.</p> <p>'< This is not a case of want of capacity to sue nor defect of parties plaintiff in the sense supposed by plaintiffs’ counsel. Of course it is a want of cause of action. There is a want of capacity to sue in any case where the plaintiff has no cause of action. Want of capacity does not mean want of cause of action in plaintiff’s favor.</p>

<p>Motion for leave to file a petition in error to the District Court of Logan county.</p> <p>On the 1st of July, 1858, James Moore, Jr., as principal, and William E. Buckhart, as his surety, executed to Eli Gray their joint promissory note for the payment of $45, in one year after the date. In 1864, James Moore, Jr., died, and William Moore was appointed his administrator. In 1865, upon presentation of the note for payment, the administrator of James Moore, Jr., refused to allow it as a valid claim against the estate.</p> <p>On the 9th of January, 1874, Gray commenced suit ou tbe note, before a justice of tbe peace, against the estate, and Buckhart. Service of summons was only made upon Buckhart. On appeal from the judgment of the justice to the Court of Common Pleas, judgment was rendered against Buckhart for the amount of the note. On error in the District Court, the judgment of the Common Pleas was affirmed.</p> <p>Buckhart now seeks to reverse the judgments below, and assigns for ground of reversal that, the claim of Gray being barred by lapse of time as against the estate of the principal maker, it was therefore barred as against him.</p> <p>The provisions of sections XC and CIII of the act of March 28,1841, in relation to the settlement of the estates of deceased persons, are relied on, to wit: Neglect to sue the claim within six months from the date of its rejection by the administrator. Also, the lapse of four years between the date of the administrator’s bond and the commencement of the action.</p> <p>It is conceded on the part of the defendant in error that his right of action on the note was barred as against the estate of James Moore, Jr., under the provisions of each of those sections.</p> <p>claimed that the debt being barred as against the principal, is also barred as against the surety; that it is of the essence of the contract of suretyship that there be a valid subsisting obligation against the principál; and that, by the extinction of the liability of the principal, the liability of the surety also becomes extinct. The State v. Blake, 2 Ohio St. 147; Bus-sell v. Bailor, 1. Ohio St. 329 ; 1 Parsons on Notes and Bills, 244; 2 Am. L. C. 361; 9 Yt. 143.</p> <p>The holder of the note failing to sue the administrator of the principal within the four years released the principal ; such release of a joint maker of the note, which was joint only, operated to also release the other joint maker. Such is the common law rule. Story on Prom. Notes, sec. 425; Clinton Bank of Columbus v. Hart, 19 Ohio St. 378.</p> <p>The surety was not discharged. Farmers’ Bank of Canton v. jReynolds, 13 Ohio 84; 2 McLean, 74; Johnson v. Planters’ Bank, 4 Smedes & M. 165; Theobald on Prin. and Surety, 67; Brown v. Carr, 7 Bing. 508; S. & S. 741; Dye v. Dye, 21 Ohio St. 86; Selby v. McAlister, 8 N. H. 389.</p>

<p>Motion to file a petition in error to the District Court of Hamilton county.</p> <p>This was an action upon the promissory note of defendants, payable to the plaintiff, and dated Mayl, 1874. From the pleadings it appears that Sophia Gugel was a married woman, the wife of said John Gugel, at the time she signed the note ; and there is no averment, or evidence to show, that the note concerned her separate estate, or that she had any separate property; nor does it appear that it was a case where the law authorized her to make a contract on her own behalf. The court below held the wife not liable, and rendered a judgment in her favor, giving the-plaintiff a judgment against the husband alone. The District Court, on error, affirmed this ruling, and it is now claimed that it was erroneous.</p> <p>On the liability of married women, our law now governs-married and unmarried women alike in Ohio. Sections 1 and 8 of the act of March 23, 1866 (S. & S. 381); section 28 of the code, 67 Ohio L. Ill, as amended March 30,1874; section 2 of the act of March 30, 1871 (68 Ohio L. 48). On their liability, 2 Kent’s Cas. 137-148; 46 Mo. 115 ; lb. 545;. 47 lb. 507; 7 B. Mon. 293; 42 N. Y. 613 ; Addison’s Contracts, 761; Story’s Eq. Jur. par. 1397. See Mr. Belt’s note-to PLulme v. Tenant, 1 Bro. Ch. 20; Sockett v. Wray, 4 Bro. Ch. 485 ;.Nantes v. Corrock, 9 Yes. 189 ; Jones v. Harris, 9 Yes. 496; Stewart v. Lord, Kirkwall, 3 Madd. 387 ; Gardner v. Gardner, 22 Wend. 526 ; Owens v. Dickinson, 1 Craig & Phillips, 48; Francis v. Wizzel, 1 Madd. 258 ; Aylett v. Ash-ton, 1 Myl. & Or. 105, 111; Story’s Eq. Jur. par. 1398; 2 Roper on Husband and Wife, ch. 21, par. 2,pp. 235 to 238; Id. 241, note and cases cited; Story’s_ Eq. Jur. par. 1399, 1400, and 1401; Fullett v. Armstrong, 4 Beav. 319-323;. Peacock v. Monk, 2 Yes. 193 ; Norton v. lurvill, 2 P. Will. 144; Lilia v. Airey, 1 Yes., Jr. 277, 278 ; Mansfield, C. J.,. in Nurse v. Craig, 5 Bos. & Pull. 162, 163; Angelí v. Had-den, 2 Mer. 163; Stanford v. Marshall, 2 Atk. 68; Master v. Fuller, 4 Bro. Ck. 19; Clancy on Married Women, ch. 9, pp. 331 to 346.</p> <p>1 Dis. 584; Philips v. Graves, 20 Ohio St. 371; 14 Ohio St. 519; 7 Ohio St. 208.</p>

In proceedings in attachment before a justice of the peace, {he plaintiff (defendant in error), made oath that the defendants (plaintiffs in error), “ were non-residents of Putnam county; ” which is one of the grounds for attachment before a justice. S. & S. 420. The constable returned the ■summons “ not found;” and the order of attachment “no property or effects found,” with a suggestion that the defendants had an interest in certain real estate in the county.

<p>1 The lowest bidder at the letting of a contract for the erection of public buildings, under the act of April 27, 1869 (66 Ohio Laws 52), in order to secure a right to the contract, must act promptly in giving the bond required by the tenth section of the statute.</p> <p>2. Upon the failure of the lowest bidder, at such letting, to give the required bond, the next lowest bidder, who gives such bond, is entitled to an award of the contract.</p> <p>3. Upon such failure of the lowest bidder, the next lowest, in order to secure a right to the contract, must be ready to give his bond within a reasonable time from and after the default of the former.</p>

Lucy Hughes, wife of Hiram Hughes, was seized in fee in her own right of one undivided fourth part of a tract of land, as tenant in common with others, all of whom sold and joined in a conveyance of the land to Edward C. Butler, who paid to Lucy Hughes, in cash, her share of the price, except a balance of $195, to recover which she brought an action in her own name against Butler, in the Court of Common Pleas.

This was an action to recover the price of goods sold. 'The defendant set up in his answer, and as his only defense, •that the goods were sold to him by sample, and were infexior to the samples in a specified amount, and offered to confess a judgment for the agreed price of the goods less that amount.

. Motion for leave to file a petition in error to revei’se the judgment of the District Court of Scioto county. The defendant in error, who was the widow of ThomasDngan, deceased, was the plaintiff in the original action; and the plaintiff in error, who was the administrator of said Thomas, was the defendant.

The original proceeding was an application by the plaintiff in error to the Probate Court of Hamilton county, to-admit to probate the will of Charles Miller, late of that county, deceased, which the applicant claimed was lost, spoliated, or destroyed subsequent to the testator’s death.

Error, to the Court of Common Pleas of Franklin county. The original action, under favor of a resolution of the general assembly, was brought by the plaintiff against the state, in the Court of Common Pleas of Franklin county, to recover the amount of ten several bonds for $100 each, which had been issued under the authority of the act of the general assembly of March 13, 1843 (41 Ohio L. 80).

<p>Error to the District Court of Wood county.</p> <p>At the October election, 1875, the plaintiff and defendant were opposing candidates for the office of probate judge of Wood county.</p> <p>On a canvass of the votes by the clerk and justices, the-poll-book and return from Perrysburg township was rejected. The poll-books and returns from the other townships in the county were canvassed and abstracts of the-votes in those townships duly made and certified. A certificate of election was issued by the clerk to Pkelps„ Schroder gave notice of contest, and appealed to the Court of Common Pleas. In pursuance of the statute, testimony •was taken before two justices of the peace, and filed in the clerk’s office, and the case came on forbearing in the Court of Common Pleas, and there was a finding and judgment that Phelps was duly elected.</p> <p>Schroder tendered a bill of exceptions, setting out all the testimony in the case, which was allowed and made part of the record.</p> <p>The testimony introduced by Schroder and set out, shows-that the poll-book of Perrysburg township, on its face, in matters of form and substance, complied with the requirements of the statute, and shows that the whole number of votes cast in that township was 3,016, of which number the tally-sheet, as footed up and certified by the judges and clerks of the election, shows that Phelps received 440 and Schroder 1714, but that by counting the tallies thereon, it is found that Schroder received 2,524 votes in that township for probate judge. It further shows that in the other townships of the county, exclusive of Perrysburg township, Phelps received 3,344 votes, and Schroder 2,941 votes for probate judge. The legality of these votes was not questioned. Excluding Perrysburg township, Phelps was elected; including and counting this township, Schroder was elected. The testimony introduced by Schroder tends to prove the identity of the Perrysburg poll-book, as the original poll-book kept on the day of the election—that it was regularly kept—that the names of voters were recorded as their names were announced by the judges; that it was certified, sealed, and regularly returned to the clerk ; that it was rejected by the clerk and justices in canvassing the votes of the county. The same testimony substantially was offered as to the tally-sheets, and they, together with the poll-book, were put in evidence; and Schroder rested.</p> <p>The testimony introduced by Phelps tended to prove that the polls were opened before six o’clock in the morning on the day of the election; that although two of the township trustees and the township clerk were present at the time the election board was organized, the board as organized consisted of bystanders other than themselves: that there were three ballot-boxes in the room when'the polls opened—two only being required—that there are not over 1,200 legal voters in the township; that as to 1,800 or more of the votes shown by the poll-book, they were illegal or fictitious; that the entire population of the township, including the village of Perrysburg, is less than 4,000; that the election board was organized for a fraudulent purpose; that the exciting question was the removal of the county-seat from Bowling Green to Perrysburg; that the judges refused to let candidates and others who inquired know the number of votes that were being cast during the day, or that were east at the close of the polls, but kept all knowledge on the subject secret till the counting of the votes was completed; that the ballots were not counted out one at a time as required by the statute, but by fives, tens, fifteens, and twenties; that the hoard drank spirituous liquors while performing their official' duties; that it would be impossible for clerks to record and number 3,016 names in twelve hours, etc. Whereupon Phelps rested his case.</p> <p>To reverse the finding and judgment of the Court of Common Pleas, Schroder took the case to the District Court ■on error.</p> <p>The errors assigned being substantially : That the Court of Common Pleas erred in finding, deciding, and determining from the evidence offered and given in said proceeding, that George C. Phelps was duly elected probate judge, and in rendering judgment against Schroder for the costs of the proceeding.</p> <p>The Disti’iet Court reversed the finding and judgment of the Court of Common Pleas, and made a finding that at the election in question Schroder received 5,465 votes, and Phelps 3,784 votes, and gave judgment in favor of Schroder, and against Phelps for costs. This finding included the vote of Perrysburg township.</p> <p>This is a proceeding by Phelps, plaintiff in error, to reverse the finding and judgment of the District Court, on the ground that it erred in reversing the finding and judgment of the Court of Common Pleas.</p> <p>The finding of a court or jury upon questions of fact can not be reviewed unless a motion for a new trial or rehearing, based upon the fact that the findings were against the law or the evidence, has been made and overruled. Westfall v. Dungan, 14 Ohio St. 279; Ide v. Churchill, lb. 377; Randall v. Turner, 17 lb. 262; Fortman v. Goepper, 14 lb. 562 ; Turner v. Turner, 17 lb. 449 ; Hoffman v. Gordon $ Bro., 15 lb. 215; Scarff v. Foster, lb. 137; Reese v. Sinks, 19 lb. 306; 2 S. & C. 1155, sec. 4; 2 Curwen, 1140; Kepner's Ad.m’r v. Sniveley’s Adm’r, 19 Ohio St. 298; Powers v. Reed if Rogers, 19 lb. 189.</p> <p>By the common law the plaintiff has not the right to a review of the case upon the evidence. Reynolds v. Rodgers, 5 Ohio, 172; TJtter v. Walker’s Adm’r, Wright, 46; Maride v. Town Committee, etc., 14 lb. 586; Bissell v. Cónchame, 15 lb. 63; House v. Elliott, 6 Ohio St. 498; Gest v. Kenner, 7 lb. 75; Erwin v. Shaffer, 9 lb. 43; Little Miami B. B. v. Allen, 12 lb. 428.</p> <p>Therefore, having no right to the review, upon the principles of the common law, he must secure the right by conforming to the provisions of the statute which gives it. Ide v. Churchill, 14 Ohio St. 377. •</p> <p>By the evidence, these poll-books do not contain the substance of poll-books, and, therefore, the election ought to be set aside. It is utterly impossible to weed out and purge the poll of the fraudulent votes. What law or court would require a party to prove two thousand negatives in one case ?</p> <p>On the question of setting aside the election, Fry v. Booth, 19 Ohio St. 27; Littlefield v. Green, Cir. Ct., Bightly’s Election Oases, 493 ; Mann v. Cassidy, 1 Brewster (Pa.), 60; Bightly’s Election Cases, 351; lb. 501; Thompson v. Ewing, 1 Brewster, 107; Chadwick v. Melvin, Bightly’s Election ■Oases, 251; JDichey v. Hurlbert, 5 Oal. 343; Knowles v. Yates, 31 lb. 82.</p> <p>The burden of proving legal votes rests upon him who would have an advantage from it. Bightly’s El. Cas. 493.</p> <p>The poll-books are in every respect in the form and contain the substance required by the statute, and it was the plain duty of the clerk and justices to count all of them, and leave the result to be changed, if it was wrong, by a contest of the election. IS. & C. 539, sec. 46; Dishon v. Smith, 10 Iowa, 212 ; State v. Cavers, 22 lb. 343 ; Attorney-General v. Bartow, 4 Wis. 749 ; People v. Van Cleve, 1 Mich. 362; Bower v. O’Brien, 2 Iud. 423 ; People v. Pease, 27 N. Y. 45; 9 Ala. 338; Mays v. Freeland, 10 Mo. 629 ; State v. Harrison, 38 lb. 540; State v. Bodeman, 43 lb. 256; State v. Stears, 44 lb. 228, 229; Bacon v. York Co., 26 Me. 491.</p> <p>IJpon the proposition that the whole return of Perrysburg township should be east out, see Chadwick v. Melvinr Bightly’s El. Cas. 551; People v. Johnson, 6 Cal. 673.</p> <p>The irregularities complained of do not affect the legality of the election. Fry v. Booth, 19 Ohio St. '25.</p> <p>A motion for a new trial was not necessary to authorize a review of the case. Dorsey v. Barry, 24 Cal. 449 ; Cos-grove v. Howard, lb. 457; 1 S. & C. 540, sec. 55 ; State v. Judge 2d Judicial District, 13 La. Ann. 89.</p> <p>The case can be reviewed on error. Code, secs. 512-514; Powers v. Peed, 19 Ohio St. 189 ; Turner v. Turner, 17 lb. 449.</p> <p>Mandamus will not lie to compel a board of canvassers to reject returns of an election, apparently regular, on the ground of fraud. Felfs case, 11 Abb. Pr. 203.</p>

' The original action was brought by the defendant in error against the plaintiff in error in the Court of Common Pleas of the county named, on the 16th day of November, 1872, to compel the surrender and delivery up to be canceled of a non-negotiable promissory note, given by the defendant in error to the plaintiff in error, for $1,000, dated December 11, 1866, and payable on or before the first day of November next thereafter, and which, the petition avers, was obtained by…

<p>1. A foreign corporation suing in the courts of this state, is not required to set out in the petition the terms of its charter showing its capacity to maintain the action.</p> <p>2. Under a plea of payment, in a suit on an account, the objection can not be made that the goods, for the price of which the suit is brought, were wrongfully obtained, and are, therefore, not properly the subject-matter of an account.</p> <p>3. A defendant is not entitled to recover damages arising from the breach of an express contract, under a plea of set-off for money had and received by the plaintiff to the defendant’s use.</p> <p>4. On the breach of a contract, where no actual damages are proved, the failure of the court to allow nominal damages constitutes no ground for reversal, on error, if such failure does not affect the question of costs.</p>

Greenleaf and Neil were partners in the livei’y business. On dissolution of the firm, a division of the horses and other property used in the business was made between the partners, Greenleaf agreeing to pay Neil $402.50 to equalize the value of the property so taken by each. Subsequently Greenleaf sold the part of the property taken by him to Neil for the sum of $8,000, payable in specified installments.

In the original action, in the Court of Common Pleas,, the board of education, plaintiff, recovered a judgment against the plaintiff in error, then defendant, for $1,100 and interest, as for money overpaid, by mistake, on a contract for the building of a school-house. On error, the District Court affirmed the judgment of the Common Pleas. Those judgments are now sought to be reversed for alleged errors upon the record, as follows: 1.

<p>Motion for leave to file a petition in error to reverse the ■judgment of the District Court of Lucas county.</p> <p>On the trial of the original action in the Court of Common Pleas, the plaintiff in error, who was plaintiff below, ■testified to matters material to the issue. After the plaintifPs evidence was closed, the defendant called J. R. Thomp•son as a witness, who testified that he had the means of knowing the general reputation of the plaintiff' for truth and veracity, and that such reputation was bad. The defendant then asked the witness the following question, From your knowledge of her reputation for truth and veracity, would you believe her under oath ? To this question the plaintiff objected. The court overruled the objection, and the witness answered he would not. To this ruling of the court the plaintiff' excepted.</p> <p>The ruling of the Court of Common Pleas was affirmed by the District Court, and the plaintiff now assigns error in this court.</p> <p>on the question of impeaching a witness, cited Knight v. Rouse, 29 Md. 199 ; Taylor on Ev., secs. 507, 510, 517; Bucklin v. The State, 20 Ohio, 18; King v. Wicks, 20 Ohio, 91; Eason v. Chapman, 21 111. 39; Phillips v. King-field, 19 Me. 379; Kimmel v. Kimmel, 3 Serg. & R. 337; Tesse v. Huntingdon, 23 How. U. S. 2; State v. Randolph, 24 Conn. 363 ; Commonwealth v. Lawler, 12 Allen, 585; Willard v. Goodenough, 30 Vt. 396; Hayes v. Welles § Babbitt, 34 Md. 518; Carter v. Cavenaúgh, 1 G. Green (Iowa), 171; Eason v. Chapman, 21 111. 36; 1. P. § C. R. R. Co. v. Anthony, 43 Ind. 183; Webber v. Ilanke, 4 Mich. 198; Kimmel v. Kimmel, 3 Serg. & R. 336; Gass v. Stinson, 2 Sum. 610; Wood v. Mann, lb. 321; Greenleaf Ev., sec. 461; Swift’s Ev., 143; Ram on Pacts, 199; Taylor on Ev., sec. 1324; Craig v. State, 5 Ohio St. 605; Perkins v. Mobley, 4 Ohio St. 668.</p> <p>It was always the rule of the common law, as held in England, that the impeaching witness, after having shown, his knowledge of the reputation of the witness sought to be impeached, might be asked, if, from his knowledge of such reputation, he would believe the witness under oath. 1 Starkie on Evidence, 182; 2 Phillips km Evidence, 9 Am. Ed., 955, note 598 ; Taylor on Evidence, sec.-1324.</p> <p>This rule of the common law is believed to be maintained in every slate of the Union but two. It has been expressly decided to be sound in thirteen states, to-wit: New York—■ People v. Mather, 4 "Wend. 229; People v.'Davis, 21 Wend. 309. New Hampshire—Titus v. Ashe, 4 Poster, 319. Penn-* sylvania—Bogle v. Kreitzer, 46 Penn. St. 488; Lyman v. Phila. 56 Penn. St. 488. Maryland—Knight v. House, 29 Md. 194. California—Stevans v. Irwin, 12 Cal. 306; People v. Tyler, 35 Cal. 553. Illinois—Fason v. Chapman, 21 111. 33. Wisconsin—Wilson v. State, 3 Wis. 798. Georgia— Stokes v. State, 18 Ga. 17. Tennessee—Ford v. Ford, 7 Humph. 92. Alabama—McCutchen v. McCutchen, 9 Port. 650. South Carolina—Anonymous, 1 Hill, 258. Kentucky—Mobley y. Hamit, A. K. Marsh. 590. Michigan— Hamilton v. People, 29 Mich. 173; Gilbert v. Kennedy, 22 Mich. 118. Also, United States v. VanSickle, 2 McLean, 219</p>

<p>Motion for leave to file a petition in error to the Distinct' Court of Jefferson county.</p>

The original action was brought by the plaintiffs in .error as indorsees against the defendant in error as indorser of a promissory note, in the Court of Common Pleas of Meigs county. The following is a copy of the noce : “ $103.75. Pomeroy, 0., July 2,1858. “• Ninety days after date we promise to pay to the order of 0. Downing one hundred and. three and seventy-five one-hundredths dollars, for value received.

<p>1. A railroad company has a right to prescribe reasonable rules for the government of its employes in the conduct of its business upon its trains, and passengers should conform to such rules.</p> <p>2. A rule requiring a conductor to eject from the train a passenger who refuses to produce a ticket or pay his fare on demand, is a reasonable one, and the purchaser of a non-transforable commutation ticket, who has lost it, and refuses, on account of such loss, to pay his fare upon a train, falls within the rule, and cannot maintain a.n action of tort against the company to recover damages for being ejected by the conductor for a non-compliance with it.</p>

The plaintiff was elected and served as treasurer of defendant for three consecutive terms, of two years each, commencing about the 20th of April, 1869. Previous to the commencement of his first term, the city council, under the act of February 9, 1863 (60 Ohio L. 4) had, by ordinance, prescribed the compensation of the city treasurer at $3,000 per annum.

<p>Motion for leave to file a petition in error to the District Court of Greene county.</p> <p>On the 25th of March, 1871, the defendant submitted to the plaintiff in writing a proposition as follows: “ Cincinnati, March 25, 1871. To" the Xenia Gas & Coke Co., Xenia, Ohio. ... I also agree to furnish you and deliver in cars on track at Cincinnati five to ten thousand bushels (as you may wish) of the best quality of Youghigheny coal, delivered in the mouths of October and November, 1871, at twelve (12) cents.”</p> <p>On the same day, the plaintiff’ endorsed its acceptance thereon as follows: “ "We the Xenia Gas Lt. and Coke Co. do accept of the within proposition from Jacob Gardner.”</p> <p>About the middle of October, 1871, the plaintiffs notified the defendant of its election to take the full 10,000 bushels. The defendant delivered 5,500 bushels, and no more. The original action was brought to recover damages for the non-delivery of 4,500 bushels.</p> <p>cited Disborough v. Neil-■son, 8 Johns. 81; 2 Parsons on Contracts (3d ed.), 184 and •note.</p> <p>cited 2 Parsons on Contracts, 661; Tapping v. Moot, 5 Cowen, 404; Disborough v. Neilson, 3 Johns. 81.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Wayne county.</p> <p>as to negligence, cited 18 N. Y. 534; 20 Barb- 282 ; 34 lb. 256; 18 N. Y. 408; 45 lb. 514; Lacey’s Railroad Decisions, 534, sec. 361; 57 Penn. 433. On the question of damages, 8 Kan. 505; 108 Mass. 7; 1 Allen, 9.</p>

<p>Error. Reserved in the District Court of Mahoning county.</p> <p>This is petition in error to reverse the judgment of the Court of Common Pleas of Mahoning county, reserved in the District Court for decision here. The original proceeding was prosecuted under the statute to contest an election, and was brought into the Court of Common Pleas by appeal from the decision of the county board of canvassers, by the plaintiff in error, as contestor against the defendant in error, who had been declared duly elected to the office of prosecuting attorney by the county canvassers.</p> <p>At the general election, held on the second Tuesday of October, 1875, for state, district, and county officers, the-electors of Mahoning county were charged with the duty of electing one person to fill the office of prosecuting attorney of the county. Eor this office, the plaintiff in error, the defendant in error, and one Moses H. Burkey were candidates, each of whom had been nominated, and was supported by his adherents, who composed separate and distinct organizations as political parties. John S. Roller, plaintiff' in error, was the nominee of the Republican party of the county. This pai’ty had also put in nomination, through its state and district organizations, candidates for state and district officers. Moses H. Burkey was the nominee of the Democratic party of the county. The Democratic party, like the Republican, having state and district organizations, had also nominated candidates for the state and district offices. Charles R. Truesdale, defendant in error, was the nominee of a party organized for local political purposes, known as the “ County Removal Party.” This party had no state or district organization, nor did it nominate candidates for state or district offices. The organization of the “ County Removal Party ” was in opposition to both Republican and Democratic county organizations, but its members being divided in sentiment, adhered to the state and district organizations of those parties, and supported their nominees according to individual preferences.</p> <p>To suit the preferences of the electors of the county, as indicated by the party organizations above described, ballots or tickets were printed in the following form:</p> <p>(No. 1.)</p> <p>REPUBLICAN STATE TICKET.</p> <p>For Governor, RUTHERFORD B. HAYES.</p> <p>For Lieutenant Governor, THOMAS L. YOUNG.</p> <p>For Auditor of State. JAMES WILLIAMS.</p> <p>For Treasurer of State, JOHN M. MILLIKIN.</p> <p>For Attorney General. JOHN LITTLE.</p> <p>For Judge of the Supremo Court, GEORGE W. McILVAINE.</p> <p>For Member of the Board of Public Works, PETER THATCHER.</p> <p>For the Commission.</p> <p>For the Amendment ¿faxing Dogs.</p> <p>Against the Amendment Taxing Dogs.</p> <p>REPUBLICAN DISTRICT TICKET.</p> <p>For Senator, (23d) Senatorial District, JOSEPH R. JOHNSON.</p> <p>REPUBLICAN COUNTY TICKET.</p> <p>For Representative, TIMOTHY WOODBRIDGE.</p> <p>For Clerk of Court of Common Pleas, HENRY B. SHIELDS.</p> <p>For Probate Judge, MASON EVANS.</p> <p>For Prosecuting Attorney, JOHN S. ROLLER.</p> <p>For Auditor, SAMUEL LINTON.</p> <p>For Commissioner, SAMUEL PRICE.</p> <p>For Infirmary «Director, GEORGE W. HARDING.</p> <p>For Coroner, JAMES F. WILSON.</p> <p>(No. 2.)</p> <p>DEMOCRATIC STATE TICKET.</p> <p>For Governor, WILLIAM ALLEN.</p> <p>For Lieutenant Governor, SAMUEL F. CARY.</p> <p>For Auditor of State, EDWARD M. GREEN.</p> <p>For Treasurer of State, JOHN SCHREINER.</p> <p>For Attorney General, THOMAS E. POWELL.</p> <p>For Judge of Supreme Court, THOMAS Q. ASHBURN.</p> <p>For Member of the Board of Public Works. HENRY E. O’HAGAN.</p> <p>DEMOCRATIC DISTRICT AND COUNTY TICKET.</p> <p>For State Senator, WILLIAM L. BROWN.</p> <p>For Representative, JAMES McFADDEN.</p> <p>For Clerk of Courts, ELIAS HARDING.</p> <p>For Probate Judge, GEORGE J. WARD.</p> <p>For Prosecuting Attorney. MOSES H. BURKEY.</p> <p>For Auditor, CHARLES H. SPRAGUE.</p> <p>For Commissioner, JOHN CHRONICK.</p> <p>For Coroner, PETER BAILEY.</p> <p>For the Commission.</p> <p>Against the Commission.</p> <p>For Amendment Taxing Dogs.</p> <p>Against Amendment Taxing Dogs.</p> <p>(No. 3.)</p> <p>EEPOTIIOAIf STATE TICKET.</p> <p>For Governor, BUTHEBFOBD B. HAYES.</p> <p>For Lieutenant Governor, THOMAS L. YOUNG,</p> <p>For Auditor of State, JAMES WILLIAMS.</p> <p>For Treasurer of State, JOHN M. MILLIKIN.</p> <p>For Attorney General, JOHN LITTLE.</p> <p>For Judge of the Supreme Court, GEOBGE W. McILVAINE.</p> <p>For Member of the Board of Public Works, PETEB THATOHEB.</p> <p>For the Commission.</p> <p>For Amendment Taxing Dogs.</p> <p>For Stato Senators (23d District,) JOSEPH B. JOHNSTON.</p> <p>OOTJNTY REMOVAL TICKET.</p> <p>For Bepresentative to General Assembly, JOSEPH BABCLAY.</p> <p>For Clerk of the Court of Common Pleas, DAVID N. SIMPKINS.</p> <p>For Probate Judge, LEBOY D. THOMAN.</p> <p>For Prosecuting Attorney, CHABLES B. TBUESDALE.</p> <p>For Auditor, JAMES B. HUGHES.</p> <p>For Commissioner, SHELDEN NEWTON.</p> <p>For Infirmary Director, AMOS H. SELL.</p> <p>For Coroner. Dr. JOHN M. FLOOB.</p> <p>(No. 4.)</p> <p>DEMOCRATIC STATE TICKET.</p> <p>For Governor, WILLIAM ALLEN.</p> <p>For Lieutenant Governor, SAMUEL F. CABY.</p> <p>For Auditor of State, EDWABD M. GBEEN.</p> <p>For Treasurer of State, JOHN SCHBEINEB.</p> <p>For Attorney General, THOMAS E. POWELL.</p> <p>For Judge of Supreme Court, THOMAS Q. ASHBUBN.</p> <p>For Member of the Board of Public Workflj ■ HENBY E. O’HAGAN.</p> <p>For the Commission.</p> <p>For Amendment Taxing Dogs.</p> <p>For Senator, WILLIAM L. BBOWN.</p> <p>REMOVAL COUNTY TICKET.</p> <p>For Bepresentative, JOSEPH BABCLAY.</p> <p>For Clerk of Courts, DAVID N. SIMPKINS.</p> <p>For Probate Judge, LEBOY D. THOMAN.</p> <p>For Prosecuting Attorney, CHABLES B. TBUESDALE.</p> <p>For Auditor, JAMES B. HUGHES.</p> <p>For Commissioner, SHELDON NEWTON.</p> <p>For Infirmary Director, AMOS H. SELL.</p> <p>For Coroner, OOHN M. FLOOB.</p> <p>Of the votes cast for prosecuting attorney at said election, Charles R. Truesdale received three thousand one hundred and eighty-four, which was the largest number polled for either candidate. John S. Roller received two. thousand nine hundred and seventy-eight, which was the next highest number.</p> <p>There is no question made as to the legality of the votes cast for the plaintiff in error, to wit: 2,978, But of the votes cast for the defendant in error, 256 were oy ballots in the form No. 8, above set forth, and 347 were by ballots in the form No. 4. These votes were counted for Truesdale by the county board of canvassers and also by the Court. of Common Pleas. If they were properly counted for him, the election of Truesdale is conceded; hut if these votes, to wit: 256+347=603, should not have been counted in his favor, it is conceded that the plaintiff in error was duly elected.</p>

The defendant in error, a corporation of Pennsylvania, Laving qualified under the statutes of this state, issued from its office in the city of Cincinnati a policy of insurance to the Ensign Handle Company, on property situate in Clinton county, payable in case of loss to the plaintiff in error. It afterward ceased to do business in this state, and with•drew all its officers and agents, so that process could not be •served upon it in this state.

The plaintiff in error, a corporation, is a common carrier, engaged in carrying goods for hire from Cleveland to Ravenna, Ohio, and other places. The original action was brought by A. A. Graham, the defendant in error, against the plaintiff in error, to recover for the failure of the latter to safely carry a foot-rest from Cleveland to Ravenna. The case was submitted to the court for trial, and the court found the facts in issue specially.

Mandamus. This is an application for a peremptory mandamus to compel the commissioners of Montgomery county to allow and certify for payment, out of the county treasury, the claim of the relator for $30, as a just compensation to him for services rendered as an attorney-at-law, in defending Theodore Eck, who was indicted and tried in the Court of Common Pleas of the county named, at its January term, 1876, for cutting with intent to wound.

Reserved in the District Court. In 1842, James Taylor, being seized of a tract of land containing about 490 acres, on which he then resided, and also of several other tracts of land, on one of which he had formerly resided, made his last will and testament, containing, among others, the following devise : “ First.

<p>Reserved in the District Court of Mahoning county.</p> <p>This is an action by citizens and owners of property in the town of Canfield, Mahoning County, to enjoin the defendants from removing the county seat from Canfield to the city of Youngstown, or taking steps for that purpose. The case comes here upon the petition and answer, and a special finding of facts by the District Court, aud is substantially as follows :</p> <p>The county of Mahoning was created by the act of February 16,1846.</p> <p>The first section of the act provides that the territory designated shall constitute a county, to be known by the name of Mahoning, “ with the county seat at Canfield.”</p> <p>The eighth section of the act is as follows:</p> <p>“Sec. 8. That before the seat of justice shall be considered permanently established at Canfield the proprietors or citizens thereof shall give bond, with good and sufficient security, payable to the commissioners of said county, hereafter to be elected, for the sum of five thousand dollars, to be applied in erecting public buildings for said county; and that the citizens of Canfield shall also donate a suitable lot of land on which to erect public buildings.”</p> <p>In pursuance of this enactment, the citizens of Canfield executed the required bond for five thousand dollars to the board of commissioners. They then erected, upon a lot of land situate in the town, and owned by Eben Newton, a court-house, worth at least ten thousand dollars; and Eben Newton conveyed the lot, with the building, to the commissioners, reciting in the deed that the lot was to be used “ for the sole and exclusive purpose of erecting public buildings for the county of Mahoning.” The board of commissioners accepted this conveyance in full satisfaction of the bond for five thousand dollars, and have ever since occupied and used the building as a court-house, Canfield having ever since been, and still being, the county seat of the county.</p> <p>On the 9th of April, 1874, the legislature passed the act of that date, “ to provide for the removal of the seat of justice of Mahoning county from the town of Canfield to the city of Youngstown, in said county.” The first and second sections of this act are as follows :</p> <p>“ See. 1. That from and after taking effect of this section of this act, as hereinafter provided, the seat of justice in the county of Mahoning shall be removed from the town of Canfield, and shall be fixed, until otherwise provided by law, at the city of Youngstown, in said county.</p> <p>“ Sec. 2. That the foregoing section of this act shall take effect and be in force when and so soon as the same shall be adopted by a majority of all the electors of said Mahoning county, voting at the next general election after the passage thereof, and when suitable buildings shall have been erected, as hereinafter provided.”</p> <p>Sections three and four of the act make provisions for submitting to the vote of the electors of the county the question of removal. Then follows section five, which provides :</p> <p>“ That in case a majority of the electors of said county •of Mahoning shall vote ‘for removal/ as heretofore provided, the seat of justice and county seat shall be deemed and taken to be removed from Canfield, in said county, to the city of Youngstown, in said county, and to be located at said city of Youngstown; provided, however, that nothing in the act shall be so construed as to authorize the removal of said seat of justice to the city of Youngstown, until the citizens of the city and township of Youngstown shall have donated a lot or lots of land in the city of Youngstown, and of sufficient size and suitably located to accommodate the court-house, jail, and necessary offices for said county; and shall have erected thereon, or shall have caused to have erected thereon, and completed thereon, suitable buildings for court-house, jail, and all offices and rooms necessary for the transaction of all the public business of said county, at a cost for said buildings of not less than one hundred thousand dollars, and to the satisfaction and acceptance of the commissioners of said county; and all such buildings shall be fully completed within two years from the date of the election at which this act shall be ratified ; and said commissioners shall not, nor shall any other authority of said county, levy any tax on the taxable property of said county for said land or building; provided, that the citizens of Youngstown may, within said two years, build said public buildings, and tender the same to said connty commissioners.”</p> <p>This act makes no provision for compensating citizens or proprietors of Canfield for any loss occasioned to them by the removal of the county seat.</p> <p>Soon after the passage of the act of 1874, the question of removal was duly submitted to the vote of the electors of the county, who, by a large majority, decided in favor of the removal. The citizens of Youngstown, or some of them, thereupon associated themselves together, “ for the purpose of procuring the necessary funds, and erecting the public buildings, as provided in the fifth section of said act,” and for that purpose appointed a “ building committee.”</p> <p>On the 16th of March, 1875, there being no hoard of improvements in said city, the city council passed an ordinance authorizing the city mayor to convey to the building committee, for the nominal consideration of ten dollars, two certain city lots, owned by the city, to be used by the committee as a site upon which to erect a court-house and other county buildings, agreeably to the requirements of said act of 1874.</p> <p>This conveyance was accordingly made by the mayor, and the committee “ proceeded to construct, and are causing to be constructed upon one of said city lots, at a cost of one hundred thousand dollars, or upwards, the public buildings as provided in said act, and design, upon completion thereof, to convey the same to the commissioners of said county, as and for a performance of the conditions provided in said .act.” And the finding of the District Court is, “ that there is good reason to believe that upon the completion of said buildings ... as provided in said act, and upon the execution and tender by said building committee to said commissioners of a deed therefor, the said commissioners will accept the same, and proceed to do any acts pertinent to their office as commissioners, which may be necessary for and pertinent to the removal of said county seat to the -city of Youngstown.”</p> <p>I. The act of 1846, and the acts of the persons therein named, constitute a valid contract between those persons and the state, which the act of 1874 undertakes the abrogation of without compensation, and therefore the latter act is unconstitutional. 3 Story on Const., secs. 1385, 1836; art. 1, sec. 19 of the State Constitution.</p> <p>This case is not an exception to the incapacity of a state to impair the obligations of a contract. 2 Parsons on Cont. 681.</p> <p>II. The act of 1874 is opposed to sec. 16, art. 2 of the constitution of Ohio, and is therefore inoperative and void.</p> <p>The words “take effect,” in the act of 1874, are undoubt•edly used in the same sense as in the constitution (secs. 26, 30, of art. 2). If they are not, then the act must take effect in some other manner than the constitution allows, and is for that reason unconstitutional.</p> <p>It is evident that the sections of the act, subsequent to the first and second, do not remove the county seat. If they do, it is contrary to the express words of the constitution, for the provisions in those sections take effect from the passage of the act, and the constitution declares that provisions which remove county seats shall not thus take ■effect.</p> <p>The removal, if it is effected at all, is effected by the first section, and the proposition on our part is, that this section is made to take effect, not upon the adoption of it by vote of the county, but upon the additional condition of suitable buildings having been erected by the citizens of Youngstown, and by them contributed to the county, with the lot on which they stand. ¥e claim that by the express terms of this act it can not take effect until the contribution provided for has been made, and that its taking effect-'in that manner is prohibited by the constitution.</p> <p>III. It is a condition of the act of 1874, that the public building and lot shall be furnished to the county at the expense of the citizens of Youngstown. This condition precludes the buildings and lot being furnished at the expense of the city of Youngstown.</p> <p>The conveyance from the city is void, because the conveyance was not made as required by section 676 of the municipal code.</p> <p>The city is only authorized to sell its real estate upon the recommendation of the board of improvements.</p> <p>I. The duty imposed upon the commissioners by the law of 1874 was not to determine what the law should be, or any of its provisions, but the duty,strictly,was to determine whether the citizens of Youngstown had performed the conditions precedent which were made so by the legislature. This did not invalidate the act. G. W. Z. JR. JR. Co. v. Clinton Co., 1 Ohio St. 87 ; Trustees of Paris Township v. Cherry, 8 Ib. 568 ; IJuston v. Parry Co., 5 Ib. 497 ; Noble v. Noble Co., Ib. 527; Peck v. Weddell, 17 Ib. 271. Nor was the legislature prohibited by the constitution from the exercise of the power assumed by them in the act. Baker v. Cincinnati, 11 Ohio St. 542 ; Cass v. Dillon, 2 Ib. 607 ; Evans v. Dudley, 1 Ib. 437 ; Lehman v. McBride, 15 Ib. 592; Hill v. Higdon, 5 Ib. 244.</p> <p>II. There is not enough in the law of 1846 to make a contract with any one.</p> <p>A grant to a municipal corporation can not be so made as to take away the legislative power of change, nor can any political organization or institution of government be granted to any individual or body of men so that the government can not resume the same at its pleasure.</p> <p>It is a well-settled principle that, as against the government, nothing is a grant, unless it is evidenced by clear and explicit terms, and that no grant can be raised by inference or presumption, and that the rights granted mast be clearly defined. Ohio Life Ins. and Trust Go. v. Debolt, 16-How. 416 ; Jefferson Branch Bank v. Shelly, 1 Black. 446 ; Debolt v. Ins. Co., 1 Ohio St. 574; State ex rel. v. Gin. Gas Co., 18 Ib. 296; Charles River Bridge v. Warren Bridge, 11 Peters, 420 ; 3 Wall. 75.</p> <p>“Permanent ” is not used in the act of 1846 in the sense that it must remain forever against the will of the people, and such is not the signification of the word. We say of a man that he has a permanent situation; we do not mean that he can never change, but only that he has no present intention of changing.</p> <p>III. On the question of the removal being contrary to sec. 10, art. 1, of the Constitution of the United States. Dartmouth College case, 4 Wheat. 518; Marietta v. Fearing, 4 Ohio, 432 ; 1 Ohio St. 89 ; East Hartford v. Hartford Bridge Co., 10 How. 533 ; People v. Morris, 13 Wend. 329 ; Philadelphia v. Fox, 64 Penn. St. 180; Story on the Constitution, secs. 1892, 1893; Cooley’s Con. Dim. 191, 203; Butler v.. Pennsylvania, 10 How. 416; Alley v. Dennison, 8 Texas, 297; Gilmore v. Hayworth, 26 lb. 91; Twiford v. Alamakee Co., 4 Greene (Iowa), 60 ; Terrett v. Taylor, 9 Oranch, 52 ; 16 How. 380; 5 Ohio St. 496.</p> <p>The authorities cited under this head apply as well in. answer to the claim of plaintiffs under the 19th section of the bill of rights.</p>

The plaintiff in error, who was plaintiff' below, brought an action in the Court of Common Pleas to recover of the defendant the sum of $600, for the rent of certain premises purchased by him in September, 1873, at a sale made on an order of the last named court, in certain proceedings for the partition of the premises purchased, which were then in the possession of the defendant, as the lessee of the parties to the proceedings in partition, for the term of one year from…

The plaintiffs in error brought suit against Maurice T. Lane, the defendant, to recover the amount due on an account for goods sold and delivered. The defendant interposed two defenses. He also set up a counter-claim, on which he asked damages for breaches committed by the plaintiffs of certain stipulations of the contract under which the goods wei’e furnished. On the counter-claim, issue was joined.

This was an action by Laura Parrish against Elisabeth Mauair to recover possession of lot No. 174 in the town of East Ironton, Lawrence county. Elisabeth claimed title under an alleged sale of the lot by Laura’s guardian, under an order of the Probate Court of Gallia county, made in 1866. In her answer she set forth a copy of the proceedings in said Probate Court.

Error, to the Superior Court of Cincinnati. The original action was brought by plaintiff in error against defendants in error, in the Superior Court of Cincinnati, to recover damages for the refusal to deliver certain hogsheads of tobacco, alleged to have been sold by the-defendants to the plaintiff. The defendants, in their answer, denied the alleged contract of sale.

<p>In an action by the maker of a negotiable promissory no1e against the payee, under the statute of January 12, 1844 (S. & C. 744), to recover the amount of usurious interest thereon paid to an indorsee, it must be averred in the plaintiff’s petition that the holder was a “ bona fide indorsee,” and that the note was “purchased” for a valuable consideration, and it is not sufficient merely to aver that the note was indorsed before due and without notice of the usury.</p>

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

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

The petition should be signed by plaintiff or-her attorney (Code, sec. 105). The amount for which judgment is demanded should be indorsed on the summons (Code, sec. 57). Jñnchkv. Evers, 25 Ohio St. 82; 61 Ohio L. 9.

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

On the 14th of January, 1875, Shea, the defendant in error, brought an action in the Superior Court of Cincinnati against Michael McKenzie to recover $499.50 due on contract for goods and merchandise before that time sold and delivered by Shea to McKenzie; upon which attachments were issued on the ground that McKenzie was a non-resident of the State, and Squair & McDonald, the-plaintiffs in error, were served with garnishee process in the action.

The original action was commenced, in the Court of Common Pleas of Athens county on the 16th of September, 1870, by Daniel Stewart and others, children and heirs of one Andrew Stewart, then deceased, against R. H. Stewart and J. II. Ilorton, makers of a certain promissory note, dated January 20, 1854, for $500, payable one year after date to Daniel Stewart or order.

The case is stated in the opinion. Where, in an action of replevin, “a special ownership or interest” in the property replevied, is relied upon by the plaintiff to maintain his action, the affidavit must show facts suffi: cient to establish that the plaintiff is entitled to the immediate possession of the property, as well as the further averment that “ he is entitled to the immediate possession of the property.” Code, sec. 175; Bostick v. Brittain, 25 Ark. 482; Curd v.…

The action in the court helow was brought by plaintiff in error against the defendant in error, to recover á balance of $1,500 claimed to be due upon a policy of insurance against loss by fire, for one year, issued on the 20th of September, 1870, by the defendant to the plaintiff for $3,000, on the steamboat Lightwood, on account of the owners—loss, if any, to be paid to the assured.

The original action was brought to recover $200, on a subscription of the plaintiff in error of four shares of $50 -each, to the capital stock of the Marietta, Pittsburg and Cleveland Railway Company. The petition sets out two causes of action. The first cause, for the recovery of $150, for three shares of stock sub-' scribed by the plaintiff in error at a time named, and cause No. 2, for $50, for one share of stock subsequently subscribed by him. • .