Volume 27 — Ohio State Reports, New Series

<p>Error reserved in the District Court of Hamilton county.</p>

<p>Error reserved in the Bistrict Court of Portage county.</p>

<p>1. In an action for malicious prosecution founded on a criminal proceeding before a magistrate, and when the issue involves malice and probable cause, it must be tried by direct and competent evidence to the jury. And it is error on such issue to permit witnesses to rehearse the testimony given before the magistrate by witnesses other than the defendant.</p> <p>2. Bat it is competent to prove by any competent witness who was present, and heard the testimony, that no evidence in support of the criminal charge was offered or given by the defendant. Richards v. Foullte, 3 Ohio, G2, distinguished and followed.</p> <p>3. In such trial the record of the magistrate is competent evidence, at least to show the facts of the acquittal and discharge of the plaintiffs.</p> <p>4. When at the time the action was brought, a witness would have been incompetent, but an amendatory law in force at the time of the trial makes him competent, the law in force at the time of the trial governs the question. The unpublished case, 25 Ohio St. 500, decides this. Nor is such law so applied liable to the objection of being retroactive within the prohibition of the constitution of 1851.</p>

<p>1. A reviewing court on error has no control of the records of the court below, and can not, therefore, make any correction or change therein, but such corrections or changes must be sought in the court where the record is made.</p> <p>2. A reviewing court may, however, disregard any matter purporting to be part of the record, which is not legitimately and properly matter of record.</p> <p>3. What shall constitute the record of a case, is regulated by statute, and any paper the statute authorizes to become part of the record may be made part thereof; without an express order of the court to that effect.</p> <p>4. When a motion for a new trial is granted by the court in which it is made, the judgment rendered on the new trial will not be reversed for error in allowing such new trial.</p>

<p>1. In a civil action, where the facts stated in the petition, and the nature of the relief primarily demanded, are within the sole jurisdiction of a court of equity, neither party can, of right, demand that the issues of fact made by the pleadings touching the plaintiff's right to such relief, shall be tried by a jury; and, therefore, after final judgment, adverse to the plaintiff, in the court of common pleas, he may appeal such a case to the . district court.</p> <p>2. And this right of appeal is not affected by the fact that the plaintiff also demands a money\judgment, by way of damages to which he may incidentally be entitled, as a result of his obtaining the equitable relief sought.</p>

<p>1. Under section 2 of the dower act (1 S. & 0. 516), an estate conveyed as jointure, to ho a good legal or statutory bar to dower, must he such an estate, as to certainty and kind, that the wife, on the death of her husband, may take possession of, and hold in severalty, and not in common with others.</p> <p>'2. If the estate so conveyed must he such as that at common law, dower could ho assigned by metes and hounds, then in such case the jointure, to be a legal bar to dower, should he an estate in severalty, so that the widow may enter and hold in severalty, without being compelled to resort to an action to have her jointure assigned to her by metes and hounds.</p> <p>'3. An antenuptial contract which conveys an undivided one-third part, or any other interest in common with others, in lieu of dower, is not a good statutory bar.</p> <p>A. Whether such an estate will constitute a good equitable jointure depends on the facts and circumstances of the case, and when such contract is pleaded by way of equitable defense to an action for dower, the facts upon which it depends, and not the pleader’s conclusions from the facts, must he stated.</p> <p>5. The conveyance of an estate as jointure, of an undivided one-third of a lot of land for the life of the wife, when such lot is less than one-third of the husband’s lands, is prima facie not a good equitable jointure, in the absence of facts showing that the same is fair and reasonable, or of such acts of the widow as amount to an estoppel.</p> <p>6. The antenuptial covenants of a woman, that in case she survive her husband, she will not claim dower in his estate, can not, in an action by her for dower, operate to bar such action, either by way of release or estoppel, where such antenuptial contract does not constitute either a legal or equitable bar.</p>

<p>1. The second section of the act of April 13, 1865, entitled “an act to restrain from running at large certain animals therein named,” which confers power upon commissioners of counties and trustees of townships, to grant general and special permission for the animals named to run at large, is not in conflict with the constitution. Fox v. Fox, 24 Ohio St., followed.</p> <p>2. Where the trustees of a township hy a majority, at a regular meeting, upon application made hy A B for a special permit under said section 2, granted the same, and so informed the applicant, this was an official act of the hoard of trustees.</p> <p>•3. And more delay of the township clerk in recording such grant or order, does not invalidate the same, if such record be afterward made up, such recording being only a ministerial act.</p> <p>4. And such permit, where based upon a pre-existing order when issued, though signed by the trustees at a subsequent time, will relate back to the day on which it was so granted; and the rights acquired under it by the grantee can not be divested or affected by the nonfeasance of the township clerk or the trustees in the delay of recording its allowance.'</p> <p>■■5. In such permit it is not necessary to particularly describe each animal licensed to run at large, or state the number of such animals. But it is a compliance with the statute if the description name the class or classes of animals, and state that they are 'owned by, or are under the charge of the person to whom such permit is given.</p> <p>»6. In a case where it becomes material to prove that an official act of township trustees was done on a particular day, and the record of the township clerk is silent thereon, it is competent to prove by parol testimony, by any competent witness who was present and knew the fact, such date, such testimony not contradicting the record.</p>

<p>Clear and convincing proof is required to warrant the reformation of a written instrument on the ground of mistake, and when it clearly appears that this rule has been disregarded in reforming an instrument, and the finding of the court can be sustained only upon the supposition that it regarded the law as requiring nothing more than a more preponderance of evidence to warrant a finding sustaining the alleged mistake, a' reviewing court, on error, may reverse the judgment based on such finding.</p>

<p>1. In tho act of December 17,1811, “ to restrict the entailment of estates ” (S. & C. 550), the clause which provides “that all estates given in tail shall be and remain an absolute estate in fee-simple to the issue of the first donee in tail," was intended to limit entailments then subsisting, as well ■as those which might be thereafter created.</p> <p>2. The enactment, thus construed, was not a prejudicial interference with vested rights, nor beyond legitimate legislative power.</p> <p>3. Therefore, where an estate in tail was created by deed, in 1807, and the issue of the first donee in tail sold and conveyed the premises in fee-simple, in 1836, by deed with covenants of general warranty, both ha and his heirs were thereby forever estopped to claim title to the premises against the grantee of such issue or his assigns.</p>

<p>1. Where specific power is given by the legislature authorizing a board of education to issue negotiable bonds for school purposes upon certain conditions prescribed, the regularity of the proceedings of the board can not be disputed, where the bonds, upon their face, purport to have been issued under the law in question, and where they have been sold by the board and afterward passed into the hands of a bona fide holder.</p> <p>2. Mandamus is the proper remedy to compel the board to appropriate moneys already in their treasury for that purpose, toward the payment of such bonds, and to levy such tax as may be necessary to complete such payment.</p>

<p>1. A mortgagee in possession of the mortgaged premises, after condition broken, with the assent of the mortgagor, is presumed, until the contrary is shown, 'to occupy in his character of mortgagee; and as such is liable to account for rents and profits.</p> <p>2. Where a tenant in possession for a fixed term purchases outstanding past due mortgages on the premises, and after the expiration of his term continues in possession and in receipt of the rents and profits, such continued occupancy, until the contrary is shown, is presumed to be under the mortgagee, and not of a tenant holding over.</p> <p>3. An agreement between the mortgagor and the mortgagee, when the mortgage debt bears interest, that the latter shall use and occupy the mortgaged promises without being accountable for rents and profits, unless supported by a consideration, other than the forbearance to foreclose the mortgage, is not such a valid contract as will bar the right to an account for rents and profits.</p> <p>4. A judgment creditor of the mortgagor, in a proper caso for equitable relief, has the same right to such an account as the mortgagor.</p>

<p>In an action under the code, seeking equitable partition together with an account of rents and profits, an answer denying that plaintiffs have any title to or interest in the premises, does not oust the court of jurisdiction.</p>

<p>1. An ante-nuptial contract, in parol, whereby B. M. K., then a feme sole, and being the owner in fee of certain lands, agreed with J. H., in consideration that he would marry her, and would enter upon and make valuable improvements upon said lands, she would convey to him by deed duly executed in fee-simple the same, is “ an agreement upon consideration of marriage,” and is void under the fifth section of the statute of frauds and perjuries, not being in writing and signed by the parties sought to be charged.</p> <p>2. Such contract is an entire one, and the additional consideration named therein, of entering upon and making improvements upon the land, in no manner changes the character of the agreement so as to take it out of the statute.</p> <p>8. The marriage under such contract of the parties is not such a part performance as takes the case out of the statute.</p> <p>4. Nov is the marriage and subsequent entry on the lands, and making valuable improvements thereon, such part performance as takes the case out of the statute, — such acts being as well referable to his character as husband as that of vendee.</p> <p>5. A deed defectively executed by the wife, in the attempted performance of such contract, will not be perfected in the absence of a clear case for a specific performance of a parol contract.</p>

<p>1. Under the statute to create a lien in favor of mechanics and others, the claim of a sub-contractor against the owner of the structure is limited to the work and materials furnished in performing a particular contract. between the owner and contractor in relation to such structure; also to. the amount unpaid on such contract at the time he delivers to the owner his attested account against the contractor for such work and materials.</p> <p>2. Where independent jobs are let under separate contracts, though between the same owner and contractor, the liens of the sub-contractors are respectively confined to the amount unpaid on the particular contract each one aided the contractor to perform.</p> <p>3. When a contract for a structure provides for changes in the plans and specifications, and extra work is done in completing the structure without a new contract, a sub-contractor of any part of the job may perfect a lien on the amount due from the owner to the contractor for such extra work.</p> <p>i. When a sub-contractor seeks a lien under the statute against a corporation as the owner, the delivery of his attested account against the contractor to the agent or officer of the corporation, who is duly authorized to enter into the contract, under which the job is done, in his own name, and to account to the contractor and sub-contractor in accordance with their respective rights, is sufficient notice to fix the lien against the corporation.</p>

<p>1. Where the holder of a mechanic’s lien, within the two 'years for which his lien remains operative, commences an action on his account, to obtain a personal judgment for the amount thereof, such lien is, by the provisions of the statute creating it, continued until the action is determined, and until the judgment obtained by the plaintiff is satisfied.</p> <p>2. The premises charged with such lien may be subjected to the satisfaction of the same, as against a purchaser in good faith, who bought without actual notice of plaintiff’s claim, pending the action thereon, and after the expiration of said period of two years.</p>

Reserved in the District Court. The action in the court below was brought by defendant in error upon two tickets or policies of insurance against accident-, issued to him by the plaintiff’in error on the 17th day of August, 1868, at Ashtabula, Ohio. The accident on account of which a recovery was sought occurred on the same day. Suit was commenced June 8, 1869, and the sum demanded was $1,300, with interest.

Error reserved from the District Court- of Hamilton county. The action is a bill in chancery, filed on March 11, 1850, by Abraham Piatt- and others, as heirs of John II.

<p>Appeal, reserved in the District Court of Fayette county.</p>

<p>1. In a judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor to re-litigate the same matters between the same parties.</p> <p>2. This holding is not to affect any right a party may have in matters oí set-off, counterclaim, or cross action provided for by law.</p>

<p>1. Under tlie act of March 25, 1859, it is the duty of a railroad to keep its road properly fenced, and it does not discharge that duty hy contracting with another party to perform it, when the performance itself is insufficient.</p> <p>2. If the road is properly fenced, the company is held to the exercise of ordinary care only, in the running of trains, .to prevent the killing of animals. Where the road is not properly fenced, a higher degree of care is required.</p>

<p>1. Under the act of February 14, 1867 (S. & S. 677), supplementary to the act of April 5, 1866 (63 Ohio L. 114), authorizing county commissioners to purchase and make free any turnpike road, on the conditions and by the procedure provided for the improvement of roads in the act to which it is supplementary, and the acts amendatory thereof, the commissioners have no power to make the final order declaring them free roads and for their improvement, except upon the petition of a majority of the resident persons, who will be charged with the expense of the same, and who are asking for the improvement at the time the final order is made.</p> <p>2. Where amotion for a new trial, made on the ground that the finding and judgment of the court is not supported hy the law and the evidence, is overruled, and all the testimony offered before the trial court is in an agreed statement of facts, in writing, carried into the record, and found hy the court to he all the testimony offered hy the parties on the trial, it is not necessary, on overruling the motion, to re-emhody the testimony in a hill of exceptions.</p>

<p>Error to the District Court of Guernsey county.</p>

<p>1. In this state, the Court of Common Pleas has no authority by the common law to order a change of venue in criminal cases; such power is „ conferred upon the court hy statute.</p> <p>2. The statute relating to a change of venue in criminal cases confers upon the Court of Common Pleas, in the oounty where the offense was committed, power to order a change of venue to an adjoining county, hut the exercise of such power is confined to the jurisdiction of the county where the offense was committed.</p>

<p>1. "Where the vendee of land brings his action on the covenants of a deed against incumbrance, to recover damages on the ground that he has been evicted under a prior mortgage on the premises executed by the vendor to a third person, an answer, stating that the deed was made in execution on his part of his covenant to convey, contained in an article of agreement between him and the vendee for the sale of the land, in consideration of which and as part payment of the purchase money, the vendee assumed and agreed to pay off said mortgage, and that the eviction resulted from his failure to do so, is a good bar to said action.</p> <p>2. When at the request, and solely for the convenience of the vendee, the conveyance is made to his wife, without consideration on her part, and such action is brought in her name, she holds the title subject to the covenants of her husband contained in his contract of purchase, and his failure to pay off such prior incumbrance by reason of which she was evicted, is a bar to her right of recovery.</p> <p>3. The covenants of the vendee contained in such contract of sale, to assume and pay off said mortgage as part payment of the purchase money, are neither performed, satisfied, surrendered, nor merged by the mere conveyance to him by the vendor, in the absence of anything in the deed, or the acts of the parties showing that such covenants of the vendee have been in fact performed or satisfied.</p> <p>4. When such written contract is lost, its provisions may be established by parol, although when so established it may affect the vendee’s rights on the covenants in his deed.</p>

<p>1. Words, charging a clergyman with drunkenness, when spoken of and concerning him in his office or calling, are action able per se.</p> <p>2. In an action where punitive damages may be allowed, evidence of the defendant’s pecuniary ability is admissible.</p> <p>3. It is not error to refuse to charge the jury, that if the defendant without reasonable cause believed the charge to be true, they could not award exemplary damages, where there is evidence tending to show that lie uttered the words in a wanton and reckless manner.</p>

Reserved in tbe District Court of Columbiana county. The case was originally-brought by the plaintiff in the Probate Court of Columbiana county, where it was transferred to the Court of Common Pleas. The case is this : On the 13th of March, 1856, Joseph A. Blackburn and the plaintiff (whose name was then Elizabeth Jennings) were engaged to be married.

The original action was brought by the present plaintiff’s in the Court of Common Pleas of Allen county, and by their petition they complained of the' defendant, in substance, as follows: That on the 20th day of June, A. d. 1866, the plaintiffs were in the lawful and peaceable possession of a certain three-story brick store-house, and cellar thereto belonging, situate on lot 84, in the village of Lima, in said county, in which building and cellar they had a valuable stock of…

<p>1. The city council of cities of the first class, having a board of city improvements, have no power under section 105 of the “act to provide for the organization of cities and incorporated villages ” (S. & C. 1526), to order the improvement of a street by grading and paving, except upon the report and recommendation of the board of city improvements, first had.</p> <p>2. The report and recommendation of the board of city improvements, being conditions precedent to the jurisdiction óf the city council, that body could not, under said act, so prescribe the duties of the clerk of said board as to make the minutes of its proceedings kept by him the sole and exclusive evidence of the action of the board of city improvements.</p> <p>3. "Where it appears by the proceedings of the city council that a report and recommendation of the board of city improvements bad been made to it, and that thereupon the city council proceeded to make the improvement so'recommended, it will be presumed, until the contrary is shown, that such report and recommendation of the board of city improvements was duty and properly made.</p> <p>4. After the city council has, by the necessary action of the board of city improvements, had jurisdiction conferred upon it to order a street improvement under said act, the city council may take such further action as is proper and necessary to cause the improvement to bo made, and to pay the costs thereof.</p>

<p>"Words spoken, charging a man with sodomy, are not actionable without alleging special damage; such an act not having been made a crime or offense indictable and punishable by law.</p>

<p>1. Those possessory rights in realty, known in California during the years* 1852 and 1853 as “ squatters’ rights,” were interests in lands under the-laws of that state, and authority to convey such rights was required to he in writing.</p> <p>2. Lands or interests in lands being sold as an entirety, when title fails to a* material portion of the amount conveyed, the vendee has his election to* rescind the contract upon discovering the fact of such failure.</p>

The action in the court below was brought by Ramsey •against Smith, to recover on hook account for $469.13. The defendant, Smith, among other defenses, pleaded the •certificate of his discharge in bankruptcy in bar of the .action. Replication, that the discharge was fraudulently obtained in this, etc. (setting out several acts alleged to have been committed by Smith, which are designated in section 29 of “the bankrupt law as causes for invalidating the certificate).

<p>Error to the District Court of Logan county.</p>

<p>1. It is not contrary to the laws of Ohio, nor against public policy, in the present condition of her laws, for a foreign corporation, lawfully organized in a sister state, to do business in Ohio.</p> <p>2. A foreign corporation, authorized by the laws of the state in which it was organized to do business in this state, may transact business in Ohio not inconsistent with Ohio laws; may sue and be sued in our courts.</p> <p>3. Persons entering into contract with, such foreign corporation concerning property, or rights in property, appropriate to its business in Ohio, will be estopped, after dealing with said corporation, recognizing by their acts its validity and receiving the benefits of the contract, from denying the power of the corporation to make the contract, in an action on the contract.</p>

<p>1. The assignment of a non-negotiable demand arising on contract, before due, defeats a set-off by the debtor of an independent cross demand, on which no right of action had accrued at the time of the assignment.</p> <p>2. An assignment of personal property and ehoses in action by an insolvent debtor for the benefit of creditors in conformity to the laws of the State of New York, where such debtor resided and did business, operates to transfer the right of action to recover said ehoses in action to the assignee, and he may maintain an action as such assignee in the courts of this state, to collect the same, although said assignment, as authorized by the laws of New York, gives preferences to certain of the creditors.</p> <p>3. In case of such an assignment of ehoses in action, the law of the domicil of the assignor controls and determines what is a sufficient transfer to authorize the assignee to collect the same.</p> <p>4. The principles of comity between states will allow such assignee to maintain an action, in the courts of this state, against one of its citizens, to collect the same, notwithstanding such preferences, in the absence of any set-off or other defense to such action, or of any lien or charge against said claim under the laws of Ohio, by the debtor.</p>

<p>1. In an action on an executor’s bond, as against a demurrer to the petition, it is sufficient allegation of breach, to set forth the condition of the bond alleged to have been broken, and to aver a non-performance of such condition, although the petition might be open to a motion to make more definite and certain.</p> <p>2. Under the statute of 1854 (S. & 0. 619) upon demurrer the petition is sufficient, if alleging the appointment by the proper authority of an administrator de bonis non, without averring that he had given bond.</p> <p>8. If a sufficient case is stated against one party, it is not ground of demurrer Ry him that another party is joined, against whom no cause of action exists.</p>

The suit was brought to recover real estate. The plaintiff is widow of Thomas B. Smith, deceased, who was the son of John Smith, late of Cincinnati, deceased, and the defendants are the children and heirs of John Smith.

The plaintiff brought suit in the Court of Common Pleas' of Portage county to recover of the defendant the amount of two promissory notes of seventy-five dollars each, of which the following is a copy: “ POSTOEEICE ADDRESS, SUEEIELD, COUNTY OE PORTAGE, State oe Ohio, July 29,1869. “ Three months after date, I promise to pay to the order of L. A. Wilder seventy-five dollars, for value received, with use. [Stamp.] “ Solomon Way.” “ Indorsed: I hereby certify that I am worth…

<p>3. The owner of a wooden building, situated in a city which has, by ordinance, prohibited the erection or placing a wooden structure over ten feet high within certain prescribed bouzxdaries, which building was erected within said limits prior to the passage of the ordinance, may lawfully move such building from one lot to another within the prescribed boundaries. .</p> <p>2. The owner of such building, having, by the consent of the city, moved it along and upon a street to a point adjoining his lot, located within the fire boundaries, may lawfully place it upon such lot, and the city could not lawfully interfere to prevent his doing so.</p> <p>3. Under circumstances that place the city in the wrong, an interference on her part so that the owner is prevented from placing the building on his lot, and in consequence, by obstructing the street, the building becomes a nuisance and is torn down, the city is liable to the owner for damages.</p> <p>4¡. Where the building was lawfully in the street and the owner was in the act of removing it from the street upon his own premises, and by the wrongful interference of the city with the rights of the ownei-, the building becomes a nuisance, an order from the Police Court, requiring it to be removed or torn down, will not exempt the city from liability for damages.</p> <p>5. An agreement between the owner of such building and the city authority, made on the consideration that the city will permit" him to tear down his own building, or that the city may tear it down without incurring a responsibility in damages, is wanting in mutuality, without consider- - ation, and void.</p> <p>6. The owner of such building having offered to make it conform in all respects to the requirements of the fire ordinance of May 10, 1854, had the right to do so, and was entitled to a reasonable time in which to perform.</p>

Error, to Superior Court of Cincinnati. Hessberg, plaintiff below, sued the defendant, .an insurance company of New York, alleging as his grounds of action that about the 30th of September, 1868, he became’ the agent of the company to solicit life insurance, and continued such to April 5,1869, under a contract, by which he was to have a commission of twenty-two and one-half per cent, on premiums, and seven and one-half per cent, on renewals; that as such agent, during that…

<p>1. The principle that the appointment of a debtor as administrator converts the debt into assets in his hands to be accounted for, does not apply to one who is only conditionally liable to the estate.</p> <p>:2. The appointment as administrator de bonis non, with the will annexed, of one who was surety on the bond of the previous executor, does not make a debt due the estate from such executor assets in the hands of such administrator by reason of” his suretyship.</p>

<p>A., having a defective title to numerous city lots, leased them to tenants for a term of years; and, having subsequently perfected his title, shortly before the expiration of the leases, sold all the lots to B. The tenants, having been encouraged to believe that A. would sell to each the lot occupied hy him, and regarding A. to he more friendly to them than B., refused to recognize B. as the owner of the lots, and applied to A. for terms of sale. A. answered hy a letter, purporting to he solely his own, and signed hy himself only, stating the terms upon which he would sell them their respective lots. B. consented that A. might write the letter for himself alone, and it was not signed hy B. nor hy A. for B. Held:</p> <p>1. Specific performance of the terms of the letter can not he enforced against. B., without clear and convincing proof that the letter, though signed in the name of A., was, in fact, the letter of B.</p> <p>2. Proof that B. consented that A. might sign the letter for himself alone, is not sufficient to hind B. to the performance of the terms of the letter-at the suit of the tenants.</p>

The original action was brought to enforce the lien of an assessment on real estate of the defendant, situated on Front-street, in the city of Cincinnati, for grading and paving. The petition was filed on March 11, 1867, and a demurrer thereto was sustained. An amended petition was filed November 16, 1869, to which a general demurrer was filed and sustained. Judgment was rendered for the defendant, which was affirmed on error in the general term.

<p>1. A judgment will be reversed only for sucb errors as may have been prejudicial to the substantial rights of the plaintiff in error.</p> <p>2. Therefore, where, on the trial of an action involving the settlement of partnership accounts, the cause was finally heard upon the report of a master, and exceptions thereto, and upon testimony, exhibits, and vouchers produced by the parties, and the court properly found, from the evidence in the case, that the defendant could not be and was not indebted to the plaintiff in more than a certain specified sum, for which they rendered judgment in plaintiff’s favor, such judgment will not be reversed at the instance of the plaintiff, on the ground that in reducing the sum reported by the master as due to the plaintiff to its just maximum limit, the court sustained certain exceptions to the report, which were not in fact well taken.</p>

<p>Error to the District Court of Adams county.</p>

<p>1. The power vested in the general assembly under article 13, section 6, of the constitution of Ohio, to restrict the powers of taxation and assessment by municipal corporations, is subject to the limitations imposed by article 1, section 10, of the constitution of the United States, which declares that “ no State shall pass any law impairing the obligation of contracts,” and of article 2, section 28, of the constitution of Ohio, which declares that the general assembly shall pass no retroactive law or laws impairing the obligations of contracts.</p> <p>2. "Where a statute authorized a municipal corporation to improve its streets, • and make assessments on abutting lots to pay the cost thereof, and it has, after taking the necessary steps required by law and the ordinances governing in such cases, made a contract with an individual to do the . work for a stipulated price, and binding itself to pay such price in assessments under such statute, which the contractor agrees to accept in full payment, the obligation of the corporation to pay in the manner stipulated can not be impaired by a subsequent amendment of such statute, which takes away the power to make an assessment equal to the amount agreed to be paid.</p> <p>,3. A subsequent statute which repeals or restricts the power of assessment so previously given, is, in so far as it aifects the obligations of contracts existing at the time, a statute impairing the obligation of such contract.</p> <p>4. Unless adequate provision is made to enable the corporation to perform its existing contract obligations, such subsequent statute will be eonsifiied as prospective in its operations, and not applicable to such contracts; and it will be the duty of the corporation to be governed by the statute in force when the contract was made.</p>

<p>1. Live stock left in the custody of a company, whose business it is to furnish temporary accommodations for the same, may be sold by such company when no owner can be found, and from the perishable nature of the property a necessity for sale arises.</p> <p>2. If the purchaser, with knowledge of all the facts, buys upon a contract that the money shall be held by the vendor for the benefit of the owner, he can not, after obtaining the property, refuse to pay on the ground that such vendor had no title to the property.</p> <p>45. The law relating to strays does not apply to hogs left by some one unknown in the pens of a company engaged in the business of receiving and. caring for live stock brought to market.</p>

Error, to the District Court of Wood county. The original action was brought by the plaintiff in the Court of Common Pleas of Wood county to annul a sale of a parcel of school lands, and to enjoin the delivery of a deed in execution of the sale.

<p>1. The main purpose of the proceedings in bankruptcy, is the proper distribution of the estate of the bankrupt among his creditors. Such proceedings are in rem, and actual notice to the creditors is not essential to the jurisdiction of the court.</p> <p>2. If in the course of such proceedings, the bankrupt willfully prevents notice from being' given to a creditor, by means of false schedules or affidavits, such fraud, as well as any other fraudulent act, specified in the 29th section of the bankrupt act of 1867, would be good ground for setting. aside and annulling the bankrupt’s discharge, in a direct proceeding for that purpose, as authorized by the 34th section of said act.</p> <p>8. But the remedy given to creditors by said 34th section is exclusive, and the validity of the discharge can not be collaterally impeached, even for the fraudulent prevention by the bankrupt of notice to a creditor.</p>

<p>The provisions of the tax laws contained in section 12, as amended (S. & S. 758), which require a manufacturer, in making out his tax return, to-include in his statement “the average value, estimated as provided in the preceding section, of all articles purchased, received, or otherwise held for the purpose of being used in whole or in part in any process- or operation of manufacturing, combining, rectifying, or refining, which-from time to time he shall have had on hand during the year next previous to the making of such statement,” do not require such manufacturer to include in said statement any manufactured or partly manufactured articles, nor the value of the raw material which has been changed or converted into the same, unless such manufactured or partly manufactured articles have been on hand one year or more, previous to making out such statement. '</p>

<p>The widow of a purchase-money mortgagor, mortgage given before marriage, and property sold by executors to pay the mortgage debt, is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage.</p>

<p>In a petition upon an undertaking for stay before a justice, it is necessary to aver execution- issued after stay expired, notwithstanding other executions may have been issued before such expiration under proceedings to obtain additional security by virtue of section 16á justices’ code.</p>

<p>The defendant conveyed land to the plaintiff, with covenants against incumbrances, and to defend the title conveyed. There was then existing a mortgage on the land made by a prior owner, and the holder of the mortgage afterward brought suit against the mortgagor and both of the parties to this case, and obtained judgment subjecting the land to the payment of the mortgage. The land was sold on the judgment, and deeded to the purchaser,' who thereupon obtained possession. Subsequently, at the suit of the defendant, on error, the judgment was reversed. Held — ■</p> <p>1. The eviction of the plaintiff, under the judgment on the mortgage, wa3 a breach of the covenants of warranty in the deed, and, thereupon, a right of action thereon accrued in favor of the plaintiff.</p> <p>2. The subsequent reversal of the judgment did not affect the sale of the land and consequent eviction of the plaintiff, and did not deprive him of his right of action on the covenants of warranty.</p>

<p>1. "Where, by the terms of a written lease, the tenancy is to continue so long as the parties shall mutually agree, and either party may determine it on four days’ notice — the rent to be paid monthly or semimonthly, as may be most convenient — such renting creates a tenancy at will.</p> <p>2. The lessee, in such case, acquires no certain indefeasible interest in the premises, which he can sell and transfer to another.</p> <p>3. Such tenancy will be determined, by implication of law, upon the death either of the lessor or lessee; or by the desertion of the premises by the lessee; or by the sale and transfer of his possession to another.</p> <p>4. Therefore, where during such a tenancy the lessor died, having by will devised the premises; and the lessee, a month afterward, sublet a portion of the premises to the plaintiff, without the consent of the devisee; and shortly thereafter removed wholly therefrom; and the devisee thereupon entered and removed doors and windows from a dwelling house situated on the demised premises, and in the occupancy of the plaintiff; without unnecessary interference with the person or property of the plaintiff, and without a breach of the peace, such entry and acts of ownership were not tortious, and do not constitute a cause of action in favor of the plaintiff against the devisee.</p>

<p>G., owning shares of the Marietta and Cincinnati Railroad stock, in 1856-7, transferred the same to 37., who gave to G. written obligations for its return, substantially as follows: “ Borrowed of'William Greene one hundred and nine shares of Marietta and Cincinnati Railroad stock, drawing interest at eight per cent., to be returned on demand.” Afterward, the Marietta and Cincinnati Railroad Company, having become hopelessly insolvent, in 1860, a mortgage on the road was foreclosed; all its property and rights sold; sale confirmed, and deed made to the purchaser; and afterward all the property, rights, and franchises of the Marietta and Cincinnati Railroad Company, having been conveyed to a new corporation, and the old corporation ceased to exist in fact, and its stock, from that time on, ceased to have a legal existence, and had no value. Held—</p> <p>1. The transaction between G. and 17. was in the nature of a mutuum, and payment in discharge of the loan, could be made by a return of an equal number of shares of stock of the Marietta and Cincinnati Railroad Company, without regard to its market value.</p> <p>'2. When, by the terms of the contract, the borrowed stock is to be returned on demand, it is meant that an equal number of shares of stock of the same company shall be returned, and no cause of action accrues to G. until demand is made or waived, or fact exists that avoids the necessity for demand.</p> <p>3. The financial condition of the Marietta and Cincinnati Railroad Company ; the subsequent existence, or non-existence of the corporation, or its stock as a representative of value, will not afleet the construction of the contract. Its terms determine the duties and liabilities of the parties each to the other.</p> <p>4. If the lender has made no demand during the legal existence of such old company, or of its stock, and until after a return of such stock has become impossible, without fault of the borrower, his right to a return of such stock is gone, and he is not damaged by a failure afterward to return the same.</p> <p>■5. When a cause of action does accrue in such case, the measure of damage will be the market value of such stock at the time the cause of action accrued. If at that time the stock was worthless, only nominal damages can be recovered.</p>

In February, 1867, plaintiff, Lang, recovered a judgment in a justice’s court of Lucas county against Joseph Pfeffer .and Sabina Pfeffer for $39.35, and costs of suit. Desiring to appeal the action to the Court of Common Pleas, they jointly procured L. II.

<p>1. A widow is dowable of tlie surplus remaining after the payment of a purchase-money mortgage.</p> <p>2. Having had her full dower in the residue of the estate, a portion of which was sold, and the proceeds applied to remove a purchase-money mortgage, larger in amount than the property mortgaged, she can not thereafter be endowed of such property as though no mortgage existed.</p> <p>3. The heirs and others having, with the sanction of the court, sold property of which the widow had already been endowed, and with moneys arising therefrom having paid off the purchase-money mortgage, the widow is not thereby invested with right of dower in the whole property so-mortgaged.</p>

<p>•In proceedings against a boat, by name, under the watercraft laws of this state, upon final process against the craft, neither the owner nor his wife is entitled, under the homestead laws of this state, to select and hold the craft, its apparel, or furniture, exempt from execution, in lieu of a homestead.</p>

<p>P., as constable, seized property of T. in execution, and advertised it for sale; on his way to the place of sale he met with S., who gave P. a written offer of ten dollars for the property levied on; about one o’clock in the afternoon, at the place of sale, no person being present but P., the constable, he announced the proposition of S. as a bid, cried it as a bid, and then declared the property sold to S. On the ensuing day S. paid P. ten dollars, and P. delivered the property to S., who took possession thereof. Held—</p> <p>1. A constable can lawfully receive and cry at his official sales only such bids as are offered and received at the time and place of sale.'</p> <p>2. P. in delivering, and S. in taking possession of the property of T., were wrongdoers, and became liable to T. in an action for the value of the property.</p>

<p>Where D. tendered to the treasurer of the county all the taxes legally due on a city lot, which had heen assessed by the city for the improvement of a street, and such assessment had heen certified to by the county auditor, and placed on the duplicate for collection as other taxes, said assessment being void for want of authority to make it, the treasurer refused to receive the taxes legally due, unless D. would also pay the assessment, which D. declined to do, by reason of which the lot was returned delinquent for the unpaid taxes, as directed by the statute, and was about to be sold, at delinquent tax sale, and D., to prevent such a sale, and under protest, paid said assessment, and also the taxes. Held—</p> <p>1. That payment under such circumstances was not voluntary.</p> <p>2. That such payment is not a waiver of D.’s right under the statute (2 S. & 0.1151) to recover back the illegal assessment so collected.</p> <p>3. Where, under said statute, the treasurer proceeds under the summary. proceedings provided by law to adyertise and sell said lot, and to prevent the same, D. pays the assessment, as well as the taxes legally due, under protest, such a payment constitutes a collection by the treasurer under legal process, which does not give the party a day in court or an opportunity to be heard, and the amount paid may be recovered back, although the process was directed against the land only.</p> <p>4. Where such an assessment is without authority of law, and therefore void, it is not such irregularity or defect as is contemplated in the curative proviso in section 550 of the municipal code ( Welker v. Potter, 18 Ohio St. 85, followed).</p> <p>6. An answer, which avers that D. had actual knowledge, or had the means-of knowing, of all the steps taken by the city in making the improvement, and made no objection — that the lot is greatly benefited thereby; that the assessment only covered actual cost, which was the lowest price the work could be done for, and the amount assessed was no more than was properly chargeable on said lot — does not constitute a bar to an action to recover back such void assessment.</p>

<p>1. In sales of personal property, if the articles delivered fall so far short of the quantity bargained for as to authorize a rescission of the contract, for partial failure of consideration, the vendee may recover damages1 for the deficiency.</p> <p>2. The words “more or less” may cover a variation that is unimportant in amount, but not such a deficiency as exists in this case — of 23,000 feet of lumber sold, the amount paid being a fair price for that quantity, and but 16,000 feet delivered.</p> <p>8. A mere delay of six months in bringing suit, or in notifying the opposite party of the deficiency, is not, of itself, waiver of a claim for damages.</p> <p>4. Payment of a note given for articles of personal property, the note having passed into the hands of an innocent holder for value, before due, without" notice, does not bar the right to damages for breach of the contract of sale, in an action brought by the maker of the note, who was-the purchaser of the personal property.</p>

<p>5. conveyed a tract of land to W. by a deed absolute in form. Subsequently a creditor of S. brought suit against him and W. to subject the land to the payment of his claim. W. answered in writing that he held the' land in trust for the payment of certain specified debts of S. and for the support of his wife and child so far as necessary, and the creditor failed in his suit. S. died, and W. paid the specified debts of S. and supported his wife until her second marriage, and the child until he arrived at majority. W. died seized of the land, and the late wife and child of S. ask for an account and a decree compelling the devisees of W. to convey to them the land. Held:</p> <p>1. The answer of W. in a former suit, relating to the same land and deed in controversy in this case, signed by him, is admissible to prove that the deed was a deed of trust.</p> <p>2. The answer shows that the deed of S. to W., though absolute in form, was a deed of trust, and not a purchase for the sole use of the grantee.</p> <p>B. Under the terms and conditions of the trust stated in the answer, the use of the wife is limited to her support while she remained unmarried, and that of the child to his support during his minority,</p> <p>d. Neither the grantee nor the wife is entitled to the residue of the trust property remaining after the trust has been executed.</p> <p>■6. Such residue in excess of the use declared, results to the use of the child, as the heir of the deceased grantor, subject to any dower right the wife may have therein.</p> <p>6. The heir is entitled to an account, and a decree against the devisees of the grantee in the deed, for the residue of the trust property in their hands.</p>

<p>1. Upon a trial under an indictment containing but a single count, charging an illegal sale of liquor by the defendant to a person in the habit of becoming intoxicated, the prosecution should be so restricted as to prevent the case from going to the jury upon evidence of more than one transaction.</p> <p>2. Where, on such a trial, the state has offered evidence tending to prove several distinct substantive offenses, either of which, when duly proved, would warrant conviction, it is the duty of the court, upon motion, .to require the prosecutor, before the defendant is put on his defense, to elect upon what particular transaction he will rely for a conviction.</p>

<p>A finding and judgment will not De reversed, because that finding and judgment are contrary to the evidence, unless they are clearly so; and the reviewing court will always hesitate to reverse where the doubt about the propriety of doing so arises from a manifest conflict in the oral testimony, as it appears on the record in the reviewing court.</p>

<p>"Where 0. was indicted under section 7 of “An act to prevent gaming” (1 S. & O. 66á), the indictment charging, “ that 0. did unlawfully play at a certain game called draw poker, for a sum of money, to wit, for thp sum of six dollars, by means of a certain gaming device, to wit, a pack of 1 cards,” and being arraigned, plead guilty as charged. Held:</p> <p>1. That by such plea the defendant waived the right to object to any defects that might have been taken advantage of by a motion to quash, or by plea in abatement.</p> <p>2. That after such plea, such matters only as may be taken advantage of by motion in arrest of judgment, can be interposed to prevent sentence.</p> <p>3. Such indictment is sufficient in law, after plea of guilty, to warrant sentence thereon.</p> <p>4. "When the record does not show that after a plea of guilty, and before sentence, the court asked him if he had anything to say why judgment should not be pronounced against him as required by section 169 of the criminal code, this court, in the absence of a bill of exceptions showing the contrary, will presume that such question was asked. Bond v. State, 23 Ohio St. 349,</p> <p>5 Whether the provisions of section 169 are applicable where there is a plea of guilty. Queers?</p>

<p>An order setting aside a verdict and granting a new trial upon payment of costs, is not an order conditioned upon such payment. The order is absolute, and the stipulation with reference to costs may be enforced by execution, or as any other order may be.</p>

<p>1. No existing right of a turnpike company to charge and collect toll for that portion of its road within municipal limits, and 80 rods beyond, is taken away by section 34 of the turnpike law (1 S. & 0. 295), which prescribes that the company is not authorized “to erect or keep up any toll-gate, or reoieve tolls, within the corporate limits, etc., or within 80 rods of such limits.”</p> <p>2. A toll-gate, properly located outside the prescribed boundaries, njay charge and collect toll, not only for the 80 rods leading to the city limits, but for such portion of the road as is lawfully within the city limits.</p> <p>3. A contract between a turnpike company and a city, allowing the former to make a portion of its road within the limits of the latter, and collect tolls thereon, is to be construed with reference to the laws providing for the location of toll-gates. And the company having a toll-gate propi* erly located, may collect tolls thereat for the portion of the road within the city, if the contract be not otherwise objectionable.</p>

<p>1. An auditor’s deed for forfeited land, sold under the act of March 14,1831,. is prima facie evidence of title, without any preliminary proof.</p> <p>2. The effect of the act is to change the burden of proof, which before rested upon the purchaser to sustain the deed, and casts it upon the-party who would contest its validity.</p> <p>3. The deed must recite enough of the proceedings to show authority to sell-the land, and authorize the officer to make the deed.</p> <p>4. Where the evidence disproves the authority recited in the deed, the title-purporting to be conveyed thereby fails.</p> <p>6. Lands can not be claimed as forfeited to the state for nonpayment of taxes, without a strict compliance with the statute authorizing the forfeiture..</p> <p>6. Where the forfeiture recited in the deed was, that the land was not sold for want of bidders at a specified date, and the evidence shows that the land is not contained in the delinquent sale list of that date, there is a. want of such compliance with the statute as will authorize a forfeiture.</p> <p>7. A reforfeiture of land for unpaid taxes, predicated on an unauthorized forfeiture of - the same, is unwarranted and invalid.</p> <p>8. Where the facts alleged, by way of defense, in an answer, are not denied. in the reply, and the case proceeds to trial upon the evidence, as if such facts were denied, without objection or exception until after the judgment of the Court of Common Pleas has been affirmed by the District Court, the judgment will not be reversed on the ground that the answer was not denied in the reply.</p>

<p>Before a paper purporting to be a bill of exceptions can be regarded by a reviewing court, upon error, as part of the record, it must appear from the record, outside of such paper, that a bill of exceptions was, in due time, tendered to, and allowed, signed, and sealed by the court, and made part of the record; and the paper in question must be identified, with reasonable certainty, as the bill of exceptions which was thus made part of the record.</p>

This was an action brought by the plaintiffs against John T. Eoote, impleaded, with Sheldon Kellogg, late partners, to recover on a judgment rendered against said Kellogg and Eoote, in the Circuit Court of Crawford county, in the State of Arkansas, on the 16th of November, 1861.

<p>1. There is no appeal to the Court of Common Pleas from a final order made hy the hoard of county commissioners in proceedings to improve a county road on the petition of a majority of the qualified land-owners under the act, passed March 29, 1867 (S. & S. 671.)</p> <p>% A final order made hy the county commissioners in such a proceeding is not a judicial act, and hence not appealable under section 18 of the county commissioners’ act, passed March 12, 1853. (S. & C. 247.)</p>

<p>1. The writ of ne exeat, under tbe practice prior to tbe adoption of tbe code of civil procedure, was a process in chancery, and in aid of the chancery jurisdiction of the courts, issued upon cause shown, to restrain a party from leaving the state until bail was given to perform the decree of the court. It was limited, in equity, to suits to recover an equitable debt or money demand.</p> <p>2. As to all civil actions coming within the provisions of the civil code, this writ is abolished.</p>

<p>1. Under section 7 of the amended act to provide against the evils resulting from the sale of intoxicating liquors (67 Ohio L. 102), a justice of the peace has jurisdiction to entertain an action of forcible entry and detainer, and restore possession of the premises, when the tenant has sold liquor in violation of the act; and it is not necessary that such forfeiture should have been first declared by a court of superior jurisdiction.. (Justice v. Lowe, 26 Ohio St. 372, followed.)</p> <p>2. A complaint in forcible entry and detainer for a violation of said act is sufficient if it substantially comports with the language of the statute,.</p> <p>3. If the verdict of the jury, though not in the precise words of the statute, is still in compliance with its spirit, it will not be disturbed in error when the party aggrieved took no exception and made no suggestion in the justice’s court as to reforming such verdict.</p> <p>4. "When the landlord seeks to avoid a lease for a violation of the above act by the tenant, the defendant can not prevent such avoidance by showing,, a payment of rent in advance for the entire term.</p>

September 29, 1870, John Rainsberger instituted suit in the Common Pleas of Carroll county, against Benoni Roby, to recover money alleged to have been paid by Rainsberger at the request of Roby, and upon his promise to repay the same. Roby answered, interposing two grounds of defense: “ 1. A denial of the alleged request and promise. “ 2.