Volume 28 — Ohio State Reports, New Series

<p>1. Where, in a civil action, for the recovery of money, material issues of fact have heen joined between the parties, by their pleadings; and upon the trial thereof each of the parties have offered evidence to the jury tending to maintain those issues on their respective parts, it is the sole province of the jury, under instructions from the court, as to questions of law, to decide upon the weight and credibility of the conflicting testimony, and to determine the issues of fact accordingly.</p> <p>2. It is error for the court, under such circumstances, to take from the jury all discretionary power, by an absolute instruction as to, the party for whom their verdict should he found.</p>

<p>1. One seeking the rescission of a contract because of fraudulent representation, must offer to rescind promptly on discovering the fraud, but in the absence of proof showing when the fraud was discovered, it is not error to refuse to say to the jury: “And in the absence of proof tending to show that so long a time was necessary, six months is not a reasonable time.” Uor in giving it with the qualifying words, “but it must be tendered back, at furthest, so soon after discovery of fraud (in which plaintiff must use reasonable diligence), that the. estate would not be damaged by delay, and could be put in statu quo."</p> <p>2. A charge to the jury should be a plain, distinct, and unambiguous statement of the law as applicable to the case made before the jury by the proofs, and not mere abstract legal rules.</p> <p>3. Under an allegation that the payee of the note was insolvent when the alleged fraudulent representations were made, and exchange of notes effected, and so continued; in the absence of proof showing when the fraud was discovered, the mere fact of the holder proving the claim in bankruptcy does not work such a change in the relation of the parties to the transaction as will preclude a rescission of the contract.</p> <p>4. To constitute representations fraudulent so as to be a ground for the rescission of a contract, they must be both false and fraudulent. If they are made with an honest belief, at the time, of their truth, they are not fraudulent; but if made recklessly, and without any knowledge or information on the subject calculated to induce such belief, and they are untrue, then they are fraudulent.</p>

<p>1. Whether it is due and proper care to attempt to remove a person from a street railroad car, while the same is in motion, is a question of fact for the jury, and not of law for the court.</p> <p>2. If the driver of such car has authority to collect fare, and to put a person off for its non-payment, his master will be liable, if injury results from excessive force and violence in so doing, or if, as driver, he is guilty of carelessness or negligence in keeping the car in motion, by reason of which the person is run over and injured.</p> <p>3. Where the evidence of the plaintiff tends to show want of care on the part of the driver of a street car in keeping the car in motion, while he is putting a person off for non-payment of fare, by reason of which the person is run over by the car and injured, it is error, in such case, to instruct the jury that the liability of the railroad company depends solely on the question whether the driver acted within the scope of his employment in attempting to collect fare, and in putting the person off for refusal to pay.</p> <p>4. Where the injury complained of results from want of care in the driver in running of the car, and not from the force and violence used in ejecting a person from the car, the company would be liable, whether the driver had or had not authority to collect fare.</p>

<p>D. and M. instituted proceedings to foreclose a mortgage executed by B. alone, making B’s wife party. P. was also made defendant, who held a subsequent mortgage which was executed by the wife. P’s mortgage-was not due and the answer filed by him did not make the wife party thereto, as though it were a cross-petition, did not ask a foreclosure, and asked no relief whatever against the wife. The wife made no answer, and did not appear in the cause. Eight days after the filing of P’s answer, a decree of sale was taken which did not purport to affect the-wife’s rights, and on this decree the land was sold; the distribution of proceeds did not reach P's mortgage, and no part thereof was paid. Hdd: That these proceedings did not bar B’s wife of her right to redeem and of dower.</p>

Purcell, as the assignee of a non-negotiable note, payable to one Romine, and secured by a mortgage on real estate, brought an action against Heeny and wife, makers of the mortgage, to recover a judgment on the note and for a foreclosure. The defenses were: 1. That plaintiff did not own the note; 2.

<p>1. The right of contribution among co-sureties is not founded in contract, and does not depend on the form of the instrument nor the position of the names of the obligors therein, but is the result of the application of general principles of equity, and depends on the actual relation they sustain to the instrument and to each other.</p> <p>2. In an action for contribution, and in the absence of any contract in writing fixing such relation and liability between accommodation parties to a note, parol evidence is admissible to show the real nature of the trans-' action.</p> <p>3. As between accommodation makers of a promissory note, the presumption is that they are co-sureties, and as such liable to each other to contribute ; but this presumption may be rebutted by parol proof showing that the one last signing did so as the surety for the prior makers, and not as a co-surety with the prior surety.</p> <p>4. "Where a joint note is signed by the principal and by one as his surety and is entrusted by the surety to the principal without limit on his authority, such surety thereby impliedly authorizes the principal to obtain such additional sureties or guarantors as may be required to make the paper available for the purposes intended by the original makers, and the sureties or guarantors so obtained may stipulate the terms of their liability, as between themselves and prior parties.</p> <p>5. One who thus signs such note, at the request of the principal debtor, to enable him to use it as intended, without the knowledge of the prior surety, and without any agreement or understanding with him to the contrary, may stipulate with the principal debtor and make it a condition of his signing that he signs as surety of the prior parties, and not as co-surety with the prior surety.</p> <p>6. Such stipulation need not be in writing, and parol evidence is admissible to show an express contract to that effect, or facts and circumstances that will raise an implied contract.</p> <p>7 Declarations of such party, made to the principal debtor at the time ho executes and delivers the instrument, as to the terms and conditions on which he becomes liable, are, in connection with other testimony, admissible as part of the res gestee, tending to show an agreement, express or implied, as to the extent of such liability.</p>

<p>1. In a case of which the court of common pleas would not have had original jurisdiction, brought into that court by appeal from the justice of the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late upon error to make such an objection.</p> <p>2. One partner can not apply the funds of a partnership in payment of his private debt, without the assent of his co-partners, and an action may be maintained by the assignee of the firm to recover the amount so applied against the party receiving the same.</p>

<p>Where a debtor, being the head of a family, and having no homestead, and1 being possessed only of personal property, not exceeding in value the amount which the law allows to be held exempt from execution, in lieu of a homestead, makes a colorable or pretended sale of such property, for the purpose of placing the same beyond the reach of creditors, the-judgment creditors of such debtor do not thereby acquire a right to levy on and sell such property, in disregard of the claim of the debtor,, properly made, to hold the same exempt from execution.</p>

<p>X Where a plaintiff brings an action tor the' reformation ot a written contract, and at the same time asks for a money judgment, to which he would be entitled only in the event of his obtaining the equitable relief sought; '.and the only issue of fact made by the pleadings is on the right to such ■equitable relief, neither party has a right to demand that such issue shall be tried by a jury.</p> <p>:2. Therefore, the remedy of the party against whom such issue is found by the court, is by appeal to the district court, and not by second trial.</p>

<p>Where a policy of insurance against fire had in it a condition, that, “ if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, . . . then, and in every such case, this policy shall be void.” Held :</p> <p>1. That subsequent insurance in this case of the same property against fire in other insurance companies, covering other property of the insured as well, is, within the meaning of the contract, other insurance.</p> <p>2. Such other insurance, made without the consent of the company, the consent of which is required by the contract, renders the policy issued by such company void.</p>

<p>1. Under the provisions of the second clause of the sixth exception to section 313 of the code .of civil procedure in the section as amended in 1870 (67 Ohio L. 113), an adverse party to a civil action, brought by a surviving partner, is not a competent witness to testify to the-transactions which took place, or declarations made, or conversation. had hy a deceased partner, concerning the partnership business, in the absence of the surviving partner.</p> <p>2. Where the testimony fails to show an account-hook offered in evidence to he a hook of original entries, it is not error to exclude such hook.</p>

<p>1. A plaintiff in a pending action does not divest himself of his interest therein, nor of the right to prosecute the same, by his voluntary application to become bankrupt. Unless ho is adjudged a bankrupt, his rights in the subject-matter of the action are not transferred or affected.</p> <p>2. Whether an undertaking for a second trial, in proper form and amount, and approved by the clerk of the court, but signed by the surety only, is in compliance with the statute — quaere.</p> <p>3. Such an undertaking filed by the party demanding a second trial, and approved by the clerk of the court, is a proceeding within the meaning of section 137 of the civil code, and may, in furtherance of justice, be amended.</p> <p>4. The court may allow the amendment to be made, either by permitting the party, with the consent of the surety, to subscribe the undertaking on file, or by allowing the party to enter into a new undertaking.</p> <p>5. The act of May 13, 1861 (S. & S. 585), is not in conflict with, nor restrictive of, the power to permit amendments in proceedings authorized by section 137 of the code. This statute relates to cases where a second trial undertaking has been given, and the surety has removed from the county, or the undertaking is insufficient or insecure; while section 137 of the code permits the correction of errors and mistakes in such proceeding in the discretion of the court, in furtherance of justice.</p> <p>6. When a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determines the time when the purchase-money becomes due, are not affected by the statute of frauds.</p> <p>7. When such title has passed, and part of the purchase-money is paid, and the time when the balance shall become due is fixed, by a written contract between the parties, and is made to depend on the prior removal by the vendor of certain leases from the property conveyed, such prior performance by the vendor is a condition precedent to the payment of the residue of the purchase-money.</p> <p>8. A subsequent contract between the parties, by the terms of which the vendee, for a valuable^eonsideration received, agreed to waive his right to insist on the performance of such conditions precedent, and take the property subject to the incumbrances, and pay the balance due, is not a. contract within the statute of frauds, and may be proved by parol.</p>

<p>1. In a proceeding by an administrator to sell real estate to pay judgments entered upon awards of arbitrators, it is competent for the heir, upon a cross-petition in the same proceeding, to attack said judgments for fraud.</p> <p>2. It is error to hold that such-judgments are conclusive as to the fact and amount of indebtedness, thus precluding any examination into the question of alleged fraud and collusion.</p>

<p>The petition of the plaintiffs in the court below alleged, in substance, that the Cleveland, and Pittsburg Bailroad Company issued and negotiated to different parties a large number of bonds for borrowed money, payable in twenty years after their dates, with interest thereon to be paid semiannually till maturity, and with coupons attached calling for such interest. Each of the bonds was by its terms made payable to the holder, and transferable by general or special indorsement, or by delivery, as if they were notes of hand, payable to bearer. Before their sale ard negotiation, for the purpose of securing a moré ready sale and a higher price, the following stipulation was indorsed on each of them and signed by the president, by order of the board of directors :</p> <p>“ The within bond, convertible into the capital stock of the company at the pleasure of the holder, at par, upon the surrender thereof, with the unpaid interest coupons, to the secretary of the company. By order of the directors.”</p> <p>Plaintiffs allege that they became the holders of a number of said bonds, and afterward, before their maturity, presented the same for conversion agreeably to the terms of said indorsed clause or stipulation, and that such conversion was wrongfully refused by the company; that at the time of such demand for conversion, and afterward, the market value of the company’s stock was much greater than the par value of said bonds, whereby a right of action accrued to the plaintiffs to recover from the company the difference between such values. Plaintiffs also allege that the holders of other similar bonds, having acquired similar rights of action thereon, have sold and transferred their said rights of action to the plaintiffs. Plaintiffs ask a judgment for the damages sustained by themselves and their assignors by reason of the premises.</p> <p>On demurrer to this petition, Held:</p> <p>1. Assuming that the board of directors had full power to bind the company by indorsing the convertible clause on the bonds, yet, the stipulation for conversion is, by its terms, inseparably connected with the bond on which it is indorsed, and is only available to the holder of the bond, and so long only as he continues to be such holder.</p> <p>2. The holder of such bond can not assign to another the right of action for a breach of the stipulation for conversion, and yet retain the bond for the benefit of himself and his future assignees.</p> <p>S. The petition is fatally defective in not averring that the plaintiffs were, and at the commencement of their action continued to be, the holders of the bonds, for the non-conversion of which they bring suit.</p>

<p>Error to the District Court of Lucas county.</p> <p>This was an action commenced by Jesse S. Norton & William Casey, defendants in error, against Samuel S. Hubbard and William H. Dyer, plaintiffs in error, in tbe Court of Common Pleas of Lucas county, October 15, a. d. 1870, to recover of said Hubbard and Dyer the amount of an assessment for the grading and paving of Monroe street, in tbe city of Toledo, based on a contract with said city of date June 28, 1869.</p> <p>Tbe ease was beard at tbe November term, a. d. 1871, of tbe common pleas, and judgment rendered for tbe defendants in error. Tbe plaintiffs in error appealed. At the April term, a. d. 1872, of tbe District Court of Lucas county, tbe case was again heard and judgment again rendered for said defendants in error.</p> <p>The plaintiffs, in error moved tbe court to set aside the judgment of said .court in favor of defendants in error, and for a new trial. The motion was overruled, and the'plaintiffs in error excepted. A bill of exceptions embodying all the testimony, was taken and filed, and ordered to be made a part of the record.</p> <p>The plaintiffs in error come into this court by petition in error to reverse the judgment of the district court.</p> <p>Upon the report and recommendation of the board of improvements, an ordinance was passed to provide for such improvement, the cost to be assessed on the owners of abutting property.</p> <p>On the 28th of J une, 1869, the contract was let to Brophy & Casey, who agreed to have the work done by December 1,1869, and to accept such assessment in payment without recourse on the city.</p> <p>The work was completed and accepted by the city, and a valid assessment delivered in payment. During the progress of the work Brophy sold his interest in the contract to the defendant, Norton.</p> <p>The prayer was to recover the amounts assessed, with penalties, and for a sale of the lots upon default of payment.</p> <p>The answer by plaintiffs in error averred, among other things, substantially as follows: That said contract and assignment mentioned in said petition is illegal and void. That the same was obtained from the city of Toledo by a fraudulent and unlawful combination and conspiracy between said Brophy & Casey and the other principal grading and paving contractors in the city of Toledo, to prevent bidding and competition at the letting of said work; by which said defendants (plaintiffs in error) have been assessed an exorbitant amount, more than would have been had it not been for said combination and conspiracy.</p> <p>That on the 29th June, 1869, said city of Toledo had under advertisement for letting, with said Monroe street improvement, some twenty other large and expensive improvements. That said improvements would necessarily involve a large outlay for material and the necessary implements for prosecuting the same, and would give employment to a large number of men and teams for the seasons of 1869 and 1870.</p> <p>That proposals for doing such work were advertised for by the city, and the lowest bidder was awarded the contract.</p> <p>That on or about the 20th June, 1869, Brophy & Casey did secretly, fraudulently, and unlawfully, and with the intent to extort an exorbitant price from these plaintiffs in error, and other persons liable to be taxed for said improvements, enter into an agreement in writing with other parties, commonly known as contractors, not to compete with each other for certain work, but that the same should be parceled out, let who would be the successful bidder, equitably and fairly among the parties to said agreement.</p> <p>That, in pursuance of this fraudulent agreement, there was in fact no competition at the letting of said contract with Brophy & Casey for said Monroe street improvement, other than such bids as the parties knew would not be accepted, leaving the plaintiffs’ assignors the lowest bidders.</p> <p>That said defendants have been charged more than a fair compensation for the work done.</p> <p>That, in pursuance of said fraud and conspiracy, said Monroe street improvement fell to Brophy & Casey, assignors of Norton & Casey.</p> <p>That at the time of making said contract with the city of Toledo said Jesse S. Norton was a member of the said city council, and voted in the affirmative in the confirmation of said contract to said Brophy & Casey. That at the expiration of his term of office he at once became interested in said contract as assignee of said Brophy, and has been interested in the prosecution of said improvements,</p> <p>Said answer still further avers that on the 1st day of July, 1869, the municipal code went into operation in said city, by which the mode of assessment for improvements of this kind was materially changed to the advantage of persons owning property abutting upon such improvements.</p> <p>That, with the intent to avoid the operation of the new code upon improvements of this kind, the said city council, on the 28th June, 1869, entered into said contract, by the terms of which the work was to be completed on or before the 1st day of December, 1869.</p> <p>That up to the 29th November A. d. 1869, said Brophy & Casey had not done a stroke of work, nor expended any money in procuring material for said improvement, or in any manner shown any disposition to execute said contract.</p> <p>That on the said 29th day of November said Brophy & Casey, through said Jesse S. Norton, a member of said city council (and one of the defendants in error), presented a petition to the said council to extend the time for the completion of said contract.</p> <p>That upon the first vote the petition was rejected; but through the personal solicitation of said Jesse S. Norton. one member of said council was induced to move a reconsideration ; a vote was taken, a reconsideration was had, when it was.found there were seven (7) ayes and five (5) nays upon the adoption of the resolution to extend said contract.</p> <p>Thereupon said original contract was indorsed, “ Extended to August 1, 1870.”</p> <p>Said answer further avers that at the time of said pretended extension of said contract the same had become forfeited.</p> <p>That the city council had no power to renew it, except under the provision of the municipal code in force at the time of making such extension.</p> <p>That at the time said contract was extended the job might have been let at a much lower price.</p> <p>That said extension of said contract was illegal and void.</p> <p>That all the work which has been done upon said street was done under said extended contract; and the, said assessment was made in pursuance of the laws existing prior to the 1st day of July, 1869, and not under the laws in force at time of extension of contract.</p> <p>The answer further avers that prior to 'the commencement,of said improvement, and before said Brophy & Casey, or said Norton & Casey, had done any work under said contract, said Hubbard & Dyer (together with the other property-owners on Monroe street) protested against the said Brophy & Casey, or said Norton & Casey, proceeding therewith, and giving notice to said Brophy & Casey, and the said city council, that they should resist the collection of any assessment under said contract, by reason of its fraudulent and illegal character.</p> <p>Said answer denies that any contract was ever entered into between said Brophy & Casey and the city of Toledo in accordance with the provisions of said ordinance of June 28, 1869, as is alleged in petition, and denies all and singular the allegations of said petition touching the making and entering into said contract; and, having fully answered, pray they may be hence dismissed with costs.</p> <p>The reply denies all allegations of fraud and combination, and puts in issue all the material allegations of the answer, and avers that the city had not prepared the street ready for the work by grading necessary to be done; that they were prepared to go on with the work within the time named in the contract, but were' prevented by the failure of the contractor,who had the grading, to have the street ready.</p> <p>Upon the issues thus made the case was tried in the common pleas, and again in the district eourt on appeal, and judgment rendered against plaintiffs in error, to reverse which this petition in error is prosecuted.</p> <p>There is no proof to support the allegation that the city authorities acted in bad faith, so that the case stands as if this allegation had not been made.</p>

<p>1. The right of a widow to remain in the mansion house of her deceased husband, as provided by statute, is not restricted, to a personal continuance in the house merely, but she is entitled to a reasonable enjoyment of the possession of the premises, and may therefore either personally occupy .them or she may rent them, as she may deem best promotive of her comfort. '</p> <p>2. If the administrator of her husband’s estate assumes to control the mansion house of the decedent, and, denying the widow’s right to the possession thereof, rents it to another person, the widow is entitled to the rents received by him during the period she is entitled to remain, in the premises.</p> <p>3. If the administrator has collected .the rents to which the widow is so entitled, and has appropriated them to the payment of debts due from his intestate, she may elect to charge him in either his personal or representative character, and he can not defeat a recovery by her in an action against him in his representative capacity, on the ground that he is personally liable therefor.</p> <p>4. An administrator who, without authority, collects rents of his intestate’s real estate, and uses them as assets in paying the debts of the estate, is liable to the party entitled to such rents, and he may recover the-amount thereof of the administrator in his representative character.</p>

<p>1. A common carrier is one that undertakes for hire or reward to carry, or cause to be carried, goods for all persons indifferently who may choose to employ him, from one place to another.</p> <p>2. An express company, that receives and agrees to transport goods from-one designated place to another designated place, for a compensation, in the ordinary means of conveyance, is a common carrier, although not the owner, and having no interest in the conveyance by which the-goods are transported.</p> <p>3. A common carrier is liable for the value of the goods lost through its negligence, notwithstanding the bill of lading provides that the carrier shall not be liable beyond an amount named therein, when it is understood by the parties that the sum so agreed on is less than the value of the goods. Such an agreement can at most cover a loss arising from some cause other than the negligence or default of the carrier or his servants, and the rule of damages is the same, although less is charged and paid for the transportation than when the exempting clause is omitted.</p> <p>4. In an action on the ground of negligence against a common carrier upon a bill of lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the terms of the exemption, and that the loss occurred without fault on his part.</p>

Mary A. Lindsay, March 28, 1871, filed in the court of common pleas the following petition : “ The said plaintiff, Mary A. Lindsay, who is now of full age, complains of the said defendant, Francis Lindsay, for that the said defendant was duly appointed and qualified as the guardian of said plaintiff, by the Probate Court •of said county, on or about the 81st day of October, a. d. 1854, and that, as such guardian, a large amount of money .belonging to said plaintiff came into…

<p>Error to the District Court Court of Putnam county.</p> <p>The original petition in the common pleas avers that the plaintiff’ is the administrator de bonis non of Robert Douglas, deceased ; that Ele Holmes was the former administrator of Douglas until his death, and Elam Day is his administrator; that Holmes, as administrator of Douglas, gave bond as provided by law, with John Buchanan and Moses Lee as sureties, which bond has been lost; that Holmes, as such administrator, received assets of the estate of Douglas to the amount of $2,300, of which he expended for the estate $800 ; and that no settlement was ever made by him in the probate court.</p> <p>The action is brought against the administrator de bonis non of Holmes, and the sureties on said bond.</p> <p>The petition' alleges that the conditions of the bond were broken as follows :</p> <p>That said Holmes, as such administrator, failed to render any account whatsoever of his doings, as required by law and the conditions of his bond.</p> <p>That he failed and neglected to administer according to-law the moneys, goods, chattels, rights and credits of said estate.</p> <p>That he appropriated to his own use a large amount of the assets of said estate, and wholly failed and neglected to account for the same as he was required to do.</p> <p>It is also averred that the plaintiff, as administrator de bonis non of said estate, demanded payment of said Elam Day, administrator of the estate of Holmes, for said assets so converted, which was refused by him.</p> <p>To the petition the several defendants filed separate answers, in substance, as follows :</p> <p>Elam Day, as administrator of Holmes’ estate, denying that the said Holmes’ estate was indebted to the plaintiff in any sum whatever, and affirming that he (Holmes) as the administrator of Douglas had-fully accounted for all mouey and property that he had ever received as such administrator.</p> <p>Moses Lee denied the execution of the bond, and alleged that the assets of the estate received by Holmes had been accounted for.</p> <p>Hiram Sarbar, as executor of John Buchanan, answered in substance the same as Lee.</p> <p>To these several answers the plaintiff replied, affirming the allegations of the petition, and denying the allegations of the several answers as to the new matter set up by the defendants, wherein they alleged that the assets of the estate had been accounted for.</p> <p>The ease was tried to a jury, who returned a verdict for the plaintiff for $1,649.31.</p> <p>The defendants moved for a new trial, on the ground that the verdict was contrary to the evidence. Thereupon, the plaintiff, by leave of the court, entered a remittitur of $799.31, and the court overruled the said motion, and entered judgment for the sum of $850, being the amount of the verdict less the amount so remitted.</p> <p>The defendants excepted, and filed their bill of exceptions, embracing all the evidence and the refusal of the court to charge certain propositions of law therein set forth, as follows:</p> <p>“ 1. That unless they find from the evidence an ascertained amount, determined by the judgment or finding of a court of competent jurisdiction, due from Ele Holmes, deceased, to the estate of Robert Douglas, deceased, upon his administration of said estate, the plaintiff can not recover.</p> <p>“ 2. That even if they find that Ele Holmes, as such administrator, did not make his showing and return of his administration and settlement as the law directs, still the plaintiff can not recover, unless a specific injury and loss to Douglas’ estate, in consequence of such negligence on the part of Ele Holmes, is proven to have occurred, and then only to the extent of such specific injury and loss.</p> <p>“ 3. That in any case the plaintiff can only recover for such amount charged in the inventory of said estate as he has converted into money, or has wasted by negligence or mal-administration, which said several charges the court refused to give to the jury, to which said refusal and ruling of the court the defendants excepted.”</p> <p>The case was then taken to the district court upon petition in error, filed by Elam Day, as administrator of Ele Holmes, and Moses Lee. That court found that there was error in the record and proceedings in this, to-wit: “ That the petition does not set forth that a settlement in probate court, or ascertainment against administrators, before action, was brought in common pleas;” and reversed the j udgment, and ordered that the cause be remanded to the court of common pleas for further proceedings.</p> <p>The court of common pleas thereupon, on motion of the defendants, the plaintiff taking no action to amend the petition, dismissed the case, and rendered judgment against the plaintiff' for the costs.</p> <p>To reverse the judgment of the district court and the last judgment of the- common pleas, the plaintiff prosecuted his petition in error in the Supreme Court.</p>

<p>1. The benefit of the rule relating to Us pendens may be'lost by such long-continued inaction as amounts to gross negligence in the party prosecuting, when such inaction is to the prejudice of innocent persons.</p> <p>2. A mortgage was executed in 1837, upon which bill of foreclosure was filed in 1840, decree taken and order for sale issued in 1842. Save continuances, no further action was had in the case until 1868. In the meantime, the mortgagor, who had remained in open and notorious possession, had sold portions of the premises to innocent purchasers, without actual notice of the pending suit. Such purchasers, and those under whom they claimed, had remained in actual possession more than twenty-one years, when the plaintiff in the foreclosure suit, in 1869, caused to be issued another order of safe. Held: That the failure to take any action in the cause from 1842 to 1868, unexplained, was such negligence as prevented an enforcement of the decree against actual purchasers, without actual notice.</p>

<p>In an action by the personal representative under the statute of 1851 (S. & C. 1139, 1110), to recover damages for causing by wrongful act and neglect the death of a woman, who died intestate leaving a husband, but no children or their legal representatives — Held:</p> <p>1. The surviving husband is, within the meaning of said act, the next of kin, and as such entitled to the fruits of any judgment obtained in the action. (</p> <p>2. While the proceeds of a judgment recovered in an action under this statute are directed to be distributed to the .beneficiaries of the judgment in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate, the money realized is not to be treated as part of the general estate of the intestate. The personal representative in whose name the action is brought is a trustee of the fund, and must distribute the proceeds of the judgment to those to whom the general personal estate would descend according to the course of the statute of descents and distribution.</p> <p>3. The amount of damages (within the limit of the statute) are to be ascer. tained by the jury from the proofs in the case, and are to be a fair and just compensation to the widow or next of kin with reference to the pecuniary injury resulting to the beneficiary from such death.</p> <p>4. In such action, the jury, in assessing the damages, are limited to giving pecuniary compensation for injuries resulting to the beneficiaries in the action on account of the death of the deceased. N o damages can be given on account of the bereavement, mehtal suffering, or as a solace on account of such death.</p> <p>5. An instruction to the jury calculated to mislead, either as to the real issue in the action or as to who are the beneficiaries therein, is error.</p>

<p>1. Changing the rate of interest in a note from six to seven per cent, is a material alteration.</p> <p>2. Such alteration, when made by the principal with the consent of the holder and owner, but without the consent of the surety, discharges the surety, though such alteration was made without fraudulent intent. •</p> <p>3. When the special findings of a jury are inconsistent with the general verdict, the special findings control, and judgment will be entered accordingly.</p>

John Cary brought his action against the Baltimore and Ohio Railroad Company in the Court of Common Pleas of Belmont county, to recover of the company five thousand dollars, as damages for excavations and structures of the company in a street of the city of Bellaire, so as to obstruct the passage to and from the street of his city lots and buildings thereon.

<p>1. Where the executor of an estate, who is not authorized to do so, takes the personal assets of his testator, and uses them in carrying on the former trade and business of the testator for a series of years, for-the purpose of making money to he used in paying the debts and supporting the family of the testator, consisting of a widow and minor children, and also for the purpose of keeping up the business for the minor sons when they should be old enough to take charge of it, and in so doing, pays oif all the debts of the testator, lield: That the general assets of . the testator in the hands of an administrator de bonis non, is not liable for money borrowed by the executor for, and used in carrying on .such; trade and business, though the executor acted in good faith.</p> <p>2. The general estate, real and personal, of the testator, not embarked in such business, can not he subjected to the liabilities incurred in its prosecution in the absence of clear and explicit authority conferred by the will, even though the executor acted in good faith.</p> <p>3. When by the will all the estate, real and personal, is devised subject only to the payment of debts, the devisees, as well as the creditors, have an interest in the estate, that can not be defeated or encumbered by debts contracted by the 'executor, not authorized by the will.</p>

<p>1. In an action for an injury occasioned by negligence, when the case is such as necessarily devolves carefulness on the plaintiff, and the proof given by him discloses a case which fairly puts in question the due exercise of care on his part, the jury, in the determination of the question of contributory negligence, should be left free to consider all the evidence in the case.</p> <p>2. A charge of the court in such case, so given to the jury that they may reasonably regard it as confining them, upon the question of contributory negligence, to the evidence given only on the part of the defendant, is misleading, and, therefore, erroneous.</p>

<p>1. A contract for the sale of lands -which are to constitute prizes in a lottery scheme or “ gift enterprise,” to be set on foot by the vendee, and which are to be paid for in part by tickets in such lottery, is against public policy, and contrary to the provisions of a penal statute, and, therefore, wholly illegal.</p> <p>2. The law will not aid a party to such contract, either in its enfercement whilst executory, or in its rescission when executed.</p> <p>3. "When such contract has been partially performed by both parties, so that the evil purpose of the contract has been in part effected by the cooperation of both parties, as where the vendor has withdrawn the land from market, and for some months subjected it to the control of the vendee for the purposes of the lottery, and the vendee has paid part of the purchase money, and has, with the aid of the vendor, set the enterprise on foot, and issued and sold a number of lottery tickets, then, as to such part performance, the condition of the parties is the same as though the contract had been fully executed. The parties are in pari delicto, and the law will aid neither, of them in enforcing further performance, or in undoing what has been unlawfully done. Hence, under such circumstances, the vendee can not maintain an action to recover from the vendor the motley paid on the contract.</p>

<p>March 13, 1850, !F. mortgaged to D. certain real estate to secure the payment of five promissory notes amounting to $12,000. Afterward F. sold said real estate to M. and G. Three of HVs notes to D. remained unpaid; to secure their payment to D., M. and G. executed a mortgage to 1?. on said real estate, and agreed therein that the amount due on the unpaid notes would he, on September 1, 1855, $11,340.05. On September 27,1855, this money remaining unpaid, M. and G. entered into a written contract with D., to which B1. was a party, to pay ten per cent, interest for one year on $11,340 as a principal, that sum being the aggregate sum of principal and interest of the unpaid portion of the original notes, in consideration of the forbearance of D. to bring suit on the notes and mortgage for one year, from September 1,1855. M. and G. agreed to and did execute two notes to D. for the ten per cent, interest, payable in six and twelve months. It was also agreed that if the two interest notes were paid when due, there would be due to D. from M. and G. September 1, 1856, on said notes, $11,340, and no more. The interest notes were promptly paid, and M. and G. continued to pay interest at the rate of ten per cent, on $11,340, as a new principal, from September 1, 1856, to April, 1869. — Held:</p> <p>1. That this was an agreement for the forbearance of the payment of money for one year only.</p> <p>2. That it was an agreement in writing, in consideration of forbearance, to pay ten per cent, interest for one year only.</p> <p>3. A contract in writing, made while the statute authorising contracts for ten per cent, interest was in force, to pay that rate of interest in consideration of forbearance to bring suit for a stated time on notes evidencing the debt forborne, is a valid contract for ten per cent, interest for the time agreed upon.</p> <p>4. Interest due may, by agreement, be capitalized and united to the principal, thus forming a new interest-bearing principal.</p> <p>5. 'When payments of interest are made at the rate of ten per cent, upon an ascertained principal, agreed by the parties to be due, such payments will, if made prior to the repeal of the ten cent, statute, be allowed to stand as payments of interest at that rate, but if made after the repeal of that statute, the amount paid in excess of six per cent, will be credited to the account of principal. Samyn v. Phillips, 15 Ohio St., followed and approved.</p>

<p>1. A lease of real estate, with tlie privilege reserved therein to the lessee to purchase within the term, and which contains specific covenants and stipulations touching the obligations of the parties as lessor and lessee, and as vendor and vendee in the event of such election, is both a lease and an option to purchase, and should receive that construction which will preserve the rights of the parties under the contract in either aspect.</p> <p>2. In such a contract, in the absence of provisions therein to-the-contrary, it should receive that construction which will preserve in full force the obligations of lessor and lessee while that relation subsists, and in like force the obligations of vendor and purchaser after the election to purchase is exercised.</p> <p>3. In such case, the relation of lessor and lessee subsists as provided therein until the election to purchase has been made, when the optional contract becomes an absolute contract of sale, and is to be construed and .enforced as such.</p> <p>4. Where the right to exercise the privilege of purchase is, by the terms of the contract, made to depend on the performance of specified covenants as lessee, such right can not be exercised without performance, or an offer to perform such covenants.</p> <p>5. After such election, the right of the purchaser to a specific performance of such contract is subject to the same principles of equity as if it had been an absolute contract of purchase, instead of a lease, with an option to purchase.</p> <p>6. The relation of vendor and vendee, and the obligations in equity growing out of that relation between the parties, does not exist until such optional contract becomes an absolute contract of sale. Then the nature and extent of such obligations are to be determined by the terms of the contract and the equities growing out of it.</p> <p>7. The contract of insurance does not attach to the property insured, nor, in case of sale, either before or after loss, does it pass to the purchaser by operation of law, in the absence of a stipulation to that effect. It is a contract of indemnity against the loss covered by the policy, and inures to the benefit of the person with whom it is made or those falling within its terms. As soon as the interests of such persons cease, it is at an end.</p> <p>8. As between vendor and vendee, under a valid and subsisting contract of sale of real estate, covered by a policy of insurance, where a loss insured against occurs after the date of the contract and before conveyance, the true test for determining to whom the money recovered on the policy belongs, in the absence of stipulations governing, is to determine who was the owner and which party actually sustained the loss.</p> <p>9. If, in such case, by the terms of the contract of sale, tho loss insured against falls on the person contracting to sell, the indemnity belongs to him, but if the purchaser is, in fact, the owner, and must sustain the loss, he is, as between the parties, entitled to the indemnity.</p> <p>10. This principle applies as well to an optional contract of purchase, and to a lease with an option to purchase reserved to the lessee, as to an absolute contract of purchase. In case of such lease, when a loss insured against occurs before the relation of vendor and vendee is created by such election, the loss falls on the lessee, and the indemnity belongs to him where the insurance is expressly for his benefit, unless, by the terms of the contract, the lessee stipulates for an interest in the insurance in the event of his electing to purchase.</p> <p>11. The lessee, by a subsequent election, can not, in the absence of stipulations to that effect, change the status and rights of the parties as they existed when the loss occurred; therefore, when the loss occurred, and the money was collected by the insured within the terms of the tenancy, upon a policy taken out especially for the lessor’s benefit, and the lessee is in default of payment of installments of rent, he can not, by a subsequent election and relation back, make the loss his own, and the money so received by the lessee inure to his benefit in payment of past due rents as well as on the purchase-money, and compel a specific performance, with a credit on his obligations to the amount received by the insured .</p>

<p>1. A contract made under mistake as to a material fact, may be rescinded by the party sought to be charged, upon discovery of the mistake, he being guilty of no want of diligence in not ascertaining what the real facts were.</p> <p>2. There is no difference in principle between the rescission of a contract to perform, and the rescission of a contract which is itself the rescission of another and existing contract.</p> <p>3. A party selling articles for a specific purpose, impliedly warrants that they are fit for that purpose, and a failure of such warranty is ground for rescission of a contract based upon it.</p> <p>4. A purchaser seeking such rescission, when it is his duty to expend labor and skill in order to render the articles fit 'for the purpose of their original construction, impliedly warrants that the unfitness of the articles is not occasioned by any fault of his own.</p>

<p>1. Where an antenuptial contract, intended to operate as an equitable jointure, and to bar all rights of dower, is entered into by parties of mature age, capable of judging in regard to their interests, without any fraud or imposition, and is reasonable in its terms, and has been in good faith carried into effect by the husband during his life, full effect should be given to it, according to the intention of the parties.</p> <p>2. In giving construction to a contract, the intention of the parties will govern; and words which, in their strict legal import, are at variance with that intention, will be rejected, or construed so as to comport therewith.</p>

<p>1. The liability of one partner for the contracts of another, when not es-topped from denying the liability, is founded on the relation they sustain of being each principal and agent in the joint business. That relation is, therefore, the true test of a partnership, and the liability rests on the ground that it was incurred on the express or implied authority of the party sought to be charged.</p> <p>2. Participation in the profits of a business, though cogent evidence of a partnership, is not necessarily decisive of the question. The evidence must show that the persons taking the profits, shared them as principals in a joint business, in which each has an express or implied authority to bind the other.</p>

<p>1. The maximum width of a county road is limited by law to sixty feet, and the minimum width to thirty feet, and county commissioners, under the provisions of the act of March 81, 1868 (S. & S. 673), giving an additional mode of laying out and improving county roads, have no power to appropriate to that public use, for the width of the road, more than the maximum number of feet; and the provisions of section 5 of the act of May 9, 1868 (amendatory of the act passed March 81, 1868), authorizing the commissioners to determine the width of c-ounty roads laid out under the authority of the act of March 31, does not, in respect to the width of the road, increase the power of the commissioners.</p> <p>2. Where a public necessity is shown to exist for a county road, and land is donated to public use for a county road-bed, and accepted by the county commissioners with the understanding of both parties that the road will be laid upon the donated land five rods wide, and the county commissioners cause the road to be laid out over the donated land five rods in width, and the improvement put on that portion of the road costs no more than it would have cost had the road been laid out only sixty feet wide, and no substantial injury or prejudice results to the plaintiffs by reason of the increased width of the road-bed: Held, as neither of the individual plaintiffs are prejudiced in any substantial right by the action of the county commissioners, and a benefit accrues to the general public by the establishment of the road, no sufficient reason appears on account of the width of the road for reversing the final order of the commissioners. .</p> <p>3. When error has intervened in the proceedings and final order of the county commissioners in the laying out and establishing a county road under the provisions of the act of March 31, 1868, and the acts amendatory thereof, where jurisdiction over the subject-matter had been acquired as required by the statute, which error is in some degree prejudicial to the rights of the party complaining, but not so materially affecting such proceedings and final order as necessarily to render them void, and they can be modified so as to do substantial justice to the complaining party and allow a complete county road to remain, such modification as will do justice to the individual and promote the public interests is authorized by section 514 of the code, and the act of May 13,1868.(S. & S. 677).</p>

<p>1. In an action against a railroad company to recover damages caused to third persons by a train in motion, no recovery can be had unless the agents and servants of the company were guilty of negligence, which occasioned the injury.</p> <p>2. The omission to ring the bell or sound the .whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident.</p> <p>3. What is such contributory negligence as will defeat a recovery is usually a question of mixed law and fact, to he determined by the jury from all the circumstances of the case and under proper instructions from the court; hut where the undisputed facts show that by the exercise of ordinary care a party migh; have avoided injury, he can not recover.</p> <p>4. It is the duty of a traveler .upon the highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possessiomof his faculties, he fails to see or hear anything, when a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is’guilty of such negligence as will prevent a recovery.</p>

<p>Where goods are shipped under a contract with a common carrier, to be carried over several independent hut connecting lines to their destination, at an agreed through rate, each carrier to receive and carry to the end of his route, and there forward by the next connecting line, and they are lost at the terminus of the route of an intermediate carrier, while in his possession and before delivery to the next carrier — Held:</p> <p>1. Such intermediate carrier undertakes not only to carry but to forward, and, as a common carrier, he is liable for loss at the end of his route before the goods are delivered to the next carrier, unless he is exempted from such loss by the terms of his contract.</p> <p>2. Although the contract of affreightment contains a clause relieving the carrier from loss by fire, he is not thereby exempted from the use of proper care for the safety of the goods while in his possession to be forwarded. It is his duty to keep them while in his hands awaiting reshipment, in a safe and proper place, and the burden of proof is on him to show that he has done so, although the fire originated without his fault, in adjacent property over which he had no control, and although he made all reasonable efforts after it originated to prevent it from extending to the goods destroyed.</p> <p>3. Where the carrier is liable for such loss, the owner is entitled to full compensation for the breach of the contract to carry and forward, and it is noterror in the court to refuse to lay down a rule of damages, which may not give him such compensation, nor unless it appears from the record that the failure to so charge was prejudicial to him.</p>

<p>1. A deed absolute in form, if intended to secure the payment of money, and the relation of debtor and creditor exists between the grantor and the grantee at the time of its execution, will be treated as a mortgage. But where no such relation exists, and the grantor and grantee, at the time of the execution of the deed, agree in writing that the grantor shall have the option of repurchase in a given time, at a certain price, the transaction is a conditional sale.</p> <p>2. To determine whether a deed, absolute in form, is in equity a mortgage, requires that the real intention of the parties to the transaction be ascertained. A fair criterion seems to be this: If, under all the facts- and circumstances, the relation of lender and borrower, or creditor and debtor, do not subsist, and the grantor is under no personal obligation that can be enforced by the grantee as creditor or mortgagee, the transaction will be treated as a sale and not as a mortgage.</p> <p>3. Where the transaction is a sale, with a right of repurchase by the grantor within a stipulated time at a stipulated price, and is not in equity a mortgage, the grantor, under such contract of repurchase, occupies the position of a vendee, with such rights and liabilities as attend such relation, and not of mortgagor.</p>

The original action was brought in the Court of Common Pleas of Harrison county by Walter C. Maxwell against Thomas Ferrell, on his agreement to indemnify Maxwell for going surety with him on the… Held: as matter of law, that Thomas Ferrell was liable, and rendered judgment in favor of Maxwell against him, that he pay one-half of the judgment so rendered against Maxwell.

Reserved in the district court. The original action was brought by plaintiff in error against the defendants in error, as partners in the banking-business, to recover the value of certain United States bonds, the property of the plaintiff, which she alleged in her petition, had been deposited by her with the defendants, at their banking-house, to be taken-care of, and returned to her on demand, and which, whilst so in the custody of the ■defendants, were, through their…

<p>1. A common carrier may limit his common law liability for losses happening to the goods without fault or negligence on his part by a special agreement fairly made by the parties.</p> <p>2. When a carrier claims exemption from such liability, under a bill of lading not signed by the owner or consignor of the goods, he must aver and prove that such bill was assented to by the shipper.</p> <p>• 3. Whether such assent has been given, so as to make the bill of lading binding on the shipper, is a fact to be proved, and can not be implied or presumed contrary to the facts when the acts of the shipper do not operate as an estoppel.</p> <p>■A. Where the plaintiff’s evidence tended to prove that the goods were shipped under a previous verbal agreement, without special exemptions in favor of the carrier, and that after the goods were in transit, the bill of lading containing such exemptions was handed to the shipper, who, without examination or objection, forwarded it to the consignee, who .made use of the same to receive and sell the goods not lost, and accounted to the shipper for the proceeds: Held, that it was error to charge the jury that such acts of the consignor and consignee were conclusive on the former, and bound him by the conditions contained in the bill, where it appears he had no knowledge of such conditions, and never in fact assented to them.</p> <p>.'6. Where the action against the carrier is to recover on his common law liability for losses occurring at the point of delivery, after the transit is • ended, but before notice of delivery to the consignee, and the defendant claims exemption from such loss by virtue of a condition of the bill of lading to that effect; ho must aver and prove, not only that this condition was assented to, but that the loss happened without any fault or neglect on his part, and the failure to establish such assent or show due and proper care to prevent the loss, entitles the plaintiff to recover.</p> <p>6. In an action on a verbal contract under the civil code, where the petition specially alleges all the material provisions thereof, and as grounds for a recovery avers breaches of them, it is only necessary to prove as alleged, such of said allegations as will entitle the plaintiff to recovery. A failure of proof or a variance between allegations and proof, not prejudicial to the defendant, as to such other provisions of the contract not essential to a recovery, is not such a variance as will defeat the plaintiff’s action.</p> <p>7. Where the plaintiff claims to recover against a common carrier, on a verbal contract to carry by an all rail route, at an agreed rate, and within a specified time, for a loss by fire at the end of the transit, but before the liability of the carrier as such is ended, and the defendant denies that he carried the goods under the contract as alleged, but admits such carriage and delivery under bills of lading, not differing from the verbal contract as to rate or time, but which provide for carrying the goods over the company’s usual route, not all rail, to the point of delivery, when they were lost without his fault, and he claims exemption from such loss by the terms of such bills of lading, and the record shows that issue was joined by reply, and the case has been fully heard upon all the issues thus made: Seld, that this was substantially an answer in avoidance of liability for loss at the end of the transit, and the plaintiff was entitled to recover on such liability unless the proof showed that such exemption was part of the contract for shipment, and also that the carrier was without fault-; although the special provision as to an all rail route was not proved as alleged, such allegation not being necessary to a recovery for a loss at the end of the transit, although, if proved, might furnish an additional ground for such recovery.</p>

<p>1. By the provisions of the code of civil procedure, section 52, an action other than those provided for in sections 45, 46, and 47, may be brought against a non-resident of the state, in any county in which, he may have property or debts owing to him, or where he may be found. In case he can not be found and personally served, the court can acquire no jurisdiction in the action except it be one in which service by publication can be made.</p> <p>2. To authorize a service by publication or by personal service of summons and a copy of the petition outside of the state, on such hon-resident, under the third clause of section 70 of the code, he must have property or debts owing to him within the state, and the relief sought must consist in taking such property or debts under some one of the provisional remedies of the code, or in appropriating in some way such property or debts.</p> <p>3. When the scope and purpose of the action is to recover a judgment for money only, to be enforced by execution, or such other judicial proceedings as may be founded on such a judgment, and no relief in the action is sought against such property or debts, the 70th section of the code does not authorize a personal service, out of the state, on such nonresident.</p> <p>4. The service of an alias summons, which was issued and served within the life of a prior summons, is not void or voidable, when at the time the same was issued and served, the prior summons was not in the hands of the officer nor under his control. Hence, where a summons dated July 23, and returnable August 5, was, without authority of law, sent to another state for personal service on a non-resident defendant, another summons may issue and be served in the county where the action is-brought, during the life of the former writ.</p>

<p>1. Where a judgment is rendered in an action in the court of common pleas for the recovery of money only, dismissing' the plaintiff’s case at his costs, for the reason that there is no sufficient service on the defendant, and it subsequently appears, though unknown to the court or the parties at the time, that said plaintiff had died pending the action, his personal representative is the proper parly to institute proceedings to obtain relief for any error of the court in rendering such judgment of dismissal; and he may proceed to have the same vacated under the 534th section of the code of civil procedure, and assign as error of fact ■ the death of the intestate when the judgment was rendered; or, if there be errors of law apparent on the record, he may proceed by a petition in error in the district court to have such judgment reversed.</p> <p>2. Upon such proceeding in the district court, where the defendant is before the court by proper service, that court has jurisdiction to hear and determine the issues of law presented, and if the judgment of the common pleas is reversed and the cause is remanded for further proceedings according to law, sueli proceedings and judgment operate as a revivor of the original action in the name of such representative.</p> <p>After such reversal, and after the cause was remanded to the common pleas and placed upon the docket, it is error to dismiss said action, because the same was not revived in that court within one year from the date of plaintiff’s death.</p>

<p>1. The statute regulating sales at auction provides that all property and effects sold by auction shall, in all cases, be sold to the highest bidder. Hence, a person who, being in the business of selling merchandise at regular retail prices, sells a portion of them at his store-room by public outcry, making known to the persons present that he will sell the property offered for sale at his regular retail price, and no other, is not, within, the meaning of the statute, exercising the trade or occupation of auctioneer.</p> <p>■2. In a criminal case, where there is a failure of proof establishing the guilt of the accused, and the verdict of the jury is adverse to him, the court, on his motion made for that purpose, should award him a new trial.</p>

<p>Error to the Superior Court of Montgomery county.</p> <p>The facts are stated in the opinion of the court, so far as necessary to an understanding of the question of law presented.</p>

<p>1. Under the statute (March 14, 1831, Swan, 796, ea. 1849) for opening roads and highways, a road record is not incompetent evidence in a collateral proceeding, because all the steps prescribed do not appear in the record itself.</p> <p>2. Although by sections 2 and 16 a bond is required to be given, the record is not incompetent evidence in a collateral proceeding, because it does not show such bond given. The statute prescribing what shall constitute the record of the road does not require that all preliminary steps should appear therein, and when the report, survey, and plat have been recorded as directed by statute, it will be presumed that all was done which the law required should be done, where the road has long been opened and used with the acquiescence of landholders adjoining.</p> <p>3. In case of such record, use, and acquiescence, the proceedings are not invalidated, because it does not appear from the record itself that the viewers were freeholders of the county. Nor is it invalidated because one of the viewers acted as surveyor, nor because the record does not contain any order to the viewers and surveyors, nor because it fails to show that they were sworn. N or is it invalidated because the commissioners ordered the report recorded at the same session it was made, nor because the record fails to show an order directing the road to be opened. If these things were omitted to be done, though they might be taken advantage of in a direct proceeding to reverse the action of the commissioners, yet in a collateral proceeding such omissions can not render the record null and void.</p> <p>4. An encroachment upon a highway regularly laid out and established, by putting out a fence or planting a hedge within the legal limits of the road, does not constitute such adverse possession as will confer title.</p> <p>6. The seven years limitation prescribed in section 29 of the road act of 1853 (S. & O. 1296) applies to roads authorized but never opened, and not to roads which have been opened and partially obstructed by a landholder fencing in a portion of the same.</p>

<p>A married woman joins her husband in executing a mortgage. The assignee of such mortgage becomes assignee in insolvency of the husband, and sells the mortgaged property to defendant under the general authority of the probate court, no special proceedings having been instituted, to which the wife was made party. The proceeds of sale being more than double the amount of the mortgage, go into the hands of the assignee, who pays himself his debt out of the general funds of the husband’s estate and during .his lifetime. Held, that upon the death of the husband, the mortgage having been discharged, his widow is entitled to dower in the whole property.</p>

<p>A military land-warrant was issued to the widow and minor child of a deceased soldier of the Mexican war, under the act of Congress of February 11, 1847, which provided that the guardian of such minor may, “ upon being duly authorized by the orphans’ or other court having probate jurisdiction, have power to sell ” the warrant; and the guardian of the minor, with the widow, assigned the warrant, without being authorized to do so by the probate court, to a person who knew all the facts of the case, but supposed the assignment gave him a clear title to the warrant. Held :</p> <p>1. The assignment of the guardian, without the authority of the proper court, did not transfer the right of the minor in the warrant to the purchaser.</p> <p>2. Where the statute requires a particular authority to be pursued in the transfer of an interest in real estate, the purchaser is presumed to know such authority, and if he purchases where the authority has not been pursued, he does so at his peril.</p> <p>3. The holder of such warrant upon the unauthorized assignment of the guardian holds the same in trust for the minor, and when located, and a patent for land is procured thereon by him, he is accountable as trustee therefor to such minor.</p> <p>4. Such trustee is not in equity relieved from such accountability on the ground of staleness of the claim, where the minor within about seven years after arriving at age, and soon after being apprised of the state of the case, brought suit to establish the trust and enforce such accountability.</p>

<p>1. Where a person, with knowledge that he had been induced to sign the promissory note, on which suit had been brought, as surety, through the agency of the principal maker and payee, by fraudulent representations that would have been for him a valid defense in the suit thereon, after the note had matured, with a full knowledge of the facts constituting the fraud, "but ignorant that tho fraud was a defense in law, voluntary requested the payee to extend the time of payment of the note, which was done, and upon that consideration promised to pay: Held, he thereby waived his defense to the note.</p> <p>2. In an action on such note, a parol waiver of such defense by the surety, voluntarily made upon a sufficient consideration, upon a full knowledge of all the facts, is binding.</p>

<p>Error. Reserved in the District Court of Hamilton county.</p> <p>The case arises on a demurrer to the petition.</p> <p>The action was brought under the act (2 S. & C. 1151) giving courts jurisdiction of actions to recover back taxes illegally assessed and paid, and to enjoin the collection of such taxes.</p> <p>The petition sets forth :</p> <p>1. The plaintiff in error is a corporation organized under the laws of New York, having its principal office and place of business in the city and State of New York, doing business also in the State of Ohio, receiving and transmitting telegraph messages between points lying within the State of Ohio, and also between points in the State of Ohio, and points in other states and countries.</p> <p>2. Prior to 1869, plaintiff accepted, in writing, the provisions of the act of Congress of July 4, 1866. 14 U. S. Stat. at L. 221.</p> <p>3. That plaintiff’s “ wires, poles, batteries, office furniture, franchises, and other property ” in Ohio has been and is taxed like other property in said state.</p> <p>4. That plaintiff’s lines cross nearly all states of the Union, and occupy portions of British America, and that a large amount of the commercial transactions, business, and intercourse of the people, etc., is carried on by means of their wires.</p> <p>5. Section 16 of Ohio tax law of April 5,1859, subjects all of plaintiffs said property to taxation, and all of said personal property has ever since been listed for taxation, and taxes have been duly levied and paid in accordance with the same. (Same in effect as paragraph 3, above.)</p> <p>6. Acts of May 1,1862, and amendatory act of April 13, 1865 (O.L.), for taxing railroads and telegraph companies (S. & S. 769-771), make unfair and unlawful discrimination between telegraph companies organized and doing business in Ohio and those organized under the laws of another state and doing business in Ohio, and same rate as upon other property, although plaintiff says about two-thirds of said gross receipts are absorbed by .the current expenses of its said business, while no person residing in Ohio, and no corporation having its principal office therein, is so taxed.</p> <p>7. “ That said double taxation is, and the act last above named creates, an unlawful tax upon commerce; is not uniform in its operations on all telegraph companies in Ohio; is unequal, oppressive, and unjust in its operations, and wholly illegal, and contrary to the constitution of the United States and the State of Ohio.”</p> <p>8. That under said acts plaintiff’ made a true return to the auditor of said county of the gross receipts of its business in said county for the year ending May, 1870 — to wit, $172,297 — of which $153,850.99 was for business “which originated or terminated at a point or points outside of the State of Ohio“ or, in other words, plaintiff says that said entire receipts were mostly for messages pertaining to commerce between the states, and other than messages sent from point to point within the State of Ohio, and a large portion of its said gross receipts in Ohio are earned on its own lines outside of said State of Ohio, and by its employes in other states of the Union than the State of Ohio.”</p> <p>9. That at the time of making said return to said auditor, “ plaintiff' duly protested, in writing, that the law levying said tax and requiring said return was unlawful and unconstitutional.”</p> <p>10. That said gross sum so returned to said auditor was placed upon the tax duplicate, and a tax levied thereon, amounting to the sum of $5,757.93.</p> <p>11. That section [7] of said act of 1862 made plaintiff' and its employes, agents, etc., liable to heavy penalties, disabilities, and punishments if they should refuse or omit to pay such taxes for twenty days after the same should become due, and that plaintiff, on or about the 25th day of January, 1871, and after the same became due, to escape trouble, etc., and to save its agents and employes from prosecution, etc, paid to the said treasurer of Hamilton county the full amount of said taxes and penalty thereon, but that it paid said sum under protest, and with a distinct understanding with said treasurer that it would sue to recover back said amount, and then and there served said treasurer with written notice of its protest and determination to sue to recover said amount, as illegally assessed and required to be paid.</p> <p>12. The United States government also levied and collected a tax on its said gross receipts for the year 1870.</p> <p>13. Plaintiff' is entitled to recover from said defendants said sum of $5,757.93 so paid under protest, together with interest from January 25, 1871, for which it prays judgment.</p>

<p>The statute (S. & O. 1626, see. 105.) provides that no street improvements shall be made in cities of the first class, except on the report and recommendation of the board of city improvements.</p> <p>The statute (S. & 0.1518, sec. 75) provides for the election of three commissioners, and that “ they shall, with the mayor of said city and civil engineer, constitute the board of city improvements.”</p> <p>The mayor, civil engineer, and one commissioner met for the purpose of considering the report and recommendation of a certain street improvement. The mayor and civil engineer voted in favor of such recommendation, and the single commissioner voted adversely, upon which action the city council ordered the improvement. Held:</p> <p>1. That this was not such a recommendation as the law required, and an assessment for the improvement thereupon ordered was invalid.</p> <p>2. That said report and recommendation must be concurred in by a majority of the five members of the board of city improvements in order to be valid,</p>

<p>Error to tbe District Court of Hamilton county.</p> <p>The original action was brought by the defendant in error to recover for the value of professional services rendered by his testator, Todd, as an attorney for plaintiff in error. The case was tried by a jury upon issues of fact made by the pleadings, and the plaintiff below obtained a verdict and judgment for $300. Plaintiff in error thereupon filed his petition in error in the district court, asking a reversal of this judgment, on the ground, among others, that the court of common pleas erred in admitting upon the trial, against his objection, certain testimony, which is folly stated in the opinion in this case. The district court affirmed the judgment of the common pleas, and plaintiff in error here seeks the reversal of that judgment of affirmance.</p>

Errob to the District Court of Cuyahoga county. In April, 1867, Ephraim Wilson instituted his action against Calvin Giddings to redeem certain parcels of real estate mentioned in his petition, in which he claimed to have the equity of redemption. The record discloses that their dealings commenced about 1848, and extended over a period of about nineteen years.

<p>In 1830, H. resided in Germany, with his family, consisting of a wife and three minor children, by her former husband. Intending to remove, with his family, to the United States, he obtained permission of the guardian of the children, and%f the proper court, to take with him these children and a sum of money in the guardian’s hands, derived from their father’s estate, on the express condition that, on his arrival here, he would invest this money in land in their names. On his arrival here, he purchased land, paid for it in part out of this money, and in part out of his own, moved on it, but took the title in his own name, and thereafter occupied it as a home and as a means of support for the family, until the children arrived of age and afterward. Held:</p> <p>1. That, by taking the whole legal title in his own name, H. committed a breach of trust; and, to the extent that the purchase-money was paid out of the money belonging to the children, he holds the title in trust for them.</p> <p>2. That the continued possession and use of said land as a home, and for the support of the family during the minority of the children, was not adverse to the rights and equities of the children, and neither the lapse of time nor the statute of limitations would operate against them during such minority.</p> <p>3. The trust which resulted to the children was one not cognizable at law, but was peculiarly and exclusively within the jurisdiction of a court of equity, against which, while it subsisted, mere lapse of time was no bar.</p> <p>4. The continued possession of the property as a home, after the children came of age, by H., without any denial or disclaimer of the children’s rights in it, and without claim to own and hold adversely to them for a less period than twenty-one years, constituted no bar to a suit to compel an execution of the trust, nor will the lapse of a less period than would bar an action at law to recover the title or possession of land, of itself, raise the presumption that the trust had been discharged or ex* tinguished.</p> <p>6. What constitutes a stale equity depends on the facts and circumstances of each case, and not on lapse of time alone.</p>

<p>1. An. indictment for manslaughter, which avers that defendant did unlawfully kill and slay another, while the slayer was in the commission of an unlawful act, i. e., the act of using instruments and drugs upon the person of a woman, with intent to procure an abortion, without averring that death was occasioned by the use of such instruments or drugs, is a sufficient indictment for manslaughter.</p> <p>2. If, on the trial, it should appear that the death was in consequence of such unlawful attempt to procure an abortion, the offense would not be manslaughter, but the one described in the second section of the abor* tion act (S. & S. 272).</p>

<p>1. Clerks of courts in the several counties of this state are not authorized hy law to fix conclusively the amounts which shall be paid by their county for blanks, or other things necessary to the prompt discharge of their duties, which they may have procured.</p> <p>2. Therefore, where a claim or account against a county for blanks fur. nished on the order of such clerk is presented to the county auditor, which account has been certified by the clerk to be correct, but has not been allowed by the county commissioners, it is not the legal duty of such auditor, on demand made, to draw his warrant on the treasurer of his county in favor of the claimant for the amount of such account.</p>

<p>By the law relating to struck juries (S. & S. 407) “the first twelve of those who shall appear and are not challenged for cause, or set aside by the court, shall be the jury, and shall be sworn to try the said issue.” After this twelve, therefore, have passed into the box unchallenged for cause, the party demanding the struck jury has no right of peremptory challenge.</p>

<p>1. When a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case.</p> <p>2. After a suit for divorce and alimony has been finally determined by the court granting the divorce, and in lieu of alimony confirming an executed agreement as to the amount paid as alimony, a new action for additional alimony can not be maintained when the reasons for such additional allowance existed or might have been provided for in' such final judgment, and when it is not sought to impeach such final judgment.</p>

<p>1. The Ohio river being a navigable river of the United States, not connected with the lakes, under the judiciary act of 1789, exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction arising thereon is vested in the District Courts of the United States, saving- to suitors, however, in all cases, a common-law remedy, where the common-law is competent to give it.</p> <p>2. Contracts for repairs or supplies furnished to a boat or vessel at her home port are maritime contracts, and therefore come within the admiralty jurisdiction of the United States district courts. But contracts for boat or ship-building are not maritime contracts, and therefore do not fall within that jurisdiction.</p> <p>3. The test of admiralty jurisdiction, under the act of 1789, is the nature of the claim on which the suit is founded, and is not the form of remedy resorted to. When the claim is maritime, it comes within that jurisdiction exclusively, excepting only the right of suitors to pursue common-law remedies, or what is equivalent thereto .in other courts.</p> <p>4. A suit by a proceeding in rem against a boat or other craft, under the watercraft law of this state, for the breach of a maritime contract, is not a common-law remedy, within the meaning of the saving to suitors of such remedies by the act of 1789.</p> <p>5. A suit in rem, under the watercraft law of this state, on a claim for repairs or supplies to a boat or craft navigating the Ohio river, is not a mere proceeding to enforce a lien, but it is also a civil action, founded on a contract; and when the claim is a maritime contract, the proceeding in rem can not be resorted to in the state court, for upon such contracts that remedy is, by the constitution and laws of the United States, ■vested exclusively in the United States District Court.</p> <p>6. No maritime lien arises on a contract for repairs or supplies furnished to a boat or vessel in her home port; therefore it is competent for the states, in such cases, to create liens therefor, and to provide remedies for their enforcement not inconsistent with the exclusive jurisdiction of the admiralty courts.</p> <p>7. The lien given by the watercraft law of the state on contracts for repairs or supplies to a domestic boat or craft, engaged in inter-state commerce on the Ohio river, can not be enforced by a proceeding in rem against the boat or craft in the state court; for that proceeding, in such cases, is within the exclusive jurisdiction of the United 3tates District Court.</p>

<p>"Where, in proceedings on appeal to the prohate court to establish a ditch, under the provisions of the act of May 6,1868 (S. & S. 322), and the record here is so defective as to fail to furnish evidence to the reviewing court as to what steps were taken to perfect the appeal, and no objection appears on the supposed record to the jurisdiction of the probate court until after the case has been reversed by the court of common pleas and remanded to the probate court for further proceedings:</p> <p>Held, 1. It will be presumed in such caso that a complete record would show the existence of all the necessary jurisdictional facts.</p> <p>2. In an action on appeal from the order of township trustees for the construction of a ditch, where the proceedings and report of a jury in the probate court have been reversed and remanded, the probate court has authority to impanel a second jury.</p> <p>3. Where the report of the second jury is in accordance with the requirements of the-statute, the probate court may, of right, approve and record such report.</p>

<p>]. A final discharge of a bankrupt can not be collaterally impeached for fraud in preventing notice to a creditor of the pendency of the proceed- - ings to obtain such discharge; nor on the ground that prior to the commencement of such proceedings, and while an action was pending against him in another court, he fraudulently removed his property out of the jurisdiction of such court, to defeat the collection of any judgment that might be rendered in such pending action. For such acts the discharge must be impeached by a direct proceeding in the court granting the discharge (Smith v. Ranney, 27 Ohio St. 339, and Rayl’s Adm’r v. Lapham, Ib. 452, followed).</p> <p>2. A judgment of a court in a civil action between individuals existing against a bankrupt at the time the petition in bankruptcy is filed, is a debt, provable against the bankrupt's estate, whether the cause of action on which such judgment was founded arose out of a tort or on a contract.</p> <p>3. Where it is claimed that such discharge does not bar the collection of a judgment on the ground that it is a debt created by fraud, within the meaning of section 33 (H. S. Eev. Stat., sec. 5117) of the bankrupt act, the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment.</p> <p>4. A judgment against the bankrupt, rendered before proceedings in bankruptcy were commenced, in favor of the father for the seduction of a daughter, not induced or accomplished under a promise of marriage fraudulently made for the purpose, is not “ a debt created by fraud,” within the meaning of the bankrupt act.</p> <p>5. Whether, if such seduction was accomplished by means of such fraudulent contract, a judgment therefor, in favor of the father, would be a debt created by fraud, (¿ucere 9</p>

<p>1. On a sale with delivery of chattels to be paid for in future installments, but, until payment, the ownership and title of the property to remain in the vendor, payment is a condition precedent, and until performance the property is not vested in the vendee.</p> <p>2. The vendor, in such case, if acting bona fide and guilty of no laches, may reclaim the chattels, when the price basnotbeen paid, or may maintain an action for their conversion against the vendee, or against a purchaser from him, although in good faith and without notice. In such case a bona fide purchaser of personal property, other than commercial paper, acquires no better title than that of his vendor.</p> <p>3. K. & M. delivered to the custody of P. certain chattels, which P. was to hold as the sole property of K. & M. until he paid a certain sum in weekly installments, and,on failing to pay as agreed,to deliver the property back to K. & M. on demand.</p> <p>P. Paid in part, but failed as to the residue, and abandoned his family, after which his wife, as a necessary means of support, sold the property to S., a bona fide purchaser, for value, and delivered to him the possession: Held, that in the absence of bad faith on the part of K. & M., the real intention of the parties, as between themselves, is to govern in the construction of the contract; that by its terms no title passes to the vendee until the conditions are performed, and where the vendor is guilty of no laches, he may assert his title against a bona fide purchaser.</p>

<p>1. The state having, by its proper agencies, appropriated property in fee for the public uses of canals, it is within the power of the legislature to authorize a change from one public use to another of a like kind.</p> <p>2. The state, by its canal commissioners, having appropriated property in fee for the purposes of a canal, it was competent for the legislature to devote such property to the uses of a public highway, such as a street of a city, without working a reversion in favor of the owner of the soil.</p> <p>3. The canal and street being both public highways, the uses of either are uses of a public nature and of a like kind; nor does the fact that water-pipes and sewers are contemplated in the street make such use inconsistent with that to which it was formerly applied.</p> <p>4. Property was appropriated in fee by the state, through its canal commissioners, for the purposes of a canal. Subsequent statutes gave the city of Toledo power to enter upon a portion of the appropriated premises, and occupy the same “ as a public highway, and for the use of water-pipes and for sewerage purposes,” and also released to the city all right of the state in the premises in question. Under such legislation, one who claims to own a portion of the canal bed can not contest the right of the city, on the ground that the change of use authorized by the legislature has terminated the public interest in the property.</p>

<p>Belator, without his knowledge, was expelled from membership in a society incorporated for benevolent purposes. After such expulsion he brought a civil action to recover damages for the loss of his rights and privileges as a member, occasioned by such expulsion, in which he recovered verdict and judgment, to reverse which the cause in error is now pending.</p> <p>Held, that the bringing such action is a waiver of his right to a mandamus to restore him to his rights and privileges of membership.</p>

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

<p>1. Defects in the form of an information, or in the manner in which an-offense is charged, must be reached by motion to quash. Objections which are ground for such motion must be taken advantage of in the manner prescribed, or they will be deemed waived. After plea, verdict, and judgment, they can not be raised for the first time on error.</p> <p>2. Evidence being given tending to show that a watch was sold warranted" to be gold, and that such warranty was false and fraudulent, it is not error to exclude testimony offered to show what the value of the watch-was, under an information against the warrantors for obtaining money by false pretenses.</p> <p>3. It is not necessary that an information should be indorsed with the name-of the prosecuting witness.</p> <p>4. An objection that the jury was not properly sworn can not be considered on error, unless the bill of exceptions shows the form of the oath that was actually administered.</p> <p>•5. When it is objected on error that the court sentenced defendants without first informing them, of the verdict of the jury, and asking them whether they had anything to say why judgment should not be pronounced, the record must show affirmatively that the court omitted this duty. If the bill of exceptions is silent upon the subject, it will be presumed that the court did what the law directs it'should do. *</p>