Volume 29 — Ohio State Reports

Appeal. Reserved in the District Court of Geauga, county. This action was commenced on the 31st day of January,. 1870, to subject certain promissory notes described in the-petition to the payment of a decree for alimony, rendered in favor of the plaintiff, against the defendant, Nelson Rooker, in the Court of Common Pleas of Geauga county at its September term, 1869, and which was in full force and unsatisfied at the commencement of this action.

<p>Motion for leave to file a petition in error to the District Court of Morrow county.</p> <p>This was an action by the state against the plaintiffs in error, upon their recognizance entered into before a justice of the peace, conditioned for the appearance of James Dodge before the court of common pleas to answer to a charge of forgery. The answer set up, as defense to the action, that at the time of James’ arrest and examination, and at the date of the recognizance, there were two indictments pending in the court of common pleas against him for the same offense on which he was so arrested and bound over. The court sustained a demurrer to this answer, and rendered judgment for the state; and the district court, on proceedings in error, affirmed the judgment</p>

The action below was brought by David Barnet against Howard Young, assignee of B. C. Beall & Co., to compel the latter as such assignee to accept and allow as a valid -claim against his assignors the sum of $4,000, on a statement of facts contained in the petition, of which the folllowing are all that are necessary to an understanding of the questions raised : “ On the 6th day of December, 1873, the said B. C. Beall & Co. drew their certain bill of exchange, of which the…

The original action was brought in the court of common pleas in Licking county. The petition consisted of three causes of action, each being founded on a promissory note executed by the defendant. Two of the notes were made directly by the defendant to Anna Essex, the intestate, in her lifetime, and the third she acquired by purchase.

On the 26th of March, 1875, the plaintiff in error recovered a judgment against Welch, before a justice of the peace, for the sum of $73.60. Erom this judgment Welch took an appeal, giving Ms appeal bond on tbe 5th of April, 1875.

The original action was brought in the Superior Court of- Cincinnati by plaintiffs in error, who are the heirs and devisees of Frederick Rammelsberg, deceased, against the defendants in error, who are the executors and trustees under the will of Frederick Rammelsberg, deceased.

The plaintiff, an infant, sued the defendant to recover the value of work and labor performed by the plaintiff for the defendant between February, 1871, and February, 1875. The defendant in his answer set up that the work and labor sued for were rendered under a verbal contract entered into between the defendant and the plaintiff’s mother in the year 1864.

In slander. The words alleged in the petition to have been spoken were, in substance and effect, that the plaintiff (defendant in error) was then afflicted with the clap.' The petition was demurred to on the ground that the words alleged to have been spoken were not actionable in themselves.

This was an action by the defendant in error to recover damages of the plaintiffs in error for unlawfully, maliciously, and forcibly breaking and entering the close and dwelling house of the defendant in error, which was then in her possession, in which she and her family then resided, and which she held and owned in her own right and as her separate property, and removing the roof from the dwelling house with intent to injure her and her family, and to expose them and her…

The original action .was brought to collect an assessment made on the property of the plaintiff’ in error, to pay for land taken by the city to widen McMillan street between Church and Kline streets, to the width of sixty feet, the remainder of the street being already of that width; but the part between Church and Kline being only thirty feet wide.

This was an action by the Citizens’ Bank against Clos•son, upon a promissory note alleged to have been made by him to R. R. Eenner & Co., or order, and indorsed to the bank before due. Closson set up ,two several defenses in his answer: 1. He denied the execution of the note. 2.

<p>1. The act of January 9, 1871 (68 Ohio L. 6), conferring jurisdiction upon. courts of common Pleas to appoint guardians of the property of persons incapable of taking care of and preserving their property, by reason of intemperance and habitual drunkenness, is not in conflict with the provision of section 8, article 4, of the constitution, defining the jurisdiction of probate courts.</p> <p>2. Nor are the provisions of said act in violation of the fifth section of the first article of the constitution, which declares that “ the right of trial by jury shall be inviolate.”</p>

<p>In an action brought by a guardian of an imbecile to set aside a deed executed by his' ward before his appointment, the heirs of the grantee, being defendants, are disqualified to testify (by section 313 of the code, as amended March 23, 1875. 72 Ohio L. 77), as to facts which occurred previous to the appointment of the guardian.</p>

<p>Error to the District Court of Logan county.</p> <p>A motion is made by the defendants in error to dismiss this ease, on the ground that more than a year elapsed after the death of the plaintiff in error before any steps ■were taken to revive the proceeding in error in the name of her representatives.</p> <p>On the 26th of September, 1876, the death of the plaintiff in error was suggested' by George Wilson and Mary Marion, her heirs-at-law, the original action being for the recovery of real property.</p> <p>The court having found the suggestion to be true, on motion of said George and Mary, ordered the action to be revived, and to proceed in their names, unless sufficient cause was shown against the revivor.</p> <p>Notice of the entry having been served on the defendants5 counsel, they, on the 18th of November, 1876, filed the present motion to dismiss the case on the grounds above stated.</p> <p>The plaintiff in error, Mary Black, died on the 5th day of March, 1875.</p>

Error. Reserved in the District Court of Defiance ■county. This action was commenced in the court of common pleas of the county named, on the twenty-third day of November, 1871, to recover damages of the defendants for wrongfully excluding the plaintiff’s son, Andrew, aged thirteen years, from a school established in the town of Defiance, under the act known as the “Akron school law,”' and which school was under the management and control of the defendant, the board of…

QUO WARRANTO. The information is as follows : John Little, Attorney-General of the State of Ohio, upon ■complaint to, and inquiry by him in that behalf made, now comes and gives the court here at the December term thereof, 1873, to understand and be informed that the defendant, the Greenville Building and Saving Association, is, and since April —, 1869, has been an incorporated company of said state, formed and organized under the act of the general assembly thereof, entiled…

QUO WARRANTO. The information herein filed charges the defendants with unlawfully intruding into, usurping, and exercising-the offices of a board of police commissioners and a board of health for the city of Cincinnati; and that they have taken possession of, and are now holding the prisons, station-houses and other real and personal property of the city pertaining to the police and health departments ; that they are unlawfully using and expending the funds raised by…

<p>Error to tbe Superior Court of Cincinnati.</p> <p>The defendants in error sued the plaintiff m error, Myers, on a judgment recovered by them against him in the Cir- ' nit Court of Kanawha county, West Yirginia.</p> <p>The defendant being a non-resident of the state, an attachment was issued against his property ; and on affidavit filed in accordance with section 200 of the code, Miles Greenwood and others, trustees of the Cincinnati Southern Railroad, were garnisheed as being indebted to the defendant, and as having property of his in their possession.</p> <p>The attachment was issued November 12, 1875, and was duly returned the 27th of the same month.</p> <p>The return showed that no property was found, and that due service was made on the garnishees.</p> <p>On the 13th of December, 1875, the defendant gave bond, with surety approved by the court, for the discharge of the attachment.</p> <p>On the approval of the bonds so given, the court ordered “ that the trustees of the Cincinnati Southern Railway be and they are hereby released from all liability as garnishees herein.”</p> <p>Afterward, on the 31st of December, 1875, the garnishees appeared and answered.</p> <p>Their answer is as follows :</p> <p>“And how come the trustees of the Cincinnati Southern Railway, and, for answer to the writ of garnishment served •upon them in this case, say that they are not indebted to the defendant, individually nor severally, but that they had a contract at the service of the writ hei’ein with the firm ■of Myers & DeHam, which firm was composed of George H. Myers, the defendant herein, and Constance L. DeHam, to which firm these garnishees were indebted, at service of said notice, to an amount exceeding one thousand dollars. And garnishees say that they know nothing of the interests of the said partners in said contract.</p> <p>“And garnishees say that they have notice of an assignment made by said firm of Myers & DeHam to Rufus Mc-Clemy, of Knoxville, Tennessee, in trust for the creditors of said firm.</p> <p>“ "Wherefore they ask to ■ be hence dismissed, with their costs.”</p> <p>After this answer was filed, the defendant filed a motion “ to discharge the attachment as to the garnishees, for the reason that there is no law by which they can be held as such.” He also, at the same time, filed a demurrer to the petition.</p> <p>The court overruled the motion to discharge the attachment.</p> <p>To reverse this ruling, the defendant, Myers, filed a petition in error in the superior court in general term. The court, in general term, affirmed the ruling of the court in special term.</p> <p>The present proceeding is prosecuted to reverse these rulings.</p>

This was an action brought by Cole against the plaintiff in error for wrongfully ejecting him from one of its cars, on which he was a passenger, and also to recover the statutory penalties for demanding rates of fare exceeding three jcents per mile, as prescribed by the act of April 25,1873 (70 Ohio L. 161).

<p>Motion for leave to file petition in error to the District Court of' Lorain county.</p> <p>The original action was brought by the defendant in error against the plaintiff- in error to recover for a trespass upon the plaintiff’s lands by the defendant’s horses. The case shows that the parties were adjoining land-owners, and their respective in closures were separated by a partition fence, of which each party by agreement was to keep a designated portion in repair. The defendant’s horses being pastured in his own inclosure, broke through the partition fence into the plaintiff’s inclosure, and committed the trespass complained of.</p> <p>Testimony was offered tending to prove that the defendant’s horses were habitually breachy and unruly, and that the breach was made through that portion of the fence which the plaintiff was bound to keep in repair, and which he had suffered to become out of repair at the place where they entered.</p> <p>On the trial, and in view of the above state of facts, the court of common pleas charged the jury “ that if the defendant’s horses were habitually breachy and unruly, and being thus habitually breachy and unruly, broke and entered the close of the plaintiff over and through that portion of said fence that said plaintiff was to keep up and in repair, he is entitled to recover for such entry, whether his fence was sufficient to restrain stock not unruly or not.”</p> <p>To this charge the defendant excepted; verdict and judgment being rendered for the plaintiff, and affirmed by the district court on error, this proceeding is prosecuted to reverse the judgments below for alleged error in the above charge to the jury.</p>

<p>Motion for leave to file a petition in error to reverse ■the judgment of the District Court of Greene county.</p> <p>The plaintiffs in error, merchants, doing business under the firm name of Allison & Townsley, sued Annie E. Porter, the defendant in error, before a justice of the peace, on •a store account.</p> <p>The defendant is a married woman, living with her husband, and was at the time of the sale of the goods, which •are the subject of the account.</p> <p>At the time of bringing the suit, she and her husband had become non-residents of the state. An attachment was sued out against her on the ground of her non-residence ; and the amount due her on a promissory note was garnisheed in the hands of the maker.</p> <p>The suit resulted in a personal judgment against her for the amount of the account, and in an order by the justice on the garnishee to pay so much of the amount due the ■defendant on the note into court as was necessary to satisfy the judgment recovered by the plaintiffs.</p> <p>She prosecuted a petition in error in the court of common pleas, where the judgment was affirmed. The district court, on error, reversed both the judgment of the common pleas and of the justice, and dismissed the action.</p> <p>It is now sought to reverse this judgment.</p>

The original action was brought by the plaintiff in error against the defendants in error, in the Court of Common Pleas of Allen county.

The original petition was filed by E. C. Fleming and his wife, Rachel Fleming, to obtain from the court a construction of the last will and testament of Matthew Corry, deceased, the father of said Rachel.

<p>Extrinsic testimony is admissible to identify land convoyed by the following description, to wit: “A tract or lot of land known as the east half of the southwest' division of section. 17,” although such testimony showstkat the land so.conveyed is less in quantity than the mathematical half of the division.</p>

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

In the court of common pleas a general demurrer to the petition was sustained, and judgment entered for the defendants. The district court, on error, reversed this judgment, and gave judgment for costs for the plaintiff- in the courts below, who is defendant here. Plaintiffs here, defendants in the courts below, by this proceeding seek to obtain a reversal of the judgment of the district court, and an affirmance of that of the court ■of common pleas.

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Mahoning county.</p> <p>On the 80th day of November, 1874, the relator entered into a written contract with the local directors of sub-school district No. 8, of the township above named, to-teach the public school of that subdistrict for the period of- four school months, commencing January 4, 1875, at-$125 per month. The contract also provided for the employment' and payment by the relator of an assistant teacher for the school during the term.</p> <p>On the 2d day of January, 1875, at a regular meeting of the local directors, by a verbal agreement between the parties thereto, the written contract ivas so modified as to reduce the term of school to two months from and after the 4th of January; to release the relator from the obligation of employing and paying an assistant teacher, if without.such aid he could teach and conduct the school, during-the term named, to the satisfaction of the local directors, and to pay him $125 per month for teaching the school without such aid.</p> <p>The relator performed the contract, without the aid of an. assistant, to the satisfaction of the directors, who, on the 6th of March following, delivered to the relator their certificate, directed to the clerk of Youngstown township, showing that there was due to the relator for two months’ services as teacher of the school named, under the agreement, the sum of $250, which certificate, with the reports required by law and a copy of his certificate of qualifications from the county examiners, he, on the 13th day of March following, presented to the defendant, who at that time was such clerk, and requested him to draw an order on the treasurer of the township for the payment of the amount so certified to be due to him, which the defendant refused to do.</p> <p>Application was afterward made by the relator to the District Court of Mahoning county for a mandamus to compel the defendant to issue the order, which was allowed by the court; and on the 22d day of March, 1876, an alternative writ issued, directed to the defendant as such clerk, commanding him, immediately on the receipt of the writ, to issue the order demanded by the relator for the payment of the sum named, with interest from the 6th day of March, 1875, or to appear before the court on the 27th of March following the date of the writ, and show cause why he had not done so.</p> <p>The defendant appeared on the day named in the writ, and made return setting out in substance as causes why he should not be compelled to issue the order: 1. That the report filed with him by the relator, at the time the order was demanded, did not show the true number of pupils in attendance upon the school during the term, nor the true average daily attendance of such pupils; 2. That on the day the relator presented the certificate of the local directors, and demanded an order on the township treasurer for the payment of the amount certified to be due him, there was no money in the township treasury applicable to the payment of teachers in sub-district No. 3 of the township; and 3. That the contract made with the local directors, under which the services were rendered by the relator, was illegal and void, and such as, under the provisions of the •statutes, the local directors had no power or authority to make.</p> <p>On the hearing, the district court found that causes one .and two set out in the return were not sufficient to avoid the issuing of a peremptory writ, but that cause three set out in the return was sufficient for that purpose, and thereupon refused the writ, and dismissed the petition at the •costs, of the relator, to which he excepted.</p>

- Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati. The original action was brought by the city of Cincinnati for the use of Bolger & Crowley, contractors, to enforce an assessment for the improvement of Corry street in said city.

<p>The harboring or concealing of a thief who has stolen goods and chattels of less value than thirty-five dollars, is not a crime within the meaning of section 26 of the act providing for the punishment of crimes, passed March 7, 1835 (S. & C. Stat. 401).</p>

Bill oe exceptions to the Court of Common Pleas of Highland county. The defendant was indicted in the Court of Common Pleas of Highland county, for an assault and battery upon one Samuel N. G-laze.

<p>Error to the District Court of Muskingum county.</p> <p>The questions in this case arise upon an account of the plaintiff in error, filed in the Probate Court of Muskingum county, and involve a construction of the following clause in the will of the deceased : “ I give unto my beloved wife, Jane Taylor, . . . the interest arising from all debts due me, and the interest or dividends of all the bank stock of which I may die possessed; provided, however, that such debts or bank stock is not to be diminished in the amount of principal or stock.”</p> <p>The residuum of the testator’s estate, including the above-mentioned “ debts” and “ bank stock ” was bequeathed to the defendants in error, to be divided among them after the death of Jane Taylor. She is now dead.</p> <p>Of the principal of these debts aud bank stock, there had come into the hands of the administrator, at the date of his account, the sum of $16,927-25, and of interest realized thereon, the further sum of $2,031.24. No other funds belonging to the estate came into bis possession. During his administration, divers sums of money had been paid out by him on account of the costs and expenses of administration; others on account of taxes. The entire amount of interest realized had been paid to Jane Taylor, and the administrator claimed credit for the further sum of $458.54, on account of his commissions.</p> <p>The chief controversy is between the estate of JaneBoggs (formerly Jane Taylor) and' the residuary legatees.</p>

<p>'The writ of mandamus will not he allowed to compel a corporation to issue its bonds to one of its creditors in order to obtain the benefit of a mortgage security, where the right of the creditor to such security is doubtful and the property sought to be affected has passed into the hands of third parties as purchasers. The remedy in such case should be by a suit brought in equity against the parties whose interest it is sought to affect.</p>

This was an action by O’Neil against Ludlow, to compel the specific execution of a contract for the sale of a lot in the city of Cincinnati. The contract bound the vendor, O’Neil, to make a “ perfect title, free, clear, and unincumbered.”.

On information in the Probate Court of Van Wert county {a court having jurisdiction of misdemeanors), the defendant was convicted of the offense of petit larceny. At the trial a bill of exceptions was taken, setting out all the testimony, and this writ is prosecuted to reverse the judgment below, on the ground that the conviction was contrary to the law and the evidence.

Several assignments for error set out in the record are not specially mentioned in the opinion of the court. .The ease is sufficiently stated in the opinion of the-court.

The original action was commenced by the defendant in error against Joseph B. Humphries, auditor, and J ohn Gerkc, treasurer, of Hamilton county, to enjoin the collection of the.taxes levied for the year 1873 on certain real estate claimed by the defendant in error to be exempt from taxation.

This was an action by the Lawrence Furnace Company against the Iron Railroad Company to recover a penalty for charging and receiving rates of freight exceeding those allowed by the act of March 30, 1875 (72 Ohio L. 142).

On the 16th day of July, 1878, the plaintiff and his son, Simeon T. Shelton, bought of the defendant a commutation ticket, of which the following is a copy : “ LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY. . Commutation Ticket. Good for twenty rides between Vermilion and Cleveland, for Wm. T. Shelton or Simeon T. Shelton, as per conditions on the back.

The facts are as follows : On the 13th of August, 1851, Rollin H. Harmon executed his last will and testament at Columbus, Ohio. Three witnesses attested its execution, namely — William E. Wheeler, C. L. Eaton, and John Thomas.

The plaintiff in error was convicted and sentenced in the police court of Ciucinnatifor exhibiting for gain a gaming device in violation of the statute. His application for the allowance of a writ of error having been overruled in the court of common pleas, he makes the present application to obtain the allowance of the writ by this court. The principal error assigned is that the police court had not jurisdiction of the offense charged.

<p>Motion for leave to file a petition in error to the District -Court of Hamilton county.</p> <p>The United Railroads Stock Yard Company contracted with Jenkins & Ludwig to furnish materials and construct upon the company’s premises a brick building for ü, certain price. Jenkins & Ludwig sub-contracted with one Isaac •Carson for the labor and material necessary for the brickwork. Carson purshased of Stephens, plaintiff in error, the bricks used in the construction of the building. After Stephens had delivered the bricks upon his contract with Carson, and failed to get the whole of the purchase money from Carson, he delivered to the United Railroads Stock Yard Company an attested account of the value of the,materials furnished and remaining unpaid. The original action was brought by Stephens to recover the balance due him. To this action the United Railroads Stock Yard Company, Jenkins & Ludwig, and Isaac Carson were made defendants. Judgment was recovered as against Carson, but the action was dismissed as to the stock company and Jenkins & Ludwig. To such dismissal the plaintiff excepted. The judgment of the court of common pleas was affirmed by the district court.</p>

The facts necessary to an understanding of the controversy in this case are as follows: Thomas Dugan died intestate on the 18th of November, 1873, leaving two children, James and Fannie (the latter intermarried with James Adams), his only heirs, and a widow, Davina, since intermarried to Elias Ware. The plaintiff in error was appointed his administrator on the-24th of November, 1873.

The original action was brought in the Court of Common Pleas of Gallia county, by the plaintiff’ in error against the •defendant in error, to recover on a subscription of five hundred dollars to the capital stock of the plaintiff.

In April, 1873, the defendant, Tenny, commenced an action in the Common Pleas of Brown county against Jesse Gates and wife, mortgagors, to foreclose a mortgage. John Bell and A. N. Hirons were, on motion, let in to defend.

The following statement is sufficient to an understanding ¿of the questions disposed of in the opinion: The original action was brought by defendant in error against plaintiff in error and the administrator of A. S-Hickey, on a note, of which the following is a copy : “ $1,000. Pour months after date, for value received, I promise to pay William C. Woodford, or order, one thousand dollars, interest at ten per cent.

The Licking County Loan and Building Association was incorporated under the acts of May 5 and 9, 1868 (S. & S. 194, 195), and in the same year organized and adopted by-laws for its government, in pursuance of the authority given in the second section of the act, which seem to be such as the association was authorized to adopt and enforce for the regulation of its transactions with its members in carrying out the object of its creation.' In September, 1868, Lewis C. Bebout…

The plaintiff in error is the assignee of a judgment recovered in the year 1849 against Isaac N. Taylor. No execution having issued on the judgment, it became dormant under the statute during the lifetime of Taylor. In August, 1855, Taylor died seized of the parcel of real estate described in the petition. In 1869, Edward P. Bradstreet was appointed his administrator.

<p>Motion for leave to file a petition in error to the District Court of Cuyahoga county.</p> <p>This was an action brought by Smith in the superior court of Cleveland to restrain .the collection of a tax assessed by the board of health of the village of West Cleveland upon the plaintiff’s lots situate therein for the expense and cost of removing a nuisance from the lots. The ordinance of the village council establishing the board of health by whose orders the nuisance was so removed, was not read on three several days, nor were the yeas and nays of the members of the council voting for the suspension of the rule requiring it to be so read recorded, nor did a majority of members vote for the suspension, as prescribed by the municipal code. .The plaintiff claimed that the board of health was not a lawful board, that they acted without authority, and that the tax was therefore illegally assessed.</p> <p>The record shows that the persons so constituting or claiming to be said board of health were the only persons claiming to be, or acting as such, and that they were publicly and generally known and acknowledged as such at the time of the transaction. A motion was made by the defendant to dismiss the action, on the ground that the superior court had no jurisdiction. This motion was overruled. The cause went by appeal to the district court, where the plaintiff’s petition was dismissed upon hearing. And the plaintiff now seeks-to reverse the judgment of the district court.</p>

<p>Error to the Court of Common Pleas of Darke county.</p> <p>■The plaintiff in error was indicted and convicted, under the 36th section of the crimes act, for procuring one David Swank to steal certain bonds, the property of Henry Swank, of the value of $70.</p> <p>On the trial, Henry Swank was called as a witness for the state, and having testified that the bonds had been stolen, also testified, against the objection of the defendant, to a conversation between the-witness and said David Swank, which took place about the last of February or first of March, 1875, as follows : “ I asked my son, David, if he did not know where they werp, or something about them, and. he then told me that he stole the bonds himself, some time in January or first of February, 1875 ; that he had taken them out of his grandfather’s bible ; and that afterward, on the same night, and within a period of from one to one and a half hours, taken them to a big meeting at Neighley meeting-house, in Twin township, Darke county, Ohio, and delivered them to John Sharpe.” To the introduction of this testimony the defendant excepted, and now, among other things, assigns it for error.</p>

The former case was appealed to the District Court of Franklin county, and reserved for decision in this court. The latter is a petition in error to the District Court of Fairfield county.

The petition is as follows: Plaintiff's state that they are tax-payers of the said city of Cincinnati, and that it is a part of the duty of the solicitor to “ apply to a court of competent jurisdiction for an order or injunction to restrain the misapplication of the-funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinances governing the same, or…

<p>Motion for leave to file a petition in error to the District Court of Hamilton county.</p> <p>The original action was brought by Benjamin E. Stone-against Euretta E. Davenport, to foreclose a mortgage for some $6,000, executed by her to Stone upon real estate situate in Cincinnati. The plaintiffs in error, Gibson and-Young, who held a junior mortgage, executed by Mrs. Davenport to them upon the same property, were made-co-defendants with her. The validity and amount due upon Stone’s mortgage were not disputed, and the only controversy in the ease was as to the amount equitably due upon the junior mortgage. This moi’tgage and the notes of Mrs.. Davenport which it purports to secure, are for the sum of $10,000, which sum, with interest from the date of the mortgage, is claimed by Gibson and Young to be due;, while Mi’s. Davenport claims that only $3,000, with inter-, est from the date of the mortgage, is due. The mortgage bears date October 15, 1875, and the facts in relation to its execution are substantially these :</p> <p>Gibson and Young resided in Philadelphia, and, as trustees of certain parties there, had money'to be loaned on-mortgage security; and McBurney & Co., of Cincinnati,, were their agents to negotiate for its investment. Their instructions were to loan the money on “ first mortgages-only,” and their terms were “ eight per cent, interest, the-borrower to pay or be charged with the commission of McBurney & Co., and the charges for abstracting and certifying titles.” Several persons, and among them Mr. Cist,, of Cincinnati, were selected by Gibson and Young as reliable abstractors of title, and McBurney '& Go. were instructed to act and rely upon certificates of title made by either of them, and to make no loan without such a certificate.</p> <p>Mrs. Davenport resided in the vicinity of Cincinnati, and< E., an attorney of Cincinnati, was employed by her to procure a loan of $10,000 on mortgage upon her property aforesaid, to be applied in paying off the Stone mortgage, and to other purposes. E., who had lately negotiated and obtained a loan for other parties from Gibson and Young, in which transaction Cist had acted as abstractor of title, and had received from Gibson and Young the money loaned, and paid it over to E., inquired of Cist if the loan of $10,000 could be obtained for Mrs. Davenport. Cist, after-consulting McBurney & Co., replied that it could, and gave-the terms and conditions, stating that the Stone mortgage must be discharged out of the money, as the loan must be upon first mortgage, and that McBurney & Co., who, it seems, knew of the Stone.mortgage, would only make the loan upon that condition. Cist then prepared the notes and mortgage to be executed by Mrs. Davenport, in a form which had been prescribed to him by McBurney & Co., and upon a day appointed for the purpose Mrs. Davenport, Cist, and E., were to meet at the office of E. to have the papers executed. The parties accordingly met, and the papers were executed, E. signing the mortgage notes as surety for Mrs. Davenport. No member of the firm of McBurney & Co. was present at the interview. When the papers were executed Cist took them away, without a'ny objection from Mrs. Davenport or E., and carried them to McBurney & Co., who received them, and gave to Cist a bank-check, payable to Cist, for the full amount of the $10,000, less the commissions and charges, and handed him the mortgage to be recorded. At this time Cist had examined the title to the property, and had reported it good, but had not furnished to McBurney & Co. a certificate to that effect, which, it seems, they required. Cist took the mortgage and the check away, and after a short time returned with the required certificate, in which he certifies that he “ finds the title to said premises now good in Euretta E. Davenport, and entirely unincumbered.” Cist then took the mortgage to the recorder’s office for record, and deposited the check in bank to his own credit, and, returning to E.’s office, gave him a check for $3,000, saying that that sum was all he had received of McBurney & Co., and that the balance of the net amount of the loan would be paid by them in a few days. Nothing was said directly about the payment of the Stone mortgage by or to Cist, either at this last interview with McBurney & Co., or at the time he paid the $3,000 to E. It seems that both McBurney & Co. and E. took it for granted that the Stone mortgage was to be paid out of the money loaned. Stone’s attorneys, who had his mortgage for collection, were near by, and ready and expecting to receive the money. Cist subsequently absconded without paying any part of the balance of the money either to E. -or upon the Stone mortgage, and the $3,000 is all that was actually received by Mrs. Davenport upon the loan.</p> <p>Upon these facts it was held by the district court, into which the cause came by appeal, that the loss occasioned by the defalcation of Cist should fall upon Gibson and Young, and rendered a decree accordingly. Gibson and Young now seek to reverse this judgment of the district court.</p>

Reserved in the District Court of Richland County The defendant in error, Mary Beckwith, brought an action before a justice of the peace against the plaintiffs in error, under .the seventh section, as amended April 18,1870 (67 Ohio L., 101), of the act entitled “ an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio” (2 S. & C. 1431).

The plaintiff in error is the owner of blocks 28 and 29 in Corry’s addition to Cincinnati. Eden avenue constitutes their common boundary on the east, and Marshall street the same on the west. Boone street is the southern boundary of block 28, and Wayne street the northern boundary of block 29, and Hammond street, running east and west, divides them; on which street each block fronts 400 feet.

The original action was brought in the common pleas by William Hays as trustee, against the Galion Gas Light and Coal Oil Company, Martin Sponhauer, William Fail, Thomas B. Burgert, Otho L. Hays, Joseph Eesselmeier, Asa C. Squires and William H. Holmes, defendants, to foreclose a mortgage.

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

<p>Proceedings in quo warranto.</p>

Webb was indicted and convicted of forgery. Three grounds of 'error are alleged to arise on the record, which, are in substance as follows : 1.

<p>Motion for leave to file a petition in error to the District Court of Cuyahoga county.</p> <p>The original action was brought by Cannon against Kyser to recover possession of “ a strip of land seven feet wide on the east and west ends, by fifteen rods long on the north and south sides, off from the. southeast corner of lot No. 38,” which lot No. 38 is described in/the petition. The petition alleged that Cannon’had a legal title to, and was. seized in fee of the land; that he was entitled to the possession thereof, and that the defendant, Kyser, unlawfully kept him out of possession.</p> <p>The defendant by his answer denied the plaintiff’s title and right of possession, and, as a second ground of defense, alleged that “ said cause of action did not accrue within twenty-one years,” and that the strip of land in controversy had been “ held in exclusive and adverse possession by defendant and his grantors for more than twenty-one years ” next preceding the commencement of the action.</p> <p>To this answer the plaintiff below filed a reply in these words:</p> <p>“And now comes the plaintiff, and, replying to the answer of the defendant herein, says: ‘ It is not true that the defendant has occupied said premises adversely for the last twenty-one years prior to the commencement of this action.’ ”</p> <p>Upon these pleadings the cause was submitted to a jury, who returned the following verdict:</p> <p>“ We, the jury in this ease, being duly impaneled and sworn, do find for the plaintiff', for the strip of land to be two feet in width, instead of seven feet in width, as claimed in the petition, extending fifteen rods in length.”</p> <p>The defendant thereupon moved the court to set the verdict aside, and for a new trial, for the reason, among others, ■that the'verdict was so indefinite and uncertain that it could not legally constitute the basis of a judgment.” But the court overruled the motion, and gave judgment in favor of the plaintiff for “ the land described in said verdict,” and for costs. This judgment was afterward affirmed in the district court, and the defendant, the present plaintiff in error, now seeks to reverse the judgments of both courts.</p>

The original action in the court of common pleas was brought by plaintiffs in error against defendant in error to recover $325 for money loaned.

The original action was brought by the defendant in ■error as the personal representative of her deceased husband, Wallace B. Bingham, agaiust the plaintiff in error, under the act requiring compensation to be made for causing ■death by a wrongful act, neglect, or default, passed March 25, 1851.

On the 5th of December, 1870, a violent storm blew down part of the roof of the Massillon station-house, belonging' to the Pittsburgh, Pt. Wayne and Chicago Railway Company, and Brigham was seriously injured by the falling materials.

Reserved in the district court. The original action was brought by defendants in error ¡against plaintiff in error, on the 9th day of May, 1868, in the Court of Common Pleas of Pickaway county, to recover the possession of a tract of land situate in said county, containing about 142 acres. The defendant below filed his answer in the action denying title in the plaintiffs, and asserting title in himself.

Proceedings in quo warranto. This is a proceeding instituted by the attorney-general on his own relation.' The information states that the defendant is an incorporated company, formed and organized under the act of May 1,1852, and.the acts supplementary thereto, and charges that ever since its organization it has continuously, within this state, to wit, at the county of Champaign, etc., offended against the laws of this state, grossly abused and misused its corporate…

The plaintiff was convicted and sentenced for selling •counterfeit coin.

The plaintiff in error was indicted for the mui’der of one Henry Mulharen. The indictment contained two counts. The first count charged the killing to have been done purposely and of deliberate and premeditated malice. In the second count the killing was charged to have been • done purposely while the plaintiff' in error was attempting to rob the deceased. Death is alleged to have been caused by the same means .in both counts.

The plaintiffs were sureties of Flesher on his official bond given for the discharge of his duties as assignee of Perry, an insolvent debtor. Flesher wrongfully and knowingly.paid to one of. the creditors of Perry more than his due proportion of the assets, and the amount of the excess. so paid was afterward recovered from the sureties of Elesher by his successor in office, in an action upon the bond.

The original action was brought by the plaintifis against Bethel Bates, Andrew J. Moore, Josephus Groves, E. H. ■Craft, and I. Q. Morris, in the Court of Common Pleas of Noble county.

The original action was brought in the Court of Common Pleas of Hamilton County, by I. H. Stanley, defendant in error, against White, Bonner & Wright, plaintiffs in error, as makers, and against Sperry, Hale & Co., as indorsers, of a promissory note, of which the following is a copy: “ $1,500.

The action in the court of common pleas was brought by the Farmers’ Insurance Company against Ross & Lennan, as 'partners, to recover back $400, which the former had. advanced to the latter on a contract by which the latter had agreed to deliver to the former 72,000 merchantable bricks, but had failed to do so.

William Neil died testate, May 15,1870, and the plaintiffs in error were duly appointed by the Probate Court of Eranklin county, and qualified as his executors, but in accordance with a provision in the will they gave no official bonds as such executors.

<p>Where the directors of a railroad company, in pursuance of the statute (S. & S. 243), applied to the court for a decree dissolving the corporation, on the ground that the object of its creation had wholly failed or become impracticable, and it appeared to the court that the corporation had no property liable to execution for payment of the costs of the proceeding: Held, that it was not ei'ror in tho court to order that the directors should pay said cost, and that in default of such payment execution should issue against them therefor.</p>

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

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

Reserved in the district court. Tracy and McKay were partners in the “ grain and feed business,” in the city of Cleveland, Tracy being the active and managing member.

<p>1. Where, on error, a party relies simply on a misdirection to the jury as a ground for the reversal of the judgment of the court below, his exception must be taken as required in article 5, title 9, of the code. Kline v. Winne, 10 Ohio St. 223; Adams v. The State, 25 Ohio St. 584.</p> <p>2. But where the ground of error is the refusal of the court to grant a new trial, in a case where the verdict is alleged to bo against the law or evidence, and a bill of exceptions is taken under the act of April 12, 1858 (S. & 0.1155), which embodies the charge of the eourt as well as all the evidence, the court, in determining whether a new trial ought to have been granted, will look to the charge, in connection with the evidence, with a view of determining, under all the facts and circumstances of the case, whether substantial justice has been done, or a new trial ought to be granted.</p>

The defendant in error, Susannah J. Petty, the mother of an illegitimate child, brought( an action in the Court.of Common Pleas of Marion county, upon a forfeited recognizance, against Prank M. Clark,(who had been adjudged,' in a proceeding in bastardy, to be the reputed father of the ■child, and ordered to stand charged with its maintenance, in a sum fixed by the court,)and William E. Clark, his ■surety in said recognizance.

file a petition in error to reverse the judgment of the Court of Common Pleas of Malioning ■county. At a regular term of the Court of Common Pleas of Ma-honing county, to wit, on tbe 9th of April, 1877, Charles M. Sterling made application to the court for a writ of habeas corpus, representing that he was imprisoned by the sheriff of Mahoning county without any legal authority, under color of a pretended warrant and commitment of the governor of Ohio.

<p>In an action against an insurance company to recover tlie amount of a fire policy, a defense on the ground that the insured failed to make and furnish the insurer with the preliminary proofs of loss in the manner and within the time required by the policy, is not waived by setting up and relying upon other defenses not inconsistent therewith.</p>

The original action was brought in the Court of Common Pleas of Greene county, by plaintiffs in error, as indorsees, against Zacharias Hamma, as maker of a promissory note, of which the following is a copy: “ §190. Miami, Jvly 26, 1869. “ Three months after date I promise to pay to the order of A. B. Denning one hundred and ninety dollars, value received, with use. “ Zacharias Hamma.” Indorsed: “ A. B. Denning.”.

Reserved in the district court. The original action was brought by defendant in error as indorsee of a negotiable promissory note for $200, dated February 16, 1870, payable to Alfred Ingalls or order July 1, 1870, against the plaintiff' in error, as maker. The defendant denied the execution of the note, and alleged in his answer that the same was forged, fraudulent, and void.

The plaintiff brought her action as indorsee of a negotiable promissory note for $500, dated April 15, 1874, jiayable to the order of R. R. Fenner & Co., six months after date, with eight per cent, interest, against the defendant as maker. The defendant, by his amended answer, denied that he made, signed, and delivered the note mentioned in the petition to R. R. Fenner & Co., and alleged that the note was false, fraudulent, and forged.

The plaintiff in error, wbo was the plaintiff below, claims to own an estate for life in an undivided interest in a parcel ■of real estate in the city of Cincinnati; and he brought the original action to recover possession thereof. This estate for life he claims to derive from his deceased wife, under the first section of the statute of descents, as surviving husband.

<p>In an action on a promissory note, brought by a receiver, the petition alleged that the plaintiff was duly appointed such receiver by a court having power to appoint, and that there was due the plaintiff, as such receiver, from the defendants, on such promissory note a specified sum. Held, that the objection that the plaintiff’s title to the note sued on was not sufficiently stated, should have been taken by motion to make definite and certain, and not by .demurrer.</p>

A proceeding was originally commenced before the commissioners of Brown county for the improvement of the county road known as the Ripley and Arnheim road, under the act of April 5, 1866. The petition was signed by one hundred and thirty-five persons, and filed June 29, 1866.

The original action was brought by James P. Burgett and others, defendants in error, against Alfred J. Parker, treasurer, plaintiff in error, to enjoin the collection of an assessment for the improvement of a county road, which improvement is known in the proceedings as the Ripley and Arnheim road improvement.

The original action was brought in the Pickaway common pleas by the plaintiff against the defendant, James G. Mundell, to foreclose a mortgage, by him executed and delivered to the plaintiff (his wife not joining), on the 2d ■ day of March, 1875, to secure the payment of a promissory note of five hundred dollars due in twelve months from date, with interest at eight per cent. The description of the land ■mortgaged embraced sixteen acres.

Reserved in the district court. The action originally was brought in the Court of Common Pleas of Trumbull county, by John Lamb, the defendant in error, against Samuel D. Galpin, the plaintiff in error.

The plaintiffs in error brought their action against the defendants in error before' a justice of the peace, for goods sold and delivered, and at the same time procured an order of attachment upon an affidavit, showing, among other things, that the defendants had disposed of part of their property with intent to defraud creditors.

This was an indictment for seduction, under the statute of April 4, 1859 (S. & C. 452). On' the trial, the defendant offered to prove that the prosecutrix had had illicit carnal intercourse with men other than himself prior to the time of his alleged offense. This evidence was rejected by the court, and the defendant excepted to the ruling.

The original action was brought in the court of common pleas by the plaintiff against the defendant, May 20, 1872, upon a petition in the following words and figures : “ The plaintiff, Charles Cooper, says the said defendant, Jerome Rowley, is justly indebted to him in the sum of fifteen hundred dollars ($1,500), with interest thereon from the 15th day of October, 1868, for money won by said defendant from said plaintiff, and by said plaintiff paid to ■said defendant on or…

The defendant in error recovered a judgment against the plaintiff in error, in the Court of Common Pleas of Muskingum county, for $115.94, on account of… Held: found, and adjudged, that the defendant was liable for all travel on said road (except going to and from church and funerals), whether within the city limits or not, and whether within the business portion of the city •or not, and whether he passed any toll-gate or not.” To all of which the defendant excepted.

” In the certificate of incorporation it is declared: “ That the business of said association shall be carried on in the manner provided by such rules and regulations, not iuconsistent with the laws of the state, as may from time to time be adopted by a vote of .two-thirds of the members, of the association present at the annual meeting of the as-„ soeiation.” “ Laws and regulations ” for the government of the association were duly adopted, among other things providing that…

On the 8th of December, 1874, the incorporated village The petition sets forth, as the grounds upon which the injunction is sought, that if the territory in question should be annexed, it would make the village unreasonably large ; that a large part of the territory is farming land, and some of it wild land; that part of the residents thereon reside more than three miles from the central place of business, and of the schools of the village; that a majority of the residents…

<p>Under the act of February 18, 1848 (S. & O. 744), all payments of usurious interest are to he taken as payments on account of the principal; and .where the sureties on a negotiable promissory note, given by way of renewal for money previously loaned, have been compelled to pay such note to an indorsee, who purchased the same bona fide before due, they may, under the statute, recover from the payee the amount of usury exacted by him from their principal, which they havo been so compelled to pay to the holder by reason of the indorsement of the note.</p>

The original action was brought by the defendant in error against “ The Iron and Steel Co.,” to recover a royalty of fifty cents per ton on iron ore mined by the defendant on certain lands named. The plaintiff in that suit claimed to be the owner of the ore in place and entitled to the royalty.

In May, 1858, Elihu Thorn, as administrator of the estate of William Taylor, applied to the probate court of Greene county for an order to sell the real estate of his intestate to pay debts. His petition set forth that the personal effects of the decedent only amounted to about thirteen dollars in value, and that the debts owing by the deceased amounted to about $1,500.

The original action was brought by the defendant in error against Jacob Musser, in life, in the Court of Common Pleas of Meigs county, to recover damages for the careless and unskillful treatment, by the defendant, of a tumor on the plaintiff’s nose, whereby she had wholly lost ''that organ.

On the 30th of October, 1871, John Sutton executed his-promissory note to the order of A. Atwood for $6,000, payable'October 31,1872, with ten per cent, interest after due, and on the same day he and his wife executed a mortgage on real estate to secure the payment thereof. .

Motion 'for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga county. , The original petition was filed by Abel H. Potter and others, judgment creditors of Patrick Gormley, against said Patrick and Ann his wife, Edward Flynn, and the West Side Home and Loan Association.

The original suit was brought by John Huston, the plaintiff in error, against William Huston, the defendant in error, before a justice of the peace, to recover specific personal property. The case was tried to a jury, who returned a verdict for the plaintiff. The justice rendered judgment on the verdict. No bill of exceptions was entered on the docket of the justice, nor was any entry made showing that a bill of exceptions had been allowed.

<p>Motion for leave to file a petition in error to the Superior Court of Cincinnati.</p> <p>This was an action brought by Reynolds against the defendants in error for breach of their contract to carry twenty bales of “ tirosh ” from Cincinnati to Chicago, and safely deliver them at the latter named place. The defendants answered jointly, setting up as a bar to the action that the plaintiff had brought a former action against the Cincinnati, Hamilton and Dayton Railroad Company alone, “ upon the same cause of action,” and that upon the issues joined in said (former) action a judgment was rendered for said defendant, the Cincinnati, Hamilton and Dayton Railroad Company, which judgment still remains in force.</p> <p>To this answer the plaintiff replied as follows :</p> <p>“ That he (the plaintiff) admits that he filed his petition against the Cincinnati, Hamilton and Dayton Railroad Company alone, ... as alleged in defendant’s answer, but avers that said railroad company answered said petition, claiming a several liability, by averring that its liability to the plaintiff only extended from Cincinnati, Ohio, to Richmond, Indiana, and this plaintiff’ took issue thereon. Plaintiff further states that in said (former) action the issue was different from this ease, and denies that any judgment rendered therein is a bar to this action, for that there the liability of the Cincinnati, Hamilton and Dayton Railroad Company from Cincinnati to Richmond, Indiana, alone was tried, and not the liability of the Cincinnati,. Hamilton and Dayton Railroad Company, nor the liability of the Pittsburgh, Cincinnati and St. Louis Railroad Company, defendants herein, between Cincinnati, Ohio, and Chicago, Illinois, either severally or jointly.”</p> <p>The court, at special term, sustained a demurrer to this reply, and gave judgment for the defendants, which judgment Was afterward affirmed by the court in general term,, and the plaintiff' now asks leave to file a petition in error to reverse the judgment.</p>

The original action was brought before a justice of the peace by the defendant in error against the plaintiff, on a promissory note. The following is a transcript of so much of the docket entries in the ease, as show the cause of action stated, which entry immediately follows the title of the cause: “ January 18,1877.

The original action was brought by the. defendant in error against the plaintiff in error to restrain the assessment of certain taxes. An injunction was granted by the court .below.

The action was brought in the court of common pleas by Marshall against Maholm and Taylor. The petition contains but a single cause of action on the notes of Maholm, secured by a mortgage of lands in Perry county, where the action wras brought, and prays a personal judgment against Maholm for the amount of-the notes, and for an order to sell the lands mortgaged.

<p>1. The rule that an officer is justified by his process, not void upon its face, is one of protection only; and although the officer may execute such process, yet if it is in fact void for, want of jurisdiction in the court or officer issuing it, he may refuse to execute it, and no action will lie against him for such refusal.</p> <p>2. Where a joint judgment is rendered against several defendants, part of whom only were served with process, such judgment is void as against the parties not served; but as against the parties served, it is voidable only.</p> <p>3. In an action against an officer for default in executing process of execution, the plaintiffs, in their petition described the process as having been issued upon a judgment recovered jointly against two defendants. Held, that a judgment rendered against both defendants in an action in which only one of them was served with process, did not support the petition, and that there was no error in refusing to allow the record of such judgment to be given in evidence.</p>

This was an action upon a supersedeas bond, brought by the plaintiff in error against the defendants in error, in the Court of Common Pleas of Cuyahoga county.

The petition contains two causes of action, each of which is founded upon a guaranty indorsed by the defendant upon the back of a… Held: and now holds, security for the payment of said notes, to wit, a mortgage executed by the makers of said note, Mary R. Montgomery and Marcus W. Montgomery, on certain premises owned by them and described as follows, viz: (giving a description of the premises.) Which said mortgage was, on the 15th day of September, 1874, at forty-six…

<p>An agreement by a creditor to stay legal proceedings against his debtor is a sufficient, consideration to support a written promise by a third person to pay the debt, and in order to make the promise binding, it is not necessary that the creditor should discharge the debtor, or relinquish his securities and liens.</p>

<p>"Where the defendant, in a proceeding under the statute to condemn land for public use, dies during the pendency of the proceeding, or during the pendency of a petition in error to reverse the same, the revivor of the proceeding must be had in the name of the heirs or devisees, and not of the administrator of the deceased</p>

<p>Motion for the allowance of a writ ot error to the Court of Common Pleas of Mahoning county.</p> <p>This was an indictment against Aaron Hartshorn and! Hanaford A. Burbank; and the only question raised is as h> the sufficiency of the indictment, the objection being that it charges two separate and distinct offenses in the same-count against two different persons.</p> <p>The charging part of the indictment is as follows :</p> <p>“ That Aaron Hartshorn, late of the county of Mahoningaforesaid, on the 23d day of November, a. d. 1876, at the-county of Mahoning aforesaid, in the night season of the same day, to wit, about the hour of eleven at night, in the-county of Mahoning aforesaid, into a certain dwelling-house of one Elizabeth Houseman, there situate and being,, did willfully, maliciously, forcibly, burglariously, and feloniously break and enter, with intent then and there and thereby feloniously, the personal goods, chattels, property, and moneys of the said Elizabeth Houseman, in the said dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away; and the jurors-aforesaid, inquiring as aforesaid, do further present and find, that Hanaford A. Burbank, before the said burglary was committed as aforesaid by the said Aaron Hartshorn,, to wit, on the 23d day of November, A. d. 1875, in the county of Mahoning aforesaid; did feloniously, willfully, and maliciously aid, abet, incite, and procure the said. Aaron Hartshorn, the said burglary and felony, in manner' and form aforesaid, to do and commit, contrary to the form •of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”</p>

Thomas Wilson, mortgagor, and Mary, his wife, claimant-of a homestead in the mortgaged premises, complain of William Scott, mortgagee, and Wihiam Clyburn, purchaser at foreclosure sale, that there was error in the confirmation of tfie sale, and in overruling their motions to set it aside. The mortgage was executed by Wilson in 1864, previous to his marriage with Mary, in 1867.

The original action was brought by the defendant, Isaac R. Lane, against the defendant, Breckenridge, to foreclose .a mortgage given to secure certain promissory notes, one -of which, amounting to three hundred dollars, was due and unpaid. James W.' Meek and Eanny A., his wife, were made parties defendant.

The defendant in error brought the original action in the Court of Common Pleas of Lucas county against the plaintiff’in error to recover $4,050, the purchase-money for the undivided half of four lots, to wit, Nos. 95, 96, 97, and 98, in Oliver’s division of the city of Toledo, sold to the •defendant by the plaintiff' as a master commissioner on the 24th of October, 1874, under an order made and issued from the said court of common pleas.

<p>Motion for the allowance of a writ of error.</p>

The plaintiff in error sued the defendant in error to recover the possession of a strip of land thirty-two rods wide, alleged in his petition to be the north end of the southeast quarter of the northeast quarter of section 9, township 11, range 4 east, situate in Darke county.

<p>Motion for leave to file a petition in error to tbe District Court of Sandusky county.</p> <p>The plaintiffs in error brought their ,action against the defendants in error upon a promissory note made by the defendants to the intestate for the sum of $400. Nickols made no defense. Kellogg answered, setting up as a defense that he signed the note as surety, and that after the note became due he had served upon the plaintiffs a written notice requiring them forthwith to commence an action on the note, and that the plaintiffs did not bring the action within a reasonable time thereafter. Issue was tafeen upon this answer, and the cause was tried by a, jury.</p> <p>On the trial, Kellogg offered his co-defendant Nickols as a witness, and proposed to prove by him that Kellogg was surety on the notes. The plaintiffs objected to Nickols as a witness, on the ground that he was incompetent under the 818th section of the civil code, being an adverse party, and the plaintiffs being administrators. They also objected to the testimony proposed to be given, on the ground that it was not competent to prove Kellogg’s surety-ship by parol. Both objections were overruled, and the witness and his testimony admitted; to which the plaintiffs took exception.</p> <p>Kellogg then offered in evidence the following notice, with proof of its service upon the plaintiff' Parker, some nine months prior to the commencement of the action :</p> <p>“ Mr. S. G. Parker — Dear Sir: I wish you would proceed against I. C. Nickols and collect that note on which I am bail, belonging to Mr. Brim’s estate, or have it arranged in some way to release me, as I do not wish to remain his bail any longer. Yours truly, E. Kellogg.”</p> <p>This evidence was objected to on the ground of the alleged insufficiency df the notice. The court overruled the objection, and afterward instructed the jury that the notice was sufficient, and that the delay to bring the action for nine months after the service of the notice was an unreasonable delay. To all which the plaintiffs excepted.</p> <p>The jury found for the defendant Kellogg, and judgment was entered in his favor. The judgment was affirmed in the district court, and the plaintiffs now seek to reverse the judgment of both courts, on the ground that the court erred in its rulings as to the evidence, and in its instruction to the jury.</p>

<p>The right reserved to the owner of premises by the act of March 21, 1874 (71 Ohio Ii. 32), to use and employ ferrets to catch rabbits thereon, is personal to himself and those acting for him. His mere permission to another to use and employ ferrets for such purpose, on his premises, does not relieve the latter from the penalty prescribed by the statute for its violation.</p>

The action in the court below was brought by Green against Butt and his securities, upon the official bond of Butt as constable, to recover damages for the unlawful seizure in execution, conversion, and sale of a horse belonging do Green, which he had “ selected before the sale,” and demanded of the constable under the exemption laws of the state.