Volume 3 — Ohio Circuit Court Reports

leas of Franklin County. This is a proceeding in error' to reverse a judgment of the court below, rendered in an agreed case filed in that court in pursuance of and in accordance with the provisions… Held: but was not ascertained to be necessary to pay debts, nor applied thereon until on or about May 24, 1878, when the last piece of real estate had been sold by the company, and the assets were fully exhausted.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Habeas Corpus — Improper Description of Offense in Mittimus — Jurisdiction of Police Court — Felony.</p>

<p>Error to the Court of Common Pleas of Clinton County.</p>

<p>■ Appeal from the Court of Common Pleas .of Hamilton County.</p>

It is averred in a second cause of action, that on the 1st day of August, 1884, by reason of said negligent acts of the railroad company, other property of the plaintiff, of the value of $50, was destroyed. The line of railroad ran through the lands of the plaintiff below, situated in the county of Tuscarawas. The name of the plaintiff in error is The Cleveland, Lorain dc Wheeling Railroad Company, but suit was brought against The Cleveland, Lorain & Wheeling Railway Company.

<p> Specific Performance. </p> <p>1. Where specific performance of a contract would be granted against an original party to it, it will be decreed against one holding under such party by purchase.</p> <p>2. The specific performance of a contract for the maintenance of a water-way for the benefit of an owner, through whose land the track of a railroad runs, will be decreed against the owner of the road.</p> <p>3. Bell and wife granted to The Dayton & South-Eastern Railroad Company, a right-of-way for a railroad track through their farm, in consideration of which the railroad company agreed to maintain a certain described water-way through the land of Bell and wife, as long as it or its successors and assigns might maintain said railroad. After the track had been constructed, and the road operated for some time by The D. & S. E. R. R. Co., and all of its property, by process of consolidation, had become vested in another railroad company, defendant beeame the purchaser at judicial sale of a portion of the property of the last named company, including the right-of-way and track through the lands of Bell and wife. Held: That specific performance of the contract for maintenance of the water-way Will be decreed against defendant.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The plaintiff filed his petition in the court of common pleas of Defiance county, on March 1st, 1884, to foreclose a mortgage executed to him by said defendants, Marion A. Webb and May H. Webb, on the 21st day of July, 1882, at Ft. Wayne, Ind., on certain lands in Defiance county, Ohio, to secure three promissory notes, of $700.00 each, executed by the defendant, Edward L. Beaver, to the plaintiff, on the 26th day of May, 1882, at the city of Ft.

<p>Error to the Court of Common Pleas of Wayne County.</p>

Sarah E. Hayes, being a tenant for life of certain real estate, in January, 1885, rented the same to one Moses D. Hayes,'for the sum of $300, to raise thereon a crop of corn. After the corn was planted and cultivated, in July, 1885, Mrs. Hayes died. When the crop matured, Moses D. Hayes gathered it, and paid the amount of the rent to Mrs. Hayes’ executor.

<p>Error to the Court of Common Pleas of Franklin County.</p>

<p>Appeal from Court of Common Pleas .of Clinton County.</p>

<p>Lands held under lease for any term exceeding fourteen years, and not subject t'o re-valuation, belonging to a municipal corporation, are made subject to taxation by section 2733, Revised Statutes, as passed February 17,1881, although they are exempt under the provisions of section 2732.</p>

The plaintiff in error sued Ferson, Greenleaf and one Gere, in the court of common pleas, alleging that on January 10, 1877, Ferson accepted the office of treasurer, and upon that day, with the other defendants as his sureties, executed a bond for the faithful performance of his duties, the condition of the bond being that until the election and qualification of his successor, Ferson should “ faithfully perform the duties of said office, and faithfully collect, pay over and…

On December 8, 1883, the defendant in error brought suit in the court of common pleas to enforce the statutory liability of the holders of the stock of the Fairwood Street Railway Company, an insolvent company organized under the act of 1861 (Swan & Sayler, 136). By the report of the Master and the judgment of the trial court, the plaintiff in error was charged as the assignor of one Fannie C. Peck, an insolvent stockholder.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The original action was brought by James L. Bates, one of the defendants in error, to recover of John Lillie, executor of John Lillie, deceased, upon two promissory notes, executed by said decedent, in his life-time, and one J. R. Straughan, in favor of Josiah Kinnear, or order, and by him assigned in writing, after maturity, to FornhofF & McCabe, and by the latter indorsed and re-delivered to Kinnear, who again put them into circulation, whereby they became the property of…

<p>T. commenced a suit in the court of common pleas against the city of Cincinnati, to recover unliquidated damages caused by a nuisance to her real estate. While such action was pending, H, recovered in the same court a judgment against T., in May, 1880, and in November, 1880, H. filed the petition in the present case, in the nature of a creditor’s bill, against said T. and the City of Cincinnati, under sec. 5464, Rev. Stats., making the proper allegations therein, and seeking to subject to the payment of his demand, the claim of T. against the city still in suit. On this petition a summons was issued and duly served on both of the defendants, and on Nov. 20,1880, the city filed an answer in the cause denying the allegations of the petition. Afterwards, in 1886, T. recovered a judgment against the city in her action, and the city solicitor, without actual knowledge of the pendency of this suit (the papers having been destroyed in the court-house fire), paid such judgment to T. or her assigns. Held:</p> <p>1. That such demand against the city in favor of T. was a (money) claim or chose in action, which can, under section 5464, Rev. Stats., be applied to the payment in this action of H.’s judgment against T.</p> <p>2. That neither the fact that the claim was so paid by the city to T., or that the judgment of H. became dormant during the pendency of this action, affected the right to have it so applied.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>An attorney-at-law, employed by á wife to-defend her against charges * made by the husband, in an action for divorce, cannot recover from the husband for such services, when the proceedings were dismissed by the court, by the consent of husband and wife, and they again lived together, and in which action alimony pendente lite was allowed and paid.</p> <p>Qwere: Whether under the laws of Ohio, by virtue of the married women act, the husband is liable in any case.</p>

<p>1. Under section 5953, of the Revised Statutes, which provides for the revocation of wills, a clause of a will cannot be revoked by the testator drawing ink lines through the words thereof, with an intent to revoke such clause, but not with an intent to revoke the whole will.</p> <p>2. In such case, where all the words of such clause remain legible, the whole will should be admitted to probate including such erased clause as a valid part of such will.</p>

By the eleventh item ef said will certain household and kitchen furniture was bequeathed to plaintiff in error, which she has accepted and received; and it is averred in the petition that by reason of such acceptance, and by reason of certain acts of ownership alleged to have been exercised by plaintiff in error over the said real estate after being fully advised and informed of the terms and provisions of said will, she elected to and did accept and assume the burthens and…

<p>1. Where in pursuance of the constitution of a benevolent association,. composed of a supreme council duly incorporated, and with subordinate branches, a certificate was issued to a member of one of the branches, setting out that under the provisions of the laws governing the order, the sum of $1,000 would be paid by the supreme council, upon due notice of. the death of such member, to such person or persons as he might designate, provided he is in good standing in such branch when he dies; if such person had before his death been suspended from membefship^therein, and had not been re-instated as a . member, the persons designated by him to receive such benefit, cannot recover the same.</p> <p>2. The constitution of this order provided that if a member of a branch became, and continued in arrears for three months or more, he was not entitled to vote or to benefits, and when six months in arrears he must be suspended. And that if such suspended member should within ninety days thereafter apply to be re-instated, and should make certain payments, and furnish a certificate from a medical examiner, as was required of a person on an original application for membership, and it be favorable, a ballot should be taken, and if a; , majority of the ballots cast was favorable, he should be re-instated-A suspended member offered to make tho necessary payments, which was refused, because a certificate was not furnished as required, A certificate was then furnished, which showed the person to he of the same age as shown by that furnished by him more than a year before. On'objeetion being made to this, by consent of the branch and the applicant, no further action was had until inquiry could be made as to his age, and he died before any ballot was taken by the branch. Held, that such person, at the time of his death, was not a member of such branch in good standing and entitled to such benefit.</p> <p>3. The said branch was not such an agent of the supreme council as to-make a paper prepared and approved by such branch after the death of such member, giving a statement of the facts in the case, competent evidence against the supreme council, as an admission made by its agent.</p>

<p>1. B. executed and delivered to L. his promissory note in ordinary form, payable to L. or bearer. L., over his name, indorsed the note to M. as follows: “I assign all my interest, right and title of the within note to M.”</p> <p>Held, that L. was an indorser and not a mere assignor of said note, and as such Endorser liable upon proof of demand and notice.</p> <p>2. Where the facts are disputed the question of diligence of a notary in serving notice of non-payment of note upon the indorser, is one for the jury to determine under the instruction of the court.</p>

<p>Error to the Court of Common Fleas of Putnam County.</p>

<p>1. Patent ambiguities in a will must be solved by construction, not by evidence.</p> <p>Hence the declarations by a testator to the scrivener of the will, with proof of the provisions of a will of the testatorfrom which the will in question was copied, are not admissible to explain conflicting provisions of- the will itself.</p> <p>2. The will of James E. Clark contained the following provisions : Item 4. “ I further.give and bequeath to my wife Eliza Ann Clark, two hundred and fifty thousand dollars in United States Government Bonds, and if there shall not be sufficient of said bonds, then the de- • ficiency to be made up of other bonds or securities of my estate, to be selected by her. And also, during her natural life, the rents and income of my store, No. 92 Superior street, in the city of Cleveland.”</p> <p>Item 32. “ The residue of my estate I give to my wife, Eliza Ann Clark, tobe expended for her support during her lifetime, and to be disposed of by her in any way she may think proper.</p> <p>Item 33. “ I further devise and bequeath that portion of my estate, real and personal, of which the use and income is given to my wife, Eliza Ann Clark, and to my daughter, Marion C. Tyler, and so much of any residue given to my wife for support and disposition, as shall not have been expended, and any remainder of my estate not herein disposed of, to be distributed at the death of my wife as to the estate so devised for her life, and on the death of my daughter as to the estate in which she has a life use, as following.”</p> <p>Held; That under this will the wife took under item 32 the absolute title to the residue of the property with a power of disposition.</p>

Hott brought his action, in the court below, against McDonough and wife, to recover damages for the breach of covenants against incumbrances, contained in two deeds of general warranty, executed on the 14th day of March, 1883, by said McDonoughs to said Hott.

<p>W. M. died intestate, without issue, leaving E. J. M., his widow. W. M. never had a brother or sister. He, however, left other blood relatives surviving him. Subsequently, E. J. M. died intestate, without issue, leaving brothers and sisters, and the descendants of deceased brothers and sisters, surviving her. I-Ield: That the whole of the estate, which upon the death of W. M. passed to E. J. M., upon thejdeath of the latter descended to and vested in her brothers and sisters and the legal representatives of her deceased brothers and sisters.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. Where a witness is introduced by a party, and his testimony is entirely different from that which he had a right to expect, the witness having previously testified or made statements in conflict with those now made, and the party introducing him is, without fault on his part, taken by surprise thereby, if, on such examination, it appears to the trial court that the witness is hostile to such party, or is under the influence of his adversary, he may be treated as an adverse witness and cross-examined as such, and inquired of whether he had not, on other occasions (fixing the time and place), made statements (specifying them) different from those now testified to.</p> <p>2. If, on such examination, the witness denies that he made such different statements, can the party calling him introduce evidence shouting that he did? — Quere. This question not having been decided by the supreme court of this state, and the authorities elsewhere being conflicting on this point, and the tendency of the decisions, and the legislation in England, and in many of the United States being to give courts discretion to allow such evidence, and there being strong reasons why it should be so, the judgment of the court of common pleas in this case sentencing a defendant convicted of manslaughter, to imprisonment in the penitentiary, will not now be reversed by this court on the sole ground that evidence of this character was received by the trial court over the objection of the defendant.</p>

<p>Appeal from Court of Common Pleas of Hamilton County.</p>

Plymire brought suit in the court of common pleas to recover from Saxton the amount alleged to be due upon two-causes of action in his petition. He also filed an affidavit for attachment upon two grounds, to-wit: that Saxton was a non-resident of this state, and that he had fraudulently incurred the obligation for which the suit was brought. A writ of attachment was issued to the sheriff and he attached lands in this county described in his return.

Appeal, from a judgment of the court of common pleas of Mahoning county, dissolving a temporary injunction and dismissing the petition.

<p>The city of Cincinnati in 1874 entered into a contract with A. & Co., by which the latter was to improve a street of the- city, which improvement had been provided for by ordinance, and the cost of which was to be met by assessment on the adjacent property in accordance with law. By the contract, A. & Co. agreed “ to receive in payment for their work, the assessments upon the property made liable by law to pay the costs and expenses of the improvement, and covenant not to make any claim, or bring any suit against the city under the contract, for any further or other compensation than maybe due them under the Jaw of this state, and the ordinances of the city in relation thereto.” A. & Co. having performed the work, received from the city assessments made upon the adjacent property, and assigned them to K., .the plaintiff. The law of the state, and the ordinances of the city then in force, provided that no lot or tract of land should be assessed for such purposes, in a sum greater than one-fourth of the value thereof, and that all the cost of the improvement exceeding such limit of 25 per cent, otherwise chargeable on such lot or tract of land, should be paid by the corporation out of its general revenue.</p> <p>In an action brought by the assignee against an owner of property assessed to recover the amount thereof, to which action the city was a party, it was adjudged that the assessment sued for, exceeded one-fourth of the value of the property on which it was assessed, and the assignee failed to recover the amount'of the assessment over one-fourth of the value of such property, and this action was prosecuted against the city to recover the said deficiency.</p> <p>Held, 1st. That if the contract of A. & Co. with the city had provided that the contractors should look alone to the assessments to be transferred to them for the payment of this claim, and in no event look to the city therefor, they, and their assignee, would be bound thereby and could not recover any thing against the city, even if the assessments so made were beyond the amount that the city was authorized to assess against the property, and could not be recovered in full.</p> <p>2. But such is not the construction to be placed on this contract. .The city was bound to furnish to the contractors legal and valid assei#Bments for the amount of their claim. And not having done so, and the assignee for the reason stated not being able to obtain judgment for the full amount thereof, the deficiency may be collected by the assignee from the city by action.</p>

In the court of common pleas Loudenback filed a petition against Kitchen in the short form authorized by the code, founding his action upon a promissory note to one E. S. Clark for $420,00 of which a copy is set out, alleging the endorsement of the note to him by Clark at a date designated, which was prior to the maturity of the note, and that the note remained wholly unpaid.

<p>Appeal from the Court of Common. Pleas.</p>

The plaintiff in error, George Whitcomb, was arrested upon, a charge of violating an ordinance, entitled “An Ordinance to Prevent the Sounding of Octave or Toboggan Whistles,” passed March 20, 1888, which reads as follows : “Section 1.

<p>1. The city council of the city of Cleveland has the right under the statute to regulate the price at which gas shall be furnished by the Cleveland Gas Light and Coke Company to the citizens of Cleveland.</p> <p>2. The charter of The Cleveland Gas Light & Coke Company, the ordinance allowing the company to lay its pipes in the streets, and the acceptance of the ordinance by the company, do not constitute a contract which limits the power of the city council to regulate the price of gas.</p>

A reversal of the judgment of the court of common pleas is sought upon the ground that that court erred in rendering final judgment against Smith upon a general demurrer to his petition. The substance of the petition is as follows: On the 20th day of April, 1877, Smith was sheriff of Fayette county,, holding an execution for $1,736.00, issued at the instance of one John Leaverton, upon a judgment which he had recovered' against one William Snyder.

<p>1. In an action of habeas corpus, the petition and return, if they raise a material issue of fact, are such pleadings that that issue may be determined in that action.</p> <p>2. A return by respondent in such an action by the petitioner,' as guardian for the body of his ward, that she has not had the custody or control of the body sought, thereby dénying the allegations of the petition, raises such an issue.</p> <p>3. Nor is the hearing in such a case defeated by the fact that the person ■' whose body is sought to be obtained is not found by the sheriff.</p> <p>A. The privilege of a witness to refuse to answer a question on the “ ground that it will tend to criminate the witness, cannot be interposed solely by counsel, especially where the witness swears that to answer will not tend to criminate her.</p> <p>5. A witness may not refuse to answer a question pertinent to the issue on the ground that the answer will tend to disgrace her, when it will not tend to criminate, and the witness so testifies.</p> <p>6. Under see. 5252, Rev. Stats., no specifications in writingrai;es.required against a witness who is punished for contempt in refusing to answer questions put to her on the stand as a witness.</p> <p>7'. In a proceeding for contempt in refusing to answer as a witness, the witness is not entitled to a trial by jury.</p> <p>8. Where the court has imposed a fine upon a witness refusing to answer, and ordered her to be imprisoned until she answers and pays the fine — it is within the power of the court during the same term of court, and while the action in which she refused to answer is still pending, and after her imprisonment has commenced, to remit the fine and that part of the sentence of imprisonment relating to it.</p>

<p>Application for temporary injunction.</p>

<p>Appeal from the Court, of Common Pleas of Hamilton, County.</p>

<p>In a suit in the common pleas, against three joint defendants, formerly members of a firm of co-partnership, on a promissory note executed by such firm, a joint judgment against all three defendants was recovered. . Two of sueh defendan ts filed, each for himself, a petition in •error in the circuit court against the plaintiff below, each without .making his co-defendants below parties in such error proceedings. After two years — the period of limitation for instituting such error proceedings — a motion was filed by the defendant in error in the circuit court to dismiss the error proceedings of each of the plaintiffs in error, on the ground that the other parties to the joint judgment .not being parties to the error proceedings, it would be beyond the power of the circuit court to reverse the joint judgment, and the 'period of limitation having elapsed, the right of the plaintiffs in error to ask a reversal was barred by the statute of limitations.</p> <p>Held, That the rule laid down by the supreme court of Ohio in ^metiers v. Rainey, 14 Ohio St. 287, though repeatedly criticized by judges of the supreme court individually in later cases, has not been reversed.</p> <p>2. That in accordance with the rule laid down by the supreme court in Smetters v. Rainey, the motions of the plaintiff in error must be granted, and the petitions in error dismissed.</p>

This-was an action by Emma Fuhrman against Reed M. Duvall, in which the plaintiff alleged that on or about the 6th day of September, 1878, at the county of Crawford, Ohio, the defendant promised to marry her and she to marry him. That in October of that year he seduced her, and after-wards she had a child by him, and that he subsequently absconded.

In Equity. Error to the Court of Common Pleas of Lucas County. This case was brought by plaintiffs as private owners of real estate abutting on Sixteenth street in the city of Toledo, Ohio, to restrain defendant from maintaining a nuisance in said street (causing special injury to plaintiffs’ property), consisting of houses and fences that he had erected therein, under a claim of title to the part of the street thus occupied.

In his petition the relator alleges that he is a citizen ‘and elector of the city of Columbus; that the defendant is the superintendent of police of said city; that notwithstanding that section eleven of the act passed May 14, 1886 (Ohio L. vol. 83, p. 187), and amended April 14, 1888 (Ohio L. vol. 85, p. 260) provides that the sale of intoxicating liquors on Sunday except by a regular druggist is unlawful, and that all places, except regular drug stores, where such liquors…

<p>I. The county commissioners of Huron county, acting under the two mile assessment act, title VII, chap. 8, Kev. Stats., made an improvement which included in i>art a county road and in part a public ■street of the city of Norwalk. Held: That they had -no authority under said act to make such improvement upon said street.</p> <p>. 2. In making an order for the improvement under sec. 4836 of said chapter, the commissioner must state the lands which shall be assessed for the expense thereof, and a list of the same must be included in . the order to the committee of freeholders appointed under sec. 4842 ■ of said chapter to apportion said expenses upon the real property . embraced in said original order. Held: That the failure of the comí missioners to slate iu such order the lands to bo assessed, was an er-i ror which rendered an assessment made by such committee illegal.</p> <p>.3. It is sufficient if the bond required by section 4831 be signed by one of the petitioners, if he be a responsible freeholder.</p> <p>4. The order appointing the viewers and naming the day of their meeting under said section 4831 may be made at a special session of the -county commissioners; and the report of the viewers may be received by the commissioners during their next regular session after said special session, providing it be after the regular steps have been taken to make the view.</p> <p>5. The oath to the viewers and.apportioning committee may be .administered by the county auditor.</p> <p>6. The contract was let by the engineer after his appointment by the commissioners, but before he gave bond, and the contract was approved by the commissioners . Held, The fact that the engineer had not given bond, did not invalidate an assessment made to pay for the work done under the contract.</p>

<p>Bohemian Oats. — What are known as Bohemian Oats contracts are fraudulent, immoral, and against public policy. The law will aid neither party to enforce them whilst they remain executory, either in whole or in part, nor, when executed, will it aid either party to place himself in statu, quo, by a rescission, but will, in both c^ses, leave the parties where it finds them.</p>

This was an action brought by the State of Ohio against Albert Netter, to recover from him.a sum of money claimed to be due under and by virtue of a contract entered into between him and the Sinking Fund Commissioners of the state, under authority,granted by the a.ct of April 17, 1885.(82 Ohip L. 139). ..... .

Errdr to the Court of Common Pleas of Franklin County. O.n application for an order fixing the amount of a bond suspending execution of an order fining plaintiff in error and committing him for contempt.

<p>1. Where during the trial of a case in the court of common pleas, a., party took an exception to the ruling of the court, but consented that the trial proceed, and that his exceptions might be reduced to writing subsequently, and allowed and signed by the court; and where-within three days after a verdict of a jury, the ^me party filed a motion for a new trial of the case, which was overruled by the court, to which ruling the party then excepted, and the court being then otherwise engaged, he then consented that the exception might subsequently be reduced to writing and allowed by the court, and on the same day the court adjourned sine die, without having signed a bill of exceptions in said case, and no entry was made on the journal of the court that it was to be kept open for the purpose of having placed thereon an allowance of the filing of a bill of exceptions in the case.</p> <p>Held: That the party so excepting, having within 30 days after the end of said term presented a true and correct bill of exceptions to the said rulings of the court, was entitled to have the same signed and allowed by the court, and an entry of said allowance and filing placed upon the journal of said term.</p>

<p>Error to the Court of Common Pleas of Warren County.</p>

<p>1. The act of March 24,1888, entitled “ An act to authorize the Board of County Commissioners of the county of Williams to issue bonds, and to either repair, enlarge and improve the present court house, or to build a new court house in said county,” is a constitutional and valid enactment.</p> <p>2. If, under said act, the county commissioners determine to build a new court house, the cost of which will exceed ten thousand dollars, it is not necessary to submit to a vote of the people the question of the policy of erecting such building. The provisions of the general statute in that respect are inapplicable.</p> <p>3. Nor are the county commissioners limited, in the expenditure necessary to construct a building of the character required by the express terms of the first section of the act, to the amount raised by a sale of the bonds authorized to be issued under the second section thereof.</p>

<p>Error to the Court of Common Pleas of Cuyahoga County.</p>

<p>A member of a beneficial lodge of Odd Fellows claimed that he was entitled to weekly benefits, under their constitution and by-laws, on account of inability to labor in consequence of paralysis; be presented his claim according to the rules of the lodge; it was examined and rejected. He appealed to each of the superior lodges until it reached the Sovereign Grand Lodge of the United States, who remanded the case to the lodge where it was first heard, with instructions to investigate the claim of the said member for benefits. Thereupon this member brought an action at law for his benefits against said lodge. The defendants pleaded the foregoing facts, and further stated that they were willing to investigate the plaintiff’s claim, but that he refused to appear, or furnish evidence, or submit to an examination.</p> <p>Held — That this answer constituted a defense to the action. This case recognizes the rule that where a person goes into a voluntary association, whose laws provide for the trial of his disputes or claims, he must submit them to his own forum, and he is concluded by its decision.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

2. Where suit is brought against an administrator within eighteen months of his appointment, it must appear that the claim has been disputed or rejected. R. S. § 6108; 13 Ohio, 41; 12 Ohio St. 450; 1 C. C. Rep. 554.

<p>Error to the Court of Common Pleas of Clark County.</p>

<p>1. An application to a probate court, under section 5937, Rev. Stats., to admit to record therein, an authenticated copy of a will, alleged to have been executed and proved in another state, according to the laws thereof, and relating to property in Ohio, is ex parte, and not adversary in its character, and the refusal by the court to grant such application, will not operate as a bar to the prosecution and allowance of a second application for the same purpose, on other and different proof.</p> <p>2. The provisions of section 6406, Rev. Stats., were not intended to apply to applications for such purposes. And the fact that persons claiming to have an interest in land affected by said will, voluntarily appear in court, and on their own application are made parties to such a proceeding and resist the record of said will, or are notified by the court in pursuance of such section, does not convert it into an adversary proceeding, so as to make an order of the court refusing to admit the will to record, a bar to a subsequent application for the same purpose.</p>

<p>A suit brought in the court of common pleas under the provisions of section 6352, Rev. Stats., against an assignee for the benefit of creditors, to require him to allow a claim of the plaintiff in the settlement of his trust, may be appealed to the circuit court. It is a civil action— one of which the court of common pleas had original jurisdiction. It was not for the recovery of money only, or of specific real or personal property — the relief sought was of an equitable nature, and neither of the parties was entitled to a trial by a jury.</p>

<p>Appeal from the Court of Common Pleas of Butler County.</p>

<p>1. An order of the court of common pleas, dissolving a temporary injunction, is reviewable on error before the final disposition of the case in said court.</p> <p>2. Where the essential statement s of the petition on which the temporary injunction was obtained, are denied by the answer, and a motion is made to dissolve such injunction, and at the hearing, the only evidence offered by the defendant was its answer, read as an affidavit, and the only evidence offered by the plaintiff was its petition read as an affidavit, the burden of proof to maintain such injunction was on the plaintiff: — and where the court dissolved it on the evidence, the reviewing court will not reverse such judgment unless it clearly appears that the decision was against the weight of the evidence, which does not appear in this case.</p> <p>3. Where a municipal corporation has by ordinance granted to a railroad company, the right to cross certain of the streets and alleys of the city with its railroad tracks, on the express condition that whenever it becomes necessary to open, extend or widen any street or alley which when so opened, extended or widened will cross the tracks, side-tracks or switches of the said company, it shall grant the right-of-way over and across its roads and tracks free of damage and expense to said city, and without the city having to resort to condemnation proceedings to obtain said right-of-way over and across said road, which grant was accepted and agreed to by said company and its road built accordingly, when it is necessary to extend a street of the city across the track of said company, and proceedings are commenced to appropriate laud thereof at the side of its track, such company or its grantee with notice thereof, will be estopped from claiming that such extension can not be made.</p>

<p>1. Where it is agreed that a furnace for a dwelling shall be placed in the house and shall be satisfactory to the defendant, or if he is not suited with it, he need not pay for it and may reject it, it is error to charge “ that if the furnace was built in a workmanlike manner and performed its intended purpose in a manner that it ought to have suited and satisfied the defendant, he had no right to reject it.”</p> <p>2, Evidence of the good character of the furnace may be properly admitted, as bearing on the good faith of the defendant in the rejection, if that is in question. **</p>

A statement of the facts, upon which .the opinion of the court is based, will be found in the brief of the defendant in error, from which… Held: and when he sold and transferred to Cassard fifty shares, Cassard acquired an interest measured by his stock, and a sale and transfer, by Cassard, of his fifty shares of stock, on November 12,1882,. would have vested in his vendee the right to receive the 50-1000 parts of all property distributed while such vendee was the owner of…

In the court of common pleas the executors of the last will of R. M. Shoemaker, deceased, sued for themselves and for other holders of the outstanding income bonds issued by the Dayton & Union Railroad Company, dated December 1,1879, to enjoin the diversion of the income of the defendant to other purposes and to direct its application to the payment of the installments of interest on said income bonds due June 1,1882, December 1, 1882, June 1, 1883, and December 1, 1883.

Harrod, one of the legal representatives of Catharine Carder, deceased, brought an action in the court of common pleas to recover of the defendant, McElwaine, as surviving administrator of said decedent, his distributive share of the estate.

At the June term of this court in the year 188,7, upon appeal of the original action, it was found among other things, that the plaintiff, Samuel D. Bear, held á judgment against the defendant Bookmiller, upon which there was due $150.00 with interest and costs; that said defendant had no property subject to levy for the satisfaction of said judgment; but that at the time of its rendition he was the owner of certain specified real estate, situate in the city of Dayton, which…

In this case, upon the filing of a petition by the administrator of Isaac Wolverton, to sell the real estate of his intestate to pay debts, on June 28, 1888, Elizabeth Wolverton, the widow of Isaac Wolverton, filed an answer asking the allowance of her dower in money, and also representing herself to b.e the mother of two minor children, under fourteen years of age, residing with her; not the owner of a homestead; that the real estate sought to be sold was all the real…

On March 19, 1888, R. D. Marshall was appointed receiver of the Dayton, Ft. Wayne & Chicago R. R., by the Court of Common Pleas of Montgomery County, and by the order appointing him was put in possession of all its rights, franchises, properties, rights-of-way, lands, tracks, depots and fixtures of whatever kind or nature connected with or belonging to said railroad.

<p>Appeal from the Court of Common Pleas of Franklin County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error from the Court of Common Pleas'of Hamilton County.</p>

<p>Where in the territory of a certain road district adjacent to the city of Cincinnati, the authorities of said district had legally established the grade of one of the streets thereof, and said street prior to 1866 had been improved to said grade by paving, setting curbs, and flagging the sidewalks, the cost of which had been assessed against the adjacent property; and said road district was in 1871 legally annexed to said city, one of the provisions of annexation being “ that all grades of streets heretofore established within and by the proper authorities of said village shall be respected; that the same may be altered with the consent of the property holders, or on payment of damages that may be agreed upon, or ascertained by law.” And the city council of Cincinnati, having on the 11th of December, 1874, passed an ordinance for the change of the grade of such street, under which no steps were taken to obtain the eonsént of the adjacent proprietors thereto, or to agree on, or assess the damages resulting to them from such change of grade; or any action taken under the same until 1888, when these proceedings to assess such damages were commenced by the city. Held :</p> <p>1. In such proceeding it was competent for such owners to prove, that before such annexation to the city, the grade of the street in question had been established, and the street improved accordingly, and the cost assessed upon the abutting property.</p> <p>2. That under the circumstances disclosed, the court erred in the instruction given to the jury, that there could be no recovery by any of such land owners, for any damage to any improvement made by them since the passage of the ordinance of 1874, resulting thereto from the change of such grade.</p> <p>3. If the city, after the passage of the ordinance of 1874 took no steps to carry it out, or to obtain the consent of such owners, or to agree on the amount of the damages resulting from such change of grade, or to assess the same by law, until the commencement of these proceedings in 1888, fourteen years thereafter, it was for the jury to determine under appropriate instructions, whether the persons making such improvements had not, under the circumstances of the case, the right to presume that the city had abandoned the plan of changing such grade, and to improve their lots with reference to the existing grade.</p> <p>4. The city has not the right, by the mere passage of an ordinance for the change of a prior existing grade, and without taking the necessary steps within a reasonable time to carry it out, to prevent for an indefinite period the improvement of the adjacent property in conformity with an existing established grade. If such proceedings are not so taken, the city is not absolved from the payment of damages to property improved thereafter with reference to the existing grade.</p>

<p>1. In an action brought to recovera money judgment against the administrator of an estate, the widow of the intestate, or his heirs-at-law, are not necessary or proper parties thereto. And if on the application of the widow she is made a party defendant, and files an answer, setting up defenses to a judgment against the estat&, and on behalf of the administrator testifies to transactions occurring before the death of the intestate, she is not a party to the action in such sense as would entitle the plaintiff to testify to the same transaction, under the third clause of sec. 5142, Kev. Stats.</p> <p>2. To entitle a plaintiff in such case to testify to facts which occurred before the death of such intestate, it must first appear to the court that he comes within some one of the exceptions to the general rule established by said section. And in this case it should have appeared, before the plaintiff was allowed to testify in regard to transactions occurring before the death of the defendants intestate, that his widow had a direct interest in the controversy. And this did sufficiently appear. The widow being by law entitled to'a share of the personal estate of her husba,nd, after the payment of his debts, in the absence of evidence showing the insolvency of the estate, the law will presume that it is solvent, and that she thus has a direct interest therein, and in the action.</p>

On the third of September, 1884, the Columbus Boot & Shoe Company, a corporation, was hopelessly insolvent.

The original action was brought before a justice of the peace, and from the judgment of the justice appealed to the court of common pleas of the county. Held: and that said board had hired plaintiff to teach said school at fifty dollars per month for six months from said September 15, 1884.” An objection was sustained, and said evidence rejected, to which ruling of the court there was an exception.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. Building associations are corporations formed for profit, having a capital stock and the respective powers and duties of the corporation, and its members are to be decided according to the statutes of Ohio relating to such corporations.</p> <p>2. In this case the constitution adopted by the corporation provided for the payment of dues which were to continue until the full amount of the capital was paid in full.</p> <p>Held, these were payments upon stock subscription analogous to such payments in other stock corporations upon capital stock.</p> <p>8. In this ease, the corporation having been mistaken in its basis of business (similar case in 25 Ohio St. 208), by common consent all stopped paying dues, although the stock was not paid in full.</p> <p>Held, that the stoppage being by universal consent, and by all, there was no default thereby.</p> <p>4. That the corporation having gone into liquidation under the statutes of Ohio relating to the dissolution of corporations, there would be no more dues except as assessments should be ordered by the court for the purpose of paying the debts of the corporation and equalizing the stockholders among themselves.</p> <p>5. In these actions, in which the receiver of said corporation seeks to recover upon mortgages given by the members to the corporation, and which were also claimed to be owned by persons claiming by assignment,</p> <p>Meld, that after the proceedings for dissolution were pending under the aot in 64 Ohio L. 153, as amended 72 Ohio L. 138 (now Rev. Stats. 5651-5688), an attempted assignment of a mortgage by the officers of the corporation was void as against the receiver (Rev. Stats. 5661, 64 Ohio L. 153, ? 13.)</p> <p>6. In these cases the obligation of the mortgages were to secure the contract, which was a note with interest at six per cent., payable monthly, followed by stipulations therein recited.</p> <p>Meld, although dues had stopped by general consent, and the corporation was in the hands of the receiver, that without any special assessment by an order by the court, the mortgage continued to draw interest payable monthly, and there being no defense showing that without this interest there were assets sufficient to equalize the stockholder#, the receiver is entitled to recover the accrued interest, for which decree was rendered without prejudice to future action:</p>

<p>The Board of Public Affairs, of Cincinnati, advertised for sealed proposals in a certain form, for the improvement in a specified manner of one of the streets of the city, reserving the right to reject any and all bids. The several bids which were presented contained this express stipulation, “ hereby agreeing that your board has the right to reject any and all bids.” That of the relator, which was in due form, was the lowest bid; but the board, acting under the advice of the city solicitor, rejected the bids, — repealed the ordinance for the improvement of the'street, and passed a new ordinance for its improvement, thereby correcting an error in the first ordinance.</p> <p>Held, 1st. That mandamus will not lie to compel the board to award the contract to the relator at his said bid. That even if the act of the board in rejecting the same was arbitrary or for no good reason (which was not the case), or the advice of the solicitor, on which it acted, was given under a mistake as to the facts in the case, still it had the right to reject the same.</p> <p>2. The ordinance to improve the street, which was the foundation of the proceeding, having been repealed after the rejection of the bids, and a new one for the same purpose having been passed, the board has not now the right, even if it desired to do so, to award the contract to the relator on his old bid.</p>

<p>A court of equity will not interfere to restrain a municipal corporation, its mayor and marshal, from enforcing an ordinance prohibiting the sale of intoxicating liquors within the corporation, upon the ground of the illegality of such¡ordinance, until the right of the complainant is established at law.</p> <p>After such right has been established at law, a court of equity will lend its aid to prevent a multiplicity of prosecutions.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

This was a suit brought to recover upon a life insurance policy issued by the defendant November 17th, 1884, on the life of James McEvoy, for the benefit of plaintiff. The petition avers the issuing of the policy, a copy of which is attached to the petition. That James McEvoy died July 17th, 1887; that due notice thereof was given defendant and payment of the policy demanded, but refused.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The relator seeks to compel defendant, by mandamus, to issue a writ of execution in its favor on a certain judgment it recovered in a civil action in the Pike County Common Pleas, against one George Hays; and sets forth as grounds therefor the following facts: That at the April term A. D. 1888, of said court, it recovered against said George Hays and another, a judgment for 1412.33, and costs of suit; that the judgment is in full force, its collection not enjoined, and no…

<p>Error to the Court of Common Pleas of Franklin County.</p>

This was an action brought by defendant in error upon the following instrument: “Know all men by these presents that we, John B. Smith and Elizabeth J. Smith, of the borough of Bridgewater, in the county of Beaver and State of Pennsylvania, are held and firmly bound unto William Weaver, of Guernsey county, in the State of Ohio, in the sum of two thousand dollars lawful money of the United States, to be paid to the said William Weaver, his certain attorney, executor,…

<p>Grade of Street — Damages to Improved Property,</p> <p>What is a reasonable grade established by a city for a street is a question for the jury to determine from all the evidence in the case ; and while the fact that it was established by proper authority and competent officers is to be considered, yet it is not conclusive as to the character of the grade.</p>

<p>1. AJchattel mortgage, made by a partnership in the firm name, one member of -which resides out of the state and another resides in the state, must be filed with the clerk of the township in which the resident partner lives in order to be valid against creditors of the mortgagor, etc., under sec. 4150 Key. Stat.</p> <p>■ 2. It is not sufficient under sec. 4151, to deposit it with the clerk of the township where the business of the partnership is carried on, unless that township also be the place of residence of the resident partner.</p>

<p>Error to the Court of Common Pleas of Muskingum County.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>1. An assignment or conveyance of property by an insolvent person, in contemplation of insolvency, for the benefit of particular persons, but with a secret trust in favor of the grantor, and one which secures to him a benefit before all of his existing creditors are paid, is as to such creditors fraudulent and void.</p> <p>2. When a conveyance is made to a grantee which is actually or constructively fraudulent as to creditors, and the title thereto is conveyed by him to a bona fide purchaser, the latter takes a good title thereto.'</p> <p>3. Where such bona fide purchaser reconveys the premises to the original grantee, the latter occupies no better position than he originally did, and holds the property subject to the rights of those who were creditors of the fraudulent grantor, at the time of the original conveyance.</p>

<p>The rule in Clayton’s casa “ that where there is a single open current account between the parties, every payment which cannot be shown to have been made in discharge of some particular item, is imputed ta the earliest item standing to the debit of the payer at the time of payment, is applicable, although the firm of which the deceased partner was a member at the time of his death, was insolvent, when the indebtedness accrued, and the insolvency was unknown to-the creditor of the firm.</p>

<p>An injunction will not be granted to restrain tha board of county commissioners from constructing a county ditch — for the reason that a part of the line is oVer and along the line of an established township ditch.</p> <p>A court of equity will not determine the question of benefits accruing to the lands lying along the line of a proposed ditch, in the absence of allegations of collusion or fraud on the part of the board of county commissioners.</p> <p>An injunction will be allowed to restrain the board of county commissioners from further proceeding to construct a county ditch— when it appears that it has by its act — not of record — deprived a landowner of an appeal to the probate court, upon his demand for compensation for land actually appropriated'for the construction of such ditch.</p>

<p>If averments (complained of) in a petition were stricken therefrom, and a cause of action left intact, a(demurrer to the petition cannot be sustained.</p> <p>A pleading that can only be filed upon leave granted by the court, upon the refusal of leave, to preserve the question for a reviewing court, it must be incorporated in a bill of exceptions, otherwise it is no part of the record in the case.</p> <p>Quere: What relation does a party (a stranger to the original note) sustain to a promissory note, when after the execution and delivery of the note for a valuable consideration — he sign the note upon its face underneath the signature of the original maker. Is he a maker, surety or guarantor of payment?</p>

<p>The Auditor of Hamilton County was not authorized by law, to issue, on the certificate of the sheriff of said county, not approved by the Board of County Commissioners thereof, a warrant upon the treasurer for the amount of a bill claimed to be due for ballot boxes furnished by such sheriff under the provisions of sec. 2928, Rev. Stats. And a mandamus will not be issued against the treasurer at the instance of the holder of such warrant, requiring him to pay the same, on his refusal to do so.</p>

<p>Error to the Court of Common Pleas of Crawford County.</p>

<p>1. In an action against a municipal corporation, to recover for injuries sustained by the plaintiff by reason of his horse shying, and precipitating the buggy in which he was riding down a steep hill at the side of a street, at a point where part of a fence erected by the defendant was down; and wherein the issues involved the dangerous character of the place for want of a suitable barrier, the duty of the defendant to erect and maintain such barrier, the condition of such fence, and the knowledge thereof by the defendant, evidence that the defendant repaired such fence, at the point in question, soon after the accident to the plaintiff, is competent as tending to prove an admission by the defendant that it was its duty to keep and maintain a barrier at that place.</p> <p>2. Testimony that other vehicles and persons had been precipitated down the hill, at the point in question, at other and prior times, and when the fence was in the same condition substantially as when the accident to the plaintiff occurred, is, in such case, admissible to prove the dangerous character of the place for want of such barrier, and knowledge thereof by the defendant; but not to prove negligence on part of the defendant, nor care and prudence on part of the plaintiff.</p> <p>3. Such testimony of prior accidents is not rendered inadmissible as proof of notice to the defendant of the defect in the fence, because other evidence in the case would prove the same fact, if not rebutted by the defendant.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>