Volume 30 — Ohio State Reports, New Series

Reserved in the district court. The original action in this case was heretofore brought by plaintiff’ in error before the supreme court for review, and is fully reported in 20 Ohio St. 234. The facts of the case, as then presented, were as follows : The original action was brought in the court of common pleas by Frederick 13.

The original action was brought by defendant in error against plaintiffs in error, and came into the district court by appeal from the decree rendered therein by-the court of common pleas.

Dickey sued the Cincinnati, Hamilton and Dayton Railroad Company for a bill of car lumber. He alleged in his-petition, that there was due to him, from the company,. $337.30, for lumber sold and delivered by him to the company, at its request. He attached to his petition, as part-thereof, a bill of lumber, showing the number of pieces, size,, length, and price of the lumber sued for.

Lucius P. Marsh brought his action in the Court of Common Pleas of Morgan county against “ Hiram L. Jones, Ezra E. Evans, and James K. Jones, partners, under the name of Evans & Jones, defendants,” to recover for money had and received by them to his use, which they refused to pay. Summons was duly issued and served on Hiram L. and James K. Jones, but was returned “not. found” as to Evans.

<p>1. Where a senior mortgagee forecloses his mortgage without making a junior mortgagee of the same premises a party to his action for the foreclosure, the rights of the junior mortgagee remain unaffected and are not prejudiced by such foreclosure.</p> <p>2. It is the right of a mortgagee, as against his mortgagor, to foreclose the mortgage; but under the statute, he can foreclose only by a sale of the mortgaged premises; a junior mortgagee may therefore maintain an action for the foreclosure of his mortgage against those having an interest in the premises, to subject the same to the payments of the liens thereon, without having first paid off the prior mortgage.</p> <p>3. Where the prior incumbrancer is in possession of the premises, objecting to the sale thereof, and there is not more than enough realized from the sale at the suit of the junior incumbrancer, to satisfy the prior incumbrance, the holder of the prior incumbrance should, as a general rule, recover his costs in the action from the party bringing the same.</p>

<p>1. Jurors must have the qualifications of electors, and when a person not having such qualifications is retained on the panel, without the knowledge-of the party or his counsel, after reasonable diligence and due inquiry of the juror, at the time he is impaneled, to ascertain the fact of his competency, a new trial should be awarded.</p> <p>2. When a party at the time the juror is impaneled fails to make any inquiry of the juror as to his competency, he, by such omission, waives all objection to the competency of such juror that could have been ascertained by such inquiry, except such as the court is required to ascertain sua sponte.</p> <p>3. In order to take a case out of this general rule, it is not enough, on a motion for a new trial based on the alleged incompeteney of the juror arising; from his minority, simply to show that the juror was a married man; was doing business for himself; had the appearance of being twenty-one years old; that the party was ignorant of his minority, and believed the juror at the time he was impaneled to be competent.</p> <p>4. To allow a person to sit as a juror, incompetent as such because he is not an elector, who was not interrogated as to his competency when impaneled as a juror, and whose ineligibility was unknown to the court until advised of such fact on a motion for a new trial, is not such irregularity on the part of the court as will entitle the party to a new trial, when the officer calling him into the panel was guilty of no misconduct.</p>

<p>A board of education is not liable in its corporate capacity for damages for an injury resulting to a pupil while attending a common school, from its negligence in the discharge of its official duty in the erection and maintenance of a common school building under its charge, in the absence of a statute creating a liability.</p>

<p>1. In an action to recover damages for cutting and carrying away timber from a certain described tract of land, two defenses were filed: 1. A general denial. 2. An equitable defense and cross-petition, in substance that the plaintiff had sold this land to defendant and undertaken to convey the same, but, by mistake, the deed did not describe the tract but another. The prayer was for the correction of the mistake, and for a proper conveyance. Issue was joined on this answer, which was tried by the court (the issue made by the first defense being left undisposed of, without objection), and the equitable relief prayed for was granted, and the plaintiff appealed to the district court: Held, 1. That the issue on this second defense was purely equitable, and one to be tried by the court, and not by a jury; that, on being determined in favor of the defendant, it constituted a bar to plaintiff’s cause of action.</p> <p>2. That it was proper for the court to dispose of this equitable defense before trying .the case on the issue of law made by the first defense, and that final judgment against the plaintiff having been rendered on such equitable defense alone, the plaintiff was entitled to an appeal from such judgment.</p>

<p>1. Where, m a civil action, before a justice of the peace, the return of the constable fails to show legal service of the writ of summons on the defendant, but such defendant, before the trial of the action, files with the justice a bill of particulars of his set-off in the action, this constitutes a voluntary appearance, and confers on the justice jurisdiction of the person of defendant.</p> <p>'2. Upon petition in error to reverse the judgment rendered in such action against the defendant, for want of jurisdiction of his person, such voluntary appearance can only be shown by a transcript of the proceedings and judgment from the justice’s docket. The record can not be aided or varied by parol evidence.</p> <p>3. Where defendant in error, by way of answer to the petition, alleges such voluntary appearance, and avers that the transcript upon which plaintiff has assigned error is imperfect and defective in failing to show the filing of such bill of particulars, such averments may be regarded as a ' suggestion of diminution of record, and would authorize the court to order the justice to furnish a complete and perfect transcript of the proceedings and judgment before him in the action.</p> <p>.4. Where, without such order, or compulsory process, the justice, during the pendency of the proceedings in error, furnishes a complete and perfect transcript of the proceedings had before him in the action, duly certified to be a true copy from his docket, and upon the hearing of the petition in error, such transcript is prdduced by the defendant, and submitted to the court without objection on the part of the plaintiff, the case may properly be heard upon such amended transcriot and determined accordingly. "</p>

Error reserved in the District Court of Holmes county. Certain citizens of Holmes county, under the act of April 12, 1811, petitioned the commissioners of the county “ to-locate, establish, and construct a water-course for the purpose of straightening and removing obstructions from the-channel of Xillbuek creek.” Robert J. Cameron and others, the plaintiffs, resisted the establishment and construction of the proposed ditch or-water-course; hut such proceedings were had that…

. Indictment for murder in the second degree. The plaintiff in error was arraigned, and plead not guilty to the charge. Afterward, at the June term, 1873, on his application and on good cause shown, the case was continued until the ' next term, at his costs, and a formal judgment was then rendered against him for the same, and execution ordered to collect the same.

The petition avers tbe plaintiffs are the legal trustees of Burton township, in Geauga county.

The plaintiff’s petition contained two causes of action,, on which the issues and points of law and fact were the-same on the trial. A statement of the first, and the action of the court thereon, will answer as a statement of the second. It was an action to recover a judgment on a transcript of what purported to be the record of a judgment in favor of the plaintiff and against the defendants, in the Court of Common Pleas of Bedford county, in the-State of Pennsylvania.

Upon the 26th of December, 1852, R. D. Atwater made his last will and testament, the first and second items of which are as follows; “Item first. — Believing it to be my duty as a kind and .affectionate son to provide for the comfortable maintenance and support of my parents in their declining age, I do hereby set apart out of my estate the sum of five thousand dollars as a trust fund, the proceeds of which are to be applied for the purpose named, to. wit, the support of my…

Defendant’s intestate, Kobl, brought Ms action against the plaintiff in error, Ralston, in the court below, where he filed the following petition: * “ The plaintiff states that there is justly due to him from the defendant, the sum of one hundred and ninety-seven dollars ($197.) with interest from the 24th day of May, 1870, at the rate of six per cent, per annum, on a balance of account (a copy of which is hereto annexed) for services rendered as auctioneer, and for money…

Exceptions of the prosecuting attorney to the decision -of the Court of Common Pleas of Preble county. The case is sufficiently stated in the opinion.

The original action was brought by defendant in error against plaintiff in error, to recover damages for a personal injury, and an injury to his horse and wagon, caused by the horse taking fright at an approaching locomotive, belonging to plaintiff’ in error, at a street crossing in the city of Youngstown, Mahoning county. The locomotive at the time in question was on the track of the Atlantic and Oreat Western Railroad Company, and had been using a' turn-table of that road.

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

A summary of the facts is this: Harriet E. Christy, defendant in error, was seduced by Isaac H. Lanning. She ■procured the arrest of Lanning, upon a charge of bastardy; whereupon the complaint was compromised, Isaac H. Lanning and Reuben Lanning, plaintiff in error, giving five promissory notes in settlement. Isaac Ii. Lanning was also indicted for the seduction.

The case is a controversy submitted, without action, on an agreed statement, under the provisions of section 495 of the code of. civil procedure. The petition, which is the only pleading, is signed by both parties, and is as follows : “Court oe Common Pleas, Perry County, Ohio. “ The Corn’rs of Perry County, Ohio, Plaintiffs, 1 v. I “ The Newark, Somerset, & Straitsville R. R. Co., Defts.

The plaintiff iu error was the original plaintiff in the •court below It filed a petition in the ordinary form, under the code, against Weyand & Jung, as makers, and Geo.

The original action was commenced in the court of common pleas by defendants in error against plaintiff in error, to recover judgment in the sum of five thousand dollars, as compensation for damages claimed to have resulted to two certain lots owned by them and described in their petition, in consequence of improvements made by plaintiff in error upon Wood and Liberty streets, in front of said, lots.

Appeal. Reserved in the District Court of Hamilton, county. The plaintiff averred in his petition, among other facts:. First. That he is the holder of a note executed by one E. Earl, to the order of A. K. MeMurrey; that said note is indorsed by A. K. MeMurrey, by Frederick Straehle, and-by Rosine Straehle. Second. That said note was duly presented for payment; duly protested; notice duly given to said Rosine Straehle of its non-payment on the same evening. Third.

<p>1. Although an action can not be maintained upon a verbal contract not to be performed within one year, yet when such contract has been fully performed by one party, the other having obtained its benefits, he can not refuse to pay the reasonable value thereof.</p> <p>2. T. agreed to work until coming of age, a period of six years or more, for M. Having performed the contract, T. may maintain an action quantum meruit for his services.</p> <p>3. In order to obtain the benefit of the statute of limitations, a defendant must insist on it as a bar- in his answer. If instead of so doing he simply denies the allegations of the petition, he can not, upon the trial, also insist upon the bar of the statute.</p>

<p>1. In a proceeding at the suit of sundry mortgagees to foreclose their respective mortgages, it appeared that the wife of the mortgagor had united with her husband in the execution of only one of the mortgages, in which she had released her contingent right of dower. At the instance of the mortgagee holding such release the wife was made a party, and the premises were sold, pursuant to an order, free from her contingent claim to dower; SeM,,that the mortgagee, holding such release, is entitled, on distribution, to receive the proportionate value of such inchoate right of dower, though the net proceeds of the sale are insufficient to satisfy the prior mortgages.</p> <p>2. Where, in marshaling liens, the court awards to a portion of a claim secured by mortgage, priority over a subsequent mortgage, but finds that the residue of the claim secured by the prior mortgage is fraudulent and void, as against the lien of the subsequent mortgage, the partial preference thus given to the elder lien is not necessarily erroneous. Where no positive illegality enters into the consideration of a claim, it may be valid in part, and in part invalid.</p>

<p>1. A reviewing court, on error, will not regard any matter purporting to be part of the record which is not a proper matter of record.</p> <p>2. Therefore, exhibits and affidavits, given in evidence on the hearing of a motion, which are not legitimately part of the record, can not be considered by a reviewing court on error to the decision of the motion, though they may have been recorded by the clerk as part of the case, unless they are properly brought upon the record by bill of exceptions.</p> <p>3. Where a motion to retax costs was overruled, and the record does not show that the costs complained of were taxed to thd party complaining. and no bill of exceptions was taken to properly bring upon the record the evidence upon which the motion was overruled, it is not error for a reviewing court to affirm the judgment of the court below overruling the motion.</p>

<p>S., residing in Indiana, received frora'W., a commission merchant of Cincinnati, $6,000, advanced on account of pork, to be thereafter cut and sbipped by S. for sale on commission. In pursuance of the contract S. shipped by rail a car load of the pork, consigned to W. at Cincinnati, to whom he also sent an invoice of the shipment with a letter of advice stating: “We deliver this load on our indebtedness.” The value of the shipment was less than the amount of such indebtedness. The bill of lading was taken by S. in his own name, and was not forwarded to the consignee. Held — Under these circumstances the delivery of the pork by S. to the carrier was equivalent to a delivery to the consignee, and that after such delivery S. retained no such interest in the pork as could be subjected to attachment at the suit of a creditor.</p>

<p>1. Where a ditch was established, and by the county commissioners ordered to be constructed by the land-owner, under'the provisions of the act of 1861 (S. & S. 313), but was by him so imperfectly constructed that it failed to perform the service for which it was established, the board of county commissioners have the authority, under the act of 1868 (S. & S. 318), on petition for that purpose, to order such ditch to be deepened and widened in such part thereof as was not originally constructed in accordance with the order made for its construction.</p> <p>2. Where it is assigned for error that the court below erred in dissolving an injunction, and dismissing the petition at plaintiff’s costs, upon the proofs, and the record shows a conflict of testimony on the merits, the .judgment will not be reversed unless it appears that the judgment was against the weight of the evidence.</p>

<p>The plaintiff took a seat in a railroad car, to be carried to the next station on defendant’s road, but not having the usual fare for that point, twenty-five cents, handed the conductor a five dollar bill, out of which to take the fare. Being unable to change the bill or to get it changed on the train, he promised plaintiff to get it changed when they arrived at the next station, and to return the balance, after deducting the fare, to whicl} plaintiff assented. On arriving there, the plaintiff being at the end of his journey, left the train, but waited on the platform while the train remained, some twenty or thirty minutes, expecting the conductor to return him his money, but did not demand it, because he thought the conductor was busy, but seeing the train starting, and the conductor, who had forgotten or neglected his promise, get aboard as it moved away, he ran some distance beyond the platform and climbed upon the car as it was moving off' with increasing speed, for the sole purpose of getting his money. The conductor, on demand for his change, handed him back the same bill, and, as plaintiff claims, told him to get off the train as quick as possible, and immediately he jumped from the train, voluntarily and without compulsion, while it was running at the rate of four or five miles per hour, and at a place not intended for passengers to alight. It did not appear that the remark of the conductor caused, plaintiff to act differently from what he otherwise would have done, nor that he requested that the train be stopped or slacked up to enable ■ him to get off in safety, Held:</p> <p>I. That when the plaintiff got upon the train after it had moved away from the station, for the exclusive purpose of getting from the conductor the money due him, and when he jumped off at a point beyond, not suitable for, nor intended for pas'sengers to alight, the relation of passenger and carrier did not subsist between him and the railroad company.</p> <p>2. That at the time he jumped from the train and was injured, the duties and obligations of the company toward the plaintiff were such as existed in his favor, as one of the general public, growing out of the failure of the conductor to return him his money.</p> <p>3. The failure of the conductor to return him his money before leaving tlie station, did not exempt him from the exercise of proper care and prudence in attempting to get on and off the train while in motion, and acting under no compulsion.</p> <p>4. Under the circumstances of this case, it was a question of fact for the jury, under proper instructions, to determine whether this defendant was guilty of negligence, and also whether plaintiff was guilty of such contributory negligence as would prevent a recovery for an injury caused by jumping off the train, under the circumstances and in the manner he did.</p> <p>5. The evidence tending to show that at the time the conductor handed plaintiff the bill, he told him to get off the train as quick as possible, • without attempting to stop the train for that purpose, and that the plaintiff in jumping off, acted voluntarily and without compulsion, was competent to be considered by the jury, as affecting the question of the plaintiff’s contributory negligence, as well as defendant’s negligence in the premises.</p> <p>6. It was the province of the jury to determine both the nature and effect of this remark of the conductor; whether it was intended and understood as an order to leave the train, or was by way of advice in furtherance of plaintiff’s intention, and also whether snch remark affected the action of the plaintiff, and caused him to act differently from what he otherwise would have done.</p> <p>1. It was error for the court to charge the jury that if the conductor ordered or directed the plaintiff-to' get off the train, or told him to get off as quick as he could, while the same was moving, without stopping it or slacking its speed, then the defendant would be liable for injuries resulting from jumping off, provided in so jumping he exercised due care and prudence '• 1st. Because such charge assumed as a matter of law for the court and not of fact for the jury, that such an order, or direction, or-remark, caused the plaintiff to leap from the train when in motion; 2d. Because it took from the jury not only the question of liability of the defendant, but also the question of contributing negligence of the plaintiff as to the act of jumping off, and, as matter of law, made the company liable for all the consequences, however hazardous and imprudent the act may have been, although he may have acted voluntarily, if the mode and manner of jumping was prudent.</p> <p>8. If the conductor ordered or directed the plaintiff to got off the train while it was in motion, at a place where it was not prudent to make the attempt, such order or direction, without compulsion, did not warrant the plaintff to do a hazardous or imprudent act, and impute the consequences to the company. Whether the act was an imprudent one, amounting to contributory negligence, was for the jury to determine, in view of all tbe circumstances of the case, tbe remark of tbe conductor and its effect on tbe mind of the plaintiff included.</p> <p>9. Where the court in its general charge to the jury correctly states the general principles applicable to cases of the kind on trial, but follows it by an erroneous specific instruction on a controlling point, as to tbe legal effect of tbe case made by tbe evidence before tbe jui-j', which if followed, misleads the jury, such erroneous specific charge is not eured by the general charge.</p>

<p>A policy of life insurance contained the usual cause of forfeiture for nonpayment of premiums. Departing from the strict rules of the company, a duly authorized agent had allowed the cash part of the premium to-be paid one-half cash, the other half by a short note. Upon the 6th of July, 1867, the day the premium was due, the agent received the check of assured for the half cash due, and a six months note, giving the renewal receipt for a j’ear. The note contained the clause “ if not paid at maturity said policy is to be null and void.” Neither check nor note-was paid — Held:</p> <p>1. The mere fact that the note was not paid at maturity, did not of itself avoid the policy. It gave the insurance company the option of declaring a. forfeiture, but this option must be asserted by clear and unequivocal acts. The clause of forfeiture, being inserted in the note for the benefit of the company, may be waived by failure to act, or other circumstances ■ evincing an intention not to claim the benefit of the stipulation. Whether the company has exercised such option, or waived their-rights, is a question of fact for the jury, under all the circumstances of the case.</p> <p>2. The assured is entitled to a renewal, upon tendering at the proper time, ' the proper amount of premium due. This amount does not include-interest on premium notes previously given, where the policy does noj, provide for its forfeiture by reason of non-payment of such interest.</p>

<p>1. It is a well settled proposition, that subsequently acquired lands pass under a grant, with warranty.</p> <p>2. If parties have taken possession of land and occupied for a series of years under a deed containing an erroneous description, the mistake, as against the grantor and his representatives, will be corrected, where the evidence clearly shows such mistake.</p>

<p>Error to tbe Court of Common Pleas of Lorain county.</p> <p>At tbe April term, 1873, of tbe Court of Common Pleas ■of Lorain county, "William Bainbridge, Jr., was indicted for delivering to a certain cbeese factory, milk to be manufactured into cbeese, from wbicb cream bad been taken, witb intent to defraud. Tbe indictment contained three counts : tbe first charging tbe offense to' have occurred on ■July 15, 1872, tbe second on August 1, 1872, and tbe third on August 15, 1872. Bainbridge demurred to tbe indictment ; tbe demurrer was overruled, and be excepted. Thereupon be plead in bar to tbe indictment that, at the January term, 1873, of the same court, he was indicted for the same offense which was therein alleged to have occurred on September 1, 1872, and was acquitted by a verdict of a jury and judgment of the court. To this plea the-state replied, denying that there is any record of such acquittal of the crimes set forth in the indictment to which the plea is pleaded. Upon this plea in bar the case was tried to a jury, which returned a verdict that the plea was not true. Thereupon Bainbridge filed his motion for a new trial, because the court permitted testimony, objected to by him, to go to the jury, and because the court erred in the charge to the jury. The motion was overruled, and judgment was entered upon the verdict. Thereupon Bainbridge excepted and took a bill of exception, showing that on the trial of the plea in bar he gave in evidence the record of the court of common pleas of the indictment and proceedings thereon at the January term, 1873, substantially as stated in the plea in bar; and that he gave evidence-that he was the same person tried on that indictment; that the state proved that he took skimmed milk to the factory at various times from the 26th day of June, 1872, to'the-early part of the following September. And the state proved that, on motion of the attorney for Bainbridge, the-court on that trial required the prosecuting attorney to elect on which transaction he would ask a verdict, and that he elected a certain transaction occurring subsequent to-September 1, 1872. To the admission of all evidence in regard to the court requiring the state to elect on which transaction it would rely for a verdict, the attorney for Bainbridge excepted. „</p> <p>The court charged the jury as follows : “ The indictment now pending against the defendant charges him with three distinct offenses, and that, it being conceded that the former-indictment charged but one offense, the former acquittal and judgment could operate to bar the right to try the-defendant upon one count only of the present indictment. If the state on the former trial was required by the court to elect upon which of several transactions adduced in> proof it relied for a conviction of the defendant in that case, and did so elect, and the defendant was acquitted on-such charge, such acquittal will bar all subsequent prosecutions upon or of the same offense, hut would only bar a prosecution of the same charge or offense as the one elected in the former action. The fact that on the former prosecution evidence was given that the defendant knowingly caused skimmed milk to be carried to said factory on -several occasions, and an acquittal on that trial will not have-the effect to create a bar to the prosecution of such transactions, in a case where the state was required to elect one of the same, and did so elect, and was confined to such elected carrying or transaction. The accused was placed in jeopardy only on the charge elected. If the indictment here charges the same offense as th e one he was in fact tried on before, his former acquittal is, and should be treated by you, as a complete bar to such charge or offense. Each distinct and independent carrying of skimmed milk to the factory, knowing it to be skimmed milk, to be manufactured into cheese, is an offense against the statute. To find in defendant’s favor on the plea in bar, as to either count, it must appear from the evidence that the offense charged in the indictment, on which the defendant was acquitted, is the identical offense charged in such count of the present indictment. If the evidence satisfies you that the elected transaction, if the state elected, is one for which the defendant is indicted by either count of the present indictment, you will sustain his plea in bar to that count, and' find for the state on the other two. If said plea is not sustained by sufficient evidence as "to either count, you will find in favor of the state as to all the counts.”</p> <p>The defendant then requested the court to give the-following instructions to the jury, to wit: “ 1. If the jury find that the defendant could have been convicted on the former indictment, the record of which indictment, together with the record of the trial and acquittal of the defendant under said indictment has been given in evidence, then the same is a bar to. this transaction-</p> <p>2. To sustain tbe plea of tbe defendant in this ease of bis former acquittal, it must appear, and tbe jury must ■find, that tbe prisoner could have been convicted on tbe first indictment of tbe offense charged in this indictment; •and if tbe jury do so find, then tbe plea must be sustained.</p> <p>3. If the jury find that on tbe trial of tbe former indictment, evidence was given of several independent transactions, or of different times on which defendant skimmed .and took such milk to tbe factory, and tbe prosecuting attorney was allowed or required to elect as to which of tbe ■■several transactions be would proceed or ask a conviction, .and did so elect one particular transaction, and upon that trial the defendant was acquitted, then such acquittal was and is a bar to tbe offense charged in tbis indictment of tbe offenses of which evidence was given on tbe former “trial.” Each of these instructions tbe court refused to give; and to which refusal, as well-as to tbe charge as given, the defendant excepted.</p> <p>Afterward, at tbe October term, 1873, Bainbridge pleaded not guilty to tbe second indictment, and was tried to a jury, which returned a verdict of guilty on tbe third count, and not guilty on tbe first and second counts. A motion for a new trial was overruled, and judgment was rendered on tbe verdict. A bill of exceptions was taken by Bainbridge, from which it appears that tbe state, to sustain the prosecution, gave evidence tending to prove' that, from tbe last of June to tbe 10th of September, 1872, tbe defendant daily carried milk to tbe cheese factory knowing it to be skimmed. Tbe delivery of such milk ■on other days than those ‘mentioned in tbe indictment was given only for the purpose of showing the defendant’s knowledge that tbe milk delivered on the days, named in the indictment was skimmed. To all tbis evidence the defendant objected; but tbe court admitted tbe evidence, subject to exception. The state proved that there were forty patrons of the factory where the milk was delivered, and evidence tending to prove that tbe defendant admitted that be carried skimmed milk to be delivered to tbe factory from about tbe lOtb of July to tbe 10th of September,. 1872, knowing it to be skimmed, and that it was contrary to law so to do; and that he was willing to satisfy the patrons of the factory the trifling injury he had done them.. To the admission of this evidence the defendant excepted. Whereupon the court, on motion of the defendant, required the state to elect the specific 'transactions of delivering milk, upon which on each count of the indictmfent a conviction would be asked. Thereupon the state did elect and was confined to such election, which was, as to the-first two counts in July, and as to the third, the 9th of August, 1872.</p> <p>The defendant, on his part, testified, denying the truth of the evidence given on the part of the state. He offered to prove that during the time he was delivering milk to-the factory, there was no copy of the statute posted up in the factory, as required by law; which evidence was rejected by the court, and the defendant excepted. The defendant then offered to prove that for the delivery' of-skimmed milk after the 1st of September, 1872, proved by the state, he had been indicted, tried, and acquitted; but the court rejected the evidence, and the defendant excepted.</p> <p>The accused, after verdict, moved for a new trial on the-ground of alleged erroneous rulings aforesaid, and for misconduct of the jury, which consisted in the separation of the jury after they had agreed upon a verdict, reduced the same to writing, and sealed it up. This was done after' the adjournment of the court at night, and they convened on the opening of the court in the morning and returned their verdict to the court. All this was done by the jury in accordance with and under the direction of the court. The court overruled the motion, and exceptions were duly taken.</p> <p>Upon these various rulings of the court, claimed by the-plaintiff in error to be erroneous, he seeks a reversal, of' the judgment rendered against him.</p>

<p>1. There maybe several and distinct tenements in the same building, under the same roof, as well where one is oner the other, as where one is beside the other.</p> <p>2. When, in consideration of a gross sum in advance, an estate for years, renewable forever, is granted in realty, it is real and not personal property, within the meaning of the tax laws of Ohio.</p> <p>3. Where such an estate is granted in the second siory of a building, by the owner of the fee, who is under perpetual covenant to rebuild, in case of fire or other casualty, with the same rights to the lessee in the new building as in the old, the interest and estate of the lessee is taxable in his name, when, by the terms of the lease, such was the intention of the parties. „</p> <p>4. Whether there is such an estate in specified apartments of a building, which amounts to an interest in the realty, and whether, in such a case, the lessee should pay the taxes on such part of the whole, is to be determined by the terms of the lease.</p> <p>5. If there is, it is the duty of the auditor, upon proper application, to ascertain the comparative value of such part, having reference to the character of the lease and to the value of the whole as assessed for taxation, and transfer the same into the name of the owner on the duplicate for taxation.</p>

<p>A testator had originally five brothers and sisters, one of whom had died thirty years before the date of the will, leaving children who were still in full life. The other four were living, and three of them had children also living at the date of the will, which was made a day or two before the death of the testator’, and with full knowledge of these facts. The testator left a widow surviving him, but no children. By his will he directed that a certain farm should be rented and managed by his executors till his debts should be fully paid; after which he gave and devised to his wife the use of the farm with its appurtenances during her natural life. Then follows the fifth item of the will, in these words: “ Fifth — I devise that my executors, or the survivor of them, after the decease of my said wife, shall sell said last mentioned farm, either at public or private sale, and that the proceeds thereof be divided equally between my brothers and sisters and their heirs — the children of any that may be dead to have the shares of their deceased parents” — Held:</p> <p>1. The fifth item of the will is to be understood as a direction that after the death of testator’s wife, the farm should be sold and the proceeds of sale bo divided equally between such of his brothers and sisters as might then be living, and the issue or lineal descendants of such brothers and sisters as might then be dead; such issue to take per stirpes and not per capita.</p> <p>2. The. gift implied in the direction to divide the proceeds between the designated parties, is a gift of personalty; but as the fund could not be raised till the death of the widow, and was to be divided between persons then living, the interest of the legatees therein remained contingent till that time.</p> <p>S. The word “heirs,” in this item, was not used in a technical sense. The testator did not intend that the share of any presumptive legatee dying before the widow, should bo paid to his or her administrator or other personal representative; but that the children of any deceased parent who, if living at the death of the widow, would have been a legatee, should have the share of such deceased parent.</p>

<p>1. Securities received by a sheriff, on a sale of lands under proceedings in partition for deferred payments, are trust funds belonging to the parties in interest in lieu of the land sold, and the sheriff is not authorized, in virtue of his office, to receive the money secured thereby and give acquittances that will operate to release the purchaser from liability. -</p> <p>2. Proceedings in partition, resulting in a sale of the land, charge the purchaser with notice, that the securities taken by the sheriff from the purchaser for the deferred payments are trust funds, and the purchaser is required to see that the purchase money is properly applied.</p> <p>8. When the order confirming such sale directs the sheriff to take a note secured by mortgage for the deferred payment of the purchase money, but is silent in whose name such note and mortgage are to be taken. Held: The sheriff should follow the direction of the statute, and, when there are several parties in interest, take a note in the name of each party in interest, for such party’s share of the deferred payment, and' take a mortgage in the name of the parties to secure the several notes, cause the mortgage to be recorded, and distribute the notes to the beneficiaries.</p>

<p>1. A material allegation of fact in a petition may be specifically denied in, tbe answer; to strike such specific denial from the answer is error.</p> <p>2. A general demurrer to an answer for want of facts sufficient to constitute a valid defense, will not be sustained when the facts in the-answer, if well stated, would constitute a sufficient defense. It is the office of a motion, and not of a demurrer, to make a pleading more-definite and certain.</p> <p>3. Where an answer is constituted of several numbered paragraphs, a general demurrer to each paragraph is not well taken where the-answer, as a whole, shows a valid defense to the cause of action.</p> <p>4. In an action on an administrator’s bond, assigning as a sole breach of the-bond, unfaithful administration in this, that the administrator has negleeted and failed, on demand of payment of their claim, to bring lands belonging to the estate of decedent into market to raise money to pay plaintiff's claim against the estate, it is a valid defense, that plaintiffs have in their possession, as surviving partners of decedent, applicable to the payment of their claim, assets of the late Arm, the one-third part of which is due the decedent, and sufficient in amount to liquidate the claim of plaintiff.</p>

<p>1. The owner of a boat holding a time policy thereon, having several months to run, the amount of which had been impaired by a partial but uñadjusted loss, desiring' to have bis insurance restored to the original amount with increased time and privileges, proposed to the underwriters to cancel the old policy and issue a new one for the former amount, with longer time and additional privileges, and requesting them to send new policy, and offering to remit the increased premium arising from these changes:</p> <p>Held, That this was a proposition to continue the insurance with modifications of the existing policy, and must be accepted or rejected as an entirely. It did not authorize the insurers to cancel existing insurance and credit unearned premiums on outstanding premium notes without the assent of the insured.</p> <p>'.2. Where the contract of insurance on a steamboat stipulates for its continuance for one year, “unless it is terminated or made void by conditions thereinafter expressed,” and contains a “ permission to navigate the Ohio and Mississippi rivers below Cairo,” but contains no condition expressly avoiding the policy for navigating the boat outside of the permitted waters, and the boat made a trip outside of these permitted waters and returned in safety where she was afterward destroyed by fire, in no way caused or contributed to by such departure: Held, That the only effect of such deviation was to relieve the insurer from any loss happening outside of the permitted waters, and that said policy was not avoided thereby, and that after a temporary departure and return in safety to the permitted waters, the insurers are liable for a subsequent loss covered by the policy, not caused or contributed to by such deviation.</p>

<p>1. In an action by a mortgagee against a mortgagor, to reform and correct a mistake in a recorded mortgage, which had but one attesting witness, a summons was duly issued directed to the sheriff, who, without writing indorsed thereon, as required by section 61 of the civil code, appointed one O. to serve the same, who served the same as required by law and verified his return which was indorsed on the writ: Held, That such service and return by C. without being duly authorized by an appointment in writing, indorsed on the writ is not such a service as will charge third persons with notice of the pendency of an action as provided in section 78 of the civil code.</p> <p>"2. Under section 137 of the civil code, an amendment of such defective service and return can not be made, after final judgment, b3r the sheriff, on leave of the court on his motion, by then indorsing on the original writ that at the date of the summons he had verbally appointed O. to serve said writ, to the prejudice of rights acquired by third persons after the petition was filed and before such amendment of the return.</p>

<p>-Section 11 of the patent law, 1836, provides as follows:</p> <p>w Seo. 11. And be it further enacted, That every patent shall he assignable in law, either as to the whole interest or any undivided part thereof, by an instrument in writing, which assignment, and also every grant and conveyance of the exclusive right under any patent to make and use, and to grant to others to make and use, the thing patented, within and throughout any specified part or portion of the United States, shall he recorded in the Patent Office within three months from the execution thereof.”</p> <p> Held: </p> <p>1. The interest, to the transfer of which, writing is necessary, under this section, is an interest in the legal title of the patent. An equitable interest, or an interest in the proceeds resulting from sales of the patent, with a right to an account, need not be in writing.</p> <p>.2. Bjr contract between B. and L., B. became equitably entitled to one-half the beneficial interest in a patent right, L. holding the said patent as trustee for B., to the extent of one-half. B.’s interest was thus created.. Before L. had completed his invention, B. was to exercise his skill as a machinist, in reducing the said invention to working capability, in testing and demonstrating its practicability, usefulness, and value, and after the issue of the patent, was to aid him in making the thing patented as salable and profitable as possible. In consideration thereof, the defendant agreed to hold the right and title to be acquired upon and by the issue of said patent, in trust for the joint and equal benefit of the plaintiff and himself, who were in equity to he tenants in common of the said patent right. It is not necessary that such a contract should be in writing.</p> <p>3. Such contract is not within the statute of.frauds, as being “an agreement that is not to be performed within the space of one year from the making thereof.”</p> <p>4. Although the parties may be longer than a year in the performance of a contract, still, if that performance may be completed within a year, and such performance is entirely in accordance with the intention and understanding of the parties, such contract is not within the statute, and need not be in writing, in order to maintain an action upon it.</p> <p>5. Although a cause of action may relate to the subject-matter of a patent right, it is within the jurisdiction of state courts, if it does not involve the validity of the patent right.</p>

<p>I. In a suit brought to recover of the defendant, on his liability as husband, the principal and interest due on a promissory note made by his wife before marriage, the cause of action is substantially different from that of an action brought on a special contract whereby the defendant promised to pay a part of the sum appearing to be due on such note, provided the plaintiffs would perform certain conditions precedent, and would accept such partial payment in full satisfaction and discharge of the note.</p> <p>2. Where a suit was brought before a justice of the peace, solely of the character first above stated, and the plaintiffs, failing to recover judgment by reason of a divorce decreed between defendant and his said wife before trial, thereupon appealed the case to the court of common pleas, where they filed their petition on a special contract such as is stated above — the appellate court acquired no jurisdiction, by such appeal, to try the new cause of action. The defendant might well have moved to strike the petition from the files, or have demurred to it, on the ground that the court had no appellate jurisdiction of the new subject of the action.</p> <p>3. But the defendant interposing no such objections, and having answered to the merits, the court thereby acquired original jurisdiction of the case, which in other respects came within the sphere of such original jurisdiction. And the fact that the cause came into the court nominally by appeal, did not deprive the defendant of his right to a second trial.</p> <p>4. The defendant having repudiated the special contract by wholly refusing performance on his part, the plaintiffs had a right to regard it as rescinded, and bring their action, as they did, upon the note for which it had been substituted.</p> <p>5. But by doing so, they conclusively disaffirmed and abandoned the special contract, and could not thereafter maintain an action thereon.</p>

<p>Where, in an action on an agreement to abandon a certain business in a specified town, the plaintiff alleged a breach of the agreement to his damage a specified sum for which he asked judgment, and then stated that, by reason of the defendant’s insolvency, he would be remediless, unless the defendant was restrained from further violating the agreement, and prayed for a perpetual injunction; and the defendant answered denying the agreement: Held, That the action, though equitable relief was sought thereby, being primarily for money and a personal judgment being claimed, was one in which the parties had the right to-demand a trial by jury, and was, therefore, a case for second trial in the same court, and not for appeal.</p>

<p>1. Where án appeal is taken from a final judgment in an action, to one count of which a demurrer was sustained and the others tried on issues of fact, the appeal vacates the ruling on the demurrer as well as the final judgment, and the appellate court may try again the question of law made by the demurrer, and also all the other issues made by the pleadings in the case.</p> <p>2. A judgment dismissing an action without prejudice to a future action'is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.</p>

<p>in prosecutions under section 3 of the "act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” defendant may show, to rebut proof of knowledge, by his own and other persons’ testimony, that shortly prior to the time of the alleged unlawful sale, he made inquiry of persons well acquainted with the person charged in the indictment as a person in the habit of getting intoxicated, whether he was a person in the habit of getting intoxicated; and also show what information he obtained from such persons. His good faith and due care in seeking and obtaining such information, as well as the proper effect thereof under all the circumstances, are to be left to the jury.</p>

<p>1. A retiring partner remains liable for all tbe existing debts of the firm, to the same extent as if he had not retired. An agreement between him and the remaining partners, or with the new firm that succeeds, that they will assume and pay all such debts, while valid as between the partners, has no effect upon the creditors of the old firm, unless they become parties thereto.</p> <p>2. R. held the promissoiy note of the firm of T. G. & Co. After it was given, some members of the firm retired, leaving assets sufficient to pay all debts, and taking the obligation of the succeeding new firm, to pay all debts and save the retiring partners harmless — held: That unless R., by some valid contract, express or implied, had made himself a party to this new arrangement, or had so acted a? t.o be estopped, his rights on the note against all the members of the old firm remained unchanged; that while, as between the partners themselves, the relation of principal and surety existed, yet, as to the payee of the note, all were principals and joint debtors, although notice of such obligation was brought home to him.</p> <p>3. Where the payee of such note has recejved from the new firm a chattel mortgage of the partnership property sufficient, if applied, to satisfy the debt, he may, with the assent of the retiring partners, release the mortgage, and return the property or its avails to the new firm, without impairing his rights against all the joint obligors on the note, even though he had such notice of the subsequent contract between the partners.</p>

<p>1. Under the act “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio” (2 S. & C. 1431), a count in an indictment charging that the defendant unlawfully, etc., sold intoxicating liquors to one “ being then and there intoxicated and in the habit of getting intoxicated,” defendant knowing, etc., is not had for duplicity.</p> <p>2. If the indictment contains counts charging offenses under the first section, followed by a count charging an offense under the fourth section, in its evidence to sustain the latter count, the State is not restricted to evidence relating to the specific charges set forth in the prior counts.</p>

<p>I. Where, by the title deeds of adjoining proprietors of land, the dividing line is left open to be established by a survey or measurement, and is thereafter fixed and marked by mutual agreement between them, and they occupy to such established line for a period sufficient to create title under the statute of limitations, such proprietors will be held to the line so established, although it may not be the true line.</p> <p>H. Under such agreement, one of the parties, holding under a deed, and in actual possession of part of the tract, is deemed to be in possession of the entire tract described in his deed, up to the division line, there being no actual adverse possession against him.</p>

Error, to the District Court of Shelby county. Defendant in error brought his action against the plaintiffs in error, in the Court of Common Pleas of Shelby county, to recover damages for breaches of their bond executed and delivered by them to him and one John P. Stockstill, of which the following is a copy: “ Know all men by these presents, that we, the undersigned, William Serviss, Henry W. Neal, and--are held and firmly bound unto David W. Stockstill and John P.…

<p>1. Real estate sold at judicial sale, or by administrators, executors, guardians, or trustees, on or after the 1st day of October, against which taxes stand legally charged upon the tax duplicate, such taxes, together with ahy penalty and interest thereon at the time of such sale, may, under section 77 of the tax law of 1859 (S. & C. 1465), bo ordered to be discharged out of the proceeds of such sale.</p> <p>2. For the purpose of being so discharged, the taxes charged against the land become due and payable, within the meaning of the last clause of section 77, on the 1st day of October annually, that being the date on which the. duplicate of taxes is required by law to be placed in the possession of the county treasurer; and this clause of section 77 is not affected by the provisions of section 53 (S. & S. 762, 763), that “the lien of the state for taxes shall attach on the day preceding the second Monday of April annually."</p>

<p>1. In a proceeding under section 75 of the Code of Civil Procedure, to open. up a judgment rendered without other service than by publication in a newspaper, the notice required to be given to the adverse party must be given to such party to the case as may be interested in maintaining such judgment.</p> <p>2. In such case, where the action is in the name of F. for the use of K. K. & R., with the judgment in like form, and the record shows that F. had no interest therein, but was a nominal party merely, and that the action was prosecuted by, and the judgment rendered was for the sole and exclusive use of K. Ii. & R-; it is sufficient in such proceedings to serve notice on K. K. & R., as the adverse party to such judgments.</p> <p>3. Where an answer is filed, setting up a cross-demand in the nature of a counter-claim, which is within the original jurisdiction of the court, and the plaintiff, without objecting thereto, puts the same in issue, and the case proceeds to trial and judgment thereon against the plaintiff: Held, That upon error by the plaintiff to reverse such judgment, he will be considered as having waived the question, whether such cross-demand was the proper subject of counter-claim.</p>

<p>1. The doctrine of imputed negligence does not prevail in the State of Ohio, and a child of tender years, injured by the fault of another, is not deprived of a right of action, by reason of contributory negligence on the part of a parent or guardian.</p> <p>'2. For a traveler upon a railroad train to pass from one car to another while the train is in motion, may generally be considered an act of negligence or imprudence; but when a party, acting under a suggestion from the conductor, attempts to pass from car to car, and is injured in consequence of the fact that the train was still moving, such party will not be debarred his right of recovery, merely because he undertook to comply with the conductor’s suggestion, and it is the province of the jury to determine both the nature and effect of the conductor’s remarks; whether they were intended and understood as an order to change from car to car, or were by way of advice, and also whether such remarks affected the action of the parties, and caused them to act differently from what they otherwise would.</p> <p>3. It is the duty of a railroad company to exercise the highest degree of care in the carriage of passengers, and it is the duty of conductors, when women and children are upon their trains, not to direct them to go into places of danger without furnishing such assistance as will prevent accident.</p>

<p>1. Section 313 of the code of civil procedure, as -amended May 2, 1871 (68 Ohio L. 127), did not make the husband of an heir, who was joined with her as a plaintiff, in an. issue of devisavit vel non, incompetent as a witness for the contestants.</p> <p>2. Where a witness offered is improperly rejected by the court, as incompetent to testify in the case, it will be held by a reviewing court, that the party offering the witness lias been prejudiced by his exclusion, though the facts he was expected to prove are not shown by the record.</p>

On the twenty-eighth day of December, 1871, the defendant in error, John Fleming, brought an action against the plaintiff in error, the Pittsburgh, Cincinnati and St. Louis Railway Company, to recover damages for the killing of an ox by plaintiff in error, belonging to defendant in error.. The action was brought before Daniel McGrinness, a justice-of the peace in Jackson township, Muskingum county.

The indictment contains two counts : The first, after alleging larceny of property of the value-of $111, charged that the defendant did unlawfully and feloniously “ receive, have, and conceal” the same. The second, after alleging the larceny of the same-property and of the same value, charged that he feloniously did “ buy and conceal” the same.

Eeeoe to District Court of Cuyahoga county. This case comes into this court upon petiton in error to-reverse the judgment of the court of common pleas and the-district court of Cuyahoga county. The original action was brought by the plaintiff in error to recover real estate ;. the petition was in the ordinary form. The action was. commenced on the 17th of August, 1865, and the defendant filed an answer. The answer sets forth : 1.

<p>1. The internal revenue act in force in June, 1866, invalidated such instruments as were required to be stamped, only when the stamp was omitted with intent to evade the provisions of the act.</p> <p>2. Where a note was secured by mortgage, the requirements of the revenue act were complied with, if either one was stamped in the highest amount required for either instrument.</p> <p>3. Where an unstamped instrument, required by law to be stamped, was stamped subsequently to its execution, in accordance with the remedial section of the act of July 13, 1866, it was as valid as if stamped when it was made or issued.</p> <p>4. Where an unstamped mortgage had been recorded, and the note which it was given to secure was subsequently stamped in an amount sufficient to validate both the note and mortgage, upon having such fact noted on the margin of the record, under the provisions of said remedial section, the record became as valid as if the note and mortgage had been sufficiently stamped.</p> <p>5. But the provisions of the United States revenue act, which prohibit the recording of unstamped instruments, and declares their record to be void, applies only to such instruments as are required to be recorded by federal legislation, and to officers under federal control.</p> <p>6. Under the law of this state, an unrecorded, mortgage, as between the parties thereto, is valid; and, as to all others, takes effect from the time it is left for record.</p> <p>7. A mortgage given in good faith to secure a loan of money more than six months before the filing of a petition, upon which the mortgagor is declared a bankrupt., is valid as against his assignees in bankruptcy, if it be left for record by the mortgagee, in good faith, at any timé before the petition is filed.</p> <p>8. The mere fact that a mortgagee withholds a mortgage from record does not necessarily invalidate the mortgage as against creditors; it may have effect against them after it is recorded, unless it be impeached for fraud, and in determining that question, such withholding from record must be considered.</p> <p>9. A payment of a debt by an insolvent debtor can not be regarded as a forbidden preference under the 35th section of the bankrupt act, unless the debtor intended thereby to give a preference, and the creditor had reasonable cause to believe him to be insolvent.</p> <p>10. The payment of a mortgage debt by an insolvent debtor, though within four months of the filing of his petition in bankruptcy, where the mort- . gage is full security for the debt, is not a preference within the meaning of the bankrupt act, for the estate of the bankrupt is not thereby diminished.</p> <p>11. Nor does it make any difference whether the mortgage be recorded or not at the time of the payment, for the mortgage is valid between the parties, and might be recorded at any time.</p> <p>12. A sale of goods upon a mere promise by the purchaser to pay for them out of the avails of their sale and of a stock of other goods owned by the purchaser, where the transaction is understood by them to create no relation between them but that of debtor and creditor, docs not give the seller a lien on the goods, after their delivery, or on the avails of their sale, that can be specifically enforced; nor does it deprive the purchaser, where he owes the seller several debts, of the right to direct, when he makes a payment to such creditor, which debt shall be paid thereby.</p> <p>13. Where a person owes another several distinct debts, he has the right to choose which debt he will pay first; and where, at the time of payment, he expressly directs what application is to be made of the payment, the creditor, if he retains the money, is bound to appropriate it as directed by the debtor.</p> <p>14. The creditor can not divert a payment so made by his debtor, from the appropriation made by him, upon mere equitable considerations, that do not amount to an agreement between the parties giving the creditor a right to appropriate the payment otherwise than directed by the debtor, though mere equitable considerations may control, where the payment is made without designating its application.</p> <p>15. Where a debtor owed the same creditor a debt secured by mortgages, and another on account, and paid to the creditor the amount of the mortgage debt, with the direction that it be applied in satisfaction of the mortgage debt, and the creditor, without the right so to do, refused to apply the payment as directed by the debtor, but retained the money, and the debtor, within four months thereafter, was declared a bankrupt: Held, that, as against the assignees in bankruptcy, the creditor can not apply the money on the account, nor can it be regarded as a debt or credit that may be set off against the account, under the provisions of the twentieth section of the bankrupt law, .and that it should be applied in satisfaction of the mortgage debt.</p> <p>16. But a judgment, in such case, giving the money to the assignees, and the creditor the right to collect the same amount out of the mortgage premises, in satisfaction of a mortgage debt as a lien prior to that of the assignees, being of the same practical effect that an application of the money on the mortgage would have, is not substantially prejudicial to either party, and for that reason will not be reversed.</p>

<p>It is not a good plea to an. indictment for murder, that a member of the grand, jury which found such indictment, was a nephew of the person who was murdered.</p>

<p>Error, to the District Court of Hamilton county.</p> <p>Heis (defendant in error) brought an action, in the court, of common pleas of Hamilton county, against Craig (plaintiff in error), to foi’eclose a mortgage executed by Craig to Heis to secure a balance of purchase money for the land described in the petition. Heis recovered a decree and order of sale. A motion was made by Craig for a new trial, which was overruled, and a bill of exceptions taken,, embodying an agreed statement of facts and the judgment, of the court. The district court affirmed the judgment of the court of common pleas, and the case is prosecuted on-error now to obtain a reversal of this judgment of affirmance.</p> <p>The facts necessary to an understanding of the ease and questions presented, are: On January 7, 1869, Heis conveyed the land, described in the petition, to Craig “ by a warranty deed, containing covenant of warranty of the title of said premises against all claims whatsoever.” To secure a balance of purchase money, Craig executed to Heis a mortgage on the land. That in 1867 the “Blue Bock road” was laid out and constructed, within two miles of the land, under the provisions of the act of March 29, 1867, authorizing the county commissioners to lay out and construct roads on the petition of a majority of resident land-owners, etc. To pay for the improvement, there was legally assessed against the land, then owned by and taxed in the-name of Heis, one hundred and ninety dollars. That the road improvement was completed, and the assessments to pay for the same made payable in ten equal semi-annual payments, with accruing interest, one-tenth payable on the twentieth day of each December and June thereafter until the whole amount was paid. That the portion of the assessment placed on the duplicate prior to December 20, 1869, was paid by Heis. That at the time Heis conveyed the land to Craig, there remained unpaid of the assessment on the land the following sums : December 20, 1869, $22.-99; June 20, 1870, $22.99; December 20, 1870, $21.66; June 20, 1871, $21.06; December 20, 1872, $20.33, and June 20, 1873, $20.33 — which sums were paid by Craig, Ileis refusing to pay them. That the assessment on the land was legally made and necessary to pay for the road improvements, and that the road was completed prior to the execution of the deed by Heis to Craig. Craig, in his answer, seeks to have so much of the assessment as he paid, deducted from the unpaid, purchase money.</p> <p>Plaintiff in error relies upon this assignment of error, viz : “That the court erred in deciding that the amount of assessment paid by Craig was not an incumbrance on the property at the time the deed was made for him, and hence did not constitute a breach of warranty in said deed.”</p>

<p>1. In case of a breach of contract, actual damages not being proved, nominal damages may be recovered.</p> <p>2. In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties, at the time the contract was made.</p> <p>3. If the telegraph company is in default, but their default is made mischievous to a plaintiff only by the operation of some other intervening cause, such as the dishonesty of a third person, the rule “ causa próxima non remota spectator" applies, and the company can not be made responsible for the loss occasioned by the act of such third person.</p> <p>4. Defendant having filed an answer to the petition, and plaintiff thereupon filing an amended petition, to which defendant answers without making the original answer part of the second answer, the case stands for trial on the amended pleadings, and the original pleadings are disregarded.</p>

<p>1. A lessee remains liable on his express agreement to pay rent, notwithstanding he may have assigned his lease with the lessor’s assent, and the. lessor has accepted rent from the assignee.</p> <p>2. But where the obligation of the lessee to pay rent is only that which is implied by law from his occupation of the premises, his assignment of the lease and surrender of possession to the assignee, with the assent of the lessor, extinguishes the privity of estate between the lessor and lessee, and the consequent implied liability of the lessee to pay rent.</p> <p>5. The assent of the lessor to such assignment, where nothing to the contrary appears, may be implied from his charging the rent to the new tenant and accepting payment thereof from him.</p>

At the June term, a. d. 1878, Waggoner was indicted for a misdemeanor under the statute. On the indictment was the following indorsement: “Plea ■of not guilty, entered by order of court, January 15, 1874. H. H. Tinker, clerk C. C. P., by D. W. Trasher, deputy.” At the same term at which the indictment was found, the ■defendant appeared in court, and entered into a recognizance with surety for his appearance at the next (November) term, to answer the charge against him.

<p>If a petition for divorce and alimony "by the wife, specially describes certain real estate of the husband, charging it with equities of the wife, and asking an injunction to prevent alienation pendente lite, and also equitable relief, and the decree therein is such as that from it, it may be found that .the court acted on those equities and favorably thereto, the proceedings operate as a Us pendens, and the decree for alimony and settling equities will be a lien on the lands, preferable to that of a mortgagee who had actual notice of the proceedings for divorce and alimony, and whose mortgage was executed and recorded, pending those proceedings.</p>

<p>X. Lands were sold at tax sale, in January, 1870, for the non-payment of taxes, which had been levied to pay for the location and construction of certain ditches laid out and constructed under the “ act to provide for locating, establishing, and constructing ditches, drains, and watercourses,” passed March 27, 1861; and shortly after such sale, the owner, being in possession of said lands, filed a petition to quiet his title thereto against the claim of the purchaser at the tax sale, alleging that the proceedings before the commissioners of the county for the location and construction of such ditches were irregular and erroneous, and specifying the alleged irregularities and errors. And alleging that said ditches were of no benefit to his lands, he asked that his title might be quieted, that the tax sales and ditch assessments might be declared illegal and void, and that the county treasurer (who, as well as the purchaser, was made a party defendant) might be enjoined from any further attempt to collect the same. Upon the hearing of the case, the court found the proceedings complained of to be irregular and manifestly erroneous, and that the assessments and tax sales were illegally made, and sot them aside; and then proceeding under the supplementary act of March 24, 1864 (S. & S. 321), the court ordered that the plaintiff be allowed to come in and show wherein he had been injured by the errors complained of) and proceeded to inquire and ascertain whether anything, and if so, what amount ought to have been charged and assessed upon his lands on account of the location and construction of the ditches. Held, that in so proceeding under the act last named, the court did not err. That act was properly applicable to the case.</p> <p>2. In making such inquiry, the plaintiff is not to be regarded as bound by a letting, or contract for constructing part of the ditches, which has been illegally made by the county auditor, nor by any part of the erroneous proceedings which have been set aside.</p> <p>3. The proportion between the aggregate benefits arising from the ditch to all the lands benefited thereby, and the reasonable cost of its location and construction, should be ascertained, and the plaintiff should be required to pay in the same ratio or proportion for the actual benefits conferred on his lands by the ditch.</p> <p>4. The commissioners having accepted the ditch as constructed, the benefits received therefrom by the plaintiff should be ascertained with reference to such actual construction.</p> <p>6. The statute of 1864, before referred to, does not authorize the imposition of all the costs accruing in such an action or proceeding upon the plaintiff.</p>

<p>Error to the Court of Common Pleas of Eayette County ; reserved in the District Court.</p> <p>The facts are sufficiently stated in the opinion.</p>

Error. Reserved in the District Court of Erie county. The facts are stated in the opinion. argued that all the railroads of the state are, by the legislature — and indeed the law, in the absence of any statute — put upon a perfect equality in this matter of crossing, and this irrespective of the fact of which was on the ground first. Railroad, V. Maurer, 21 Ohio St. 429; that the statute alone imposes the obligation tb construct and maintain these safeguards.

<p>Proceedings in bastardy can not he maintained on complaint of the mother, under the act of April 3, 1873, “ for the maintenance and support of illegitimate children,” when the child in question was begotten and horn during the lawful wedlock.</p>

The Little Miami Elevator Company, plaintiff, is a corporation, having a suitable building and machinery for receiving, storing, and delivering grain, situate on the corner of Front street and Eggleston avenue in Cincinnati.

Plaintiffs below, defendants in error, as the executors of the will of Leonard Betz, deceased, brought this action on a policy of life insurance, issued by the plaintiff in error, the Massachusetts Mutual Life Insurance Company, on the life of Leonard Betz for the benefit of his wife, Elizabeth Betz. The policy bears date October 26, 1868. Leonard Betz died September 7, 1869.

<p>1. A surety in an appeal bond can be held only upon the express words of his contract.</p> <p>2. The condition of an appeal bond is, that if the said H. shall and do well and truly prosecute said appeal to effect, and pay the full amount of the condemnation money in the district court aforesaid, and costs, in case a decree should be entered therein in favor of said complainants, the appellees, then in such case the above obligation to be void and of none effect, otherwise to be and remain in full force and virtue in law. The-decree of the district court found that complainants were entitled to-an account against H., and ordered that the cause be referred to a master, to be appointed by the court of common pleas, to slate such account upon the principles of the decree of the district court, and that said defendants, including H., pay to complainants the amount found due on said account, when ascertained and stated, and costs. The cause went back to the common pleas, -the master was appointed, made report, gnd judgment was entered on the report. Held, such judgment of the court of common pleas is not the one provided- for in the appeal bond, and-,the surety is not liable on his undertaking.</p>