Volume 31 — Ohio State Reports, New Series

<p>Motion for leave to file a petition in error to reverse the ■order of the Court of Common Pleas of Sandusky county.</p> <p>On the 30th of March, 1877, Thomas M. Sloan, the defendant in error, filed his petition in the Court of Common Pleas of Sandusky county against the plaintiff in error, John S. Earlow, and others. In his petition, he states that he is the owner of 109 shares of the preferred capital-stock and 90 shares of the common capital stock of the plaintiff •in error; and that he also owns six thousand dollars in the mortgage bonds guaranteed by the plaintiff' in error, which have become due and are unpaid.</p> <p>He charges John S. Earlow, the president of the plaintiff in error, and a director, and Jacob W. Pierce, a former director, who is now deceased, with various frauds committed in the management of the affairs of the plaintiff in error.</p> <p>He'charges, among other things, that the lease of that part of the road of the plaintiff in error extending from Springfield to Columbus was procured to be executed on the part of the plaintiff' in error through the fraud of said Farlow and Pierce, to subserve their personal interest while acting officially for the plaintiff" in error ; that the lease is a fraud upon the plaintiff in error and its stockholders; and that the said Farlow and Pierce, who exercised a controlling influence in the management of the affairs of the plaintiff in error, in various ways misapplied the funds of the plaintiff" in error, to the injury of its stockholders and creditors. ,</p> <p>The petition asks to have the lease referred to canceled, and for ah account against Farlow and the executors of Pierce, and that a receiver may be appointed to take possession of all the property of the plaintiff in error, and of its railroad and branches. It also asks an injunction enjoining Farlow from indorsing, on behalf of the plaintiff'in error, certain bonds, and from making certain transfers of stock.</p> <p>On the day of filing the petition, without the service of process on auy of the defendants, or of notice to any of them of the proceedings, the court granted the injunction and appointed the receiver as prayed for.</p> <p>The court then adjourned until the 30th day of April following.</p> <p>The receiver took possession of the railroad and all the property of the plaintiff in error, as directed by the order of the court.</p> <p>The plaintiff in error applied to Judges- Cad well, Prentiss, and McMath at chambers, to dissolve the injunction and vacate the appointment of the receiver. On the 20th of April the judges made the following order in said case, which wras duly entered on the journal of the Court of Common Pleas of Sandusky county:</p> <p>“ This day appeared the plaintiff, Thomas M. Sloan, and the defendant, the Cincinnati, Sandusky and Cleveland Railroad Company, before the undersigned, S. B. Prentiss, D. Cadwell, and J. II. McMath, Judges of the Court of Common Pleas of the Fourth Judicial District of Ohio, and thereupon the motion of the defendant, the Cincinnati, San-dusky and Cleveland Railroad Company, to vacate the order heretofore made in this action, granting an injunction and appointing a receiver, was heard upon the petition of the plaintiff, the affidavits filed by the plaintiffj the affidavits filed by the defendant, and other testimony, and was argued by counsel.</p> <p>“ On consideration whereof, we do find that the said order granting an injunction and appointing a receiver in this action, ought not to have been made, and that the motion of the defendant to dissolve said injunction, and also its motion to vacate the order appointing said receiver, are each well taken and should be sustained.</p> <p>“ It is therefore considered and ordered by us, that the said injunction be and the saméis hereby vacated. It is further considered and ordered by us, that the said order appointing James D. Lea receiver in this action, be and the same is hereby vacated and set aside, and the said James D. Lea is discharged from his receivership in this action; and he, the said James D. Lea, is hereby directed to refrain from exercising any further control over the railroad of said company, or any of its leased lines, or any of the property thereof. And the said James D. Lea, the receiver in tiffs action, is hereby directed and ordered forthwith, upon the delivery to him of a certified copy of this order, under the seal of the Court of Common Pleas of Sandusky county, Ohio, and upon the demand of John S. Fallow, the president of the defendant, the Cincinnati, Sandusky and Cleveland Railroad Company, or any other officers of said corporation, to give and surrender to the said Cincinnati, Sandusky and Cleveland Railroad Company, and its said president and officers, the possession of all the property of every kind and description whatsoever, belonging to the said Cincinnati, Sandusky and Cleveland Railroad Company, including all its hooks and papers which he, the said James D. Lea, as said receiver, has in Ms possession or under his control, together with all other property of whatsoever ldncl or description which has come into his possession or under his control by virtue of his said receivership, under the pains and penalties attaching by law to disobedience hereof; and all agents and servants of said receiver, in like manner and under the same penalties, are hereby ordered and commanded forthwith to surrender possession of all property of every kind appertaining to the said receivership, in their possession or under their control, to the said Cincinnati, Sandusky and Cleveland Railroad Company.</p> <p>“ And it is further ordered, that the said James D. Lea, within thirty days from this date, file with the clerk of the Court of Common Pleas of Sandusky county, Ohio, an account of his doings and transactions under the order appointing him receiver,in this action, and that each of said parties have thirty days from the expiration of the said period of thirty days first mentioned, within which to file exceptions to said account, to which order the plaintiff excepts, and also excepts to the jurisdiction of said judges to make such order at chambers in Lucas county, Ohio. . .</p> <p>“And it is further ordered, that the clerk of said Court of Common Pleas of Sandusky county, Ohio, do forthwith enter this order upon the journal of said court, and that he shall also, on demand of either of the parties hereto, or their attorneys, make, deliver, and certify, under the seal of said court, a true copy of this order.</p> <p>“ In testimony whereof, we have hereunto set our hands and seals, this 20th day of April, A. d. 1877, at chambers in Lucas county, Ohio.</p> <p>“ Darius Cadwell, [seal.]</p> <p> “ Judge of Court of Common Pleas, Fourth Judicial District of Ohio. </p> <p>“Samuel B. Prentiss, [seal.]</p> <p>“ Judge of Court of Common Pleas, Fourth Judicial District of Ohio.</p> <p>“ Jesse II. McMath, [seal.]</p> <p>“ Judge of Court of Common Pleas, Fourth Judicial District of Ohio.”</p> <p>When the court of common pleas again convened in pursuance of its adjournment, it directed the following order to be entered on its journal:</p> <p>“ This cause came on further to be heard upon the motion of the plaintiff filed herein, April 20, 1877, to vacate an entry on the journal ordered by Hons. S. B. Prentiss, J. H. McMath, and Darius Cadwell, of the fourth judicial district, in the city of Toledo, Lucas' county, Ohio. The court having duly considered said motion, finds that said judges had no jurisdiction or power while this court was in session to vacate the order of this court, made in a regular term of this court, and that the said entry was therefore wrongfully made. It is therefore ordered that said entry or order be vacated and held for naught, and be vacated as no part of the proceedings thereof, and as having no binding force or effect; and the order of this court intended to be vacated by said entry so ordered by said judges is hereby ratified and confirmed, and the same is hereby declared to be in full force and effect; to each and all of which ladings the defendants excepted.”</p> <p>The receiver refused to surrender the railroad and property to the plaintiff" in error1, as commanded by the order of said judges, but continued to act under the order of the court.</p> <p>The present proceeding in error is prosecuted to obtain the reversal of the order of the court of common pleas.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Eranklin county.</p> <p>The original action was brought in the court of common pleas by the defendant, the Board of Trustees of the Ohio Agricultural and Mechanical College, against the defendant, Jonas E. Rudisill, and the plaintiff, Robert E. Neil. The petition was as follows : “ The plaintiff says that on or before January 19, 1871, said defendant, Jonas E. Rudisill (among others) in consideration of securing the location of the Ohio Agricultural and Mechanical College at its present site, in Eranklin county in north city of Columbus, subscribed and donated individually thereto the sum of one hundred dollars ($100), payable in three equal annual installments from date-—said subscription being in writing, in the words and figures following, to-wit:</p> <p>“ The undersigned agree, among themselves, to contribute the amount set opposite their names herein severally, in annual installments from date, or 38} per cent., provided and upon condition, that the Ohio State Agricultural College be located upou the farm of Henry Neil, and adjoining lands, as now proposed, just north of the toll-gate on the Worthington l’oad ; said money to be paid to the proper authorities of said institution. .</p> <p>Jonas E. Rudisill, $100.</p> <p>Said instrument of writing, with the signature and name of said defendant, Rudisill, among others, and without date, to the paper above set forth, was on the 19th day of January, 1871, with the guarantee in writing of the defendant, Robert E. Neil, annexed thereto, and made a part of the same instrument in the words following, to-wit:</p> <p>“ Whereas several subscriptions have been made by citizens of Eranklin county, and others, to pay several sums of money for the purpose of securing the location of the Ohio Agricultural and Mechanical College in the county, the names of which persons, and the sums by them respectively subscribed, are found in a schedule hereto attached, marked ‘A,’ and made part hereof, and it being the true intent and meaning of said subscription that the same should be paid to the treasurer of said College for the benefit thereof.</p> <p>“Now, therefore, in consideration of the location of said college in said county, we, the undersigned, hereby guarantee that said several sums of money shall be paid by said several persons to said treasurer at the times nominated in said several subscriptions.</p> <p>R. E. Neil.”</p> <p>“ And tbe plaintiff avers, that for the purpose, and in consideration of securing tbe location of said college as aforesaid, said defendant, Neil, at the same time, and at the same place, and for the same consideration, when the subscription paper aforesaid, which is'the same and identical with the schedule attached, marked ‘A,’ and made apart-of his guarantee, was delivered to the plaintiff, agreed to’ guarantee, and did guarantee, the payment as aforesaid, of the subscriptions made in consideration of the matters aforesaid, and among them the subscription of said Rudisill. Said plaintiff avers that they (it) accepted said subscription and guarantee, at the same time and place, and in consideration, in part, of the subscription and guarantee1 aforesaid, did on the-day of-, 1871, locate and establish said college on the site aforesaid, and afterward erected thereon the necessary buildings, and put into operation said college, which is still in full operation, yet neither they nor either of them have paid said subscription and donation or any part thereof, though due demand, before’ bringing this suit, was made therefor.” . Prayer for judgment. Neil demurred to the petition, assigning the following grounds:</p> <p>1. That plaintiff has not legal capacity to sne.</p> <p>2. That there is a defect of parties defendant.</p> <p>8. That several causes of action are improperly joined.</p> <p>4. That the petition does not state facts sufficient to constitute a cause of action against the defendant, Neil.</p> <p>The demurrer was overruled, and an exception was-noted. Neil answered, denying many of the allegations of the petition, and set up affirmatively in a second defense, “that at the time he signed the guaranty set out in the petition, it was in substance understood and agreed between the parties to said guaranty that the said several sums of money to be paid by said .several subscribers were-to be collected from, and paid by said several subscribers, and said guarantor, Robert E. Neil, was not to be called, upon to pay, or compelled to pay said several sums of money or any part thei’eof, until said subscribers had first been duly prosecuted to the last resort of the law, and •found not to possess any property that could be legally applied to the payment of said subscribed sums.” A demurrer to this defence was sustained, and Neil excepted.</p> <p>The issues of fact were submitted to a jury and found for the plaintiff below, and judgment was rendered against both defendants for the sums subscribed. A petition in error was prosecuted in the district court to reverse the judgment of the court of common pleas, the principal -err’or assigned being that the court erred in overruling the domu-rrer to the petition, and in sustaining the demurrer to the second defense in the answer of Neil.</p> <p>The judgment of the court of common pleas was affirmed.</p> <p>Leave is now sought to file a petition in error to reverse both judgments.</p> <p>•contexrded that the act of March 22, 1870 (67 Ohio L. 20), was in conflict with the first section of article 13 of the •constitution. The act is a special act. 1 Blackst. Com. 86; Pottex’’s Dwarris on Stat. 53. It confers, or rather attempts to confer, corporate powers upon the trustees of the college. The section of the constitution referred to was •clearly intended to disable the general assembly from creating corporations or conferring upon them corporate pow•ers by special acts of legislation. 15 Ohio St. 35 ; Atkinson v. M. § C. B. B. Co., 15 Ohio St. 21; Ohio v. Cincinnati, :20 Ohio St. 35; 23 Ohio St. 446.</p> <p>As to what is a corporation, see 4 Wheat. 543, 561; 4 Pet. 561; Ang. on Corp., sec. 110; 2 Rent’s Com. 277, 278; Ang. & Ames on Oorp. 5 ; lb., sec. 76.</p> <p>■ These authorities go to show that whenever the language manifests the intention of the government to confer -corporate privileges, they may be conferred without adopting auy particular technical language. And see also Ang. & Ames on Corp. 12; 4 Ark. 620; 8 Ark. 57; 3 Eng. 236; 10 Barb. 349.</p> <p>In the act of 1870 (and the subsequent acts, 67 Ohio L. 95; 68 Ohio L. 13; 69 Ohio L. 52, 204; 70 Ohio L. 107, 110; 71 Ohio L. 78) all the essential powers are conferred upon the board of trustees of the Ohio Agricultural and Mechanical College to make it a corporation, although the words corporate, etc., are not mentioned. And the general assembly of Ohio has never attempted to confer such powers corporate, under the constitution of 1851, upon any ■other state institution.</p> <p>The petition improperly united several different causes ■of action—one on the subscription paper against defendant Rudisill; one on the written guaranty against defendant Neil. Dewey v. Ward, 12 How. 419; Enos v. Thomas, A How. 48; 5 How. 351; 10 Barb. 638; 44 Barb. 642; 21 Barb. 531, 540; 12 N. Y. Leg. Obs. 222.</p>

<p>E. subscribed for forty shares of $50 each of the capital stock, consisting of $2,000,000, of the Springfield, Jackson and Pomeroy Railroad Company, agreeing to pay the sum subscribed, in such installments as might, “ from time to time, be required by the directors of the company, under the provisions of the charter of said company, and the laws governing the-same.” Providing, however, that such subscription should not be binding until the aggregate sum of $800,000 in bona fide subscriptions should be taken to the capital slock, between S. and J., and that no contract for the construction of the road between J. and P. should be made-until the building of the road between S. and J. was assured. Subsequently, by agreement between E. and the company, the sum of $700,000 was substituted for the 5800,000: Held, That upon the bona fide subscription of 5700,000 to the capital stock of the company, between S. and' J., E. became liable to assessment on the sum by him subscribed.</p>

<p>1. When a judgment is reversed, as a general rule the plaintiff in error is entitled lo a judgment of restitution for all that he lost by reason of the judgment.</p> <p>:2. The claim on which the original action was brought can not be made an available set-off in an action on a restitution bond executed in pursuance of section 522 of the code, by dismissing the original action or otherwise.</p>

<p>Motion for leave to file petition in error to reverse the judgment of the District Court of Sandusky county.</p> <p>The original action was brought in the Court of Common Pleas of Sandusky county, by Jacob Albright, against the plaintiffs in error, viz., William Ford, C. C. Gardner, E. D. Soper, L. D. Stark, Thomas Granger, D. T. Mills, S. W. Reed, Frank Ramsey, and Henry Baker.</p> <p>The action was founded upon an undertaking entered into on appeal from a justice of the peace. A copy of the undertaking is as follows:</p> <p>“Jacob .áíbright vs. W. W. Wales and S. W. Reed. Judgment before Gideon Gordon, Justice of the Peace of Green Creek township, Sandusky county, State of Ohio. Docket, page 25.</p> <p>“Whereas, on the 7th day of November, 1873, the said Jacob Albright obtained a judgment against the said W. W. Wales and S. W. Reed, on the docket of the said Gideon Gordon, Justice of the Peace, for two hundred and twenty ($220) dollars, and two dollars and ten cents costs ($2.10) of suit, and the said W. W. Wales and S. W. Reed intend to appeal therefrom to the court of common pleas of Sandusky county; now, therefore, I, Henry Baker, F. Ramsey, S. W. Reed, William Ford, C. C. Gardner, F. D. Soper, L. D. Stark, Thomas Granger, D. T. Mills, of Sanclusky county, Ohio, do hereby, pursuant to statute in such case made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding the sum of four hundred and forty four dollars and twenty cents ($444.20); and I do also undertake, in said last-mentioned sum, that the said appellants will prosecute their appeal to effect, and without unnecessary delay.</p> <p>“ (Signed), Henry Baker, Bail for Appeal.</p> <p>“ Executed and acknowledged before me, and surety approved, this 8th day of November, 1873.</p> <p>“ Gideon Gordon, J. P. [seal.] ”</p> <p>The parties being at issue as to the execution of the undertakiftg by the defendants, the latter, on the trial, called Gideon Gordon, the justice, as a witness, and on his examination proposed to prove the following facts, to wit: “That after the judgment in said case before said justice was rendered, a bond for appeal, was duly executed by one Henry Baker, and filed with said justice on November 8th, 1873; that said surety was approved by the justice; that said justice, on November 12th, 1873, at the request •of appellant, S. W. Reed, made a transcript of the proceedings of said ease before him, and duly certified to the same, and that afterward, on November 14th, 1873, said justice iuterlined, and wrote into said transcript and undertaking without the authority, knowledge, or assent of the defendants, the words : “ Thomas Granger, D. T. Miles, E. Ramsey, S. W. Reed, Vm. Eord, C. G. Gardner, E. D. Soper, L. D. Stark.”</p> <p>The evidence thus offered was, on objection by the plaintiff, excluded by the court as incompetent.</p> <p>The trial resulted in a judgment against all of the defendants. On error, this judgment was affirmed by the district court.</p> <p>Application is now made for the reversal of these judgments,ou the ground that the court erred, on the trial, in excluding the evidence offered by the defendants.</p>

MoTioN-for leave to file a petition in error to the District Court of Stark county. The original case was a petition filed by the Farmers National Bank of Salem against J. B. Nixon and his wife, to set aside a fraudulent conveyance of real estate made by-Nixon to his wife, and to subject the same to the payment of judgments which the bank had recovered against Nixon.

<p>An indictment for incest which charges the criminal act to have been com- ' mitted continuously through a specified period of years, is to be regarded as charging several distinct offenses, and is bad for duplicity.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Franklin county.</p> <p>The action below was brought by the defendant against the plaiptiff in error and Robert E. Neil, on an instrument in writing, which reads as follows :</p> <p>“ The undersigned agree, among themselves,to contribute the amounts set opposite their names herein severally, in annual installments, from date, of 33|- per cent., provided and upon condition that the Ohio Agricultural-and Mechanical College be located upon the farm of Henry Neil, and adjoining lands, as now proposed, just north of the tollgate, on the Worthington road, said money to be paid to the proper authorities of such institution.</p> <p>“ $500. G-. S. Deming.</p> <p>* * * *</p> <p>“ Whereas, several subscriptions have been made by citizens of Franklin county and others, to pay several sums of money for the purpose of securing the location of the Ohio Agricultural and Mechanical College in the county, the names of which persons and the sums by them respectively subscribed, are found in a schedule hereto attached, marked ‘ A,’ and made part hereof, and it being the true intent and meaning of said subscription that the same should be paid to the treasurer of said college, for the benefit thereof:</p> <p>“Now therefore, in consideration of the location of said college in said county, we, the undersigned, hereby guarantee that said several sums of money shall be paid to said treasurer, at the times nominated in said several subseriptions. R. E. Neil.”</p> <p>The amended petition alleged that the subscription and guaranty were made at the same time and place, and for the same consideration and purpose; that the college was located, aud its buildings erected, on the site proposed; that demaud had been made for the sum subscribed as its installments matured, and that defendants refused to pay.</p> <p>Deming demurred upon four specified grounds : that the plaintiff below had no legal capacity to sue; that there was a defect of parties defendant; that several causes of action were improperly joined; and that said amended petition did not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was overruled.</p> <p>Deming then answered, admitting demand and non-payment of the subscription, the erection of the college buildings, and that the college had gone into operation, but denied other allegations of the amended petition. Eor a second defense, he alleged, that “ on the 15th day of November, 1875, said plaintiff, for a valuable consideration, in writing, released and discharged said defendant, Robert E. Neil, from any and all liability upon his alleged contract in this case, and agreed to take no judgment against said Neil.” A demurrer to this defense was sustained, and Deming excepted.</p> <p>The cause was tried to a jury, and resulted in a verdict and judgment for the plaintiff' below; but before the case was finally submitted, the action as against Neil was dismissed. From the bill of exceptions taken upon the trial it appears that the plaintiff below gave evidence tending to show that Deming signed said subscription paper, at the request of one Henry T. Chittenden, opposite the sum of $500, and returned the paper to him to be used for the purpose therein expressed, and no other. That the other subscriptions having been obtained to said paper, Chittenden left the same with said board of trustees; that the board refused to accept the subscription unless Neil, or other parties, would guarantee the payment of the same, and become jointly bound with the subscribers for its payment. That thereupon the guaranty was executed by Neil, without the knowledge or assent of Deming, and annexed to the paper signed by Deming, and made part of the same instrument. That said subscription paper, and the guaranty thereto annexed, wei’e then, upon the consideration therein expressed, accepted by the board of trustees, who, at Neil’s request, withheld knowledge from Deming, for more than a year, of the fact of Neil’s guaranty. The facts that the foregoing evidence tended to establish were, at the trial, admitted by Deming to be true.</p> <p>Upon his defense, Deminggave evidence tending to prove, that the college was not located upon the farm of Henry Neil, and adjoining lands, as then proposed, and that the condition contained in the paper signed by him was not complied with.</p> <p>Upon the conclusion of the evidence, the defendant Deming requested the court to charge the jury as follows:</p> <p>First instruction:—“The plaintiff, in the amended petition, alleges that the subscription paper signed by the defendant Deming was, on the 19th day of January, 1871, with the guaranty in writing of the defendant, Robert E. Neil, annexed thereto and made a part of the same instrument, presented to the plaintiff for its consideration and acceptance; that the plaintiff' accepted said subscriptions and guaranty at the same time and place. It is admitted by Deming, on the trial, that the foregoing allegations are true, and that said subscription was attempted to be accepted on the strength of said guaranty, and that the plaintiff would not accept the subscription without the guaranty.</p> <p>“Under this state of facts, the contract, if binding on the parties, would be the joint contract of Deming and Neil, as original promissors; of Deming as principal, and Neil as surety.</p> <p>•“The subscription paper signed by Deming was an offer on Ms part to become severally bound to pay a certain sum of money on a certain condition.</p> <p>“That the plaintiff would not be authorized, without the assent of Deming, express or implied, to chauge his offer to become severally bound into an offer to become jointly bound with Neil; and could not, without the assent of Deming, bind him upon such offer to a joint contract with Neil.</p> <p>“A contract to be severally bound, and a contract to be bound jointly with Neil, are materially different in meaning and legal effect.</p> <p>“ If, therefore, you find the facts above stated to be true, and you also find that Deming did not propose or consent to become bound jointly with Neil, and did not assent, expressly or impliedly, that his offer to the plaintiff' should be accepted under such circumstances as would make him a joint contractor with Neil, then he is not bound, and the plaintiff can not recover against him.”</p> <p>Second Instruction.—“ The condition in the subscription paper, ‘that the college be located on the farm of Henry Neil, and adjoining lands, as now proposed,’ etc., is entire, and not apportionable.</p> <p>“ If the plaintiff' has not located the college on all the lands then proposed, and the defendant has not waived such performance, then the plaintiff' can not recover.</p> <p>“ The court refused to give to the jury either of the instructions requested.”</p> <p>But, among other things, did charge that the plaintiff must show, “That the college was located upon the farm of Henry Neil, and adjoining lands, as now proposed (that is, then, at the time defendant signed the paper), just north of the toll-gate, on the Worthington road.”</p> <p>The defendant excepted to the refusal to charge as requested, and to the charge as given.</p> <p>On error the district court affirmed the judgment of the common pleas. Leave is here asked to file a petition in error to reverse both judgments.</p> <p>contended that the court erred in refusing to give the first instruction prayed- for, and in giving the charge it did on the question embraced in said instructions.</p> <p>As to the propositions of law involved in the instruction—</p> <p>“1. The subscription paper signed by Deming was an offer on his part to become severally bound to piay a certain sum of money on a certain condition.”</p> <p>The language of the subscription is, “The undersigned agree ... to contribute the amounts set opposite their names, herein severally.” This can not mean that one, who subscribes only $100, was jointly bound with another, who subscribed $1,000, for the amount of the latter subscription. Neither of the subscribers agrees jointly with another subscriber, but each severally obligates himself to pay the sum set opposite his name. Moss v. Wilson, 40 Cal. 159.</p> <p>2. The next proposition of law in said instruction is, if the subscription paper, signed by Deming, was, on the 19th day of January, 1871, with the guaranty in writing of the defendant, Neil, annexed thereto and made a part of the same instrument, presented to the plaintiff for their consideration and acceptance, and that said plaintiff' accepted said subscriptions and guaranty at the same time and place, and the plaintiff would not accept the subscription without the guaranty, then the contract, if binding on the parties, would be the joint contract of Deming and Neil, as original promissors, of Deming as principal and Neil as surety.</p> <p>This is only another way of stating the proposition relied upon by the plaintiff in its amended petition, to make a joint.cause of action against Deming and Neil. In view of the pleadings, evidence, and admissions, it could not have been misunderstood. The consideration is expressed to be the same in the subscription and guaranty.</p> <p>This rule of law is well settled in this state by the following cases : Bright v. Carpenter and Sehrier, 9 Ohio, 139; Stage v. Olds, 12 Ohio, 158; Leonard v. Sioeitzcr, 16 Ohio, 1; Robinson v. Abel, 17 Ohio, 36; Gale’s Ad’mr v. Van Arman, 18 Ohio, 336.</p> <p>The counsel for the plaintiff below relied upon these cases in the court of common pleas to establish his point then contended for, that Deming and Neil were joint promisors, and that his amended petition did not contain two separate causes of action, one against Deming and the other against Neil, but only one cause of action against both jointly. That court followed said decisions, and ruled accordingly. We are not advised that counsel for the defendant in error will now argue that any of said decisions are wrong.</p> <p>We submit that if the subscription and guaranty of Neil were accepted in the way stated, with the consent of all the parties thereto, then each separate subscription became the joint contract of Neil and that particular subscriber.</p> <p>3. The next proposition of law is, “ a contract to be severally bound, and a contract to be bound jointly with Neil are materially different in meaning and legal effect.” Wallace ft Park v. Jewell, 21 Ohio St. 163 ; Gardner v. Walsh, 5 El. & Bl. 84; McOaughey v. Smith, 27 N. Y. 39 ; 9 B. Mon. 5, 7; Chappdl-Y. Spencer, 23 Barb. 584 ; Henry v. Coats, 17 Ind. 161; Chadwick v. Eastman, 53 Maine, 12.</p> <p>The alteration, if binding upon him, of the proposition of Deming, to be solely liable for his subscription, to one to be jointly liable with Neil, would have been prejudicial to him. Under an acceptance of the former, he could have been sued only at the place of his residence, or where he could have been served with summons; under an acceptance of the latter, he might be sued anywhere in this state, where Neil might reside or be served with summous. Adding the obligation of Neil te be jointly bound with him as his surety, could have in no way benefited Deming,however much it might benefit the obligee.</p> <p>4. The next proposition of law is: “ The plaintiff would not be authorized, without the consent of Deming, express or implied, to change his offer to become severally bound, into an. offer to become jointly bound with Neil, and could not, without the consent of Deming, bind him upon such offer to a joint contract with Neil. The plaintiff could not, without the consent of Deming, substitute for his proposition or offer, one more satisfactory to it or different from the one made.”’</p> <p>Either this proposition is sound, or the adage that “ it takes two to make a bargain ” is fallacious. (Parsons on Contracts, *475, et seq.)</p> <p>1. If Deming is jointly liable with the defendant, Neil, there is, of course, no misjoinder of causes of action. If the parties are severally liable, the code, sec. 38, provides that they may be included in the same action. Burgoyne v. Ins. and Trust Co., 5 Ohio St. 586, 588, 589.</p> <p>The maker and the guarantor of the same instrument taking effect by a single delivery at the same time upon a single consideration and for the same purpose are, in law, original contractors, and may be sued jointly or severally. Code, sec. 80; Stage v. Olds, 12 Ohio, 158,168 ; Leonard v. Swetzer, 16 Ohio, 1; Gales v. Van Arman, 18 Ohio, 336; Kelsey v. Bradbury, 21 Barb. 531.</p> <p>2. The plaintiff, by suing them jointly, does not elect to consider the demand joint only as at common law. The contract, under sections 38 and 77 of the code, is still joint and several as to the remedy, and there may be separate defenses and several judgments rendered against either the maker or guarantor, under section 371 of the code. Aucher v. Adams, 23 Ohio St. 550; 5 Ohio St. 589.</p> <p>3. The alteration of a note or contract, to vitiate it must be made without the knowledge and assent of the maker, after it has been delivered and taken effect; but the adding of a name, as guarantor, before the delivery of the instrument does not affect the obligation of the maker. Fullerton v. Sturgis, 4 Ohio St. 536; 5 El. & B. 82; Byles on Bills, 322; Wallace § Park v. Jewell, 21 Ohio St. 163.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Erie county.</p> <p>The original action in the court of common pleas was for the equitable partition of lands, and on account of rents ■and profits. The plaintiffs in the court below are defendants in error, and the widow and children of the defendant helow are the plaintiffs in error. There was a controversy between the parties in reference to the title to the land, and also as to the rents and profits thereof.</p> <p>At the October term, 1870, of the court of common pleas, there was a decree for the plaintiff, and the defendant took the case to the district court on appeal.</p> <p>At the April tern*, 1872, of the district court, the cause-was tried on its merits, and a finding was made that the-plaintiffs were the owners of and tenants in common with the defendant in the lands in question, and a decree was. rendered settling the controverted rights of the parties, and ordering the lands to be partitioned. The cause was thereupon remanded to the court of common pleas for execution of the decree, by causing partition to be made.</p> <p>The cause came into the court of common pleas on the mandate at its May term, 1872, where commissioners were-appointed, and a writ of partition ordered to issue to the sheriff, commanding him to cause partition to be made.</p> <p>No other journal entry was made in the case in the court of common pleas till January term, 1877, when the partition was reported and confinned.</p> <p>From an affidavit filed in this court, for the purposes of this motion, it appears that Joseph G. Hinde, the defendant below, died February 26, 1875, leaving a widow and minor children who are named therein. The death of Hinde is not noticed in the journal entry of January, 1877, but no objection is made on this ground.</p> <p>The widow and minor children of Joseph G. Hinde, deceased, as plaintiffs in error, now ask leave to filé a petition in error to reverse the judgment of the district court, rendered at its April term, 1872, on the ground, substantially,, that the court erred in finding that the plaintiffs had any interest, legal or equitable, in the lands in controversy, and in rendering a decree in their favor.</p>

This was an action by the plaintiff in error against the •defendant in error, to recover damages for an assault and battery. The plaintiff caused an order of attachment to issue in the case, and the same was levied upon the defendant’s property.

So many of the questions arising in this case as are disposed of in the opinion, will be understood from the following statement: The original action, which came into the district court by appeal,… Held: stock (ore, etc.) on the bank, then on hand, about sufficient to equal the indebtedness of the furnace,” an interest in which was sold to the defendant, ■subject to debts. This was a mere opinion, and however ■fraudulent, afforded no ground of relief.

<p>Motion for leave to file a petition in error to the District ■Court of Clar’ke county.</p> <p>The original action was brought by Dipple against Ilarner on an undertaking for stay of execution, executed by the defendant during his minority. It appears that the .■defendant arrived at his majority before the period of stay expired, and that after the expiration of the stay he acknowledged his liability, and promised the plaintiff, to whom the undertaking was made, to pay the amount of the judgment stayed. Upon this state of facts judgment was rendered for the plaintiff in the court of common pleas ; which judgment was afterward affirmed by the district ■court.</p> <p>To reverse these judgments leave is now asked to file a petition in error.</p> <p>cited : 1 Parsons on ■Contracts, 295 ; Kane v. Boycott, 24 Black, 511; Reeves Domestic Relations, 378?t; 2 Kent’s Com. 236; 1 Mason, 32; Brigham on Infancy, 23; Swan’s Treatise, 601-2; Baker v. .Lovitt, 6 Mass. 78; Oliver v. Hondlet, 13 Mass. 237; Whitney v. Dutch, 14 Mass. 457; Boston Bank v. Chamberlin, 15 .Mass. 220; Chandler v. McKinney, 6 Mich. 217; Dunton v. Brown, 31 Mich. 182 ; 11 Serg. and R. 305 ; Tyler on Inf. .and Cor. 42, 48; 54 Penn,. St. 380 ; Story on Contracts, sec. 57 ; 10 Ohio, 127 ; 8 East. 331.</p> <p>cited : Swan’s Treatise, 601; Tucker v. Moreland, 10 Peters,'59 ; 1 Am. L. Ca. (5th ed.) 299, 300, 304, 306 ; Cole v. Pennoyer, 14 111. 160; Curtin v. Patton, 11 Serg. and R. 305, 310; liinely v. Margavtz, 3 Barr, 428; Patchin v. Cromach, 13 Yt. 330; Tyler on Inf. •56-7; Bing, on Inf. 43, 44 ; Vaughn v. Darr, 20 Ark. 600; Shropshire v. Burns, 46 Ala. 108; Williams v. Moore, 11 M. ;aud "W. 256 ; 1 Parsons on Con. (6th ed.) *328, 329 and note b.; Thornton v. Illingworth, 9 Eng. C. L. 256 ; Gibbs v. Morrill, 3 Taunt. 307; Mason v. Denison, 15 Wend. 71; Conroe v. Birdsall, 1 John. Cases, 127 ; Ayers v. Ilewitt, 19 Me. 281; Arnold v. Richmond Iron Works, 1 Cray, 434; ’2 Kent, 235, 247 ; Roof v. Stafford, 7 Cowen, 185; Slocum v. Harlcer, 13 Barb. 537; 3 Burr. 1804; Fonda, v. Van Horne, lb Wend. 631; Felon v. Wiseman, 40Ind. 148 ; Kline v. Beebe, 6 Conn. 494; Owen v. Long, 112 Mass. 403.</p>

This was au action by the plaintiff iu error against the defendants, for breach of the condition of the following bond, executed by the defendants : “ Know all men by these presents, That we, John H. Burgess, Archibald I. Rodgers, Nathan D. Burgess, Reuben D. Burgess, and John Ellison are held and firmly bound to Rufus C. Davisson, surviving executor of the estate of James Burgess, deceased, in the sum of five thousand dollars for the payment of which we do jointly and…

<p>A personal judgment can not be taken against a mortgagor, in an action to-foreclose a mortgage, unless the petition contains a prayer for such judgment. But the court may order an execution to issue for any balance after exhausting the proceeds of the mortgaged property.</p>

<p>Motion for leave to file petition in error to the District Court of Carrol county.</p> <p>In the year 1843, one Absalom Craig conveyed to oneSimeon Jennings a tract of land by a deed absolute on its face. In 1853, Absalom Craig died, leaving the plaintiffs his heirs at law. Afterward, in 1857, one Josiah Montgomery, as administrator of said decedent, commenced an action in the Court of Common Pleas of Carrol county against said Jennings, the object and prayer of which were-to have the conveyance aforesaid declared to have been made to Jennings in trust to sell within a reasonable time,, and after satisfying a certain debt due from Craig to Jennings, to pay the balance of money realized from the sale-to said Craig. The ease was afterward appealed to the district court, wherein a final decree was rendered, in 1859, in favor of said administrator, upon finding that said deed “was in fact and intended by the parties thereto to be a. deed in trust to secure to said defendant, Jennings, the sum of $2,521.27, the amount then due from said Absalom Craig to said Jennings, and that by the terms of said trust, the said Jennings was to sell said lands to satisfy said debt and interest, and to pay over the balance (after deducting costs- and expenses) to said Absalom Craig.” The court further finding that Jennings had refused and neglected to execute-the trust, ordered the premises to be sold by the sheriff as upon execution. Sale was accordingly made to Jennings, .and after overruling a motion by the administrator to set the sale aside on account of fraud alleged against Jennings in and about the bidding, the same was approved and confirmed by the court and a deed ordered to the purchaser, .and the proceeds were distributed according to the equities ■of the parties.</p> <p>The original action was afterward commenced, in 1870, in the common pleas of Carroll' county, by plaintiffs in •error, heirs of Absalom Craig, against defendants in error, chiefly the heirs and devisees of Simeon Jennings, now deceased, seeking to establish the same trust in the same lands, which was the subject of the action and the decree In the ease of Montgomery, Adm’r, v. Jennings, above detailed.</p> <p>In their petition it is alleged “ that the said Absalom, while in life, conveyed said lands to one Simeon Jennings, then in life, but since deceased, in trust for him, the said Absalom Craig, deceased, and for his heirs and legal representatives. That the consideration of said trust was that said Jennings was to sell said lands, and, after paying the indebtedness, of about $1,500, which said Craig when in life owed said Jennings then in life, said Jennings was to give the balance of said purchase-money to said Craig.”</p> <p>Prayer for execution of the trust, a conveyance of the lands to plaintiffs, and other relief.</p> <p>To this petition an answer was interposed, setting up, ■among other things, the former adjudication, the decree and its execution, in the case of Craig’s administrator against Simeon Jennings in his lifetime.</p> <p>To this answer plaintiffs replied, setting out the record in the former suit, and alleging fraud on the part of Jennings in the conduct and management of that case.</p> <p>Upon the pleadings, judgment was rendered in favor ■of defendants in error.</p> <p>The district court, on petition in error, affirmed the judgment of the common pleas.</p> <p>For the purpose of reversing these judgments, leave to file a petition in error is now asked.</p>

The plaintiffs in error, Hamilton et al., sued Miller et al., In the Court of Common Pleas of Ross county, to. recover ■damages for the conversion of certain timber, the property of the plaintifl's. The amount of damages claimed in the petition was $500. Summons was issued and served on the defendants, but it contained no indorsement of the money demanded. The defendants did not appear to the action.

The defendants, William E. and Vincent Whitney, held by assignment from Andrew C. Hull, a contract dated November 30, 1852, for the purchase from Erancis M. Drexel of about thirty-six hundred acres of land, in McKean county, Pennsylvania, upon which a portion of the purchase-money due Drexel was unpaid. The said Whitneys were also the owners of an undivided half of certain premises in Warren county, Pennsylvania, Richard W. Corwin owning-the other half.

<p>Error to the Court of Common Pleas of Clarke county..</p> <p>At the January Term, 1877, of the Court of Common Pleas of Clarke county, the plaintiff in error was convicted of the crime of an assault upon one Georgiana Runyan with intent to rob.</p> <p>On the trial, testimony was offered tending to prove that the offense was committed by the defendant, on the evening of Saturday, the 6th of January, 1877, at about twenty minutes past eight o’clock, on a street in the city of Springfield.</p> <p>Thereupon the state offered other testimony, showing' that about five minutes after the offense charged in the indictment had been committed, the defendant assaulted another person, in the vicinity of the place where the assault, charged in the indictment had been made.</p> <p>A portion of the testimony objected to was given by Ida Garver, as follows: “ Was on south- Center street-(Springfield) going south with my sister Lillie Easier, Miss Anna Anderson and Miss Jennie Anderson, between eight and nine o’clock, Saturday evening, January 6th.” Whereupon the defendant asked the witness, “Did you see John Coble attack Mrs. Runyan?” Witness answered, “I did not.” Defendant then objected to the witness testifying further, which objection the court overruled, and the defendant excepted. “We were right opposite Mrs. Runyan’s house when I saw John Coble coming north on Center •■street. When first saw him, he seemed to be standing under the gas light in front of Mr. Aron’s house, at the •alley. He came toward us walking fast and straight. He had no appearance of drunkenness. We were walking .single file. One of the girls said, ‘ There is the man that .attacked us on New Year’s night.’ I said, ‘It is John ■Coble then.’ He was about a foot and a half from us, and, .as he passed, he sprang and caught me. We screamed and called him John Coble when he let go of me and ran away.”</p> <p>On behalf of the defense, the defendant offered himself as a witness and testified that he was not present at the time- or place of the alleged offense, and upon cross-examination was asked, “How many times have you been under arrest?” An objection to this question was overruled, whereupon the -defendant answered, “Was arrested once. Was not arrested twice.”</p> <p>In rebuttal, the state offered the docket of the mayor of •the city of Springfield, to prove that the defendant had been arrested and convicted for violations of the ordinances •of the city, for the sole purpose, as was stated by the prosecutor, of affecting the credibility of the defendant as a witness. To the introduction of this testimony the defendant objected, but the objection was overruled, whereupon •the prosecutor read the record of an arrest and a conviction of the defendant for disorderly conduct in violation of an ■ordinance of the city on the 30th of October, 1876, and also the record of another arrest and conviction for a like •offense on the 10th of January, 1877. To all of which the •defendant excepted.</p> <p>Upon these several rulings error is now assigned, for which, it is claimed, the judgment below should be reversed.</p>

At the October term, 1873, the Court of Common Pleas-of Ottowa county, in an action in which James Myers was plaintiff and Eber B. Ward was defendant, the court found the issues in favor of the plaintiff; and, having overruled a motion for a new trial filed by the defendant, rendered, judgment on such finding against the defendant. The defendant excepted to certain rulings of the court -during the trial, and likewise excepted to the overruling of the motion for a new trial.

This was an action by plaintiff in error against the defendant in error, upon the defendant’s promissory note, which reads as follows : “ Lima, Ohio, June 10, 1874. “ $605.

<p>1. When a statute under which a party stands indicted, is subsequently, and before trial, repealed, without a saving clause, or other express provision in the repealing act as to offenses or pending prosecutions, the act of February 19, 1866 (S. & S. 1), saves, unaffected.by such repeal, the pending prosecution.</p> <p>% Under the first section of chapter seven of the criminal code (74 O. L. 352), the court, in its discretion, may permit the jury, in a capital case, to separate during the progress of the trial, and before the case is finally submitted to them.</p> <p>3. In the trial of a capital case, where homicide is admitted, and the defense of insanity is set up, the burden of establishing the defense by k preponderance of testimony rests upon the defendant.</p>

<p>1. A statute should not receive a construction which makes it conflict with the constitution, if a different interpretation is practicable.</p> <p>2., By the act of March 25, 1870, entitled “ An act to authorize manufacturing corporations to issue preferred stock” (vol.'67, Ohio L. p. 26), the legislature did not intend to authorize the creation of additional stockholders, and to exempt them from individual liability to creditors, but to enable such corporations, upon the terms in the act provided, to .borrow money and guarantee its repayment, with the option on the part of the lenders to become stockholders. .</p> <p>3. Such corporations have power to borrow money for the prosecution of their legitimate business, and to secure its repayment by mortgage, independent of, and without any aid from the provisions of said act.</p> <p>4. Where a manufacturing corporation, professing to act under the provisions of said act, issued certificates of preferred stock, so called, certifying that the corporation guaranteed to holders the payment of four per cent, semi-annual dividends, and the final payment of the entire amount at a specified time, with the right to convert the preferred stock into common stock; and the company at the same time executed and delivered to a trustee its bond and mortgage to secure the holders of such certificates: Held, that the holders of the certificates did not thereby become stockholders or members of the corporation, but its creditors, and that, as such creditors, they had a lien upon the mortgage property superior to that of general creditors of the corporation, or of its assignees.</p>

<p>1. Under section 38 of the probate act (S. & 0.1218,) an undertaking in appeal, signed by sufficient sureties, is good without the signature of the appellant thereto.</p> <p>% Where the undertaking is defective in omitting, by mistake, some of the conditions required by the section, the court of common pleas has power to allow an amendment of the undertaking.</p>

The original action was brought by J. H. Hawkins Co. v. Alexander Johnston, executor of John Johnston, deceased, on an account against the testator for goods sold and. delivered in his lifetime. The answer denied the liability of the estate. On the trial the issue was whether the goods in question were furnished on the credit of the testator, or solely on the credit of his wife, Margaret Johnston. The testator and Margaret were married in 1857.

Sophia M. McDivitt brought the original action in the ■Court of Common Pleas of Athens county, against the plaintiff in error, on the 4th clay of October, 1873, to recover damages, under section 7 of the act of May 1, 1854, entitled “an act to prevent the evils resulting from the sale of intoxicating liquor in the State of Ohio,” as amended April 18,1870, for injuries to her means of support in con■sequence of the intoxication of her husband, Samuel S. Mc-Divitt, a person in…

John P. Anderson died testate, seized of about 227 acres of land. By his will he devised his estate in equal shares to his four sons, John H., William, Albert, and James, and his daughter, Eliza. He appointed hie son, John H. .Anderson, executor of his will, authorizing and empowering him to sell at private sale or otherwise all said real estate on such terms as he might think proper.

The original proceeding was in bastardy. The complaint was made March 6, 1876.

Taylor and Wallace were candidates for sheriff at the October election, 1876, in Hamilton county. The clerk and justices whose duty it was to canvass the returns, found that Wallace had received the highest number of votes, and declared him duly elected. Taylor, intending to appeal, instituted proceedings in the court of common pleas to contest the election of Wallace. The indorsement of the clerk shows the notice of appeal to have been filed November 4, 1876.

The defendant, Henry A. Garlough, brought an action, in the Superior Court of Montgomery county, against James Niswonger and Mary, his wife, to foreclose a mortgage executed by them to him, March 24, 1876, to secure the payment of two thousand dollars.

the District ■Court of Cuyahoga county. The original action was brought in the Court of Common Pleas of Cuyahoga county, by plaintiff in error, .against defendant in error, to recover the possession of certain goods. The solé issue in the case was in relation to the ownership of the goods. Upon the trial, a jury being waived, the court found the ownership to be in the defend.ant.

This was an action by the bank against IIemingray, upon his three promissory notes, for $4,000 each. The notes were drawn payable to the order of B. Homans, Jr., in one, two, and three years, respectively, and indorsed to the bank by Homans before due. Homans carried on a banking business in Cincinnati, and the notes were indorsed and delivered to the plaintiff in that place, but they were executed and dated in Covington, Kentucky, where the defendant resided.

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

In 1843, Simon Beymer devised certain real estate, situate in Guernsey county, by an item in bis will as follows : “ To my wife Ann Beymer and John Beymer, for the support of my wife Ann Beymer and my sons John, Joseph, and Conrad, and my daughter Ann ; the same to be in lieu of dower to which my .wife is entitled. .

<p>Tn an action brought against a city by its mayor, to recover the costs taxed by him in his own favor in certain cases against persons charged with violating the ordinances of the city, in which cases such persons were fined, and in default of payment were sentenced to hard labor in the city prison, until such labor, at a stipulated rate, would amount to a sum equal to the fine and costs in such eases, and the persons were put to work in the city prison, and performed the required labor for the benefit of the city: Held, that this did not constitute a collection and appropriation by the city of the costs taxed in favor of the mayor in such cases, from which the law will imply a promise on the part of the city to pay the amount of such costs to the mayor.</p>

<p>1. An action for specific performance against the heirs of the vendor, and against his grantee who took the legal estate with notice, is not an action for relief on the ground of fraud within the meaning of section 15 of the code; and the grantee can not protect himself by the limitation therein prescribed.</p> <p>2. The proviso in section 313 of the code, as amended March 23, 1875 (72 Ohio L. 77), applied only to a case for setting aside a will or the deed of a deceased person. The heirs, legatees, and grantees, who are de- • dared competent witnesses by the proviso, are such as derive title from the same person ; and where a person does not claim under a will or deed, he must, to come within the proviso, claim as heir of the testator or grantor whose will or deed is sought to be set aside.</p>

<p>A person, other than the payee, who brings an action against the maker of a note payable to the order of the payee, and. frames his petition under-section 122 of the code, without giving a copy of an indorsement by the-payee, is not entitled, under such petition, to the protection given to a bona fidu indorsee for value and before maturity, although the note when offered in evidence appears -w?lb the name of the payee indorsedtboreon.</p>

<p>Error to the Court of Common Pleas of Allen county.</p> <p>Joseph Lytle, the plaintiff in error, was indicted for perjhiry-</p> <p>The indictment charged that the crime was committed “ in a certain proceeding, examination, and cause then and there pending before "William "Wilson, one of the justices of the peace in and for said county, wherein the State of Ohio was plaintiff, and the said Joseph Lytle and one-Curtis Pratt, were defendants,” etc.</p> <p>On the trial, the state introduced William Wilson, the justice of the peace before whom the examination was-had, as a witness, who testified to his official character,, and that, as such officer, he kept a criminal docket, and that at the time stated in the indictment there was an examination in a cause then pending before him, as such justice, “ wherein the State of Ohio was plaintiff, and Joseph Lytle and Curt Pratt were defendants ;” that the cause was-docketed by this title, and the proceedings in said cause-were recorded in said criminal docket under the same title.. Thereupon the state offered in evidence a duly certified transcript of the docket entries made, by the justice, in the-cause, in his criminal docket, to the introduction of which the defendants objected. Whereupon the state offered testimony “ tending to prove that the real and true name of Curt Pratt was Curtis Pratt, and that the person named and described therein as Curt Pratt was the same person named and described in the indictment as Curtis Pratt,” to the introduction of which testimony the defendant objected, which objections were both overruled, and the testimony and transcript admitted as evidence; to both of which the defendant excepted.</p> <p>The proceeding before the justice of the peace was a prosecution against Lytle and Pratt for an assault and battery committed on John ‘W. Isham, which the testimony tended to prove took place at a certain point on a public road, at about the hour of half past five o’clock in the afternoon of the day named.</p> <p>The defendant, Joseph Lytle, was sworn and examined as a witness in behalf of the defendants, on the trial before the justice. The indictment, in substance, charged that, in the testimony given by him on the trial, he corruptly, willfully, and falsely testified that he and Pratt had not been traveling on the road at the point where the assault and battery was committed, on the day named, but had traveled on another and different road, at the time named; and further, that they did not meet or see John W. Isham on the day or at the time tbe assault and battery was committed, etc.</p> <p>On the trial, after introducing testimony tending to prove the charge, the state rested; and the defendant offered witnesses, who were acquainted with him, and by whom he proposed and offered to prove that at about the hours of four o’clock, half past four o’clock, ten minutes after five o’clock, and at nine o’clock in the afternoon and night of the day upon which tbe assault and battery was committed, “ the defendant was greatly intoxicated, that he was unable to walk without staggering, and that he was in an incoherent and nearly insensible condition of mind.” To all of ■which testimony the state, by its counsel, objected, and the court sustained the objection, and refused to permit said testimony to go to the jury; to all of which the defendant •excepted.</p> <p>The defendant moved the court to set aside the verdict of conviction, and for á new trial, on the grounds, among others, that the court erred in admitting in evidence the testimony objected to by the defendant, and in refusing to-admit the testimony offered by him. The motion was overruled, and the defendant sentenced to the penitentiary. The défendant took a bill of exceptions. The rulings of the court, on the admission and rejection of testimony, are-assigned for error in this court.</p>

<p>Error to the District Court of Summit county.</p> <p>The J. E. Seiberling Company* a corporation of this state, made an assignment of all its property, in trust for the benefit of its creditors.</p> <p>The assignees, having duly qualified under the statute, took upon themselves the execution of the trust.</p> <p>Authority having been given to the assignees, by the probate judge, to sell the property at private sale, they made a sale to the plaintiffs in error, Aultman, Miller & Co., including in the sale a large amount of real estate. The assignees made due return of the sale to the probate judge, for confirmation.</p> <p>J. E. Seiberling, a stockholder, and one of the creditors of the corporation, and other creditors, objected to the confirmation of the sale, on the ground that, under the circumstances under which the sale was made, the property was sold for much less than its real value.</p> <p>On hearing, the probate judge refused to confirm the sale, and directed the assignees to resell the property.</p> <p>The purchasers undertook to appeal from the decision of the probate judge in refusing to confirm the sale. They took the steps required by law to .be taken to perfect an appeal from the probate court to the court of common pleas.</p> <p>The court of common pleas confirmed the sale. To this confirmation, the purchasers, Aultman, Miller & Co., excepted.</p> <p>On error prosecuted by Aultman, Miller & Co., the district court affirmed the judgment.</p> <p>The present proceeding in error is .prosecuted to reverse the judgment of the district court, and of the court of common pleas.</p>

<p>1. Under the fifty-eighth section of the act of April 1, 1856 (S. & C. 850), a commutation of the punishment of a lunatic convict, by the governor, was valid and took effect without the acceptance or assent of the convict, and could not be defeated-or invalidated by the convict’s rejection or refusal of it when restored to reason.</p> <p>2. The words “ for the time being,” in that section of the statute, refer merely to cases of reprieve or suspension of execution, and not to cases of commutation.</p> <p>3. Commutation is not a conditional pardon, but the substitution of a lower for a higher grade of punishment, and is presumed to be for the culprit’s benefit.</p>

alleged in his petition that he was the owner and occupier of a farm in Portage county; that the only egress and ingress were by means of a certain township or private road through the lands of… Held: for a period of fifty years; that the defendants had obstructed the road, to his damage, and threatened to further obstruct the same, and would do so, unless restrained by an order of the court.

<p>Mandamus.</p> <p>By the act of April 9, 1873 (70 Ohio L. 347), the board of commissioners of Henry county were “ authorized to levy a tax upon all the taxable property of said county, for the purpose of constructing a bridge across the Maumee river, at or near the village of Texas ”—the levy not to exceed the sum of three mills on the dollar valuation in any one year; and the tax so collected to be “ applied to no other purpose than that for which it is collected.” In 1874, the commissioners of Henry county, in pursuance of the provisions of this act, levied a tax of three mills on the dollar, for. the purpose named, amounting in the aggregate to about $1,200, which tax was subsequently collected, and is now in the treasury of said county, being but a small fraction of the amount necessary to build the bridge. No further levy has been made for the purpose of constructing the bridge, and the commissioners refuse to make any further levies for.that purpose, declaring that they have abancloned the intention of building the bridge. The. present case is an application, on behalf of the relators, who are taxpayers of Henry county, to compel the commissioners to make the necessary additional 'levies, and cause the bridge to be constructed.</p> <p>In their answer to an alternative writ of mandamus, issued in the cause, the commissioners base their refusal on the ground, 'among other things, that the county is largely in debt; that the bridge will cost over $60,000; and that, under the present circumstances, the outlay would be much more than the county could afford to make for such a purpose, and would, in their judgment, be unwise, and injurious to the best interests of the county.</p> <p>The cause was submitted to the court upon this answer.</p> <p>Eor the purpose of building this bridge, a considerable sum of money has been taken from the taxpayers of the county, under the action already had by the commissioners, pursuant to the act of April 9, 1873. This money can be applied to no purpose except that for which it was raised. Constitution, art. 12, sec. 5; sec. 2, 70 Ohio L. 348.</p> <p>In order to render the levy already made effective, a further levy should be made, or that which has been taken from the taxpayers will be virtually lost.</p> <p>Having set the opei’ative powers of the statute in motion, so that rights have attached under it, the commissioners are bound to proceed .and fully execute the law. R. ánd P. F. Turnpike Go. v. Comm’rs of Sandusky County, 1 Ohio St. 149; The State ex rel., etc. v. Comm’rs of Warren County, 17 Ohio St. 558; The State ex rel., etc. v. Comm’rs of Holmes County, 17 Ohio St. 608; The State ex rel., etc. v. Comm’rs of Perry County, 5 Ohio St. 497; Supervisors v. United'States, 4 "Wall. 435.</p> <p>As to whether a writ of mandamus should be granted, cited Jenkins v. Parker, 10 How. 543 ; 25 Ohio St. 520; 1 Ohio St. 30; 3 Lans. 398, 4 Bans. 272; 37 How. 394; 55 Barb. 197; 57 Barb. 638; 58 Barb. 638.</p>

<p>The plaintiff in a proceeding in foreclosure, having more than one valid lien on the premises, will be protected only to the extent that he sets them up and asks relief; and if lie has a subsisting judgment lien, at the time he commences his action, and fails to set the same up in his petition, and such judgment, pending the proceedings, becomes, dormant, the plaintiff can not afterward set the same up by amendment, and have it enforced against the liens of other parties in the case.</p>

<p>Error to the Court of Common Pleas of Eulton county.</p> <p>John Molosh and. Henry Richie were indicted for stealing two geldings. The plaintiff was charged by the same indictment as an aider and abetter. He was tried separately, convicted, and sentenced to the penitentiary. A bill of exceptions was allowed and sealed, embodying all the evidence, and made a part of the record. Erom this, it appears that exceptions were taken during the progress of the trial to rulings upon the admissibility of evidence, a general exception to the charge given to the jury, specific exceptions to the refusal to charge as requested, and to the order overruling the motion for a new trial. The testimony tended to show that the horses were taken from the stable of the owner on Thursday night, August 31, 1876, and led or rode away some- three miles, and concealed in a piece of woods, by Molosh and Richie, pursuant to an agreement previously made between them and the plaintiff that Molosh and Richie should so take and conceal them until a reward should be offered for their return by the owner, when Berry was to procure their return, receive and divide the reward between the parties to the transaction.</p> <p>That on the following Monday, a reward, meantime, having been offered, Berry procured one Hamp to return them and receive the reward.</p> <p>Upon the close of the testimony, counsel for Berry requested the following instructions:</p> <p>1. “If the jury shall find from the testimony, that the geldings mentioned in the indictment were taken by the defendants, John Molosh and Henrie Richie, from the stable wherein they had been placed by the owner, at the time mentioned in the indiptment, without any intention or purpose on their part to permanently deprive the owner of them, or to in any manner convert them to their own use, or to the use of any other person, or to destroy them, such taking does not constitute larceny or horse stealing under the statutes of Ohio.”</p> <p>2. “If the jury shall find from the testimony, that shortly before the taking mentioned in the indictment, it was arranged between the defendants, that the defendants, John Molosh and Henry Richie, should take the geldings mentioned in the indictment from the stable of the owner, without the knowledge of the owner; that they should thereupon take said geldings into the open woods in the neighborhood, to a designated place, and there hitch and leave them; that if a reward should be offered for their return, the defendant, Berry, should send a man to bring them in and return them to the owner; and that such reward should be divided among the parties to said transaction ; that in pursuance of said arrangement, and for the sole purpose of obtaining a reward for their return, the geldings were taken by said Molosh and Richie, and hitched in the open woods in the neighborhood, and there left; and that within a few days thereafter, and in pursuance of the purpose for which they were taken, said geldings were returned to the owner by the procurement of the defendant, Berry; and that there was no purpose or intention on the part of either of said defendants to convert either of said geldings to their own use, or to the use of any other person, or to destroy them, or to permanently deprive the owner of them, such taking does not constitute larceny or horse stealing under the statutes of Ohio, and the verdict of the jury, upon such a state of facts, should be for the defendant.”</p> <p>The court refused to charge as requested, but on the. point charged the jury as follows :</p> <p>“ If you shall find, from the testimony, that the geldings mentioned in the indictment were taken by the defendants, John Molosh and. Henry Richie, from the stable wherein they had been placed by the owner, at the time mentioned in the indictment, without any intention or purpose on their part to permanently deprive the owner of them, or to in any manner convert them to their own use, or the use of any other person, or to derive any pecuniary gain, profit, or benefit from such taking, or to destroy them, such taking can not constitute larceny, or horse-stealing under the statutes of the State of Ohio.</p> <p>“ If you find, from the evidence, that said Richie and Molosh took from the stable where the owner had placed them, led away, acquired possession and control of the horses described in the indictment, knowing them to be the property of Jefferson Newcomb, and without his consent, with intent wrongfully to convert them to their own use, or to derive some pecuniary gain, profit, or benefit from such taking, either to deprive the owner permanently of his property in them or with intent to hide or secrete them from the owner, and to keep and exclude them from his possession, use, and. enjoyment, for the purpose of exacting or receiving from the owner a pecuniary reward for their return, and with the intent to hide, secrete, and exclude them'from such possession, use, and enjoyment, unless and until such reward should be paid by the owner for, or as a condition of their return, then, and in that case, they were guilty of the crime of horse-stealing under the statutes of Ohio.”</p> <p>The court also charged the jury that “if the state shall have proved that the said Richie and Molosh wrongfully took and led away the property described in the indictment, with the knowledge at the time that they were the property of another, and without the latter’s consent, the law will presume, from the facts so proved, that they intended to convert the property to their own use, and deprive the owner of his property, and it is for the defense to rebut that presumption by proof of another and rightful purpose or intent in so taking and leading away the horses described in the indictment.”</p> <p>Other facts appear in the opinion.</p> <p>1. The court erred in instructing the jury that, if certain facts were proved, the law would presume criminal intent, and that the burden was on the defense to prove a different purpose or intent. It was for the jury to determine, from the facts, the intent. 3 Greenleaf’s Ev., sec. 157; Proffatt on Jury Trial, sec.'265; Ellis v. The People, 21 How. 356; Stokes v. People, 53 N. Y. 179; 2 Wharton on Ev., secs. 1261, 1263; Wharton on Crim. L., sec. 714; 2 Bishop Crim. Proc., sees. 69.7, 698, and cases cited; Baily v. State, 52 Ind. 462; Com. v. Randall, 119 Mass. 107; State v. Walker, 41 Iowa, 217; Davis v. State, 50 Miss. 86; State v. En, 10 Ncv. 277; Barnes v. State, 43 Texas, 98; Thompson v. State, lb. 268 ; Thomas v. State, lb. 658; Methand v. State, 19 Ohio St. 363.</p> <p>2. To instruct the jury that certain testimony, if believed, establishes .a certain result, is to pass upon and determine the weight and effect of that testimony; and to that extent, to withdraw from the jury matters which are for their exclusive consideration. Proffatt on Jury Trial, sec. 321; Bryan v.Wear, 4 Mo. 106; State v. Parker, 66 N. C. 624; Railroad v. Snyder, 24 Ohio St. 698.</p> <p>3. As to what is larceny, and as to how far the intent to convert the thing taken to the use of the taker is an ingredient of it, see 2 East’s Crim. L. 553, 662 ; 2 Russell on Crimes (6th ed.), 2, 8; 2 Leach, 1089 ; 2 Car. & K. 945; Wharton’s Crim. L. (3d ed.), 640, 646 ; Roscoe’s Crim. Ev. (7th ed.), 621; 2 Arch. Crim. Pr., Waterman’s, 361-363, note, 366, 367 ; 3 Greenlf. Ev., secs; 150, 157; 2 Bishop'on Crim. L., secs. 862, 863, 869; Rexv. Crump, 1 C. & P. 658: 11 E. C. L. 516; Rex v. Dickinson, Russ. & Ryan, 419; Queen v. Holloway, 1 Den. C. C. 370; Rex v. Phillips $• Strong, 2 East PI. Cr., cap. 16, sec. 98; Rex v. Webb, 1 Moo. C. C. 431; Rex v. Makin, Russ. & Ry. 333n; Reg. v. York, 1 Den. C. C. 342; Reg. v. Gardner, 9 Cox’s C. C. 253; Reg. v. Poole, Dears. & B. C. C. 345; Reg. v. Wright, Old Bailey, 1828; Cor. C. L. 278, 279; Reg. v*. Guernsey, 1 Post. & Pin. 394; State- v. South, 4 Dutch. 28; McDaniel v. The State, 8 Smedes & M. 401; Witt v. State, 9 Mo. 672; State v. Hawkins, 8 Porter, 461; State v. Barnwell, 2 Harrington, 529; State y. York, 5 Harrington, 493 ; State v. Self, 1 Bay. 242; U. S. v. Durkee, 1 McAl. 196; Reg. v. Cabbage, R. & R. 292; lb. 307; Hamilton y. State, 35 Miss. 214; 17 Tex. 521; State y. Brown, 3 Strobh. S. C. L. 508; 28 C^il. 380.</p> <p>4. The manner of impeaching the testimony of the impeaching witness was improper. Attorney General v. Hitchcock, 11 Jur. 481.</p> <p>W. VY. Touvelle, for defendant in error, on the admissibility of testimony, cited Lamb y. Stewart, 2. Ohio, 230; King v. Wicks, 20 Ohio, 87; Runyon v. Price, 15 Ohio St. 1 ; Mimms v. State, 16 Ohio St. 233.</p> <p>And as to what is larceny, cited Arch. Crim. Prac. 375, 376, 391; Alexander v. The State, 12 Texas. 540 ; Commonwealth y. Mason, 105 Mass. 163 ; Rex v. Phillips, 2 Earl’s P. 662 ; Rex v. Dickinson, Russ & Ry. 420 ; Reg. v. Hall, 1 Dennison, 381; Reg. v. Manning, 21 and 14, Eng.'Law & Eq. 548; Reg. v. O’Donnell,7 Cox’s C. C. 337.</p>

<p>1. A set-off may be pleaded in an action brought by a receiver of an insolvent national bank.</p> <p>2. Where usurious interest is reserved or charged on a note or bill discounted by a national bank, the entire interest, reserved or charged, will, in an action on the note or bill, be adjudged forfeited.</p> <p>3. The action authorized by ? 30 of the national banking act of 1864, to recover from the bank twice the amount of usurious interest paid, was within the jurisdiction of the state courts.</p> <p>4. The cause of such action does not arise upon contract within the meaning of § 97 of the code of civil procedure, and, therefore, is not available as a set-off.</p>

<p>1. Where a municipal corporation, agrees with a contractor to pay a specified sum for a street improvement, in assessments upon the abutting property, and the assessments levied and assigned to the contractor exceed twenty-five per centum of the value of the property, after the improvement is completed, the city is liable to the contractor for the deficiency.</p> <p>2. Where the contractor, iii an action against the abutting owner, to collect such assessment, prosecuted without laches and in good faith, fails to recover the full amount of the assessment because it exceeds twenty-five per centum of the value of the assessed property, after the improvement is made, the city is bound by such judgment, although it had no actual notice of the pendency of the action.</p>

<p>1. A judgment rendered against an insane person, without the intervention of a trustee or guardian, and in favor of one having knowledge of the insanity, is not. void</p> <p>2. In a proceeding in aid of execution, such judgment can not be impeached by the guardian of the judgment debtor without showing some fraud or unfairness on the part of the creditor in obtaining the judgment.</p> <p>3. Where a proceeding in aid of execution has been commenced, and the judgment debtor is afterward adjudged to be insane, the guardian of such debtor can not resist a decree preferring such creditor by showing that his ward was insane before the commencement of the proceeding and that his estate is insolvent.</p>

<p>Information in tlie nature of quo warranto.</p> <p>The information was filed by tlie attorney-general to obtain judgment of ouster against the defendant from the office of judge of tbe court of common pleas of the first judicial district, and a judgment for the induction of Joseph Cox to the office.</p> <p>It is charged in the information that at the October election, 1876, the defendant and Joseph Cox were candidates for said office. That Harmon received a certificate of election, and was duly commissioned by the governor, took the oath of office, and entered on the discharge of his duties. That Cox, claiming to have been elected by a majority of the legal votes, and that a large number of fraudulent votes had been cast for Harmon, filed a notice of contest in the senate, on the 9th day of January, 1877; that the contest was then heard, and it was by the senate decided that he, Cox, had been elected at said election. Upon said decision being made, a commission was issued to said Cox, by the governor, and he duly took the oath of office, and entered upon the discharge of his duties. But that said Harmon still usurps, holds, and exercises the duties of said office.</p> <p>The defendant in his plea denies the jurisdiction of the senate to determine the contest, and avers its decision to be void.</p> <p>As a ground against inducting Cox into the office, the defendant sets up, that at the election there were three judges of the court of common pleas of the first judicial district to be elected, for which three offices there were six candidates :—William L. Avery, Nicholas Longwortb, .Judson Harmon, the defendant, William H. Pugh, Joseph Cox, the person in the information named, and Henry A. Morrill; that the clerk and justices of the peace whose duty it was to open the returns, and make and certify an abstract of the votes cast at the election, found and declared, and so certified in pursuance of law, that said Avery had received 28,682 votes, Longworth, 28,225, Harmon, 27,850, Pugh, 27,783, Cox, 27,688, and Morrill, 27,419 votes as candidates for said office, and that said Avery, Longworth, and Harmon had received a majority and the highest number of votes for said offices, and were duly elected thereto. The defendant also avers that said Cox and himself were the only parties to the contest, and that said Pugh had no notice thereof.</p> <p>It is said that the trial of a case of contested election is a judicial act, and therefore in violation of the constitution, because the constitution has constituted a separate tribunal for judicial proceedings, and by section 32, article 2, specially provided that “the general assembly shall grant no divorce, nor exercise any judicial poioer not herein expressly conferred</p> <p>In the grant of powers to the legislature by article 2, the whole article must be construed so that if possible such sections will stand.</p> <p>It is not claimed that, by this section, the legislature has not the legal power to determine before what authority, and in what manner the trial of contested elections shall be conducted, but it is claimed that that is the extent of their authority, and that is legislative, and that the power to determine the contest is judicial, and can not be exercised by either branch of the legislature. Granting for the sake of ihe argument that the trial of the contest is a judicial act, is the prohibition of such a trial by the senate or house within the letter and spirit of the constitution ?</p> <p>The constitution of 1851, in so far as it vests all legislative power in the general assembly, is but a transcript of the constitution of 1802. And like the constitution of 1802, it vests the judicial power in courts. It is true that in the constitution of 1802 there was no clause in so many words like that of section 32, article 2, prohibiting the general assembly from granting divorces or exercising any judicial power therein expressed.</p> <p>But the fixiug legislative power in one body-and judicial in another was as well understood to limit each in the constitution as the other, and hence in defining the powers of each department the supreme court in many cases said under the old the constitution, that it was the right of the legislature to enact laws and the province of the courts to construe them. 17 Ohio, 127.</p> <p>Under the old constitution the legislature granted divorces, and the supreme court, in 17 Ohio, 445, decided those cases to be solely under the cognizance of courts, in other words judicial cases, and held that granting them was not within the legislative powers.</p> <p>Whether that power be judicial or not, we claim that it is expressly conferred on the legislature by section 21, article 2.</p> <p>It may be gravely doubted whether the contest of an election be strictly a judicial act. 1 Dillon’s Municipal Code; 2 Wend. 274; 1 Craueh, 299; 17 Yt. 479; 22 Ohio St. 211; 15 Ohio St. 114.</p> <p>But it is contended that this contest was premature; that under the 43d section, the notice of contest can only be filed between the sixth and tenth days of the first (session of the next) general assembly which meets after the election, which would postpone the contest for fifteen months after the election. It will be observed that the language of the statute is peculiar. It fixes the time “ between the sixth and tenth days after the commencement of the first general assembly after the day of election.”</p> <p>What is the meaning of these words? Did the legislature intend that any officer, on the mere declaration of the returning officer, might bold his office for one year, in many instances (that of those named in this section) one-half of the entire term, before any legal contest could be made of his right to hold it, and that then by possibility with the great time consumed by such contest, add another quarter to it, while all the time he who may be legally entitled to it remains and looks on till the term is nearly out? Such clearly could not have been their meaning.</p> <p>The constitution provides for the election of members of that body biennially, and while in section 25, article 2, it provides that: “All regular sessions of the general assembly shall convene on the first Monday of January, biennially, the first beginning the first Monday of January, 1852,” it does not forbid annual meetings, nor forbid the legislature from adjourniug over from one year to another, and does not declare that such adjournment shall not be a meeting of the general assembly.</p> <p>The very use of the term, “ All regular sessions shall commence on the first Monday of January biennially,” presupposes that there will be other sessions. It is a fixing of the time of beginning of holding the session of each separately elected legislature, leaving the time to which they may adjourn or hold other sessions to their own discretion." It does not fix how long they may hold sessions with this term, but only the beginning of the regular sessions.</p> <p>The language of this act is not “ The first session of the next general assembly after the election,” nor yet is it “ between the sixth and tenth days after the commencement of the first regular session of the general assembly as described in the constitution, but it is “ between the sixth and tenth clays after the commencement of the first general assembly after the day of election.”</p> <p>I. We claim that sections 43 to 46 inclusive, of the act of May 3, 1852 (S. & C., 540, 541), and the supplementary act of February 20, 1874 (71 8. & C.), are unconstitutional, and that the action of the senate of Ohio under them, referred to in the information and plea, are, therefore, void.</p> <p>By the constitution the executive, legislative, and judicial powers of the state are distributed to the executive department, to the general assembly, and to the courts, respectively. For this reason alone no one of these departments can exercise any part of the authority so committed to the others, except by express constitutional grant. Cooley Const. Lim. 87; Taylor v. Porter, 4 Hill, 144; Wynehamer v. The People, 13 N. T. 378; Bingham v. Miller, 17 0. 445; Chandler v. Nash, 5 Mich. 409.</p> <p>Furthermore, our constitution expressly provides that “ the general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.” Article 32, section 32.</p> <p>II. The power to be exercised in the trial of a contested election is judicial, both in form and substance.</p> <p>1. It is called a “trial,” both in the statute, section 45 (S. & C. 541), and in article 2, section 21 of the constitution.</p> <p>2. After the filing of notice and specifications in the nature of a pleading and the service of a process, subpenas for witnesses, evidence and argument of counsel are provided for, and the senate is then to “ hear and determine (sec. 44), just as the courts are to do in contests for county officers,” sec. 42. The supplementary act referred to, sec. 6, attempts to provide for enforcing the “ decisions ” of the senate.</p> <p>3. If the power were not judicial, it could not be conferred upon nor exercised by the courts, as is done by and under sec. 42.</p> <p>At common law, too, tlie courts alone have power to try title to office, Cooley Const. Lim. 133, 624, 625.</p> <p>4. The power is judicial in its very nature and essence. It certainly is not executive, nor is it legislative, and all powers must belong to one of the three classes. It is the power to decide in particular cases the title of litigants to office. In the case in question it is the power to deprive the defendant of, and invest another with, the honors and emoluments of an office, the title to which had already vested. Lexois v. Com’rs of Union Co., 14 Ohio St. 518; Lehman v. McBride, 15 Ohio St. 587; Powers v. Reed, 19 Ohio St. 189; Phelps v. Schroeder, 26 Ohio St. 557. See also State v. McDonald, 2 Kan. 322; People v. Mahaney, 13 Mich. 481; Ewing v. Thompson, 43 Penn. St. 373; People v. Miller, 16 Mich. 56; State v. Steers, 44 Mo. 228; Stone v. Elkins, 24 Cal. 125; State v. Wharton, 25 La. Ann. 10.</p> <p>in. As, therefore, the exercise of judicial power is for-hidden to the general assembly, except when expressly conferred by the constitution, and as the trial of a contested election is the exercise of judicial power, the relator, to succeed, must establish one or both of the following propositions, viz</p> <p>a. That the denial of judicial power to the general assembly is not a denial to the senate.</p> <p>b. That the power is expressly conferred by the constitution.</p> <p>c. The power is denied to the senate.</p> <p>1. Because the senate is part of the general assembly, which “ shall consist of a ‘senate and house-of representatives.’ ” Art. 2, see. 1. “ Qmne majas continet in se minus.”</p> <p>To hold that a denial to the general assembly is not a denial to both its branches would be to nullify every prohibition imposed by the constitution upon this branch of the government, for every one of them is a prohibition to the “ general assembly.”</p> <p>2. Because the only judicial power, “ expressly conferred ” in the constitution, is that to try impeachments and contests of election of members (article 2, section 6 and 23, ancl Debates, vol. 1, p. 258), and these powers are both conferred upon the branches of the general assembly separately.</p> <p>3. Because the mandate of section 21, article 2, to the general assembly “to determine by law before what authority the trial of contested elections shall be conducted,” assumes the existence of authorities to which they are to be referred, or, at most, only authorizes the establishment of tribunals for such trials, in the proper department of the government. It does not warrant the appointment or designation by the general assembly of itself or of one of its own branches. In Ohio v. Taylor, 12 Ohio St. 134; State v. Kevnon, 7 Ohio St. 546.</p> <p>4. Because, as judicial authority is to be exercised by the tribunal determined upon under section 21, that tribunal must be a body capable, under the constitution, of exercising such power. Under the constitution the only body so capable must be a court, of some kind, elected as such. Logan Branch Bank, ex parte, 1 Ohio St. 432; Article 4, sections 1 and 10; Chandler v. Nash, 5 Mich. 409; Stone v. Mkihs, 24 Oal. 125.</p> <p>But even if the law conferring this power upon the senate were constitutional, we claim it to be clear:</p> <p>1. That the senate, as the tribunal for the trial of contested elections, is a tribunal of special, statutory, ancl limited jurisdiction, and to give it jurisdiction in any case the statute must be strictly followed.</p> <p>That such is the rule in tribunals of this kind is too well settled to require citation of authorities.</p> <p>2. That the time prescribed for filing the notice in contested elections is of the essence of the proceeding, and failure to file it at the proper time is not simply error but goes to the jurisdiction. Ingerson v. Marlow, 14 Ohio St. 568.</p> <p>A fortiori would this be true in this case, because the time of filing the notice here determines the tribunal— whether the present senate or the next shall try the contest.</p> <p>Now section XLIII, S. & C. 540, requires that the notice shall be filed with the clerk of the senate, “ between the sixth.and the tenth days after the commencement of the-first general assembly after the day of election.”</p> <p>This contest was at an adjourned session.</p> <p>There can be no doubt that a mere adjournment from one-day to another, which is fixed by the resolution to adjourn,, however distant, is merely a continuation of the same general assembly. When it meets pursuant théreto it does not commence, it proceeds.</p> <p>The only sessions of the general assembly known to the-constitution are “ regular sessions ” which “ shall commence on the first Monday of January, biennially,” the first to “ commence on the first Monday of January, 1852,”—art. 2, secs. 2 and 25—and called sessions—art. 3, sec. 8. Art. 3, sec. 3, speaks of “the session.” The term “regular” is clearly used as opposed to called, sessions, those being the-only kinds mentioned or contemplated.</p> <p>In the absence of a call by the governor there is no authority for any but the regular session. It may be adjourned from time to time, but it is still the regular session under the constitution. The present session is the “ regular session” under the constitution, and it commenced on the-first Monday of January, 1876. It was the sixty-second assembly then, it is the sixty-second assembly still. .The-sixty-third can not commence until January, 1878.</p>

<p>1. Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 30,1875 (72 Ohio Laws, 159), and before the day set for trial this act was repealed by another (73 Ohio Laws, 14), which provided for a jury of six men for such trials; Held, That the act in force at the time of the trial governed, aud that the justice erred in submitting the cause to a jury of twelve men.</p> <p>2. Where a contract is attested by a witness, such witness must be called or his absence accounted for, before the testimony of other witnesses can be received to prove that the maker’s signature is genuine' or was admitted by Mm to be genuine.</p> <p>•3. Under the act of April 18, 1874 (71 Ohio Laws, 85), an action will not lie in favor of a land owner against a railroad company, to recover the cost of building' a fence along the line of a railroad, where a former owner of the land, for a consideration, released the right of way for the railroad over the lands, and agreed to build and keep up fences on both sides of the line of the r.oad.</p>

Petition for a writ of mandamus. For the purposes of this report the facts of the ease maybe stated thus: For five years past, taxes were annually levied and collected from the relator on certain real property, situate in Montgomery county, which, as a pure public-, charity, was not subject to taxation under the statute.

This case came into the district court by appeal, and involved the adjustment of conflicting liens upon a fund in the hands of the court, being the proceeds of land of J. M. Doty, sold under an order of the court. Three several parties claimed priority. One of the claims was based on transcripts of judgments rendered by a justice of the peace against Doty, amounting in the aggregate to some $257.

<p>The master is liable for an injury to a servant resulting from the negligence of a superior servant, while the latter is discharging the duties of one under his control, to the same extent as if the act causing the injury had been committed by an inferior servant under his directions.</p>

<p>1. The giving of bail for stay of execution, by a party against whom a judgment has been recovered before a justice of the peace, does' not operate as a release of errors in the judgment, or a waiver of the right to prosecute proceedings in error for its reversal.</p> <p>2. The. party recovering can not have included in his judgment the costs made by the adversary party, and where they are so included, the judgment, as to such costs, will be reversed on proceedings in error.</p>

The action below was brought by the defendants, Eleanor Kramer and Laura Young, in the Butler common pleas, against their present co-defendants and the plaintiff in error.

The original action was brought by the auditor of Lawrence county (defendant in error) against Boudinot Seeley (plaintiff in error), under the 4th section of the act of April 17, 1872 (69 Ohio L. 76), to recover a balance of the purchase-money of certain school lands described in-the petition, which it is alleged Seeley, the purchaser, refuses to pay.

Tbe original action was instituted by tbe auditor of ■Scioto county, in tbe name of tbe state, for tbe rise. of original surveyed ■ township No. 2, range 20, Cbillicotbe land district, against Stephen S. Glidden et al., to recover tbe purchase-money arising from tbe sale of certain'school lands. Tbe petition contains two causes of action.

Error, to the Court of Common Pleas of Preble county. The plaintiff in error was tried and convicted on an indictment for obtaining money by false pretenses, under the seventh section of chapter two of the revised code of May 5, 1877 (74 Ohio L. 289).

<p>1. In a proceeding under the 38th section of the tax law (S. & C. 1454), to' compel payment of the tax into the treasury, it is not necessary that the individual name of the treasurer should appear or be inserted as plaintiff; and whether it be so inserted or not, the expiration of his term of office during the pendency of the proceeding will not abate or discontinue the same.</p> <p>2. The provision in said section requiring the court to enter a rule “at the term to which th.e notice is returnable ” is not jurisdictional, but directory, and the court has power to continue the proceeding, and to enter ■ the rule at a subsequent term.</p> <p>3. Only the amount of the tax and penalty, without interest for the time prior to the rendition of the judgment, is recoverable in such proceeding.</p> <p>4. The provision in the act “to confirm the charter of the'Covington and Cincinnati Bridge Company” (47 0. L. L. 269), that half its “ capital stock paid in” shall be placed upon the duplicate for taxation, is to be understood as referring to and including not only the stock then authorized by its charter, but also all stock issued under subsequent amendments of its charter, and actually paid in, including as well preferred stock as common stock.</p> <p>■5. A corporation created hy concurrent legislation of two states, receiving from each the same charter in legal effect, has a legal domicile in each state, and may lawfully hold its meetings and transact its corporate business in either state.</p> <p>6. The ease of ¡Sebastian v. The Covington and Cincinnati Bridge Company (21 Ohio St. 451) is reviewed, and the principles therein established approved. ,</p>

Thomas E. Shewell and others conveyed lands in Scioto ■county to Joseph B. Shewell to sell, and out of the proceeds of the sale pay, first to Cordelia Cavender the bal•ance of a judgment for $993.47; then to Mary Cavender a note for $2,500, with interest from 1845; and to said Thomas the residue. The trustee sold part of the land in April, 1850, for $1,800; paid to Mary Cavender on her note '■$587, May 1, 1850, and $200, November 6, 1851, and died in 1864.

<p>Error to the District Court of Greene county.</p> <p>The original action was brought in April, 1873, in the superior court of Greene county, to abate a public nuis.ance. Tlie follow facts appear from the pleadings: The Columbus and Xenia Railroad Company was incorporated by a special act of the legislature in 1844, (42 Ohio L. 194), and authorized to construct and operate a railway from Columbus to Xenia. In 1849 it constructed its road across a public county road, which was laid out and established sixty feet wide, erecting a heavy abutment on the northerly margin thereof, and a southerly abutment in the highway about eighteen feet from the northerly abutment, the whole ¡space between the southerly abutment and the south margin of the road being filled in witb mason work and dirt for a distance along the highway of forty feet, and ten feet in height.</p> <p>The company, in the construction of its road, laid heavy sills from one abutment to the other, and carried its road across on them, leaving a passage-way for the public through a viaduct eighteen feet wide. This condition of the public highway has continued ever since. Tne Little Miami Railroad Company, defendant below, in 1868, as lessee of said railway, assumed all the liabilities of the Columbus and Xenia Company then existing, aud thereafter to arise, and has ever since continued the obstruction.</p> <p>By the 12th section of the charter, under which the railroad was constructed, it is provided, that, “ "Whenever it shall be necessary for the construction of the railroad, to intersect or cross any stream of water or watercourse, or any road or highway, lying in or across the route of said road, it shall be lawful for the corporation to construct the said railway across or upon the same, but the corporation shall restore the stream or watercourse, or road or highway thus intersected to its former state, or in a sufficient manner uot to impair its usefulness.”</p> <p>The company claimed: 1. That having left a sufficient width of'the road to accommodate the public travel then existing, it had complied with the requirements of its charter ; 2. That it had enjoyed the use of the structure complained of, adversely, for a period exceeding twenty-one years ; 3. That the commissioners had no legal right to maintain the action. Evidence was given at the trial by the company to show such adverse use and enjoyment, and by the plaintiffs below in denial. The jury found against the company, and assessed the damages at $500. The court gave judgment for that sum, providing, that if the company should, within ninety days then next, remove the obstruction, the judgment should be deemed satisfied. Erom the bill of .exceptions taken at the trial, it appears that exceptions were taken to the charge as given, and to the refusal of the court to charge as requested, on the subject of adverse possession. On error the district court affirmed the judgment of the superior court. In the view taken by the court here, the exceptions relate to matters deemed wholly irrelevant.</p> <p>As to the bar of the statute of limitations, see Cincinnati v. JSvans, 5 Ohio, 594; 8 Ohio, 298; Paine, v. Comm’rs, Wright, 417; Fox v. Hart, 1L Ohio, 414 ; County St. Charles v. Powell,22 Mo. 525; 1 Red. on Railroads, 575; 28 Vt. 560.</p> <p>After a cause of action has become barred by the statute of limitations, a. defendant has a vested right to rely upon that statute as a defense, and the legislature has no power to divest the right and revive the cause of action. Qirdner v. Stephens, 1 Ileiskill Law; 13 Am. Railway, 5 ; 2 Am.'Rep. 700; Cooley’s Con. Lim. 365,369; Lewis v. Webb, 3 Green, 326; Holden v. James, 11 Mass. 396; Simonds v. Simonds, 103 Mass. 572; 4 Am. Rep. 576; 7 Am. Rep. 23; Bender v. Crawford, 7 Am. Rep. 270; lb. 239; Sturges v. Burton, 8 Ohio St. 215; Hill v. Henry, 17 Ohio, 11; Kelly v. Wiseman, 2 Disney, 48; 6 Ohio, 96.</p> <p>As to adverse possession: Lane v. Kennedy, 13 Ohio St. 48; Washburn on Easements, 90, 93, 94, 96, 99, 111, 113;, 5 Ohio, 455; Bealy v. Shaw, 6 East, 215 ; 1 Ohio, 349; 1 Red-field on Railways, 393; 2 Wash. Real Prop. 297; 15 Ohio, 248; 20 Ohio St. 81; 2 Wash. Real Prop. 300; Powell v. Bagg, 8 Gray, 444; Wilson v. Watkins, 3 Peters, 4'8; 22’ Ohio St. 247.</p> <p>The act of March 7, 1873 (70 Ohio L. 53, sec. 17), is-not retroactive, bat remedial and within the purview of legislative authority. Rairden v. Holden, 15 Ohio St. 207; Trustees, etc. v. Campbell, 16 Ohio St. 11, 16; Templeton v. Kraner, 24 Ohio St. 554.</p> <p>The statute of limitations would not begin to ran in this-case, if it would run at all, until after a reasonable time within which to remove the obstruction had elapsed, which,. in this case, we claim was not before 1860. 3 Wash. Real. Prop. (3 ed.) 52; 2 Greenlf. Ev., sees. 538, 539, 539a; Burt. Real. Prop., sec. 1039; 8 Pick. 503; 2 Blackstone (Wen-■deli’s), 263.</p> <p>Lapse of time furnishes no defense for an encroachment upon a public right. 2 Dillon Oorp., sec. 530 p. 636, note 1; and cases cited ; Common-wealth v. Alberger, 1 Whart. (Penn.) 469, 488; Commonwealth v. McDonald, 16 Serg. & R. 390; Barter v. Commonwealth, 3 Penn. (Penrose & Watts,) 253; 11 Ohio, 416; 13 Ohio St. 42.</p> <p>Nor does the laches of public officers afford such defense. Dillon Oorp., sec. 433, noVfe.</p> <p>Although the statute of limitations .might run in favor of •one who obstructs a public highway, it does not run in favor of one who encroaches upon said highway, leaving sufficient space for the accommodation of the public travel. Fox v. Bart, 11 Ohio, 416; Lane v. Kennedy et al., 13 Ohio St. 42; .2 Dillon on Corp., sec. 530.</p> <p>It may be that the act of 1873 is remedial, and that the •commissioners. had the right to sue, if the L. M. Co. was liable to be sued. But, it is submitted, that the alleged obstruction having been made by the C. & X. Co., although the L. M. may be liable to the C. & X. Co., it is not liable at the suit of the commissioners, unless for continuance of the obstruction.</p> <p>It is submitted that there was no cause of action, even against the C. & X. Co.</p> <p>1. Because that company did only what it had the right to do, under its charter (Local Laws, vol. 42, p. 194, sec. 12), which provides that: “Whenever it shall be necessary for the construction of the railroad, to intersect or cross any stream of water or watercourse, or any road or highway, lying in or across the route of said road, it shall be lawful for the corporation to construct the said railway racross or upon the same, but the corporation shall restore the stream or watercourse, or road or highway thus intersected to its former state, or in a sufficient manner not to-impair its usefulness.”</p> <p>The road is either to be restored to its former state, or in a sufficient manner not to impair its present usefulness. This, it is believed, is the strongest construction that can be given to this provision, against the company. And, that the legislative intent had no reference to the future usefulness of the road, is apparent from the language used in the 15th section of the act entitled “ an act regulating railroad companies,” passed February 11, 1848. (46 vol. 40,, and S. & C. 273, note.)</p> <p>It is admitted, or stated, in the amended petition (page 10 of the printed record, etc.), that: “For ten years from the placing of said obstructions, as aforesaid, said viaduct was amply sufficient, and for fifteen years therefrom, it would answer to accommodate the travel on said highway.”</p> <p>"Was not the road then “restored, in a sufficient manner not to impair its usefulness”—present, or past, or “former?” Must not the rights and duties of the company be determined, as of the date of the alleged obstructions, and not In view of the changes of 15—or 50—years, succeeding? It is submitted that the C. & X. Co. did only what it had the right, and what it was its duty to do; and that the structure being then lawful, it could not become" unlawful by the lapse of time and the change of circumstances; and that though the public may have sustained damage in consequence of the insufficiency of the viaduct to accommodate the present amount of travel, etc., it is damnum absqueinjuria; and there is consequently no cause of action. Sedgwick on Damages, (5 ed.) 27, top paging.</p>

In mandamus. In pursuance of the provisions of the act of April 16,. 1852, entitled “an act to regulate the sale of school lands and the surrender of permanent leases thereto” (S. & C,. 1339), the auditor of Paulding county, on the 1st day of January, 1862, sold the northeast quarter of section 16, in township 1, north of range 3 east., in said county, to George-H. Ward, for the sum of $580, payable as follows: one-twelfth in hand, and the balance in eleven equal annual…

Error reserved in the District Court of Lawrence county. The original action was brought by Martha Justice against James T. Davis and others, under the act of 1854,. as amended in 1870, providing against the evils resulting from the sale of intoxicating liquors, to recover for injury to her means of support in consequeuce of the intoxication of her husband, Benjamin Justice.

<p>The limitation upon the power of making assessments contained in section 542 of the municipal code (66 Ohio L. 241), is applicable to assessments levied upon the property abutting on the improvement in proportion to its frontage, as well as to assessments levied upon such property in proportion to its taxable valuation.</p>

<p>1. Previous to the act of April HO, 1868 (S. & S. 734), where a sheriff who-was his own successor, had received money in his official capacity during his first term of office, which was in his hands when he gave bond and qualified for his second term, and subsequently failed, on demand,, to pay the money to the party entitled thereto, the sureties on his official bond for the second term, are not liable for such default.</p> <p>%. Where lands wore bid in at partition sale by one, for the benefit of all the-parties in interest, and the sale was reported by the sheriff, and continued for confirmation ; and the bid was afterward transferred to P. at a higher price, on condition that the court would allow P. to be substituted for the bidder and confirm the sale, and order a deed to be made to P., all of which was subsequently done by the court; and P. then paid to the sheriff a portion of the sum at which he purchased, the same being less than the sum at which the lands were first bid in, and which sum the court ordered the sheriff to pay to the parties entitled thereto, hut which he neglected to do: Held, that the sureties on the official bond of the sheriff were liable for the money so received by him.</p>

<p>Motion for leave to file a petition in en*or to reverse the judgment of the District Court of Logan county.</p>

<p>Error to the District Court of Lucas Couuty.</p> <p>Previous to July 29, 1872, the northern terminus of Division street, iu tbe city of Toledo, was at Eorrer street On that day, the common council of the city, upon the recommendation of the board of improvement, declared, by resolution, tbe necessity of extending the street from Eorrer to Dorr street; and that the expenses of the extension should be assessed per front foot upon the property benefited thereby, according to the law and the ordinance-on the subject of assessments.</p> <p>After this resolution had been duly published, the council passed an ordinance for the appropriation of certain lots- and parcels of land for the purpose of such extension, and also ordained that the cost and expense of such extension, including the compensation for lands appropriated, and damages, should be levied and assessed per front foot upon-the property benefited thereby.</p> <p>Such proceedings were afterward had in the probate-court, that compensation was duly awarded to the owners of land appropriated for the extension; whereupon the council appointed three disinterested freeholders of the corporation to report an estimated assessment of such cost and expense, who, on the 3d of June, 1873, reported an assessment purporting to be “ upon lots in the city of Toledo,, bounding and abutting upon and adjacent to Division street,” etc. And such further proceedings were had, that the council appointed an equalizing board, who, on the 5th of September, 1873, made the following report to the council :</p> <p>“ To the Honorable Council of the City of Toledo :</p> <p>“We, the undersigned, a board of equalization to revise the assessment of the damages awarded for property condemned for the extension of Division street, from Dorr toForrer street, (in accordance with a resolution passed by your honorable body July 21, 1873.) having carefully examined the report of the assessors, do herewith concur with them, in said report.</p> <p>“ A. T. Stebbins,</p> <p>“John T. Maher,</p> <p>“E. Greiner.”</p> <p>On the 8th of September, 1873, the council passed the following resolution:</p> <p>“ Resolved, by the City Council of the City of Toledo, That the assessment filed on June 3,1873, and concurred in by "the board of equalization, be and the same is hereby confirmed.”</p> <p>This assessment, having been certified to the auditor of the county, and by him placed upon the tax duplicate, was ■delivered to the treasurer of Lucas county for collection.</p> <p>The original action was commenced in the court of common pleas of Lucas connty, by the plaintiffs in error, who were owners of lots assessed, but -which did not abut upon the extension of Division street, against the city of Toledo and the treasurer of Lucas county, to restrain the collection •of the assessment so made upon their lots.</p> <p>The court of common pleas granted an injunction, but ■on appeal to the district court, the petition of the plaintiffs was dismissed.</p> <p>The plaintiffs now seek a reversal of the judgment of the district court.</p>

. Motion for leave to file a petition in error to the District ■Court of Logan county. The original action was brought by McColloch’s executors .against Moses Bell, on his note for $1,732.30, dated December 25, 1867, payable to plaintiffs five years after date. The defendant made answer that plaintiff's ought not to have their action, because of a mutual mistake in the transaction out of which the note originated.

In July, 1874, Meyer Steifel, a clothier, was, and for some time previous had been, in embarrassed circumstances-financially. In 1873, John Sutton, one of the defendants in error, had. become surety for Steifel, to Watrous, Boyden & Co., on an undertaking in error, upon which suretyship he was compelled to pay, .April 1, 1874, $493.92. On a similar suretyship to Snediker, Watrous & Boyden, he was, at the same date, compelled to pay the further sum of $513.67.

<p>Application for a writ of mandamus.</p> <p>The commissioners of Licking county, being desirous of obtaining a clock for the new-court house of the county,, caused the following advertisement to be published inviting bids:</p> <p>“Proposals for a tower clock. Proposals will be received at the office of the county auditor of Licking county, Ohio, up to noon of the 10th day of January, A. D. 1878, for furnishing for the use of said county, a tower clock for the npw court-house, the said clock to be similar1 to, or identical with a No. four Howard tower clock,, and to be at least equal thereto in value and durability, and the hands of a dial in the court-room are to be moved by an electrical attachment connected with said clock. The successful bidder will be required to enter into a contract to furnish said clock by the 1st day of August, 1878, and to-give bond, with security to be approved by the county commissioners, that said clock will be delivered according to the-terms of said contract.</p> <p>“By order of the county commissioners.</p> <p>“ C. S. Brady, County Auditor.”</p> <p>Three parties submitted bids under this advertisement, viz: E. Howard & Co., Charles Easaldt, and the American Clock Company.</p> <p>Howard & Co. offered to furnish a number four Howard; tower clock, with four dials of glass and iron, for $8,000.</p> <p>Easaldt made three offers:</p> <p>1. His Centennial tower clock, which is still on exhibition at- the permanent exhibition at Philadelphia, for $2,400.</p> <p>2. Another clock like the first, except in size, for $1,700.</p> <p>3. Also a third, of less dimensions than the first, for $2,000.</p> <p>The American Clock Company made four offers :</p> <p>Their number 14 clock, with four dials of French plate-glass, $2,100.</p> <p>2. A number 14 clock, with wooden dials, at $1,600.</p> <p>3. Their number 13 clock, with four dials of French plate.glass, $1,600.</p> <p>4. Number 13 clock, with wooden dials, $1,000.</p> <p>The proposals of the parties respectively contain a more particular description of the clocks they respectively propose to furnish.</p> <p>The application states “ that a number 4 Howard tower clock has no distinct or different identity or meaning, value or quality, from any other tower clock of equal size, power, durability, and workmanship, and derives the name of Howard tower clock solely from the fact that it is manufactured by one Howard, or sold as his clock, and as designating the owner thereof.”</p> <p>The application also states that the clock No. 13 mentioned in the bid of the American Clock Company, “is fully equal to the clock called the Howard tower clock No. 4, and to the clocks mentioned in the said bids or proposals of said Charles Easaldt, in quality of material used in its construction, in the arrangement of its works, in its workmanship, in its power, durability, accuracy in the keeping of time, and in all other respects.”</p> <p>That the clock No. 14 mentioned in the bid of the American Clock Companjq “is superior in size and power, and in all other respects fully equal to the said clock known as Howard’s tower clock No. 4, and to the clocks mentioned in the said bid of said Easaldt; while the circumstance that the said American Clock Company, in their bid, propose to include the best plate glass illuminating dials, make the price at which it is offered lower than the bid of said Easaldt.”</p> <p>The prayer is that a writ of mandamus may issue to the board of commissioners, commanding them to accept the said bid and proposal of the American Clock Company, and to make with them a contract for the purchase and delivery of said clock.</p>

<p>Error to the District Court of Logan county.</p> <p>cited 2 Hilliard on Torts, 312, 313; 2 Ohio, 90; Swan’s Treatise, 287; 7 Allen, 26; 34 Yt. 387.</p> <p>cited act of May 1, 1854 (52 Ohio Laws, 153); 2 S. & C. Stat. 1432, sec. 8; Stevens v. The State, 14 Ohio, 386: Boyd v. Watt, 27 Ohio St. 259; Bilis v. Bitzer, 2 Ohio, 89; 2 Hilliard on Torts, ch. 23, pp. 292, 293; Brooks v. Athburn, 9 Ga. 297; Sutton v. Clark, 6 Taunt. 29; Brown v. Wheeler, 18 Conn. 199.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Tan Wert county.</p>

Chapin commenced an action in the court of common pleas of Yan Wert county, against Longworth and Doran, Deniston & Bros., but dismissed as to the firm without prejudice.

<p>Motion for leave to file a petition in error to the -District Court of Logan county.</p> <p>On the 4th day of May, 1875, Kaufman, as administrator of Benjamin S. Brown, deceased, commenced an action against G. N. Broughton before a justice of the peace, to recover a judgment upon an account, of which the following is a copy :</p> <p>Gerdon N. Broughton,</p> <p> In account with B. S. Brown (deceased), </p> <p>Eor medicines and medical attendance, to-wit:</p> <p>1856—To amount brought from old books.......... $44.62*</p> <p>i860—Medicine and attendance from Nov. 1856 to March 16,1860.................................. 45.25</p> <p>1860—Brown & Williams’ account for medicine and attendance.................................. 25.00</p> <p>1863—Medicines and attendance from Feb. 6 to 15, 1863........................................... 3.00</p> <p>Credits—1856, Dec. 2, by Cash..............$10.00 $117.87*</p> <p>1870, by one Churn...... 4.00</p> <p>1870, July 5, by his acc’t rend’d 19.65 $33,63</p> <p>Balance due this date, July 5, 1870.......... $84.22*</p> <p>Interest at 6 per cent, from July 5, 1870 to May 6, 1875................................... 24.40</p> <p>$108.62*</p> <p>On the trial, a bill of exceptions was signed and sealed by the justice, from which it appears that Kaufman was sworn as a witness, identified the account book of the intestate, which contained said account, laid the necessary foundation for its introduction, and offered the same in evidence. This constituted all the evidence that was offered in the ease.</p> <p>Whereupon, the justice gave judgment for the plaintiff on the account in the sum of $108,62*. On error the common pleas reversed the judgment, and such judgment of reversal was affirmed by the district court. The plaintiff in error now seeks the reversal of these two judgments, and the affirmance of the judgment of the justice of the peace.</p> <p>I. A bill of exceptions can not be taken before a justice of the peace for the purpose of showing that his judgment on any question of fact is not sustained by evidence.</p> <p>This sufficiently appears from the statute of April 5, 1866 (63 OhioL. 148): Swan & Sayler, 415 ; Justices’ Code of March 14', 1853 ; sec. 203,1 S. & C. 804 ; 93 section Justices’ Code as amended Eeb. 11, 1869 (66 Ohio L. 7); Ohio■ v. Wood, 22 Ohio St. 537; Leonard v. Cincinnati, 26 Ohio St. 449; Bario v. Abbe, 16 Ohio, 408.</p> <p>No question was made as to the competency or admissibility of evidence, or as to the rejection of evidence.</p> <p>II. In support of the judgment of a justice of the peace, whatever must have been proved to make out a case will on error be presumed to have been proved. Christy v. Douglas, Wright S. C. 485; Mathis v. McCord, Wright, 647; Smyth v. Sproul, Wright, 757 ; Bethel v. Wood-worth, 11 Ohio St. 393-397; Taylor v. Fitch, 12 Ohio St. 169; Johnson v. Mullen, 12 Ohio, 10; Palmer v. Yarrvngton, 1 Ohio St. 253-261; Gettings v. Baker, 2 Ohio St. 21; Nott v. Johnson, 7 Ohio St. 270; Shroyer v. Richmond, 16 Ohio St. 455.</p> <p>On these authorities, if it was competent on the trial to prove that Broughton delivered the churn to Brown payment on the creditor’s claim, or that he, in writing, acknowledged his liability, or had promised within six years to pay; either or all of these may be presumed.</p> <p>III. In an action on a book account, which on its face is barred by the six years’ statute of limitations (Civil Code, sec. 14), it is competent for the plaintiff to prove:</p> <p>1. That the debtor made a payment to the creditor within six years prior to the time suit was commenced, although such payment was more than six years after the last item of the plaintiff’s account accrued, and,</p> <p>2. That within six years after the last item of the plaintiff’s claim accrued, and within each period of six 'years thereafter, the debtor acknowledged in writing his liability to the creditor for the payment of such account.</p> <p>Civil code of March 11, 1853, sees. 15-24, compared with Statute of Limitation of February 18, 1831, sec. 1, clause 4, and sec. 5. Courson v. Courson, 19 Ohio St. 454; Hill v. Henry, 17 Ohio, 914, 15, changed by civil code, see. 24; Bissel v. J andón, 16 Ohio St. 498; Turner v. Crisman, 20 Ohio, 889; Fxeiutors of Niemcewicz v. Bartlett, 13 Ohio, 271; Haymaker v. Haymaker, 4 Ohio St. 272 ; Marienthul v. Hosier, Í6 Ohio St. 566 ; Horsley v. Billings, 19 Ohio St. 413.</p> <p>As to part payment: 3 Parsons on Contracts, 73 ; Whipple y. Stevens, 2 Foster, 219; Stump v. Henry, 6 Md. 201; Baxter v. Penniman, 8 Mass. 134; Badger y. Ami, 10 Exch. 333, 28 Eng. Law and Eq. 464; Van Kensen v. Parmelee, 2 Comst. N. Y. 523 ; Dunham y. Dodge, 10 Barb.N. Y. 566 ; Shoemaker y. Benedict, 1 Kernan, N. Y. 176; Coleman y. Fobes, 22 Pa. 308.</p> <p>Part payment in goods or notes sufficient. Hart y. Nash, Cromp. M. & R. 337 ; Hooper y. Stevens, 4 A. & E. 71; Cot-tarn v. Partridge, 4 Scott N. R. 819; Ilsley v. Jewett, 2 Met. 168; Turney v. Dodwell, 3 Ellis & B. 136, 24 Eng. L. & Eq. 92 ; Irving v. Veitch, 3 M. & W. 90; Belshawv. Bush, 11 C. B. 191; Griffiths v. Owen, 13 M. & W. 58; James v. Wiiiiams, 13 M. & W. 833; Maíllard v. Nw/re Argyle, 6 Mau. & Gt. 40.</p> <p>So of part payment on account of interest: Parsonage Fund. v. Osgood, 21 Me. 176; Beaseley*v. Greensdale, 2 Tyrw. 121, 2 Cromp. & J. 61; Sanford y. Hayes, 19 Conn. 591; Bradfield v. Tapper, 7 Exch. 27, 7 Eng. L. & Eq. 541.</p> <p>If a balance be struck on mutual accounts, it is part payment. Ashby v. James, 11 M. & W. 542; Worthington v. Grensditch, 7 Q. B. 479.</p> <p>Part payment need not be evidenced in writing. Williams v. Gridley, 9 Met. 482; Sibley v. Humbert, 30 Maine, 253; Cleave v. Jones, 6 Exch. 573; AasA v. Hodgson, 6 DeG., M. & G. 474, 31 Eng. L. & Eq. 555.</p> <p>As to bills of exceptions taken to rulings of justices of the peace, see 66 Ohio Laws, 7, sec. 93; 26 Ohio St. 447.</p> <p>It is, I claim, proper to embody in the bill of exceptions taken to the rulings of a justice of the peace so much of the evidence offered on the trial, as may be necessary to show the relevancy and materiality of the question ruled upon, otherwise would be presented a mere abstract proposition of law.</p> <p>The account upon which suit was brought was barred by the statute of limitations. A claim once barred is barred for all time unless the debtor does some act that will take it out of the statutory bar. The creditor can not, by any act of his, do it.</p> <p>In this case, the credit on the account by “ his account rendered,” was not any act of the debtor’s, Broughton. The purchase of a churn by Brown, and the giving Broughton, without his knowledge or consent, credit therefor w'as no act of Broughton’s, and hence the running of the statute is not affected in any way. 7 Gray, 387; 16 Ohio St. 566; 19 Ohio St. 454.</p>

<p>An exception to the charge of the court can not be saved, so as to make it reviewable on error, by merely making the charge and exception a part of the journal entry in the case.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Van "Wert county.</p> <p>This was an action on a county treasurer’s bond, dated October 14,1873, against the principal and sureties. Among other breaches assigned, it was averred that the treasurer had failed to pay over to his successor moneys which came to his hands as such treasurer.</p> <p>On the trial the defendants, sureties of the treasurer, offered to prove that Delphos and other villages, in the years 1874 and 1875, levied, for general corporation purposes, one and one-half mills on each dollar of the valuation of property in such villages, when by law such tax could not exceed one-half of one mill; that the amount so-levied was placed on the duplicate by the county auditor, and collected by the treasurer, and that the portion of the taxes so illegally assessed and collected amounted to $3,100. But the court .excluded the evidence, and the defendants excepted.</p>

The plaintiffs in error, who were defendants below, were sued on an official bond. The petition contained statements ■of two causes of action, each of which was demurred to as not stating facts sufficient to constitute a cause of action. The demurrers were overruled, and issue was joined on the second cause of action. The record shows the amount found due on each cause of action. A geueral judgment was rendered for the entire amount.

The plaintiff filed a petition in the court of common pleas against the defendants, on a note with a warrant of attorney attached, authorizing any attorney at law, after maturity of the note, to appear for the defendants, waive the issuing and service of summons, and confess a judgment for amount of the note, and to release all errors, etc. ■ The petition was regular in form, but the jurat to the verification was not signed by an officer authorized to administer the oath.

The original action, commenced January 10, 1874, was brought by Duffy as assignee for the benefit of creditors of Patrick Kelly, to marshal liens, and for the sale of certain real estate, which was tfie homestead of Patrick Kelly and family.

Foster brought suit in the Court of Common Pleas of Harrison county against A. D. Lee and Phoebe, his wife,, and D. McConville. The action was on a mortgage executed to Foster by Lee and wife, June 18, 1874, on five-lots in Harrison county. He asked that the amount due on the mortgage should be ascertained, the lots sold, and. the proceeds applied in satisfaction of the mortgage.

At the October election, 1877, the relator, James A.. Barnes, and Louis Gr. Wright were opposing candidates, and eligible, for the office of recorder of Belmont county.

Rhoda Wylie, the mother of the plaintiff', had three hundred dollars on deposit with the defendant. The mother was living with the plaintiff', and while lying sick she-sought to give this money to the plaintiff.

At the November term, 1877, of the Court of Common Pleas of Logan county, the plaintiff in-error was convicted •of the crime of burglary.

The action was brought before the mayor of Bluffton on a book account that had been assigned to the plaintiff, by J. W. Townsend, who was the trustee in bankruptcy of the-firm of Long & Waltz. The plaintiff, on the trial, introduced testimony tending-to maintain the action in his behalf. Whereupon the defendant filed a motion to dismiss the action on the grounds: “ 1.

The action was brought by the plaintiff in error, in the Court of Common Pleas of Clermont county, to collect an ■assessment for the improvement of a public road.

<p>Error to the District Court of Hamilton county.</p> <p>On March 11, 1867, Joseph W. Taylor, plaintiff in error, leased to Henry DeBus and Gottfried Bricka, defendants in error, by a proper deed inter partes, certain real estate situate in the city of Cincinnati, “ for the term of ninety-nine years from the 1st day of April, 1867, and thereafter renewable forever,55 for an annual rent of $1,273.42, payable quarterly, with the light of re-entry for the non-payment of rent, etc.</p> <p>The principal covenant on the part of tbe lessees was in-these words: “And the said Henry DeBus and Gottfried Bricka, for themselves and for their heirs and assigns, covenant to and with the said Joseph W. Taylor, his heirs and assigns that they will pay the rents herein reserved and all tax, rates and assessments on said premises, during the-term aforesaid, a3 the same shall becomfe due and payable, :ancl that they will perform all conditions and agreements herein -contained, during the term.”</p> <p>The lessees also agreed to erect on the leased property improvements to the value of $5,000 within a year from the date of the lease.</p> <p>The lessees entered upon their term, and afterward, on November 6, 1867, Bricka transferred his interest in the leasehold estate to DeBus, who as sole tenant under the •lease executed to Bricka a mortgage upon the leasehold estate to secure the payment of a certain sum of money.</p> <p>Afterward, on the 16th of June, 1868, DeBus assigned the lease to The DeBus Tub and Cooperage Company, a corporation, which paid the subsequently accruing rents to the lessor until the 1st day of April, 1870, when default was made in the payment of rents.</p> <p>Afterward, on the 13th of January, 1872,'the leasehold estate was sold under a decree in foreclosure of said mortgage, and after the payment of taxes and costs, the balance of the proceeds of the sale were applied on the rents due to the lessor, leaving a balance of rent still due and unpaid amounting to $1,861.34, and interest.</p> <p>The original action was brought by the lessor against the lessees to recover this arrearage of rents. The petition, which stated the foregoing facts, was held bad on demurrer, as not stating facts sufficient to constitute a cause of action, .and was dismissed by the court of common pleas.</p> <p>On petition in error, the district court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse both judgments below. The errors assigned are: 1. That the court, of common pleas erred in sustaining the demurrer to the petition and rendering judgment for the defendants. 2. That the district court erred in affirming the judgment of the common pleas.</p> <p>In regard to a lessee’s liability upon his express covenant to pay rent, after he has assigned his interest in the lease and after the lessee has accepted rent from the assignee. See Taylor’s Landlord and Tenant, •§ 371; Williams on-Ex’rs, D. P. 1244 ; Mills v. Auriol, 1 II. Bl. 433; 1 Smith’s-L. C. 1128 ; 2 Platt on Leases, 352 ; 1 Smith’s L. C. 204;. 4 Greenleafis Cruise on Real Prop. 457, § 39; Port v. Jackson, 17 Johns. 238; Linn v. Moss, 10 Ohio, 412; Sutliff v.. Atwood, 15 Ohio St. 186; Scott v. hunt’s Adm’rs, 7 Pet. 596;, Kunkle v. Wynick, 1 Dallas, 326; Phillip v. Clarkson, 3 Yeates, 124; Shaw v. Partridge, 17 Yt. 626; Fisher v. Mil-liken, 8 Barr, 111; 2 Johns. Cas. 17.</p> <p>We claim that the court in Worthington v. Ilewes, 19-Ohio St. 66, decided only the particular case before it, and such cases as present a similar state of facts, and is not decisive of the case at bar. Williams v. Roberts, 5' Ohio, 44 Bohart v. Atkinson, 14 Ohio, 236 ; Scribner v. Lockwood, 9' Ohio, 186 ; Coe v. Railroad, 10 Ohio St. 380.</p> <p>The facts in the Wort-hiugton case and the case at bar ai'e so dissimilar in important points, that that case does not-logically or legally decide this.</p> <p>relied on Worthington v. Ilewes § McCann, 19 Ohio-St. 66 ; and claimed that that case controlled this.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Yan Wert county.</p> <p>Hiram E. Smith and James H. Ward executed a promissory note, in which they jointly and severally agreed to pay George Helt one hundred dollars. In an action prosecuted thereon against Ward, before a mayor in that county, Helt recovered judgment for the amount of the-note and costs. Ward appealed to the court of common pleas, and Whittier became bail for the appeal. This is the-condition in his undertaking: “ That said appellant shall duly prosecute his appeal to effect, without unnecessary delay, and if judgment be awarded against said appellant, I will satisfy said judgment, with interest and costs and costs that may .accrue.”</p> <p>In the court- of common pleas Smith was, on application-of Ward, made a party defendant and they answered separately. On the trial, judgment was rendered against both of them, in favor of Helt, for $165 and costs. It appearing-that neither Smith nor Ward had any property subject to-levy, suit was brought by Helt against Whittier on the-undertaking for appeal. Whittier demurred to the petition containing the foregoing facts, on the ground that a judgment against Ward and Smith was not within the terms of the undertaking. In the court of common pleas the demurrer was sustained and the petition was dismissed, and the district court affirmed the judgment. Helt seeks in this court to reverse the judgment of both courts.</p> <p>cited 1 Ohio, 170; 4 Ohio St. 210; 11 Ohio St. 398; 17 Ohio St. 426.</p> <p>cited 17 Ohio, 554; 20 Ohio, 93; 2 Ohio St. 1-6; 6 Ohio St., 501-503; 9 Ohio St. 17-22; 27 Ohio St. 498.</p>

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

<p>The -plaintiff was employed by the defendant to operate a turn-table by means of a crank that was stationary upon and revolved with the turntable, and a track was laid in such proximity to the turn-table that while an engine was on the turn-table, being turned by the plaintiff, it was struck by an engine passing upon the track, causing the crank to strike the plaintiff by a reverse motion, inflicting the inju^ complained of. Held: 1. That whether the defendant was guilty of negligence in the construction and use of the track and turn-table, and 2. Whether the-plaintiff was chargeable with contributory negligence, were questions properly left to the jury.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Marion county.</p> <p>The original action was brought upon a fire insurance policy issued by the plaintiff in error to the heirs of N. B. Britton, on a dwelling-house, and the furniture, clothing, and provisions therein. The facts necessary to an understanding of the questions decided, áre as follows : In October, 1872, N. B. Britton died intestate, seized of a farm in Big Island township, Marion county, leaving Ann Brit-ton, his widow, and ten children his heirs at law.</p> <p>In the years 1874 and 1875, Mrs. Britton and the older children erected a dwelling-house on the farm for the family, which continued to reside therein until the same was destroyed by fire. Five or six of the children were then minors. .</p> <p>The dower interest of Mrs. Britton in the premises had not been assigned. On the 28th day of July, 1875, before the dwelling-house was completely finished, she made an application to one John "W. Hughes, an agent of the plaintiff, for insurance upon the dwelling-house, he calling at her residence to make out and receive the application. Among the questions and answers contained in the application were the following: “Are the buildings insured occupied by the applicant or a tenant ? ”• Ans. “Applicant.” “ Is the property incumbered?” Ans. “No.” Then follows a stipulation in the following words: “And the applicant hereby covenants and agrees to and with said company, that the foregoing is a true and full exposition of all the facts in regard to the condition, value, and risk of the property to be insured, so far as the same are known to the applicant and material to the risk.” Signed, Ann Britton. On the 6th day of August, 1875, a policy of insurance, for five years, on said dwelling-house, and the household furniture, clothing, and provisions therein, was issued by the company, on said application, to “N. B. Britton’s heirs,” in the sum of $1,600 on the dwelling, and $600 on the contents. It was provided by the policy that “ the application referred to in this policy shall be considered a part of the contract, and a warranty by the assured,” and that “ if the premises insured herein be incumbered in any way this policy shall be void, unless the true title of the assured and the incumbrance on the premises be expressed in the application.” 0-n the 2d day of October, 1876, the house and contents were consumed by fire. In the action to recover the loss, brought by said heirs, among other defenses, the company set up : 1. That the dower interest of Mrs. Britton in the premises constituted an incumbrance upon the property insured, and, therefore, that the policy was void ; and, 2. That on the day before the fire occurred, the said agent of the company, having learned that some part of said dwelling-house had been saturated with coal oil, was about to cancel said policy, in pursuance of a right reserved in the policy to do so, when it was agreed between plaintiffs below and said agent, that said policy should not then be canceled, but that said plaintiffs should keep watch of the property, and guard it from fire, until instructions to the agent should be received from the home office. This agreement, the company alleged the plaintiffs had failed to comply with.</p> <p>With this defense the reply took issue.</p> <p>On the trial, the company offered to prove that such arrangement was made between Mrs. Britton and said agent.</p> <p>To the testimony so offered the plaintiffs below objected on the ground that Mrs. Britton was not authorized to make said agreement, if the same was in fact made. The court sustained the objection, and the company excepted. The jury returned a verdict for the plaintiff's, which the company moved to set aside, and for an order granting a new trial, on the ground that the verdict was contrary to the evidence. It also moved for judgment on the pleadings, the facts above stated appearing therefrom. The court overruled both motions, aud gave judgment on the verdict. To this ruling company excepted.</p> <p>On error, the district court affirmed the judgment.</p>

<p>Motion for leave to file petition in error to reverse the judgment of the District Court of Lucas county.</p> <p>The original action was brought by Elizabeth Kroh against James M. Brown, executor of Edward L. Kroh, deceased.</p> <p>The petition contained four causes of action.</p> <p>The first being for money lent in October, 1865—$200.</p> <p>The second on an account stated in January, 1866—$80.</p> <p>The third for money lent in November, 1866—$256.</p> <p>The fourth was on an account for boarding, lodging, washing, mending, etc., from January 1, 1865, to September, 1868, and for boarding, lodging, nursing, care, etc., in last sickness, from December 10,1870, to January 20,1871; which, in the aggregate, it is alleged, was reasonably worth $1,000.</p> <p>To the first three causes of action, and so much of the fourth as accrued prior to September 19, 1868, the defendant, by answer in bar thereof, set up the discharge of Edward L. Kroh in bankruptcy, which was operative from the date last above named.</p> <p>To this defense the plaintiff replied that Edward L. Kroh, well knowing of her claims and the amount thereof, purposely omitted her name from the schedules and proceedings, and purposely omitted giving her notice as required by the bankrupt law; that she was not notified of the proceedings, and did not appear therein; that, consequently, the bankrupt court had no jurisdiction of the plaintiff, or of the several causes of action sued on, and that her rights were not affected or impaired by the proceedings and discharge in bankruptcy.</p> <p>On the ti’ial the jury was instructed by the court to bring in a general and also a special verdict. The general verdiet was for the plaintiff for $1,654.55.</p> <p>By the special verdict, returned in writing, it was found : 1. That of the amount found due to the plaintiff on the fourth cause of action, $200 had accrued after September 19, 1868 ; and, 2. That the plaintiff had no knowledge of the pendency of the proceedings in bankruptcy while they were pending.</p> <p>The defendant moved to set aside the verdict and for a new trial on the ground, among others, that the verdict was against the law of the case.</p> <p>The motion was overruled by the court, and the defendant excepted.</p> <p>Thereupon the court rendered judgment in favor of the plaintiff for the amount found in the general verdict.</p> <p>On error the district court affirmed the judgment.</p> <p>' After the judgment in the district court, Elizabeth Kroh died,-and Charles L. Kroh, her executor, is made party defendant in error.</p> <p>The plaintiff in error moves for leave to file a petition in error to reverse the judgments of the courts below. The errors assigned are that the district court erred in affirming the judgment of the court of common pleas, and in not reversing the judgment and rendering the judgment that the court of common pleas should have rendered.</p> <p>1. The validity of an order of discharge in bankruptcy, under the act of 1867, can not be inquired into either directly or collaterally, in a state court. Bankrupt Act, sec. 34 ; Smith v. Ramsey, 27 Ohio St. 339 : Rayl v. Lapham, 27 Ohio St. 452 ; Howland v. Carson, 28 Ohio St. 625 ; Cory v. Ripley, 57 Me. 69; Ocean Bk. v. Olcott, 46 N. T. (Ct. Appeals) 12-15 ; Oates v. Parish', 47 Ala. 157; Parker v. Atwood, 52 N. H. 000; Way v. Howe, lOBMass. 503 : Thurmond v. Andrews, 10 Bush (Ky.), 400 ; Thomas v. Jones, 39 Wis. 124; Hudson v. Bingham, Term. This case is reported in Am. Law Reg., Oct. 1873, and in 18th Yol. N. B. 494.</p> <p>2. A discharge releases the bankrupt from all debts, that are in their nature proveable in bankruptcy, whether contained in the schedule of creditors furnished by the bankrupt or not. Bankrupt Act, secs. 32, 33, 34.</p> <p>Tbe well known distinction between proceedings in personam and in rem is apparent in this bankrupt act. The proceeding it provides for is in rem wholly, and in nothing in personam; there is no actual service provided for to auy creditor at any stage of the proceedings. As in divorce, there is provision for mailing a notice to the creditor where he is supposed to be, but it matters nothing whether he gets that notice or not.</p> <p>We may lay it down as a proposition, we think, that the bankrupt act of 1867 makes the proceedings matters of public record, and public notice of them, required by the act, having been given, the creditors can not impeach the decree of bankruptcy, but are bound thereby as by a decree in rem. ■</p> <p>See. 38, 2d clause, says: “The proceedings in all cases of bankruptcy shall be deemed matters of record.”</p> <p>Shaiohan v. Wherritt (7 Howard, Sup. Court.), 17 Curtis, 328 ; Mitchell v. Singletary, 19 Ohio, 291.</p> <p>If the demurrer to the reply had been overruled, the defendant, by failing to submit to final judgment upon the demurrer, and going to trial upon the issues made in the pleadings, would have waived his right to insist upon alleged error of the court in overruling the demurrer. Ellison v. Allen, 8 Florida, 206; Hooker v. Johnson, 8 Florida, 453 ; Sheppard v. Shelton, 34 Ala. 652 ; Duncan v. Hobart, 8 Clarke, 337; United States v. Boyd, 5 How. H. S. 29, 51 ; Baileys v. Swope, 4 Ind. 217 ; Harbert v. Dumont, 3 Ind. 346; Stallings v. Newman, 1 Minn. 134 ; Becker v. Sandusky, etc., Bank, 1 Minn. 314 ; Moore v. Bess, 1 Morris, 401; Frink v. The State, 1 Eng. 141; Veeder v. Wrights, 1 Eng. 416; Smith v. Taylor, 41 Iowa, 214; Warner y. McGoon, 2 Scam. 74.</p> <p>There is nothing ih the statutes of Ohio changing this rule of the common law. The act of March 12,1845 (43 Ohio L. 80, sec. 4), was repealed on the adoption of the Code. S. & C. 1143.</p> <p>"We insist that as to the plaintiff'below, the discharge in bankruptcy is inoperative, for the reason that she never had her day in court, and was in no manner a party to the proceedings. We do not propose, in any manner to impeach the discharge. We assume that as to all creditors who had notice in the manner prescribed by the bankrupt act, or who were in court, the discharge is effective; as to all others it has no effect. Batchelder v. Low, 43 Vt. 662 ; Commercial Bank of Manchester v. Buckner, 20 Howard, 108, 120-1. Bump’s Bankruptcy, 4th ed. 51-3 ; 7th ed. 26 and 642-3; Anonymous, 1 Bank. Reg. Supp. xxvii; octavo ed. 122,124; Banner v. Moore, 2 Bank. Reg. 174 ; octavo ed. 573; Beards-lee v. Hull, 36 Conn. 270, 277; Suyclam, et al. v. Walker, 16 Ohio, 122, 125; In Be Penn., 3 Bank. Reg. 145; octavo ed. 582 ; In Be Goodfellow, 3 Bank. Reg. 114 ; octavo ed. 452; Berlins v. Gay, 3 Bank. Reg. 189 ; octavo ed. 772 ; Card v. Walbridge, 18 Ohio, 411.</p> <p>The bankrupt act of 1841 contained no provision for notifying the creditors except by publication. See U. S. Stat. at Large, p. 441, sec. 1, and p. 446, sec. 7.</p> <p>The assignee was appointed by the court at its discretion. See U. S. Stat. at Large, p. 443, sec. 3.</p> <p>The only notice to creditors personally was on application for the discharge. See U. 'S. Stat. at Large, p. 443, sec. 4.</p> <p>The act of 1867 requires personal notice, as well as notice by publication, of the application. And it secures to creditors the important right of participating in the selection of an assignee. Act of 1857, secs. 11, 12, 13.</p>

<p>1. In an action for the sale of mortgaged premises and for a personal judgment, pursuant to the act of 1864 (S. & S. 575), no indorsement on the summons as to the amount or nature of the claim is necessary, the oase being governed in that respect by sec. 57 of the civil code; but where an indorsement was made which truly indicated the amount for which judgment was afterward taken, and contained the further statement that the plaintiff sought “ equity relief,” a personal judgment and order of sale, rendered on default, will not be reversed.</p> <p>2. Where in such action judgment was rendered on the note secured by such mortgage, against the maker and the payee as indorser who had assigned the note and mortgage to the plaintiff, and an order of sale was made, the fact that the payee had not been served with process constitutes no ground for a reversal of the judgment or order as to such maker.</p>

The original action was instituted by Roberts, the defendant in error, against Whetsel, the plaintiff in error, and John Cartwell, in the Court of Common Pleas of Union county, to enforce a vendor’s lien on certain real estate. Roberts sold and conveyed thé premises in controversy to Cartmell, for the consideration of a thousand dollars. Subsequently Cartmell sold and conveyed the premises for a like consideration to Whetsel.

<p>Error to the District Court of Hamilton county.</p> <p>The original action was brought by the city of Cincinnati for the use of Einnell & Dwyer, against the plaintiffs in error, to enforce the lien of assessments made for the improvement of Eggleston Avenue, between Fifth and Broad streets, upon the abutting lots in proportion to the frontage.</p> <p>The questions of law decided in the case arise upon the following state of facts : For more than thirty years, previous to March 24, 1863, the State of Ohio had been in the possession and use of a strip of land, seventy-one feet in width, in the city of Cincinnati, extending from Broadway in a southeasterly direction to the Ohio River, for canal and water privileges; the same being a part of the public work of the state known as the Miami and Erie Canal. This strip of land extended, in width, from the center line of the canal locks, thirty-nine feet to the northeast and thirty-two feet to the southwest. The tow-path of the canal was on the southwest side, where the public, for a long time, had been accustomed to travel with horses, wagons, etc. This travel and use by the public had also encroached upon the edge of lands adjacent to the tow-path on the southwest.</p> <p>While these uses and privileges were being enjoyed by the public the lands between the present Broadway and Fifth streets, through which the canal passed, were owned, in separate tracts, by the heirs of one Peter Baum, Clark Williams, and Wade and Williams respectively.</p> <p>In 1836, the heirs of Martin Baum, seven in number, made partition of the tract owned by them;, according to the plat of a subdivision, in which certain streets and alleys, including a strip twenty feet in width adjacent to the canal on the southwest side, wure set apart for public use; and afterward, in 1840, three of such heirs, then surviving, dedicated, under the statute, such streets and alleys to public use, stipulating, however, in the deed, that they and their heirs and assigns should not be charged for grading or filling up the same, “without the owners of one-half the front feet on any such street shall express their consent in writing.” No such consent has ever been given.</p> <p>In 1837, Clark Williams subdivided his tract into lots, streets and alleys, and dedicated the streets and alleys, including a strip of twenty feet in width adjacent to the southwestern line of the canal, to public use; subject to a stipulation or condition, however, “ that they (the streets and alleys) shall not be altered in direction, width, or grade, except by petition, and at the expense of the petitioners.”</p> <p>In the same year, Wade & Williams also subdivided their tract, and dedicated the streets and alloys, including a strip twenty feet in width, adjacent to the southwestern line of the canal, to public use.</p> <p>All the lots, on which the assessment was resisted in the original action, were embraced in these subdivisions.</p> <p>On March 24, 1863, the general assembly passed an act authorizing the governor of the state to convey to the city of Cincinnati all that part of the Miami and Erie Canal extending from the east side of Broadway street to the river, which includes the part between Broadway and Eifth streets, to be improved as a public highway, and for sewerage purposes; provided, however, that the plan of the improvement should first be submitted to and approved by the board of public works of the* state. In pursuance of this act, the deed of grant was made on the 25th of April, 1863, and afterward, in the month of August, the plan for the proposed improvement was submitted by the city to the board of public works ; whereupon, on the 15th of December, 1864, the board took the following action thereon :</p> <p>“ Ordered, That the plan ofíéred and on file in this office, dated August 24, 1863, be and the same is hereby accepted as far as it regards its general features, reserving the right to approve or disapprove any details of construction which may, in any manner, affect the interests of the lessees of water power, and that while the work of construction may be commenced at any and all points belo w Third street, there shall be no work done above said Third street until further examination, with a view to settling details.”</p> <p>The record does not show that any further action was had by the board of public works.</p> <p>In the meantime, the public highway thus proposed to ' be established and improved, was named Eggleston avenue, and on the 19th of February, 1864, an ordinance was passed, of which the following were the first two sections :</p> <p>“ An Ordinance, No. 321. To open, widen, and establish Eggleston avenue the full width of ninety (90) feet from tire Ohio river to Broadway.</p> <p>“ Section 1. Be it ordained by the city council of the city of Cincinnati, that Eggleston avenue be opened, widened, and established the full width of ninety (90) feet from the Ohio river to the east line of Broadway.</p> <p>“ Section 2. That for the purposes aforesaid there be and is hereby condemned to such public use all the real estate lying along and in the line of the Miami and Erie Canal, from the Ohio river to the easterly side of Broadway, as is included between two lines parallel to a line drawn through the center of the canal locks, as now located, the one being distant thirty-nine (39) feet to the northeastward of said lock line, and the other distant fifty-one (51) feet to the south westward of said lock line, as marked and designated upon a plat on file in the office of the city civil engineer, making a strip of ground of ninety (90) feet width between the said termini, to be appropriated for the uses and purposes of a public street.”</p> <p>Under this ordinance, all the lands within the boundaries of the proposed street, which were not otherwise dedicated to the public use, were appropriated in accordance with the provisions of the statute in such ease made and provided.</p> <p>Such further proceedings were had, that on the 21st of March, 1872, the city entered into a contract with Finnell & Dwyer for materials and labor necessary to complete the grading of Eggleston avenue, from Fifth street to Broadway, at the rate of twenty-seven and a half cents per cubic yard. The specifications for grading were as follows :</p> <p>“ The street will be graded to the established grade, the full width of ninety feet, exclusive of side slopes, and including the proper grading and shaping of sidewalks, drains, and roadway, in accordance with the directions of the city civil engineer, and the general plan on exhibition in his office. In excavation, the sides must be neatly and evenly dressed to a slope of one-half’horizontal to one vertical, or such other slope as the character of the soil will require, or the engineer may direct.</p> <p>' “ In embankment, the sides must be neatly and evenly dressed to a slope of one horizontal to one vertical, or such other slope as the character of the soil may require, or the engineer direct, and will, in all cases, be formed of pure earth, clay, sand, gravel, or rock, and no perishable or vegetable matter admitted therein. The work must be commenced at the slope stakes, and be deposited in layers or courses not exceeding two (2) feet in thickness, and the layers or courses must be concave in form, commencing at the sides, and keeping the same at least one (1) foot higher than the center, until the sides are up to the required height, when the remaining portion of the earth will be deposited in such manner and form as the engineer, street commissioner, or other authorized agent of the city may direct. The contracto'r must make all the necessary allowance for shrinkage and settlement in the embankment, as they will in no case be considered complete until the proper height after consolidation. If practicable, the whole must be thoroughly rolled and rammed to the proper grade and shape, with a road rolling machine.”</p> <p>The wox'k under the contract was completed to the satisfaction of the city, axxd an assessment for the benefit of the contractor’s levied upon abutting lots at the rate of $2 75.5^ per foot front, aggregating $8,933.36.</p> <p>This assessment was the amount of 33,148 cubic yards at the contract price after deducting 2 per cent., payable by the city,</p> <p>Erom the judgment in the court of common pleas an appeal was taken to the district court. The district court, having found that there were irregularities in the proceedings of the city council, inquired, upon testimony, what amount, under sec. 550 of the municipal code, was properly chargable against the defendants. And after deducting from the estimate of work as made by the city civil engineer, 5,000 cubic yards, on account of materials alleged to have been furnished by the city, decreed in favor of the plaintiff in the sum of $7,585.92, with interest from December 28,1875, which decree reduced the assessment to $2 24.127 per front foot.</p> <p>During the trial, the defendants excepted to the introduction of certain testimony, and also to the refusal of the court to hear certain evideuce offered by them tending to prove that in 1867 the city council granted the right to place upon the street, after grading, railroad tracks, and that since the grading has been completed the street from Broadway to Fifth is occupied by railroad tracks and switches.</p> <p>Both parties moved the court for a new trial, and the motions being overruled, each party excepted, and the whole of the testimony, by a bill of exceptions, was placed on the record.</p> <p>The defendants below obtained leave to file a petition in error in this court, and leave was also granted to plaintiff below to file a cross-petition in error. The matters alleged for error appear in the opinion of the court.</p>

<p>In an action brought by a building association against a member, on a mortgage given to secure the payment of weekly dues, and the installments of interest on an advanced loan, the taking of the account, preliminary to an order of sale, should be limited to the amount of dues and interest that had accrued at the time of rendering the decree.</p> <p>Hagerman v. Ohio Building and Savings Association (25 Ohio St. 187); and the Forest City United Land and Building Association v. Gallagher (id. 208), approved and followed.</p>

<p>Motion for leave to file a petition in error to reverse the ■judgment of the Distinct Court of Marion county.</p> <p>The action below was brought by the plaintiff against the defendant to recover damages for a breach of a marriage promise.</p> <p>The defense was, that at the time the promise was made, defendant ivas an infant under the age of twenty-one years. '</p> <p>A demurrer to this defense was overruled, and judgment rendered for the defendant. On error, the district court affirmed the judgment.</p> <p>It is here claimed that such judgment is erroneous.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Union county.</p> <p>• On the 21st day of October, 1876, the defendant in error made complaint, in writing, under oath, before Wesley Garrard, a justice of the peace of Union county, that she was unmarried, and then pregnant with a bastard child, and charging that the plaintiff in error was its father. The accused was arrested upon proper process, and brought before the justice, when the examination of the complainant, under oath, and in writing, was had as required by the statute. Whereupon the accused produced and offered in evidence a transcript of docket entries, from the docket of H. J. King, a justice of the peace of said county, from which it appeared, that on the 11th day of October, 1876, the complainant made a similar complaint, in writing, before said King, against the accused, and that he was arrested and brought before the justice, when the following proceedings were had, as shown by the docket:</p> <p>“ The examination, under oath, of Harmony Cartmell, an unmarried woman, resident of Union county, taken by, and before me, H. J. King, J. P., of Paris township, Onion eouuty, on the 11th day of October, a. d. 1876, upon her complaint of bastardy, against Clay Kezartee, there and then present to answer, in the premises:</p> <p>“ 1st Question, by the justice. Where do you reside ?</p> <p>“ Ans. In the township of Dover, in the county of Onion.</p> <p>“ 2d Ques. Are you a married or unmarried woman ?</p> <p>Ans. I am unmarried.</p> <p>“ 3d Ques. Are you pregnant of a bastard child, and if so, who is the father of said child.</p> <p>“Ans. Clay Kezartee.</p> <p>“ Signed, Harmony Cartmell.</p> <p>“No further questions were asked, and the questions and answers were read to the complainant, and she signed the same in my presence. II. J. King, J. P.</p> <p>“ The parties compromised, and the said Clay Kezartee gave his bond to the trustees of Dover township, Onion county, in conformity to law made and provided in such cases.”</p> <p>Then follows a copy of the bond, underneath which is a certificate of the justice, that “the above and foregoing is a full and true copy, from my docket, of the proceedings had by and before me, at my office in said township, in the above action.” An objection was taken to the introduction of this transcript in evidence on. the hearing before Garrard, and the same was excluded. There was also offered in evidence what purported to be an agreement of settlement of said prosecution between the parties. This was also excluded; and the defendant was bound, in a recognizance, to appear at the next term of the court of common pleas. In the common pleas, the accused moved to strike the transcript from the files, and to dismiss the case on the ground that the claim of the complainant had been compromised and settled, as appeared from the transcript from the docket of said H. J. King. This motion was overruled. An answer was then filed, in which the accused set up the proceedings before King, including said compromise and settlement. To this the complainant replied, in substance:</p> <p>1. That there was no judgment of the justice of the peace in said cause, and no record of a legal settlement; and 2. That on said 11th day of October, 1876, the complainant and the accused met, when the accused represented to her that he wished to satisfy her that he would marry her, and that if she would accompany him to Marysville he would execute papers to her showing his obligation to do so, and that on the faith, and relying on the truth, of such representations and promise, she accompanied him to Marysville, to said justice’s, where said proceedings were had. And believing the papers prepared- were simply to bind him to marry her, and so understanding their import, she signed said papers, in said record, purporting to charge the accused with being the father of said child, and purporting to be a settlement of said cause, but did not know that any complaint was made against the accused, or that the accused was arrested, or that any settlement or compromise of 'a prosecution in bastardy was made; and that the contents of whatever papers to that effect she executed she did not understand; but that the accused, in order to deceive her, falsely represented that said papers were to the effect and for the purpose of binding him to marry her; and that he caused her to believe and understand that they were for that purpose alone ; and that he did by said false and fraudulent representations deceive the plaintiff and cause her to sign said papers in utter ignorance of their contents, and that the accused also caused said justice of the peace to believe that she understood said writings, well knowing that she did not understand any part of said papers, their intent, purpose, or effect. She also alleged that the accused handed to her a paper, which he stated to be his written promise to marry her, and told her she could look at it when she got home.</p> <p>The papers executed by the accused and delivered to the complainant were two promissory notes of $25 each, payable to her, in three and six months respectively. This sum of $50 was the consideration of the alleged compromise. A demurrer was interposed to this reply, which the court overruled and the accused excepted. The case went to trial to a jury upon two issues : First. Upon the guilt or innocence of the accused on the charge of being the father of complainant’s child; and, Secónd. “ Was the alleged settlement fraudulently procured by the accused, as alleged.” The jury found the accused guilty on the first issue, and found the said compromise and settlement to have been obtained by fraud, as alleged. The court rendered judgment on the verdict, which the district court affirmed. It is assigned here for error that the court improperly overruled the demurrer to the reply, and permitted proof of the facts therein alleged.</p> <p>claimed (1) that the cause before the justice of the peace, King, was coram judice; (2) that the findings and judgment of his court were a sufficient bar until impeached; (8) that they could not be impeached collaterally, but by a direct proceeding only. Anderson v. Anderson, 8 Ohio, 108: Darby v. Carson, 9 Ohio, 149; (4) and therefore their impeachment by the verdict of a jury in this collateral proceeding is error.</p>

Samuel Einney, the plaintiff in error, -was plaintiff in the court of common pleas, where he brought an action against Joseph Smith and others,-to recover damages alleged to have been occasioned to his reputation, trade, and business as a druggist, apothecary, and grocer, by means of a libel written, signed, published, and circulated by the defendants.

<p>1. An attachment will not be discharged on the ground that it appears from the answer of the garnishee that he is not indebted and has no property in his possession belonging to the defendant.</p> <p>2. Where a railroad company agrees, for a consideration, to carry a passenger over its road, and by its negligence an injury results to the passenger, he may, at his election, sue upon the contract or in tort.</p> <p>3. A railroad company, incorporated under the laws of another state, operating a railroad in this state with the assent of the legislature, is liable to the process of garnishment prescribed by section 200 of the code of civil procedure, and such process may be served as upon domestic corporations.</p>

<p>The husband, as between himself and the creditors of the wife, is liable for her ante-nuptial debts, including partnership debts—the legislation of this state concerning the rights and liabilities of married women, not haying changed his common-law liability in this respect.</p>

The original action was brought by the plaintiff in error to recover the possession of specific personal property. The plaintiff' claimed title under a chattel mortgage. The defendant relied for his right of possession on a levy made under an execution held by him as sheriff against the mortgagor. Upon the facts appearing in the record the plaintiff was entitled to recover, if the indorsement upon the mortgage complied with the requirements of the statute.

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Licking county.</p> <p>The action below was brought by the defendant in error,, against the plaintiff, to recover the value of a mare, belonging to the plaintiff' below, killed by a passing train of cars on the defendant’s road.</p> <p>The petition alleged that the company, at the date of the grievance complained of, was a foreign corporation, operating, under a lease, the railroad running from Sandusky to Newark, known as the Sandusky, Mansfield and Newark Railroad; that on the 6th day of June, 1873, the plaintiff', by the permission of his father, who was the owner of a certain field adjoining said railroad track, turned said mare into said field to graze; that said mare, without the fault of the plaintiff', escaped from said pasture on said day, and went into the field of one Maliolm, adjoining the field in which she was grazing; and that “ in consequence of the neglect and failure of the defendant to fence and inclose the said railroad track, and it was, by law, bound to fence and inclose said track, said mare entered in and upon the same without difficulty and without the fault of said plaintiff' and thereupon came a train owned by said defendant, and operated by its servants, and by their gross carelessness and negligence in not whistling down the brakes and slackening the speed of said train, said mare was driven along a high embankment to trestle work across a stream of water, where she was run upon and killed.” The foregoing were all the allegations of the petition relating to the company’s duty to fence said road.</p> <p>The answer denied negligeuce in the management of the train and in the act of killing, and denied that the mare entered on the track “ in consequence of the neglect and failure of defendant to fence and inclose, said railroad track.”</p> <p>The issue was tried to a jury, and resulted in a verdict and judgment for the plaintiff for the value of the mare. A motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence, was overruled, and an exception noted. From a bill of exceptions, embodying all the evidence, it appears that the mare escaped from the field where she was grazing, over a fence adjoining the railroad track, not exceeding two feet in height, and remained on or near the track until about ten o’clock at night, when by a mixed train of passengers and freight, which came along at that hour, she was driven ahead of the train and became entangled in the trestle-work of a, bridge, and was there run upon and killed. The uneontradicted testimony shows that as soon as the engineer, who was on the lookout, discovered the mare upon the track he whistled down brakes and reversed his engine, but before the train could be stopped the mare was overtaken and killed. No evidence was offered on the subject of the company’s duty to fence said railroad. The case was taken to the district court on error, and the judgment of the common pleas was affirmed.</p>

<p>1. The petitioners for a ditch are competent “ securities ” on the bond required hy section 3 of the township ditch act of April 18, 1874 (71 Ohio-L. 124).</p> <p>2. Under said act, where the trustees find that the notice to parties interested, as required hy section 3, was “ duly and legally given,” it is no ground for enjoining the construction of the ditch, that the facts upon which such finding was made do not appear in their record.</p> <p>8. On appeal from an interlocutory order dissolving an injunction, under section 5 of the act to relieve district courts, as amended May 16, 1868 (S. & S. 589), affidavits are competent testimony in the district court, on a motion to dissolve the injunction.</p>

<p>Motion for leave to file a petition in error to the District •Court of Cuyahoga county.</p> <p>W. P. Cooke and Horace Wilkins being indebted to the Ohio National Bank upon a joint and several obligation, the original action was brought thereon by the bank against Wilkins alone.</p> <p>Wilkins, upon leave, filed an answer and cross-petition, setting forth that Cooke was principal debtor, and that he was surety only for Cooke, as the plaintiff well knew, and therefore prayed “ that said Cooke might be made and held as a party defendant in the cause, and that judgment be rendered against him as principal, and against this defendant as surety, as required by law, and defendant prays for such other and further relief as by law and equity he may be entitled to.”</p> <p>Cooke was, thereupon, served with summons, but made default, and afterward the court rendered judgment in favor of the bank against Wilkins, and refused to render judgment in favor of the plaintiff against Cooke, or to find that Cooke was the principal debtor and Wilkins only surety, to all of which Wilkins excepted.</p> <p>This judgment, rendered by the Court of Common Pleas of Cuyahoga county, was afterward affirmed by the district court.</p> <p>claimed that the court erred in not giving Wilkins the relief prayed for in his answer and cross-petition, and referred to secs. 88 (S. & C. 957), 500 (S. & C. 1095), 449 (S. & C. 1083), 83 (S. & 0. 968), 371 (S. & C. 1048), of the code of civil procedure, and argued that under sections 449 and 500 of the code, Wilkins was entitled to charge the principal or maker. That under sec:ion 83, he had the right to claim in his answer and cross-petition what he did—affirmative relief; that under section 371, he was entitled to the relief set up and prayed for in his answer and cross-petition ; and that under seetiou 114, he had a right to have the controversy determined with a view to substantial justice between the parties.</p> <p>Upon the question raised in the case the court was referred to Green v; Burnett, 1 Handy, 285 ; JResorr. McKenzie,. 2 Disney, 210; Bank v. Hunter, 4 Bosw. 646.</p>

<p>In an action against the mortgagor and his grantee, for the foreclosure of a mortgage, the grantee may appeal from a decree against him, notwithstanding the petition asks a personal judgment against the mortgagor for the mortgage debt. The act of February 19, 1864 (S. & S. 575) only applies where the party against whom the lien is sought to be enforced is also personally liable for the debt secured by the lien.</p>

The defendants in error commenced an action in the ■Court of Common Pleas of Lawrence county, against J. B. Bazell, Martin Bazell, and W. A. Simonton, as partners •under the firm name of J. B. Bazell & Co., to recover the price and value of goods sold and delivered. Upon the filing of the petition, a summons was issued arid served upon J. B. Bazell and W. A. Simonton.

This action was prosecuted by the defendant in error against the plaintiff in error, in the Court of Common Pleas of Butler county, on the covenants in a deed. Lane’s demurrer to the petition was overruled, judgment was rendered in favor of Mrs. Fury for $566 86, and the judgment was affirmed in the district court. The only question in the courts below was, and in this court is, whether the petition contains facts sufficient to constitute a cause of action.

<p>1. In an action to recover a debt due the wife, she and her husband may join as plaintiffs, and a joint judgment in such action may be rendered in their favor.</p> <p>2. Where a defense to an action is founded on an agreement not to be performed within a year, the answer must show that such agreement was in writing.</p> <p>3. Part payment of the consideration of a parol promise not to be performed within a year, does not withdraw the agreement from the operation of the statute of frauds.</p>

<p>A corporation organized under the act of May 7, 1369, to provide for the keeping in repair of gravel and macadamized roads, etc. (66 Ohio L. 131), although the road of such corporation he a plankroad, constructed under the act of March 29, 1867 (6i Ohio L. 81), must be regarded as a turnpike company, whose only remedy, for compensation for a portion of its road which has become a street of a city by an extension of the city limits, is by a proceeding under section 593 of the municipal code, as amended March 30, 1875 (72 Ohio L. 172), and such company is not entitled to a civil action, as a plankroad company, under the act of March 23, 1869 (66 Ohio L. 36).</p>

<p>1. The act of March 30, 1875, entitled “ an act to provide for the improvement of streets and avenues in certain cities of the second class ” (72 Ohio L. 153), is a special act conferring corporate power on the city of Columbus; and is, therefore, in conflict with section 1, article 13, of the constitution. Welker v. Potter (18 Ohio St. 85), explained.</p> <p>2. Notwithstanding the unconstitutionality of the act, where the .abutting lot owners have caused a street to be improved under the act, and bonds of the city to be negotiated to pay for the improvement, all who have participated in causing the improvement to be made, are estopped from denying the validity of an assessment made in accordance with the act, to pay such bonds.</p> <p>S. Under the provisions of the act, the intersecting streets and alleys are not subject to be assessed to pay for the improvement.</p>

<p>Error to the District Court of Jefferson county.</p> <p>The original action was brought by Benjamin Sharp, as assignee of Charles M. Wallace, against Samuel Johnson, as sheriff of Jefferson county, to recover the possession of certain personal property.</p> <p>On the trial in the court of common pleas, a jury being waived, the court found specially the following statement of facts.</p> <p>“First. That Charles M. Wallace, on the 16th day of November, a. d. 1874, at the' town of Rolla, in the State of Missouri, executed a deed of assignment, and deposited the same in the post-office of said town of .Rolla, at 7| o’clock in the morning of the said 16th day of November, conveying all his property, both real and personal, situated in the city of Steubenville, State of Ohio, to the plaintiff, Benjamin M. Sharp, for the benefit of'all his creditors, under the insolvent laws of the State of Ohio, which said deed of assignment ivas directed to the said Benjamin M. Sharp, and received hy him at the said city of Steubenville, in the county of Jefferson, State of Ohio, through the mail, on the 19th day of November, a. d. 1874, and on the same day filed by him in the probate court of said county of Jefferson; that the said plaintiff, Benjamin M. Sharp, as such assignee, on the same day took possession of the said property of the said Charles M. Wallace, which was not attached, as hereinafter found, situated in the said city of Steubenville, under said deed of • assignment, which consisted principally of a woolen mill and its fixtures and materials in their raw and manufactured state; that said deed of assignment was prepared in the said city of Steuben-ville, by the said plaintiff, Benjamin M. Sharp, who was a creditor of the said Charles M. Wallace, and sent to the State of Missouri, for the purpose of being executed by him, but that the said plaintiff, Benjamin M. Sharp, had no communication with the said Charles M. Wallace, respecting said assignment, previous to the time of sending said deed of assignment by him from the said city of Steubenville to said Charles M. Wallace, in the State of Missouri, to be so executed by him; that, in the acknowledgment attached to said deed of assignment, the words ‘ notary public,’ both at the beginning of said acknowledgment, and following the signature of the person claiming to be a notary public, at the conclusion of the same, were not written by the person so claiming to be a notary public in the State of Missouri, where said deed of assignment was acknowledged, but a notarial seal was attached 'to said acknowledgment, but said notarial seal did not contain the name of the person whose signature was attached to said acknowledgment as notary public, or of any other person ; that the said plaintiff, Benjamin M. Sharp, filed his bond as such assignee in the said Probate Court of Jefferson county, on the 21st day of November, a. d. 1874.</p> <p>“ Second. That one Henry K. List, on the 16th day of November, A. d. 1874, caused an order of attachment to issue from the court of common pleas of said Jefferson county, State of Ohio, against the said Charles M. Wallace, which order of attachment was duly levied by the defendant, Samuel Johnson, as sheriff of said county of Jefferson, at 3 o’clock in the afternoon of said 16th day of November, A. d. 1874, upon the property replevied in this action, which said property was a lot of raw and manufactured material, situated in the woolen mill of said Charles M. Wallace, in the said city of Steubenville, Jefferson county, State of Ohio, and which said property was included in said deed of assignment from said Charles M. Wallace to said Benjamin M. Sharp; that the said proceedings in said attachment suit of said Henry K. List against said Charles M. Wallace were formal and legal in every particular, and that, at the time of the issuing of said order of attachment, the said Charles M. Wallace was a non-resident of the State of Ohio, as set forth'in the affidavit in said attachment suit, he having left Jefferson county, Ohio, where he had always resided, on the 9th day of November, a. d. 1874, and proceeded to the State of Missouri, and that, on the said 16th day of November, a. d. 1874, he had no present intention of returning to Jefferson county, Ohio, but afterward, to wit, on or about the 10th day of December, A. d. 1874; he did return to Jefferson county, Ohio, and now resides in said county of Jefferson. That Henry K, List is a resident of Wheeling, State of West Virginia.”</p> <p>Upon these facts, the court rendered judgment for the plaintiff below, and the defendant alleged error. The judgment was affirmed by the district court, and the plaintiff in error now seeks to reverse both judgments.</p> <p>claimed that there was no delivery or acceptance of the assignment at the time the attachment was levied, and therefore it had no legal effect. Burrill on Assignments, 274, 275, and note 3 on page 282 ; lb. 321, 322.</p> <p>But, admitting the assignment to have been good and valid in law, will the trustee, under an assignment made by a non-resident Of the state, take personal property in preference to a subsequent attaching creditor, when the attachment is levied before the trustee takes possession of the property or does any other act toward the execution of his trust ? We think not.</p> <p>If the trustee should have a preference when the assignment was made in the State of Missouri by a resident of that state, he should have a preference if made in the most distant foreign nation. As for the purposes of such a question, the states are. foreign to each other. Iloyt v. Thompson’s Hxr., 19 N. Y. 226; Lemon v.' The People, 20 N. Y.' 602 ; Guillander v. Howell, 35 N. Y. 661.</p> <p>This court has already decided that an assignment to trustees by an insolvent debtor in Pennsylvania, under the laws of that state, does neither pass the legal title to the trustees nor create an equity to be enforced in chancery to land situate in Ohio. 2 Ohio, 235 ; 3 Ohio, 489.</p> <p>• At common law an .assignment of personal property to trustees for the benefit of creditors must be accompanied by delivery of possession of the property, or it has no effect against subsequent attaching creditors. Burrill on Assignment, 285-290; also pp. 294, 295, and 298.</p> <p>It was decided in New York, many years ago, that an assignment under a foreign bankrupt law would be sufficient to give the trustees under the assignment the preference over trustees appointed under an attachment process issued by the state courts. Holm.es v. Remsen, 5 John’s Ch. 460.</p> <p>And that case is also cited approvingly by this court in Rogers v. Hatton, supra, but Chancellor Kent, who wrote the opinion in Holmes v. Remsen, speaking of it afterward, in' an elaborate opinion, says : “ But whatever consideration might otherwise have been due to the opinion in that ease and the reason and decisions on which it rested, the weight of American authority is decidedly the other way, and it may now be considered as part of the settled jurisprudence of this country that personal property as against creditors has locality, and the lex loci rei sitae prevails over the law of the domicile with regard ta the rule of preference in the case of insolvent estates. A prior assignment in bankruptcy under a foreign law will not be permitted to prevail against a subsequent attachment by an American creditor of the bankrupt’s effects found here. 2 Kent’s. Com. '(11th ed.)- 406; Burk v. McLain,.1 Harr. & Mellen. 286 ; Wallace v. Patterson, 2 Id. 463 (Maryland Rep.) ; Taylor v. Geary, Kirby, 313 (Conn.); TJpton v. Hubbard, 28 Conn. 274; Milne v. Moreton, 6 Binney, 353; Mullikenv. Aughinbaugh, 1 Penn. 117 ; McNeil v.' Colquhoon, 2 Ilayw. 24 (N. C.); Assignees of Topham v. Chapman, 1 Const. S. C. 283; Robinson v. CrouMer, 4 McCord, 519 (S. C.); Ingraham v. Geyger, 13 Mass. 146. All cited by Chancellor Kent in his Commentaries, supra, in support of h'is later opinion1.</p> <p>The Supreme Court of the United States has also peremptorily disclaimed the English doctrine, which was adhered to in Holmes v. Remsen. Ogden v. Saunders, 12 Wheaton, 213 ; Harrison v. Sterry, 5 Cranch, 289.</p> <p>In the last case, the court held that the bankrupt law of a foreign country could not operate-a legal transfer of personal property in this country, and in the former case the court says that the doctrine rests upon the same footing between one state and another under the bankrupt and insolvent laws of the different states. Opinion of Johnson, J., p. 358.</p> <p>See also tó same point: Johnson v. Hunt, 23 Wend. 87 ; Hoyt v. Thompson’s JSxrs., 1 Seld. 329 ; lb., 19 N. Y. 207.</p> <p>Since the decision in Holmes v. Remsen, blew York has also repudiated the English doctrine laid down in that case. Willis v. Waite et al., 25 N. Y. 577; Guillander v. Howell et al., 25 N. Y. 657.</p> <p>It has also been directly determined in quite a number .of the states that an assignment voluntarily made, independent of statute regulating assignments, but in trust for creditor's, has no effect as to subsequent attaching creditors outside of the territory or j urisdiction where made. 2 Kent’s Com. 407; Ingraham v. Geyger, 13 Mass; 146 ; Borden v. Sumner, 4 Pick. 265; Blake v. Williams, 6 lb. 286; Fall River Iron Works v. Croade, 15 lb. 11; Fox v. Adams, 5 Green 245; Oliver v. Townes, 14 Martin (Louis.), 93 ; Norris v. Mumford, 4 lb. 20; The Brig Watchman, in.the District Court of Maine, Ware, 232 ; Saunders v. Williams, 5 N. H. 213; Mitchell v. McMillan, 8 Martin (Louis.), 676.</p> <p>Ih Yermont it has been determined that a voluntary foreign attachment takes precedence of a subsequent attachment where an actual change of the possession of the property has taken place. Hanford, v. Paine, 32 Vt. 442.</p> <p>But otherwise, where there is no change of possession of the property, and the subsequent attachment takes precedence. Pice v. Courtis, lb. 460.</p> <p>And certainly this is as far as the rule could be carried in any of the states with a just regard to the interests and rights of creditors and the rules which regulate and govern the transfer of personal property. Determining the case at bar, even by the limited rule laid down in Vermont, and the judgments of the district and common pleas courts, can not stand.</p> <p>The validity of an assignment for the benefit of creditors, made- in another state, and operating upon property in this state, will be determined by the law of this state. Brown v. Knox, 6 Mo. 302 ; Barclay’s Dig. 58 ; Forbes v. Scanned, 13 Cal. 242; George’s Miss. Dig. 26; Fliner v. Bestie, 32 Mo. 240; SartweU v. Jewitt, 9 Ohio, 181; Fuller v. Steiglitz, 27 Ohio St. 355.</p> <p>And as to. what is the legal effect of the assignment, see Burrill on Assignments, 325 (ed. 1853); Ingraham v. Wheeler, 6 Conn. 283 ; Caldwell v. Williams, 1 Ind. 405; Merrick v. Bragg, 102 Mass. 437.</p> <p>As to whether the assignment or attachment prevails, see Story on Sales, sec. 515 ; Brooks v. Marbury, 11 Wheat. 78 ; Halsey v. Whitney, 4 Mason. 213.</p> <p>Delivery of possession is not essential to pass title to personal property. Hooban v. Bidwell, 16 Ohio, 509 ; 2 Kent’s Com. 393; 3 John. 170; 3 Parsons on Contracts, 455 ; Burrill, 1; Story on Sales, sec. 311.</p> <p>As to when tbe assignment took effect, see 1 Parsons on Contracts, 484; Willard’s Eq. Jur. 46; Tiffany and Bullard, 282, 296, 297, 298; 1 S. & C. Stat. 709; Burrill on Assignments, 275, 322; McKinney v. Rhoades, 5 Watts, 345 ; Klaqrp v. Shirk, 13 Penn. St. 589.</p>

<p>A land-owner whose claim for dami>ges in the location of a township road was disallowed by the viewers, is not entitled to an injunction, against the petitioner who is proceeding with an order to open the road, on the ground that the proceedings are erroneous; hut ordinarily, the claimant has no other remedy than error or appeal, even if the rejection of the claim was for a cause wholly insufficient.</p>

<p>A policy of insurance issued to a mortgagee contained a stipulation that the insurance might be terminated at any time at the request of the assured, the company only retaining customary short rates; also, that if any change took place in the title or possession, the policy should be void. Without the knowledge of the company, the owner sold and con- , veyed the property and satisfied the mortgage. Held, that a subsequent assignment of the policy by the mortgagee to the purchaser, and a verbal agreement between the latter and an agent of the company, having power to make contracts and issue policies, that such assigned policy shall have the force and effect of a new policy to the purchaser, will bind the company.</p>

<p>Motion for leave to file petition in error to reverse the judgment of the District Court of Butler county.</p> <p>The plaintiff below (Eaucett) brought an action before a justice of the peace against the defendant below (Meeker), to recover for forty bushels of wheat sold and delivered at two dollars per bushel—total eighty dollars.</p> <p>Before the trial, the defendant offered to confess a judgment for sixty-three dollars, and costs that had accrued up to that time, which offer was rejected. Trial was had, and the jury returned a verdict in favor of the plaintiff for four dollars. The justice thereupon rendered judgment in favor of the plaintiff for sixty-seven dollars, being the aggregate amount of the offer to confess and the verdict, and also for all costs.</p> <p>Error was prosecuted in the court of common pleas by Meeker, to obtain a modification of the judgment as to the sum of sixty-three dollars and the costs that had accrued subsequent to the offer to confess judgment.</p> <p>The court of common pleas reversed the entire judgment, and set the case down for.trial in that court, to which Meeker excepted.</p> <p>The case was tried to a jury in that court, and a verdict found in favor of Eaucett for eighty-three dollars, upon which judgment was rendered.</p> <p>On error,' the district court reversed the judgment of the court of common pleas.</p> <p>By this proceeding, Eaucett seeks, the reversal of the judgment of the district, and an affirmance of that of the court of common pleas.</p>

The action in the court of common pleas was brought by R. W. Freshwater, the payee, against Thomas McCort, principal, and C. W. Fawcett and Richard Bracken, sureties, on a promissory note for $1,250, dated October 5, 1869, due in six months, at eight per -cent, interest after maturity, upon which payment of the interest was credited each year from April 5, 1870, to April 5, 1875. McCort, the principal, made no defense.

The original action was brought by the plaintiff in error in the court of common pleas to recover a certain tract of land in the petition described.

A judgment quieting the title of the plaintiffs to certain real estate situate in Ottowa county, against an alleged adverse claim or interest of the defendant, a non-resident of the state, was rendered on petition of the plaintiffs, in the court of common pleas of that county. No service was made on-the defendant in this state; nor was his appearance entered.

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

The plaintiff in error brought an action against Elijah S. Carr, D. S. Horney, and the defendant in error, Brock, in the court of common pleas, upon a promissory note executed by said defendants July 13,1876, and given for the payment of $1,829, at five months and ten days from its date.

The action in the court of common pleas was brought by Blanchard against the Transportation Company, as a common carrier, to recover the value of certain coal-oil, delivered to it at Cleveland, to be carried to Scranton, Pennsylvania, and there to be delivered to Blanchard, the owner and consignee. The oil was destroyed by fire, while in the hands of the Transportation Company, or its agent. The pleadings made issues for trial that need not be stated.

The original action was brought by defendant in error against plaintiff in error, to enforce an assessment lien, under the road improvement act of 1867 and its supple-merits, against the lands of plaintiff’in error, under the act of April 11, 1876 (73 Ohio L. 218), entitled “an act to amend an amendment to an act supplementary to the several acts relating to the collection of delinquent taxes,” etc. The defendant below pleaded the statute of limitations, and alleged that…

Peninah Robinson, the defendant in error, sued the plaintiffs in error, before a justice of the peace, on an administrator’s bond, executed by George Hackworth, as principal, and by William E. Rowe and' C. G. Waller, the other plaintiffs in error, as his sureties. The breach of the bond alleged consists of the. neglect of the administrator to pay a debt admitted to be due from the estate, and to the payment of which the plaintiff was by law entitled.

Appeal reserved in the District Court of Richland county. The plaintiff, Amanda Hosmer, the youngest child and legatee of Ében P. Sturges, deceased, brings this suit against Edward Sturges, Sr., Andrew L. Grimes, and Dimon Sturges, executors of the will and trustees of the estate of her father, and against her four brothers, alleging a wrongful and unequal distribution of $869,122.28, of her father’s estate by the trustees, in giving to the three oldest more than a fifth…