Volume 32 — Ohio State Reports, New Series

The defendants in error, who are the children of Stevenson Reddish, deceased, brought their action in the court below, to recover the possession of a lot in the city of Cincinnati, to which they claim title as devisees in fee under the will of their grandfather, Thomas 13. Reddish. Plaintiff' in error, who was defendant in the original action, claims title to the same premises, under a conveyance in fee-simple made by Stevenson Reddish in • his lifetime.

<p>1. The account required by section 14 of the guardian act of April 12,1858 (S. & C. 670), to be rendered by a guardian to the probate court at least once in every two years, when rendered and judicially passed upon by the court, is a settlement within the meaning of section 31 of the act.</p> <p>2. Under the provisions of said section 31, every settlement so made by a guardian is final between the guardian and ward, unless an appeal is taken therefrom, or the settlement is opened, in accordance with the provisions of the section.</p>

<p>1. Police courts have jurisdiction to hear and determine on information, under section 1G7 of the act “ to provide for the organization and government of municipal corporations,” cases of petit larceny, and all inferior offenses which are not required by the constitution to bo prosecuted by indictment, when the offense is committed within the limits of the city, or within four miles thereof.</p> <p>2. Under the code of criminal procedure, the accused may demur to an information where the facts stated therein do not constitute an offense punishable by the laws of this state.</p> <p>3. An information, under section 8 of “ an act entitled an act to amend section 8 of an act entitled an act for the prevention of gaming ” (70 Ohio L. 191), describing the offense in the words of the statute, is not uncertain, and states facts sufficient to constitute an offense.</p>

<p>1. Demand and notice is not necessary as against an indorser, who, at the date of the maturity of the noto, has sufficient property of the maker in his possession held as,security against his liability.</p> <p>2. A party holding one of a series of notes secured by chattel mortgage, who obtains possession of the property mortgaged, holds it in trust for the owners of the notes; and if he purchase such property at a sale made by himself, he will be held to account for the fair value of the same.</p>

<p>1. Where a wife is living separate and apart from her husband, and, in a suit against him for divorce and alimony, has obtained a decree fixing the amount of alimón}- to be paid by the husband for her sustenance during the pendency of her petition, and the husband is not in default in respect to the payment of the alimony so allotted, he is not, liable for necessaries subsequently furnished at her request during the pendency of her petition.</p> <p>2. Persons dealing with the wife, under these circumstances, do so at their own peril, and are chargeable with knowledge of the allotment and payment of the alimony.</p> <p>S. The adequacyof the alimony decreed in such case, can not be collaterally drawn in question, especially by a stranger to the suit.</p>

<p>Where the grantee of land holds the purchase-money in his hands after it becomes due by agreement with the grantor, to indemnify himself from loss by reason of an incumbrance on the land, and enjoyment of the rents and profits thereof until the incumbrance is removed, ho holds the amount due to the grantor as his trustee, and if he uses the money for his own benefit, ho is chargeable with interest on the money from the time it becomes due until paid.</p>

<p>F., owning- real estate, in July, 1871, sold it to N., and took, in part payment, a purchase-money note, secured by mortgage, due in five years, with interest. Before the note became due, N. was sick, and for a time insane, when F., believing the debt injuriously affected the mind and health of N., voluntarily and without consideration therefor, and for the purpose of relieving the mind of N., caused the note and mortgage to be delivered to II. E. N., wife of N., with the understanding on his part that, when N. “recovered,” they should bo returned to F. Afterward, with a like purpose, F. entered a cancellation on the mortgage, which was entered of record. "When N. was restored to health and reason, E. requested N. and H. E. N. to return to him the note, and restore the canceled lien on the real estate. They refused. The action was instituted before the maturity of the note and mortgage, to have the note declared an existing indebtedness against N., the mortgage lien restored, and for injunction. On demurrer to a petition setting forth the foregoing facts — Held, the facts set out in the petition are not sufficient to make a case for the equitable relief sought.</p>

<p>1. One who enters upon land, under color of title intending to take possession of the entire tract, no part of which is held adversely at the time of his entry, is deemed to he in possession to the extent of his claim.</p> <p>2. Prior to the code of civil procedure, equity followed the law in determining when time would begin to run against the right of a mortgagqr to redeem, and when such right would be barred.</p> <p>3. Hence, if the mortgagee, with the knowledge and acquiescence of the mortgagor, takes actual, open and notorious possession of the mortgage premises and holds and controls the same adversely to the rights of the mortgagor to redeem, for twenty-one years, under color of title derived from the mortgage, and from a decree of foreclosure and sale of the same to him, the equity of redemption is barred, although the decree foreclosing the mortgage was null and void.</p> <p>4. Where the mortgaged premises is an entire tract, as a farm, part of which only is improved, with a tenement thereon, and the possession to the whole is so far adverse as to create a cause of action in favor of the mortgagor, and cause time to commence running against the right to redeem; the temporary interruption of actual residence on the land, caused by the unlawful and violent acts of strangers in tearing down the house and rendering.the premises untenantable for the time being, will not prevent the statute from continuing to run where there is no adverse entry or offer to redeem, and the mortgagee does not abandon his possession and control, but continues to exercise all such acts of ownership and dominion over the premises, as the nature of the land and its condition will admit of.</p>

<p>1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding .danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such, person for an injury to which such negligence contributed.</p> <p>2. In-an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, is generally a mixed question of law and fact, to he decided by the jury, under proper instructions from the court.</p> <p>.3. But if all the material facts, touching the alleged negligence, be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of negligence becomes a matter-of law merely, and the court should so charge the jury.</p> <p>4. The court, in charging the jury, observed, “I will not say to you that the .plaintiff should have looked east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner; and it is for you to say whether he ought to have looked to the east along the track or not before he attempted to cross.” If it appear that by looking he could have run and avoided the danger, it was his duty to look; and, in such case, the court should have charged, as matter of law, that it was his duty to look.</p>

<p>Error-to the District Court of Belmont county.</p> <p>On suggestion of diminution of record, and motion for an order to send up a perfect transcript.</p>

<p>1. "When a series of propositions, requested as a charge to the jury, are given, and there are one or more sound propositions of law in the series, 'an exception to the series, in this form — “ to the giving of which charge defendant at the time excepted” — is insufficient. The exception should be to each proposition, or, if not intended to except to each, should, in some pertinent way, distinctly refer to the proposition claimed to be erroneous.</p> <p>2. Where a series of propositions are requested as a charge, and one or more of the propositions are unsound, and the charge is refused or modified in several respects, an exception as follows — -‘to which refusal and modifications of such charges defendant at the time excepted” — is not sufficiently definite. In such case, the exception falls, because it ■ fails to direct the attention of the reviewing court to the proposition or propositions in regard to which error is claimed to exist.</p> <p>3. An exception in the following form — 11 to which general charge of the court, the defendant at the time excepted, and excepted also to each proposition of law therein contained, differing from the several specific charges asked by defendant”- — -when the general charge contains more than one proposition of law, and is not in all respects erroneous, is wanting in definiteness, and fails to present any question with sufficient certainty for review on error.</p> <p>4. An exception to a general charge, or one containing more than a single proposition of law, should clearly point out the part of the charge intended to be questioned by the exception, at the time the charge is given or refused, and, failing in this respect, the reviewing court will not he bound to take notice of the exception.</p> <p>5. In an action by the owners of a steamboat against-an insurance company, on a policy against perils in the navigation of specified privileged waters, for the loss of the vessel, occasioned by encountering an unknown cause of peril, from which she suddenly sprung a leak and sunk, while navigating a privileged water, it is not competent, in chief, to give in evidence, for any purpose, specific cases of other steamboats that have been lost, while navigating the same and other western rivers, occasioned by some unknown injury causing them to suddenly leak and sink.</p> <p>6. When a steamboat is shown to have been seaworthy at the time she was insured, and no intervening circumstance occurs to render her unseaworthy, her seaworthiness is presumed to continue; but when, during the life of the policy, she springs a dangerous leak, without apparent cause, a new presumption arises — that of unseaworthiness; yet, as this now presumption is not a conclusive one, the owners-are not required, to entitle them to recover for the loss, to show the identical cause of her loss, but may show a probable cause.</p> <p>7. In case of loss from some unknown cause, a person conversant with steamboat navigation, and who is, from actual experience, familiar with the perils attending steamboat navigation on the privileged waters and other of the western rivers, may give his opinion, and say whether a steamboat, while being navigated thereon, with ordinary skill and care, might, without apparent or known cause, suddenly spring a-leak and sink from some unknown peril of the river.</p> <p>8. A person experienced in the navigation of steamboats used to carry cotton on the western rivers, known as “cotton boats,” may, when speaking from personal knowledge and experience, say -whether such boats, when freighted with cotton, usually leak, and require the daily, . use of the pumps to keep them free from water, as tending to show how the words “ tight and sound,” used in the policy, were understood by the parties.</p> <p>9. "When the actual effect of a known agency is unknown, and the opinion of one familiar, by actual observation, with the matter under consideration, is the best testimony the subject-matter to be investigated affords, the opinion of such person may be received as testimony; hence, it was competent to receive as testimony the opinion of skilled river navigators, familiar with the subject, as to the effect the wave-swells made by a larger steamboat would have upon a smaller and heavily-laden one, while passing.</p> <p>10. The statements of a steamboat captain, made in the discharge of his duty as commander of the vessel, while she is in a sinking condition, and he is in the act of seeking aid of another to relieve her from present peril of loss, as to her perilous condition, how and where she was leaking, made under such circumstances, his statements accompanying his acts, and explanatory of them, are res gestes, and therefore competent testimony.</p>

<p>1. A testator, whose estate consisted of a single tract of land, occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister naming each, and specifying the proportion or share of each. He appointed an executor, and authorized and empowered him to sell and convey “all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing” it “among the devisees and legatees aforesaid.” Held, that this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the proportions specified, and not a bequest of the proceeds of said land.</p> <p>2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distribution among the devisees.</p> <p>3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale.</p> <p>4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its exercise must be limited to the purposes for which it was granted.</p> <p>5. A devisee may sell and convey his undivided share as real estate before distribution, but the purchaser takes the same subject to this power of sale, the same as his grantor, if its exercise beeomes necessary.</p> <p>6. The devisees, or their grantees, have each'the right to hold his share in severalty, if the same can be set off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell, to make a proper division, then the executor is authorized to sell the whole, notwithstanding a prior conveyance of an undivided interest by one of the devisees.</p> <p>7. By proceedings in partition, the widow had her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees.</p> <p>8. The defendant acquired title to an undivided share, by purchase of a devisee; the plaintiffs afterward purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the necessity existed for a sale of the whole; and a court of equity will not enjoin proceedings in partition to have such share set off in land, unless it appears that such share can not be so set off, without manifest injury to the interests of his co-tenants.</p>

<p>1. Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.</p> <p>2. In the absence of anything on the record showing what the facts were, that wore misapprehended, or upon which the court acted in making such revision of its sentence, the reviewing court will presume that the court below acted upon sufficient and valid information, such as would ■have been proper to have, in fixing the first sentence, and was in the exercise of a sound judicial discretion, and in furtherance of justice and the due administration thereof.</p>

This was an action brought by defendant in error (plaintiff below) against tbe Baltimore and Obio Railroad Company, a corporation organized under tbe laws of Maryland. Service of process was bad upon one Henry T. Heckert, wbo, appearing for sueli purpose only, moved to quash and set aside tbe service.

<p>1. The power of police regulation throughout the state, is vested in the legislature, and, in the exercise of this power, railway companies may constitutionally be required to light such portions of thoir railways as are within a city or incorporated village.</p> <p>2. The 32d chapter of the municipal code of 1869, which authorizes city and village councils, by ordinance, to require such lighting to be done by the owners of such railways, and on their failure to comply with such ordinance, authorizes the council to procure such lighting done at the expense of such owners, is not in conflict with the constitution of the state.</p> <p>3. “When, on default of the railway company, such lighting is procured to be done by the council, the expense of such lighting'may, by the council, be assessed or declared a lien upon any of the real estate of the railway company within the municipality.</p> <p>4. The liability of the railway company to pay such expense can only he enforced by suit or action, or, in the language of the constitution, “by due course of law.” It is not a tax, or an assessment, in the nature of a tax for Jocal improvements, and can not therefor bo summarily placed upon the county duplicate and collected as a tax or assessment proper.</p> <p>5. The mode of collecting- such charge or enforcing the lien thereof, prescribed by the last seetion of said chapter 32, is by suit in the name of the municipal corporation, in a court of competent jurisdiction, as pointed out in the subsequent sections 545 to 553, inclusive.</p>

<p>Error to the District Court of Mahoning county.</p> <p>The facts are sufficiently stated in the opinion of the ■court.</p>

<p>1. By section 1 of the act of April 5, 1866 (S. & S. 748), it is made unlawful for any person to furnish intoxicating liquor to a minor, knowing him to be such, with intent that the minor shall drink the intoxicating liquor, unless given, or ordered to be given, by a physician in the regular line of his practice.</p> <p>2. On the trial, under an indictment charging the defendant with furnishing spirituous liquor to a minor to be drank by such minor, knowing him to be a minor, a written order from the father of the minor to the defendant directing him to sell beer to his minor son until forbidden by him, is not competent testimony for the defense.</p> <p>3. Where the transaction amounts to a sale of intoxicating liquor not to be . drank by the minor, and the indictment is under the act of May 1,1854, for a sale to a minor, such written order would be competent testimony for the defense.</p>

<p>An indictment under tbe seventh section of “ an act for tbe prevention of gaming” (1 S. & C. 676), which charges, that the defendant “did unlawfully play at a certain game called ‘ poker,’ for a large sum of money, to wit, for the sum of two dollars, by means of a certain gaming device, to wit, a pack of cards;” is sufficient, without stating the name or names of the persons with whom he played. Davis v. The State, 7 Ohio (pt. 1), 204, and Buck v The State, 1 Ohio St. 61, distinguished.</p>

Powell & Bro. brought suit in the court below to recover of Diebold, the sum of $805, for 23,000 feet of walnut lumber sold and delivered in the cars at Richwood, Union county, Ohio, prior to 17th of November, 1870. The payment of $500 on account is admitted, and judgment asked for the balance, $305, with interest from November 17,1870.

Reserved in the district court. The original action was brought by plaintiff in error, in the Court of Common Pleas of Stark county, against one T.. C. Heacock, as principal debtor, and the defendant in error, as guarantor, seeking to recover a balance remaining due on an account for lumber sold and delivered by plaintiff’s firm to the said T. C. Iieacoek. The first items of the account bore date May 11, 1868, and were of the value of $226.

The action was brought by Smith Hall against Joseph N. Hall to recover possession of of forty-five acres of land, with the rents and profits since September 2, 1870. Held: the above arrangement with the Clarks, not proving satisfactory to the parties interested, they entered into' a new agreement with the defendant,.

The action is in the name of the commissioners of Hancock county, and Is against Henry B. Wall, late treasurer of said county, the First National Bank of Findley, Elija P. Jones, and Charles E. Niles, defendants, to recover of them, the sum of $28,869.24, the amount for which it is alleged said late treasurer was a defaulter.

Iu an amended answer, Henkle avers that he was owner of a wagon, and one Wesley Hedges bought it for the purpose of trading for plaintiff's horse, and Hedges did exchange the wagon for two horses of plaintiff; that defendant was present at the trade, but not a party to the contract, though by an arrangement between himself and Hedges, he agreed to purchase one of the horses from Hedges in case the trade was effected; all of which plaintiff, McClure, knew.

<p>1. The mere loaning of money tp a judgment debtor, to bo applied by him in part satisfaction of a judgment which is a lien upon the debtor’s land does not operate to transfer such lien, in whole or in part, to the lender; even though it was understood between the parties to the transaction, that it should have that effect.</p> <p>2. "Where, in a suit brought to enforce a vendor’s lien for purchase money, to which the vendee and his wife, and also the holder of a subsequent mortgage executed by the vendee alone, are made defendants, and tho proceeds of sale of the land covered by the liens are more than sufficient to discharge the vendor's claim, the wife is entitled, as against such mortgagee, to assert her contingent right of dower in the surplus fund.</p> <p>S. But such right of the wife must be protected in a mode which will pot interfere with the right of the mortgagee to subject the whole estate of the husband in the premises, to the present satisfaction of the mortgage debt, in its order of priority.</p> <p>4. Therefore, when such surplus is insufficient to discharge fully the mortgage debt, the court should not (against the will of the mortgagee) direct one-third of the surplus fund to be put on interest by the sheriff, during the life of the wife, for the purpose of securing her contingent dower interest.</p> <p>5. The proper course, in such case, is to award to the wife from the surplus fund, the value of her contingent right of dower therein, to be ascertained by reference to the tables of recognized authority on that subject, in connection with the state of health, and constitutional-vigor of. the wife and her husband.</p>

<p>1. Under the provisions of the statute authorizing a municipal corporation to appropriate land to a public use, such corporation must secure an “inquiry into and assessment of compensation” by a jury to the owner of the 'property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation; it is therefore not such error as will warrant the reversal of a judgment for the court before which the inquiry is held to permit such corporation to open and close the evidence and argument to the jury.</p> <p>2. When a question is asked of a witness, which is objected to, and the objection is sustained, the ruling will not be reviewed on error, unless the exception taken shows what it was proposed to prove.</p> <p>3. On an inquiry before a jury for the assessment of compensation to the property owners for land sought to be appropriated for a public use, a civil engineer testified that he had computed the quantity contained in each of the lots described in the application for the appropriation, and had noted the square feet contained in each lot, on a copy of the plat contained in the application, which paper the court permitted to be given to the jury as a memorandum of the quantity of land contained in each one of the lots, as testified to by the witness: Held, not to be error.</p>

<p>1. The party holding the affirmative of the issue, as a general rule, ought to open and close the evidence and argument, and there being a number of issues, if the plaintiff holds the affirmative of any one, or if any evidence material to his case is required of him, he ought to begin. In determining the question, however, upon a complicated state of pleading, a lib- ■ eral discretion is allowed to the court trying the cause, and this discretion will not be reviewed, except upon a plain case of error.</p> <p>2. A party having asked a special charge, which was refused, and also a special finding, if such finding shows that the refusal to charge as asked could not have been prejudicial, such refusal is not ground of error.</p>

The original action was brought in the Superior-Court of Cincinnati, November 12, 1872, to subject certain real estate, deeded to Emily Watson by Edward Grieve, September 25, 1865, to the payment of the creditors of Charles T. Watson, for the reason that he furnished the means to pay for the same, and caused the deed to be made to his wife, to hinder, delay, and defraud his creditors, and for which purpose she accepted the conveyance.

<p>1. The limitations of the code of civil procedure, as to the time of commencing civil actions, are applicable, as a bar, only to suits comprehended within the civil action of the code.</p> <p>2. The civil action of the code is a substitute for all such judicial proceedings as were previously known, either as actions at law or suits in equity, and does not embrace proceedings in mandamus.</p> <p>3. There is, in this state, no statutory limitation as to the time within which a writ of mandamus may be obtained.</p> <p>4. Nevertheless, where the relator has, for an unreasonable time slept upon. his rights, the court may, in the exercise of a sound discretion, upon the hearing of the case, refuse to issue the writ.</p> <p>,5. In determining what will constitute such unreasonable delay as to justify a refusal of the writ, regard may properly be had to circumstances which justify such delay, to the character of the case, and the nature of the relief demanded, and to the question whether the rights of the defendant, or of other persons, have been prejudiced by such delay.</p>

Error, to the Superior Court of Cincinnati. This action was brought by the present plaintiffs to set-aside a deed, made by Lisette Berkmeyer, before her marriage, by which she conveyed to defendants jointly a certain piece of real estate in Cincinnati. This deed is dated September 1, 1859.

Error, to the Superior Court of Montgomery county. Plaintiff below, defendant in error, brought an action for damages for alleged trespass upon and injury to her real estate, claimed to have been committed by defendant below. The answer denied the trespass, averring a verbal license to enter upon the land and do the acts complained of. The reply denied the alleged license.

This is a demurrer to an amended petition, which is- as follows: “ The said plaintiff says that at the time of the injuries hereinafter alleged, the said defendant, Simon Peter Moon-, was, and for a long time prior thereto had been, the owner, and the said defendant, Francis Brooks, the lessee, and possessed of the following premises, situate in said county, to wit, the north part of lot No. 94, in the incorporated village of Defiance, situate and abutting on the east side…

At the April term, 1874, of the Court of Common Pleas of Guernsey county, Herman Schultz was indicted for keeping a room in violation of section 4 of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” passed May 1, 1854. The case was continued to a special term, at which a motion was made by the defendant to continue the case, on the ground of the absence of a material witness for the defense.

The original action in this case was instituted by defendant in error, William Elden, who filed his petition in error in the Court of Common Pleas of Jackson county, against, the plaintiffs in error, John M. Martin, his father-in-law, John Stinson, Maria Martin, his wife, and his three sons,.. George Martin, James Martin, and William S. Martin..

<p>■Under a special act of the legislature, passed in 1834, a turnpike company was incorporated and organized with a specified capital, divided into shares, each of which was entitled to one vote in the election of nine directors. Part of these shares were owned by the State of Ohio. In the act of incorporation, power was reserved to any future legislature to alter or amend this charter. Subsequently, the act of March 20, 1840 (1 Curwen, 620), and an amendatory act of March 29, 1841 (1 Curwen, 796), was passed, “to regulate elections” in such companies “ where the state is a stockholder,” which acts, when accepted by the company, so changed the charter as to authorize the private stockholders to elect six and the governor of the state to appoint three directors. Held,</p> <p>1. That the power reserved to any future legislature to alter or amend the charter, entered into and formed part of it; and the exercise of this reserved power does not impair the obligation of a contract between the state and such company or its stockholders, within the meaning of the constitution of the United States.</p> <p>2. The acts of 1840 and 1841 were intended to regulate elections in such companies in which the state was a stockholder, and have no application to elections after the state ceases to be such stockholder, by the sale or exchange of its stock.</p> <p>3. The effect of these acts, was to change the mode by which the state, as a stockholder, was represented in the selection of directors. It was a relinquishment, by the state, of its equal right to vote its stock with private stockholders.</p> <p>4. The acceptance of those acts by the company, constituted an amendment to the charter, as to the mode of selecting a board of directors, but the legislature was not thereby divested of its reserved power to alter or further amend such charter on that subject.</p> <p>5. N either was the power of the state to dispose of its stock, upon such terms or conditions as it saw proper, restricted or abridged.</p> <p>6. "When the state, by a sale of its stock, by authority granted for that purpose, ceased to be a stockholder, the governor was divested of his power to appoint three directors, and the transferee of such stock, unless restricted by the act authorizing the sale, became invested with an equal right with other private stockholders to vote his shares.</p> <p>7. -The conditions imposed upon purchasers and transferees of stock disposed of by the state, under the amendatory act of January 12, 1859 (4 Curwen, 3165), applied only to sales made under that act, and did not attach to sales and transfers under the original act of 1854, to which it was an amendment (4 Curwen, 2691), nor to those made under the-joint resolution of April 13, 1865 (62 Ohio L. 220).</p>

<p>1. As a general rule the parents are entitled to the custody of their minor children. When they are living apart, the father is, prima facie, entitled to that custody, and, when he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother in cases where the infant child is of such tender years as to require her personal caro; but in all cases of controverted right to custody the welfare of the minor child is first to-be considered.</p> <p>2. The father's right is not, however, absolute under all circumstances. He-may relinquish it by contract, forfeit, it by abandonment, or lose it by being in a condition of total inability to afford his minor children necessary care and support.</p> <p>3. Where the father and mothoi', living apart, by agreement transfer the-care and custody of their infant children to the grandfather of the children, in consideration that he will receive, care, and provide for them, and in pursuance of such agreement he does take them in charge, the custody of the grandfather is lawful, and he has legal capacity to maintain an action for damages against one who wrongfully takes, or causes them to he taken from his custody.</p> <p>4. In such ease the grandfather, being entitled to the custody of the minors,. was also entitled to their services, and, in an action for damages against one who wrongfully took them from his possession, it is sufficient to allege, as to loss of services, that the wrongful taking was to' deprive him of their “possession and services,” without alleging actual loss of services.</p> <p>5. In actions for damages, arising from the wrongful act of a married-woman, husband and wife must be joined as defendants. If in the commission of the tort she acted under marital coercion, and such fact does not appear on the face of the petition, her defense in that respect must be made by answer.</p>

<p>1. In construing a will, extrinsic evidence may be received to show the circumstances under which it was made. The testator having used the phrase “ my two farms,” such evidence may be introduced to show the situation of the land, and the manner in which it had been used and treated, in order to ascertain whether a disconnected piece of woodland was in fact a part of one of the “ two farms,” so as to pass under the devise.</p> <p>'2. Testimony having been received, subject to objection, some of which was incompetent, a court of error will not reverse, if there is enough of that which was competent to sustain the findings of the court.</p>

<p>1. A release of the wife’s inchoate right of dower is a valid consideration' for a conveyance of property to her.</p> <p>2. Such conveyance will not be held fraudulent and void as to the husband’s creditors, unless the amount of consideration received is so dis-proportioned to the value of the wife’s contingent dower as to be unreasonable.</p> <p>3. So great is the difficulty of estimating the worth of contingent dower rights, so uncertain and imaginary are the values which are the neces-sary elements of the computation, that the court will not pronounce the transaction fraudulent from the fact that the wife insisted upon and received a sum greater than her dower, if the facts do not show mala fides in her or her husband.</p>

<p>1. Where no exception is taken at the trial to the charge of the court to the jury, a judgment will not be reversed, on error, upon the mere ground of error in the charge, without reference to the merits of the whole case.</p> <p>2. Where, however, the whole evidence is made part of the record, and it appears that the verdict is contrary to law, the overruling of a motion for a new trial on that ground, may be reviewed, on error, though no exception was taken to the ruling of the court.</p> <p>3. The mere fact that a juror in a civil case drank intoxicating liquor during an adjournment of the court while the trial was in progress, is not a sufficient reason for granting a new trial, unless there be reason to suspect it may have had some influence on the final result of the case.</p> <p>4 Any attempt on the part of the prevailing party or his attorney in the case, to corrupt a juror, though it be not shown to be successful, is a good ground for a new trial.</p> <p>5. Where it appears that during the progress of a trial, the prevailing party or his attorney has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it is clearly shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror.</p>

<p>The residuary clause of a will was in these words; “ I bequeath to my daughters, Mary Ann and Eliza, and their heirs, all the residue of my estate, real, personal, and mixed, in equal shares; and in case the said Eliza shall decease without lawful heirs of her body, her share to pass to the said Mary Ann Hunter and her heirs.” The estate was settled up, leaving a residuum in money, which, in pursuance of the will was equally divided between the two daughters who were then living. Mary Ann died, leaving, as heirs, two children. Afterward Eliza died without heirs of her body. Held,</p> <p>1. In the absence of anything in the will to the contrary, it was the duty of the executor, upon the settlement of the estate, to make distribution as therein expressly directed, and such distribution was a proper and complete administration of his trust in relation to such bequest.</p> <p>2. Whether the bequest over, on the death of Eliza without heirs of her body, is void, because inconsistent with the bequest to her and her heirs, or was valid. Quaere.</p> <p>3. But if valid, they, and not the personal representatives of the testator, are the proper plaintiffs, to assert their rights, after final distribution of such bequest as directed by the will.</p>

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

<p>A defendant in a criminal case is entitled to two peremptory challenges. Having thus challenged one of a special venire and passed his second challenge, the special venire was exhausted and a new juryman called. Defendant then claimed the right to a second peremptory challenge, which was refused. This was error.</p>

At the May term, 1874, defendant was indicted for selling intoxicating liquors to Charles Morgan, on the 20th of May, 1873, to be drank upon the premises and in the building where sold. To this indictment defendant put in a plea in abatement, assigning four causes why the indictment was not valid. 1.

On the 4th clay of March, 1870, John C. Elstner and Eliza J., his wife, and Thomas B. M. Jeffrey and Mary E., his wife, brought their action in the Court of Common Pleas of Clinton county, against Matthew Fife, James Killen, surviving executor of Joseph Reed, deceased, Oliver F. Mitchell and wife, and Chauncey F. Truesclale, heirs of Beebe Truesclale, deceased, and Levi Gtustin, administrator de bonis non of Joseph Reed, deceased.

The plaintiff in error filed his petition in the Court of Common Pleas of Defiance county, against William MeCreath and the defendant in error, Andrew Roach.

The plaintiff below, a railroad corporation, under the laws of Ohio, brought an action to charge the separate estate of Mrs. Rice, a married woman, upon the following agreement: “ We, the undersigned, hereby subscribe for the number of shares of the Columbus, Tiffin and Toledo Railroad Company (each share being fifty dollars) set opposite our names respectively, and agree to pay the same unto said railroad company, as follows: Five dollars on each share shall be payable at…

Ellis as principal, and John Stroup and others as sureties, upon a bond of which the following is a copy : “ Know all men by these presents, that we, E. C. Ellis, of Dayton, county of Montgomery, State of Ohio, as principal, and Messrs.

Keziah Taylor filed her petition in the Court of Common Pleas of Carroll county, against the representatives of Simeon Jennings, deceased, and others, stating that she is the widow of Pirn Taylor, and that about the year 1834, she, by her husband acting as her agent, purchased of Samuel Stokley a tract of land in Carroll county, for $2,000; that her husband’s means were such that he could not pay for said land, and that her brother, Mahlon Whittacre, advanced $500 to help…

In this case there are three bills of exceptions, the first two of which relate to errors occurring at the trial, with regard to the admission of testimony. The trial was at the March term, 1874, and the bills of exceptions were not filed until May, 1874, after the trial term had closed. The third bill of exceptions, though taken at a subsequent term, was upon the overruling of a motion for a new trial.

This is an action on a treasurer’s bond. Jeremiah M. Kelly was treasurer of Logan county, and the other defendants are his sureties. The first cause of action in the petition is as follows: “ The plaintiff, by Duncan Dow, prosecuting attorney in and for Logan county, Ohio, for a first cause of action against said defendant, says: 1. That on the 1st day of September, a,d. 1869, the said Jeremiah M. Kelly, Wm. Rulan, 0.

<p>1. The provision of section 313 of the code, as amended March 2, 1871, which excludes a party from testifying in a civil action, where the adverse party claims as “grantee” of a deceased person, does not apply to the assignee of a chose in action.</p> <p>2. In an action on a promissory note, against one purporting to be the maker, by an assignee of the note from its original holder and owner, who died after the assignment, the defendant is a competent witness, to prove any fact material to the issue in the ease, whether it transpired before or after the death of the assignor.</p>

An information was filed in the Police Court of Cincinnati against David Billigheimer, charging him with unlawfully performing common labor on the first day of the week, commonly called Sunday, by carrying on his usual business. This day was the 31st of May.

The questions arise upon a motion to distribute the proceeds of a sale of real estate.

<p>1. An action may be sustained on a destroyed promissory note, and where a copy of the note is given with, or made part of the petition, the destruction of the note need not be averred in the petition.</p> <p>2. In an action on a promissory note, where the petition is in the form prescribed in section 122 of the code, whether the plaintiff be an original party to the note or not, the extrinsic facts, which show his right or titfe to the note, need not be expressly averred. The allegation of title is implied, by force of the statute, in the statement that there is due to him a specific amount on the note which he claims.</p> <p>3. An answer to such petition, which merely states that when the action was brought the note was not in existence, can not be regarded as a denial of the allegations of the petition, nor as containing any defense to the action.</p>

<p>1. Where one does an act apparently in violation of a criminal statute, hut, in fact, under circumstances that tend to show a want of guilty intention, the excusing circumstances may he given in evidence on the trial, to show his good faith in the transaction, where that is a material element, or that he was ignorant of the facts that would make his acts criminal.</p> <p>2. A person indicted for selling intoxicating liquors, in violation of the provisions of section 1 of the act to provide against the evils resulting 'from the sale of intoxicating liquors in the State of Ohio, may, on the trial, show that 'at the time he bought the article alleged in the indictment to he intoxicating liquor, it was represented to him to be free from alcoholic properties — that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and' belief.</p>

<p>Bloom was convicted and fined for violating an ordinance of the city of Xenia, passed in the following manner: The proper committee reported to the town council two ordinances, one for elections, the other the one under consideration. There being eight members of council, and six present, the rule as to reading on successive days was dispensed with, by an unanimous vote. The first ordinance was then passed, and, without any other or second dispensing with the rule, the second, or heer ordinance, passed, one of the six votes present being against it: Held, Section 98 of the municipal code was not complied with; the rule was not dispensed with, as to the beer ordinance, which was, therefore, improperly passed.</p>

On the 2d day of June, 1870, the defendant in error filed his petition in the Court of Common Pleas of Ash-land county, against the Erie Railway Company, to recover damages for being wrongfully ejected from a passenger train by the conductor of the defendants’ train. He claimed damages in the sum of $5,000. Process was issued and duly served upon one of the company’s station agents.

<p>1. A corporation may forfeit its charter through neglect or abuse of its franchises; but a forfeiture is not allowed, except under express limitation of the charter, unless a plain abuse or neglect of power-, by which the corporation fails to fulfill the design of its creation, is shown.</p> <p>2. Where a charter for a college was granted, and the object of the corporation, as evinced by legislative acts in regard to the institution, was to create “ an institution of learning," in which there should be “ a professorship of agriculture,” but the general course of instruction was to be controlled by the trustees. Held, That so long as the trustees maintain under the charter an institution of learning, with a professor of agriculture and other competent instructors for a preparatory and liberal elective course of classical, scientific, and agricultural education, and the general design of the institution is being faithfully accomplished by them to the best of their ability, the franchise to be a corporation will not be regarded as forfeited to the state, merely because of a partial decay of the agricultural department, caused by students refusing to take that special course of instruction.</p>

<p>1. A person about to cross a street of a city in which there is an ordinance against fast driving, has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.</p> <p>2. But where he knows that others are driving along the street, at the place of crossing, at a forbidden rate of speed, and he has full means of seeing the rate at which they are driving, the existence of such ordinance will not authorize a presumption which is negatived by the evidence of his senses. If the attempt to cross pie street, under the circumstances, would "be negligence on his part, the fact of the existence of such city ordinance is not evidence tending to free him from culpability.</p> <p>.3. "Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by hill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial.</p>

<p>1. The conveyance by a son of his expectancy in land, owned by his father, which would descend to him if he survived his father and the latter should die intestate owning the same, is the conveyance of a mere naked possibility not coupled with an interest, and passes no estate or interest in the land.</p> <p>2. Such a conveyance can not operate to defeat the grantor’s title, afterward acquired by descent, except by way of legal or equitable estoppel.</p> <p>3. If such conveyance contains no covenants of warranty, or recitals, and’ there are no acts of the grantor amounting to an equitable estoppel, he is not estopped from asserting an after-acquired titlo.</p> <p>4. The grantees under such conveyance, never in possession thereunder, can not, as such, or by way of estoppel, assert a title or interest in the land against one in actual possession under a legal title, though such title is, as against the grantor, his heirs, and assigns, fraudulent and void.</p>

<p>1. Questions, other than such as affect jurisdiction, will not be reviewed in a court of last resort, which were omitted to be presented to the district court when sitting as a court of error on final judgments rendered by the court of common pleas.</p> <p>2. Questions of error, not specifically assigned, are presumed to be waived by a party who claims there is error, to his prejudice, in the record.</p> <p>3. The right to have an action removed from state to federal jurisdiction, • under the act of congress approved March 2, 1867, is a personal right which may be waived, and whether a party has waived his right of transfer, and submitted his cause for final adjudication in the state court, is a question to be determined from the record.'</p> <p>4. Where a case is brought a second time, on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed.</p> <p>5. Where authority to perform a specific act, in specified modes, is conferred upon an agent by a regularly executed power of attorney, and general words are also used, the general words are limited by and to be construed with reference to the modes specifically named.</p> <p>6. Hence, authority in such instrument to collect or secure a claim by note, bill of sale or mortgage, coupled with the words, “ or any way to settle the above bill,” is not authority to the agent to make an absolute purchase of the property of the debtor, and create a debt thereby against the principal, to secure the claim.</p> <p>7. When the authority conferred on an agent is by an instrument in writing, and is special, parol evidence is inadmissible to vary or affect its terms; questions arising on the trial, as to the scope of the authority conferred by such instrument, must be determined by the court. Oliver v. Sterling et al., 20 Ohio St. 391, considered and distinguished.</p> <p>8. Acts of an agent done without authority, subsequently ratified by the principal, with a knowledge of all the circumstances attending the transaction, refer back and bind the principal from their inception. Where, however, intervening rights have been acquired by a third party, such intervening rights can not be injuriously affected by the ratification.</p>

<p>Such conduct on the part of an indorsor toward the holder of negotiable paper, as is calculated to put a person of reasonable prudence off his guard, or to induce him'to omit demand or protest, or to give notice of dishonor, will dispense with the necessity of taking these steps.</p>

<p>1. It is a well settled rule in equity, that a trustee is not permitted to so manage the subject of his trust, as to make profits or gain therefrom for himself. The beneficiaries in the trust have a right to expect and require the exercise of his best judgment, care, and diligence, on their behalf, and the gains resulting therefrom inure to their sole benefit.</p> <p>2. What such trustee may not do directly, he is not permitted to do through the intervention of an agent or attorney.</p> <p>3. 'An administrator can not, therefore, be allowed, directly, or through his attorney, to compromise, adjust, and settle claims against the estate for which he is acting, for less than their face, and to put the difference in his own pocket.</p> <p>i. And the rule is the same, whether the attorney, through whom such compromise and settlement is affected, acts for the administrator officially or personally; and whether he acts, in making such settlement, as the attorney of the administrator solely, or for him and others, with a view to their joint profit. What the administrator may not do singly, the policy of the law will not permit him to participate in doing. In either case the discounts obtained from creditors must inure to the benefit of the estate.</p> <p>5. Upon final settlement of an administrator’s accounts, it is not the duty of the probate judge to provide for the payment of claims against the estate which no creditor is asserting.</p> <p>6. Nor is it within the jurisdiction of the probate court, upon such final settlement, to determine the state of accounts between the administrator and the several distributees to whom any balance found in his hands may be payable. The court can only order distribution of such balance according to law, leaving the state of accounts between the parties to be inquired into when such order of distribution is sought to be enforced by the respective distributees.</p>

<p>1. The finding by trustees of special road districts, under section 46 of the statute relating to towns and cities (2 S. & 0. 1509), that two-thirds of the resident owners of lots of land through which a proposed improvement is to be made, have petitioned therefor, is not conclusive of the fact.</p> <p>2. Such fact may be inquired into by the court in an action to collect an assessment made to pay for the improvement, as well to support an order to make the same, as to impeach it.</p> <p>3. It is not essential-that the necessary two-thirds shall sign one petition. If more than one petition is actually pending when the order is made, and they together contain the requisite number of petitioners, the power to make the order can not be impeached on the ground that the trustees acted on one of them only, which was not signed by two-thirds of the resident owners.</p> <p>4. On the 19th of August, 1868, a petition was presented for the improvement, which was examined by the trustees, but they rejected it, by reason of a supposed defect of one of the signatures, but did not pass upon the merits of the application. The petition was not withdrawn, nor did any of the signors withdraw their names, but it remained on file with the trustees until the 23d of September, 1868, when, the project for the improvement being still pending, a second petition for the same improvement was presented, and the order made thereon; the proper ordinance was passed and published; the work was let and completed after due publication, without objection by the signers of the first petition whose names are not on the second. Held, That iñ the absence of proof to the contrary, the presumption is, that those signing the first petition, continued to be petitioners at the time the order was made on the second, and may be counted to ascertain if the necessary two-thirds desired the improvement.</p> <p>5. Under the statutes relating to taxation, the guardian of minors is charged with the duty of representing the real estate of their wards in listing it for taxation and payment of taxes, as well as in the general management of such estate, and as such guardian he may represent his wards’ estate under the statute above cited, either to ask for or oppose such improvement.</p> <p>6. Where minor children, who are tenants in common of the lot of land, reside on the same, they are resident owners; but whether each is to be counted, or all counted as one, Quere.</p> <p>7. If the names of such minors and of the guardian individually, are signed to a petition by direction of the guardian and in his presence, it is equivalent to his signing as guardian.</p>

<p>1. The findings of a court or of a jury, upon issue of fact, are not subject to review on proceedings in error, except where it appears from the record that a motion for a new trial was made on the ground that the verdict is against the evidence, and that such motion has been overruled.</p> <p>2. A reviewing court will not take notice of an exception to the oharge of a court to a j ury, where the charge consists of several legal propositions, some of which are sound, unless the exception distinctly points out the portion of the charge claimed to he erroneous.</p>

<p>Error to District Court of Miami county.</p> <p>The directors of the county infirmary of Miami county, plaintiff below, brought this action against defendant below, the Dayton and Michigan Railroad Company, to recover damages for killing stock belonging to plaintiff.</p> <p>Plaintiff claimed to own two horses of the value of one hundred and seventy-five dollars each; that, without fault on its part, its stock broke out of the inclosure belonging to plaintiff, adjacent to the track of defendant, and by reason of the negligence and failure of defendant to construct and maintain a good and sufficient fence on the sides of its track and grounds occupied by defendant, strayed upon the railroad track; that on the 6th day of September, 1869, defendant so carelessly and negligently managed its cars and locomotive that the same ran against and over the horses of plaintiff, thereby killing each of them, without any fault or negligence on the part of the plaintiff, to plaintiff’s damage five hjmdred dollars, for which he prayed judgment. Defendant’s answer was a general denial of the allegations contained in the petition.</p> <p>A trial to a jury resulted in a verdict in favor of plaintiff below. The defendant made a motion for a new trial, assigning the following reasons:</p> <p>First. Because the verdict is against the weight of evidence.</p> <p>Second. Because the verdict is against the charge of the court.</p> <p>Third. Because the verdict is against the law.</p> <p>This motion was overruled, defendant excepted, and a bill of exceptions was taken, bringing all the evidence on the record, and also a charge given to the jury, as requested by defendant. A petition in error was prosecuted in the district court, and resulted in an affirmance of the. judgment. These proceedings in error are to obtain a reversal of this judgment of affirmance.</p>

<p>Timber was cut from lands of B. by trespassers, who, by their labor, converted it into cord wood and railroad ties, thus increasing its value threefold. It was then sold to an innocent purchaser who was sued by B. for the value of the wood and ties. Whatever might be the rule of damages, as against innocent purchasers, B. can not recover the value of the timber as enhanced by the }abpr pf the wrong-doers, after it was severed from the realty.</p>

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

The original action was brought by William Johnston against John Lahm, U. R. Feather, and H. R. Wise, in the Court of Common Pleas of Stark county, on a bond for $50,000, given by Lahm, as assignee of Nixon & Co., with the other defendants as his sureties, conditioned that the said Lahm should well and truly, and according to law, perform all and singular the duties devolved upon him in the acceptance of the trust, and truly and correctly account for and pay over all moneys…

Error. Reserved in the District Court of Cuyahoga county. On the 1st day of May, 1873, the plaintiff in error commenced an action in the court of common pleas against the defendants in error, Miles D. Carrington, William Casey, and John Cunningham, to recover damages against the said defendants for cansing the death of Richard Conway, by tbe negligence and wrongful acts of said defendants.

Hannah Davey and Joseph Davey, defendants in error and plaintiffs below, brought au action for slander against John GL Duval, plaintiff' in error and defendant below, in which action Hannah Davey, a married woman and wife of Joseph Davey, charged John Gr.