Volume 33 — Ohio State Reports, New Series

The original action was commenced in the Court of Common Pleas of Lucas county, March 13, 1872, by one John B. Marston, against John H. Shaw and others, to subject certain real estate to the payment of a judgment recovered by said John B. Marston, against said John II. Shaw.

Error, to the District Court of Harrison county. The action below was brought by the defendants in error against Thomas McKee and William L. Hamilton, partners, to recover*$2,000, for money paid by them October 1, 1873, as sureties of the partnership, on a promissory note, of which the following is a copy : “ $2,000.

<p>1. The sufficiency of pleadings is not'brought in question by a motion to dismiss an appeal, for the right of appeal does not rest upon the sufficiency of pleadings, but depends upon the nature of the case.</p> <p>2. Where in an action to recover possession of real property, the defendant took issue on the averments of the petition, and further set up by way of cross-petition matter constituting an equitable cause of action, which, if sustained, would defeat the original action, and the issues taken on the cross-petition were tried and judgment was rendered against the defendant, dismissing the cross-petition, and the case was sot down for further trial on the issues joined on the original petition — Held: That it was proper to dispose of the cross-petition before trying the case on the original petition, and that final judgment having been rendered against the defendant on the cross-petition alone, he w%s entitled to an appeal from such judgment.</p>

Pryor was sued in the court below as indorser of a promissory note for $4,030.14, dated August 14,1869, payable in four months at the Eirst National Bank of Barnesville. Jones & Mays were makers of this note, and Pryor indorsed it for their accommodation.

At the May term of the Court of Common Pleas of Highland county, Samuel K. Clinton, plaintiff in-error, was indicted, charged with having been the keeper of a room of public resort, from April 1, 1871, to March 20, 1874 (at which time, proceedings were commenced against him before a justice of the peace), where intoxicating liquors other than wine, etc., were sold by him in violation of “An act,” etc., to the common nuisance of the citizens, etc. Clinton pleaded, “ not…

Error, to the District Court of Union county. This action was brought by the plaintiff against Charles Erb, to compel him to convey certain real estate purchased by him of one Jones and wife. On appeal, the district court found its conclusions of fact and law separately, as follows: In the District Court of Union county, Ohio, March 2Oth, A. d. 1874.

The original action was brought in the court below, in March, 1872, by defendant in error, upon the transcript of a judgment purporting to have been rendered by the district court of the first judicial district of the State of Kansas, on the 6th of February, 1860, against the plaintiff in ■error, and in favor of certain parties therein named, for the sum of $10,542.19; on which he avers in his petition that the sum of $3,314.15 was paid on the 20th of May, 1866; that this…

Plaintiffs in error brought their action in replevin in the ■Superior Court of Cincinnati, against George W. Zeigler, ■sheriff of Hamilton county, to recover the possession of a barge load of coal, which had been levied upon by said sheriff, as the property of Haubold & Son, by virtue of an ■execution against them in favor of one William H. Brown. After the execution of the writ of replevin, Haubold & Son made an assignment under the state law.

Patterson brought suit in the court of common pleas,, and recovered judgment against Smith. Upon error to the district court, the judgment was affirmed, and Smith filed his petition in error in the supreme court. In the court of common pleas, Patterson set forth in hispetitiou, that Smith, about the 1st June, 1871, had a contract with the Lake Shore and Michigan Southern Railroad Company, to build an embaukment.

Tbe original action was on an account. Tbe account' was attached to tbe petition. Plaintiff in error, defendant below, answered, denying tbe indebtedness of tbe estate of Jobn Armleder on tbe account, and, by way of cross-petition, averred a cross-demand, and prayed for a judgment. Plaintiff below replied, specifically denying tbe'items of cross-demand, and prayed for j udgment, as in the ■petition.

<p>1. Whore an actual and valid levy of an execution has been made upon personal property, the property so levied upon is, in'contemplation of law, in the custody of the officer, and if it is returned to, or left with, the judgment debtor, such levy is not per se void as against subsequent levies.</p> <p>2. Whether such levy is valid, or becomes fraudulent and void as against subsequent levies, is a question of fact, depending on the character of the property and all the surrounding circumstances of the case.</p> <p>3. Goods and chattels of the execution debtor are, as against subsequent levies, bound from the time they are seized in execution; but where an officer, under promise of indemnity for his neglect, and to enable the debtor to raise money to satisfy the execution, by the prosecution of his business, merely indorses a paper levy on the execution in his hands, and allows the debtor to retain absolute possession and control of the property, with power of use and sale in the usual course of business, such levy is void and the goods and chattels are subject to seizure in execution in favor of other creditors.</p> <p>4. Where a valid levy has been made upon goods and chattels in the hands of the officer, a constructive levy of subsequent executions coming into his hands before sale, may be made by indorsement merely, but when the original levy is a mere paper levy, and therefore void, a constructive levy of other executions will not bind the property against subsequent executions actually levied thereon.</p> <p>5. Where a sheriff or other officer has been amerced for failure to make the money on an execution, and pays the judgment, or where he pays off a judgment to avoid amercement, he has such an interest in the collection of such judgments as disqualifies him from executing process to collect the same.</p> <p>6. Where the sheriff has been amerced, and compelled to pay a judgment which he has not collected, he is permitted to sue out execution in the name of the original plaintiff for his use, under section 457 of the civil code, but the process should be directed to the coroner, as provided in section 582 of the code.</p> <p>7. An order of sale of personal property, under section 430 of the code, presupposes a previous valid levy, but where there is but a mere paper levy, which is void, or where there has been a valid levy which has become fraudulent and void as against subsequent creditors, such an order of sale is inoperative as against subsequent executions actually levied on the property.</p> <p>8. Where an order of sale, founded on such void levy, contains a clause for an additional levy, under section 431 of the code, it is valid as a fi. fa. execution only, which may be levied on the property specified in the original void levy, as well as upon other property.</p>

<p>In one clause of his will the testator bequeathes to M. L., a married woman, living with her husband, a specified sum of money. In a subsequent clause, it is provided that if M. L. shall die leaving no child of her own, then the money shall be equally divided between the testator’s living children, the issue of his own body. Upon final settlement of the estate, the executor had sufficient funds to pay all the legacies, but refused to pay M. L., claiming the right to hold the amount during her life, to be placed at interest for her benefit. Assuming that the limitation over to the living children of the testator, in the event that M. L. shall die leaving no child of her own, is valid, and not void as being inconsistent with the first clause — Held: 1. That ■as the bequest over is upon uncertain contingencies that may never happen, namely, the death of M. L. leaving no child of her own, with living children of the testator surviving her, the children of the testator, if they take at all, do so by way of executory devise, and not as legatees in remainder. 2. M. L. takes the bequest absolutely, and is entitled to the possession thereof. Her estate, if the limitation over is valid, is liable to be divested, by the happening of the contingencies named, and no estate or interest vests in the possible legatees over, until such contingencies happen. 3. Upon final settlement of the estate, before the death of M. L., and in the absence of any provision of the will making it the duty of the executor to hold and manage said legacy, she is entitled to receive the same. 4. If such limitation over is valid, the children of the testator, and not the executor, in the absence of a trust reposed in him, are the proper parties to an action or proceeding to protect their contingent interest, if any necessity for such an action arises.</p>

Andrew J. Elesher brought suit in the Superior Court of Cincinnati, January 8, 1874, against the Southwestern Transportation and Wharfboat Co., James W. Gaff, James S. Wise, J. D, Parker, and others. Gaff, Parker, and Wise-had subscribed to the stock of the wharfboat company, against which Elesher had recovered a judgment, and to compel the payment of these subscriptions, in satisfaction of this judgment, Elesher brought this suit.

On the 21st day of March, in the year 1850, the general assembly of the State of Ohio passed an act entitled “ an act to incorporate the Springfield and Mansfield Railroad Company ” (48 Local Laws, 294).

Reserved in the District Court of Brown county. The suit was brought to determine the plaintiff’s right to an undivided seventh part of 212 acres of laud, and to obtain partition and an account for rents. The plaintiff' claims the land as devisee under the will of his grandfather, Joseph Linton; and the question is, whether the father of the plaintiff, who was the son of the testator, or tbe plaintiff, was tbe devisee of tbe land.

<p>1. A -written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them, creates no interest in, nor incumbrance upon the land such as will disable the owner thereof from making a good and sufficient deed conveying a good title thereto.</p> <p>2. A vendee of real estate protected as an innocent purchaser without notice, may not, at his option, elect to waive such protection, and rescind the contract of purchase for an alleged incumbrance not aifeeting the validity of the title.</p>

In the Court of Common Pleas of Butler county, ¥m. Maud filed his petition against John and Hannah Maud, who were his parents. In substance he alleges, that after he became of age, he labored upon a farm, with his parents and a brother, with an agreement among the parties that the proceeds of their labor should be invested in farms, several of which, in a long course of years, were thus purchased.

<p>Where a railroad company, engaged in ballasting its road, employed a hand to assist in loading and unloading a gravel train, and in the execution of this service it was necessary for him to ride on the train from the ■ gravel pit to the place of unloading — the train being run under the direction of a conductor, and said hand having nothing to do with its management: Held, That such hand, while riding on the train, was a mere employe, and did not assume the character of a passenger; that he and the engineer of the train were engaged in a common service, and that, as he was not under the control or subject to the orders of the engineer, the railroad company can not be held liable for negligence of the engineer, resulting in his death, if it was not guilty of negligence in selecting the engineer.</p>

<p>1. If a husband leaves his family and usual place of residence, and goes to> parts unknown, or a distant state, and is not heard from for a period of seven years, a presumption arises that he is dead.</p> <p>2. Where such presumption exists, and where the husband has abandoned his wife and minor children, without other means of support than the house and lot on which he resided before such abandonment, she may act and contractas a, feme sole.</p> <p>3. If in fact the husband is not dead, yet, in such case, she is capable of-' binding herself, by way of equitable estoppel, by her acts and contracts,, as fully as if she were a feme sole.</p> <p>4. And if she join with the children, who have come of age, in order to induce a sale of said real estate for their mutual benefit, in representing' that he is dead, and thereby, and for value received, effects a sale of such real estate, and also joins them, as widow, in a conveyance in fee, with covenants of general warrant}*, and the contract is fully executed by the purchaser: Held, That although the husband be living, and although such conveyance does not operate as a release of her inchoate right of dower, yet she is barred by way of equitable estoppel from treating her contract as a nullity, and from asserting her right to have dower assigned, upon the actual death of her husband.</p> <p>5. It is not necessary to constitute such equitable Estoppel that a party should design to mislead ; it is enough if the act or declaration was calculated to and did in fact mislead another, who acted in good faith and-with reasonable diligence.</p>

<p>1. In eases where a specific duty is enjoined by law upon the board of county commissioners to be performed in a specific manner not involving judicial discretion, and when performance by the board is due it refuses to act, it may be compelled to do so by mandamus.</p> <p>2. The county commissioners having accepted, as completed according to contract, a road improvement, ordered by them to be made in pursuance of statutes authorizing payment therefor to be made in bonds of the county to he issued to the contractor on completion of the improvement and acceptance thereof, and the commissioners refuse to deliver to the contractor the bonds to which he is entitled, mandamus, and not appeal, is the proper remedy for redress.</p> <p>3. The board of county commissioners, in the due course of business, at a regular session, caused an entry, as follows, be made on their journal: " September 7, 1872. The macadamized road petitioned for by Hiram Haistings and others, under the law of April 30,1869, and the act amendatory and supplementary thereto, having been completed according to contract, the same is hereby accepted as such. James Ealrin, William Long, Robert Calland, Commissioners.” Held, Parol evidence was inadmissible to explain, modify, or change this record.</p>

<p>1. A bona fide purchaser, for value, of a n on-negotiable chose in action, from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting title thereto.</p> <p>2. B. makes and delivers his non-negotiable promissory notes to 0., from whom they are obtained by fraud, misrepresentation, and without adequate consideration. The assignee, having thus obtained them, transfers them to W., who is a bona fide purchaser, for value, before due, without notice: Held, O. can not reclaim the notes from W.</p>

<p>1. Justices of the peace, while acting within the scope of their authority,. are not answerable in a private action for the erroneous exercise of the judicial functions with which they are invested by law.</p> <p>2. But such justices, and other inferior tribunals, which are invested only with special jurisdiction, and clothed with limited authority, must, at their peril, keep within their prescribed jurisdiction; and if they transcend the limits of their authority, they are answerable to any one-whose rights are thereby invaded.</p> <p>3. And, in such a case, honesty of purpose, while it may mitigate damages, can not justify a clear usurpation of power.</p> <p>4. Therefore, where a justice of the peace, without authority of law, issues-a warrant of arrest, both he and the person at whose instance he so acts are liable in an action for false imprisonment at the suit of the party illegally arrested by virtue of such warrant.</p>

<p>1. A master, whether an individual or a corporation, is responsible to his • servants for his own negligence ; but, as a general rule, not for that of their fellow servants,</p> <p>2. Where, however, a master places one servant in a position of subordination to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior servant, while both are acting in the common service, the master is liable therefor.</p> <p>3. Whether or not one servant is placed by a common master under the control of another servant, thereby creating the relation of superior and subordinate between them, must be determined from the evidence in each particular case-</p> <p>4. Where an engineer and brakeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain specified signals as “ a notice” to apply or loose the brakes, and requiring the brakeman to manage the brakes “ according to circumstances and the signals of the engineman,” and placing the brakeman, while on the train, in subordination to the conductor : Held, That the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior' and subordinate did not exist between them; and that, therefore, the companj'' was not responsible to the brakeman for an injury occasioned by the negligence of the engineer.</p> <p>5. Where in an action, brought in this state against a master by a servant, for an injury sustained in another state through the negligence of a superior servant while engaged in the same service, and the answer merely stated that, by the law of that state, the servant has no action against the master for the negligence of his fellow servant: Held, That the answer fails to meet the case, in not stating what the law of that state was, when the negligence complained of is that of a superior servant, and that a demurrer to the answer may, for that reason, be sustained.</p> <p>(No brief for plaintiff in error, came to the hands of the-Reporter.)</p>

<p>1. In a suit for dower, while the amended section 313 of the civil code,. passed April Í3, 1874 (71 Ohio L. 88j, was in force, the heir of the deceased husband was a competent witness for the defense, where the title of the deceased husband was in issue.</p> <p>2. Whether he would have been a competent witness under said section, as-it was in force prior to the passage or subsequent to the repeal of said amended section, quaire ?</p> <p>3. The delivery of a deed by the grantor to the officer taking the acknowledgment, with unqualified instructions to deliver it to the grantee whenever he calls for it, followed by an acceptance of the title to the'land conveyed, operates to invest the grantee with the title to the land, although for convenience merely the grantee permits the officer to retain possession of the deed.</p> <p>4. If, after such absolute delivery to the officer, and acceptance by the-grantee, but before he takes actual possession of the deed, the grantor mari-ies, his wife is not vested with an inchoate right of dower in the prerciises, and on her surviving her-'husband she is not entitled to dower therein.</p> <p>(No brief for defendant in error come to the hands of the Reporter.)</p>

This action was originally brought in the Court of Common Pleas of Huron county, by Hannah Westfall, widow of 'Harvey Westfall, and her son, Jacob II. Westfall, against the heirs at law and the executors of Harvey Westfall, praying for the sale and reinvestment of certain real estate described in the petition, under the acts authorizing “ the sale or lease of estates tail and for life in certain cases,” and acts supplemental thereto.

Wolsey brought suit in the court of common pleas to re-cover from the railroad company for an injury happening to him while brakeman. He was engaged in coupling cars upon a train, when his right hand was caught, by the cars coming suddenly together.

Reserved in the district court of said county. The action in the court below was brought by plaintiff in error, against defendants in error, upon three alleged judgments of the Court of Common Pleas of Mercer county, Pennsylvania, rendered at its May term, 1872, in favor of the plaintiff, and against the defendants. The defendant, Corll, answered, denying the existence and validity of the judgments sued upon, and setting up other grounds of defense.

<p>A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, andi therefore, can not maintain an action against the city, to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.</p>

<p>1. Notes secured by the same mortgage, when transferred to different holders, are to be paid in the order of their maturity, unless a different intention is expressed by the parties.</p> <p>2. If facts or circumstances exist to make the order of priority other than the order of maturity, such facts or circumstances must be shown by the party claiming to vary this order.</p>

<p>1. A writ of attachment under the code, without the requisite affidavit, is void.</p> <p>2. The seizure of property of a non-resident debtor, upon whom service of summons can not be made on such void writ, does not give the court such jurisdiction over the defendant or his property as will authorize a service by publication, or a judgment in the action.</p> <p>3. The affidavit required by section 192 of the code forms no part of the pleadings in the case, and should not be incorporated in the petition, but if the omission of a separate affidavit can be cured by a showing in the petition, it should contain all the requisites of an independent affi- • davit and be duly verified.</p> <p>4. “Whore the petition, treated as an affidavit for an attachment, does not show that the claim sued on is just, nor state the amount the affiant believes he ought to recover, and is verified upon belief merely, it is insufficient to cure the omission of a separate affidavit.</p> <p>6. In an action for money only, where an attachment is sued out and levied on lands of a debtor, a mortgagee of the land seized in attachment is not a proper party to the action.</p> <p>6. In such a case the attaching creditor can not have relief in equity to satisfy his claim until after he has obtained a judgment and exhausted his remedy at law.</p> <p>7. To bar the equity of redemption of a non-resident mortgagor, upon whom service of summons can not be made, such mortgagor should be constructively served, as required by the code, and a judgment of foreclosure and sale, without such service, is no bar to an action to redeem.</p>

<p>1. On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land, is a nuisance, an injunction should not be granted unless a clear case of nuisance and irreparable injury be made out.</p> <p>2. When a party, who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction.</p>

<p>1. A person not a citizen of the state in a court whereof he is sued, car not, under the 12th section of the judiciary act of congress of 1789, remove the suit to a circuit court of the United States, by reason of the-citizenship of the parties, unless his petition for removal shows that the plaintiff was, at the time of the commencement of the suit, a citizen of' • such state.</p> <p>2. Facts which are affirmatively shown by the record need not be averred. in such petition for removal.</p> <p>8. The act of congress of March 8, 1875 (18 U. S. Stat. at Large, 470), so far as citizenship is concerned, makes the right of removal to depend on the parties being citizens of different states at the time of the application for removal.</p> <p>4. Under the act last named, the application for removal may be made by either party, at or before the term of court at which, under the laws of the state and the rules of practice, the cause would first regularly stand for trial, on its merits, upon issues which have been joined between the parties by their pleadings.</p>

<p>1. One seeking to be relieved from a contract, on tbe ground of alleged' false representations, must show that there were, in fact, false representations of a material fact, upon which he relied, and upon which, from the circumstances of the case, he had a right to rely, and, in doing,so, was mislead to his injury.</p> <p>2. An action will lie for a false representation of a material fact, whether-the party making it knew it to be false or not, if he had no reason to. believe it to be true, when made, and it was done with the intention, of inducing the person to whom made to act upon it, and the latter does so, sustaining a damage in consequence.</p> <p>3. Where an agent of an insurance company makes representations to one having a claim for a loss against the company, the parties standing in antagonistic relations to each other, that the latter had no claim or riglits that he could enforce by legal proceedings, such representations are only opinion — representations upon which he had no right to rely; and if he does so rely, it must be at his own risk, because the truth ov . falsehood of such representations could be ascertained by ordinary diligence.</p> <p>4. The charge to a jury should not only be correct, but be so distinctly-adapted to the case made by the proofs, and so explicit, as not to be misconstrued or misunderstood by the jury, in the application of the law to the facts proven. 'Where, however, the charge, for want of such certainty and explicitness, is calculated to confuse and mislead the jury, that is error for which a judgment may be reversed.</p> <p>5. Where, in a charge in relation to false representations, upon which a complaining party has a right to rely, the court enumerates, as a ground for false representations, upon which the plaintiff might rely, a matter which should not be considered by the jury in- that relation, and, but for such misdirection, the jury might have arrived at a different conclusion, such a charge is erroneous, because misleading.</p> <p>6. A charge, requested by defendant, consisted of two legal propositions— one sound, and the other unsound. A modification to the request, by the court, when applied to tbe sound proposition, rendered it unsound,, and, when applied alone to the unsound one, cured the defect in it, and, when applied to the request generally, rendered the whole uncertain» and ambiguous: Held, Brror. Charges that are uncertain and ambiguous are misleading.</p>

<p>1. That all the property of the maker of a promissory note has been assigned to an indorser of such note, for the benefit of all the maker’s creditors equally, does not dispense with the necessity of demand and notice, when that property is not sufficient to meet all the maker’s liabilities.</p> <p>2. A waiver of demand and notice by the indorsor must be by words or acts that clearly show that such was the intention.</p> <p>3. M. was indorser upon a series of notes made by 0., who had assigned all his property, for the benefit of all his creditors equally, to M. After the assignment, M. told the bank, holder of the notes, to bring them to him as they matured, and he would pay them, or waive protest on them. This was done upon all the notes but the last. At twelve o’clock of the day this one became due, the baulk clerk presented it to M. for payment, who said he would not pay it or waive protest on it, because the signature was not his, but a forgery: Eelcl, The. necessity of demand and notice was not dispensed with.</p>

Error, to the District Court of Meigs county. The original action was brought by Penelope Lewis,, against Samuel N- Titus and Calvin Hutchins, to recover damage for wrongfully taking, on the Meigs county fair grounds, certain specified goods and chattels (being the stock of a booth for eating and drinking), belonging to her, of the value of two hundred an sixty dollars.

On the 4th day of October, 1862, George Selves, of Cincinnati, died, leaving a will, by the terms of which he gave to his widow, Sarah Selves, now Sarah S. Scanlan, the defendant in error hereiu, the life estate of certain real estate described in the petition, with remainder over to Eleanoi Beard, Mary Oyler, Sophia Watterman, his sisters, and to Charles Selves, Jr., in trust for his niece, Mary Paul, wife ■of Thomas Paul, and to his brothers, Richard Selves, Charles…

<p>1. In an action against two defendants to recover a sum of money alleged to be due from them on an account, where it appears, either from the pleadings or during the progress of the case, that a several judgment is proper against one, the court may, in its discretion, render a judgment against him for the amount for which he is liable, leaving the action to proceed against his co-defendant.</p> <p>2. The effect of such severance and judgment is to leave the action to be-tried as á several action against the remaining defendant upon the issues joined, as fully as if he had been sued separately on the same cause of action.</p> <p>#. On the trial of these issues judgment may be rendered for or against the remaining defendant, as if he had been sued alone, without regard to the amount of the former judgment against his eo-defendant.</p> <p>4. In the action, one defendant makes no defense, the other answers, denying a joint liability, but admits an individual liability for part of said account. Judgment, by default, is taken against the one for the amount claimed, less the amount admitted by the other, leaving the action to proceed upon the issues joined by the answering defendant: Held, That, upon a trial and verdict against the remaining defendant for the amount admitted by him, judgment might be rendered thereon as if he had been sued alone.</p> <p>•5. The answering defendant having denied all joint liability with his co-defendant, and admitted a separate liability in the cause of action, he is t not prejudiced by the several judgment against his co-defendant by default, for the amount of the account, less the amount he admits he owes individually.</p> <p>■6. In the rendition of each separate judgment the plaintiff recovers his costs to be taxed. This is a several judgment against each defendant for costs, and not a joint judgment against both for all the costs, and authorizes the taxation of costs, as if the defendants had been sued severally.</p> <p>7. If the action had originated in the common pleas on a joint claim exceeding one hundred dollars : Q/uere, Whether plaintiff could have recovered costs when his several recovery was less than that amount ?</p>

<p>Pending a litigation between the board of education of a township, and a special school district-therein, as to the custody and control of a fund in the township treasury, the board permitted the treasurer, by a verbal agreement, to use the fund in his business, on his agreeing to pay interest thereon, the object being to earn sufficient by such use- to meet the interest with which the board would be charged, in the event the pending action should be decided against it. "When the treasurer’s term expired, and for the same reason, the loan was renewed and a note with sureties taken for the amount then due, payable to the board with interest in ten months: Held, 1. Such loan was i» contravention of public policy and prohibited by statute. 2. In an action, on the- note, by the board, the sureties thereon were not estopped from setting up, the illegality of the transaction as a defense, 3, While the boardlmay. do any act in disaffirmance of such an illegal contract, andrecov.e»"h'ack: the money illegally taken from the treasury by an action,.or take- &, note and security for its return; yet it has no power, in the absence of.' statutory authority for that purpose, to ratify and adopt a., contract made in violation of law.</p>

The action was one in the ordinary form to recover possession of eight and eighty-one one-hundredths acres of land, situate in Summit county, Ohio, and for mesne profits. A more extended statement of the pleadings in the case is unnecessary to an understanding of the questions in the ease. The record shows that one Roger Haskill was the common source of title. On the trial, the parties respectively introduced in evidence their deeds, evidencing their proper titles.

The petition was filed November 6, 1869, and is simply on an account for labor, materials, etc., in building the Cincinnati Hospital, and is as follows: “ The above-named plaintiffs, Wesley M. Cameron, Dell Cameron, and Joseph O. Sawyer, partners as W. M. Cameron & Co., say that the above-named defendant is justly indebted to them in the sum of sixty-four thousand five hundred and fourteen ninety-two one-hundredths ($64,-514.92) dollars on an account, a copy of which is…

<p>In an action to recover the balance due on a land contract, and to subject the land to sale for the payment thereof, the defendant, by cross-petition, set up an alleged cloud on the plaintiff’s title to the land. The court, on the trial, made an entry, finding that the cloud had been removed; that the plaintiff had deposited with the clerk of the court deeds conveying a clear title ; the amount due on the contract; and adjudging the defendant to pay the amount to the clerk within thirty days, and, in default thereof, that execution issue therefor; and, on payment by defendant, that the deeds be delivered to him. The land was sold, and. for the balance remaining due, an execution was issued on the judgment and levied on other lands of the defendant, which were claimed by another party under a lien acquired after the rendition of said judgment: Held, That the entry so made was a final determination of the rights of the parties to the action, and was, therefore, a judgment within the meaning of section 370 of the code; and, being a final judgment against the debtor for the payment of money, under section 421, became a lien on his lands in the county where it was rendered, superior to that subsequently acquired.</p>

<p>Suit was brought by L. on a land contract, made in 1857, to recover a balance of purchase-money due thereon from P., which, by the terms of the written contract, was bearing interest at the rate of five per cent. The land was incumbered by a mortgage, which had been executed by L. to one B., to secure payment of a debt bearing ten per cent, interest. Eor the security of P., the contract in suit provided that the deferred installments of purchase-money, when paid by him, should be applied, so far as necessary, in satisfaction and discharge of this mortgage. At the April term, 1861, of the District Court of Pike county, a judgment or decree was entered in the case, as follows: “ The balance due and payable from the said P., being agreed upon by the parties, by consent of parties, it is found by the court that there is • now due to the plaintiff, from the said P., on account of the matters set forth in the petition, the sum of $3,600, together with interest on $3,000, from the 25th day of February, 1860, at the rate of ten per cent. It is therefore, by consent of parties, considered that the plaintiff recover of the said P. the said sum of $3,600, together with ten per cent, interest, since February 25, 1860, on $3,000, to be paid into court for the use and benefit of M., executor of the said B., deceased, to be paid within ten days from the rising of the court at the present term.”</p> <p>On this decree $600 were afterward paid directly to L., and he and the executor of J3. united in assigning the residue of the judgment to B. Afterward, in a suit brought by P. against E., a question arose as to the rate at which interest should he computed on said judgment. On this question: Held, That neither by the terms of said decree, nor by the statutes in force at the date of its rendition, was E. entitled to have interest computed on the sum assigned to him at a rate greater than six per cent, per annum.</p>

<p>1. A demurrer to a pleading admits only what is well pleaded therein. It does not admit a conclusion of law unwarranted by the facts on which it is predicated.</p> <p>2. Courts can not take judicial notice of a private or special statute, unless it be specially pleaded. And in pleading such a statute, or a right derived therefrom, it must, at least, be referred to by its title, and the day of its passage.</p> <p>3. Special privileges conferred on a railroad company by a private charter, granted under the constitution of 1802, do not so inhere in the road constructed under such charter as necessarily to pass to any corporation which may have acquired, under subsequent legislation, the right to operate the same.</p> <p>4. The act of April 25, 1873, amendatory of the 13th section of the act of May 1, 1852 (70 Ohio L. 161), which prohibits any corporation operating a railroad in this state from demanding and receiving for the transportation of passengers more than three cents per mile, for a distance of more than eight miles, gives the party aggrieved a right to recover from such corporation a forfeiture of not less than twenty-five dollars for each case of overcharge.</p>

<p>1. In an action against several defendants, to- recover possession of land, where they defend jointly, verdict and judgment may, on final trial, be rendered for or against one or more of them.</p> <p>2. In such case, those against whom judgment is rendered are entitled to a second trial; hut whether, on such trial, the issues as to all the defendants, or only as to those against whom the judgment is rendered, are opened for retrial, is a question that can not he raised after the second trial is taken, hy a motion to rescind or vacate the order allowing the same.</p> <p>3. One who enters upon unimproved land, under color of title which describes by metes and hounds the extent of the claim, and actually occupies and improves part thereof adversely to the real owner, claiming the whole, is presumed to hold by constructive possession to the extent of the boundaries called for in his paper title, in the absence of any adverse possession, though there be no inclosure or improvement of the residue of the tract.</p> <p>4. To lay the foundation for this presumed or constructive possession, the entry must be under claim or color of title, which describes the land entered upon, and to which the defendant claims title.</p> <p>5. Where the entry is without color of title, or upon a paper title, which is void for want of a description of any land, this presumption does not attach, and the adverse possession only extends to that part of the land actually occupied and improved.</p> <p>6. A survey of GOO acres of unimproved land was patented to A., B., C., and D., in the proportions of 200, 100, 100, and 200 acres, respectively, tobe held by them as tenants in common. Subsequently, B.’s share was sold at tax sale, described as 100 acres, part of said survey, taxed in the name of B., but without any further description: Held, That such tax sale was void for want of a description.</p> <p>7. One who holds such a tax title can not survey off to himself the quantity called for in his certificate, out of the large tract, and, by an entry thereon, and actual possession and improvement of part only, claim to hold, by constructive possession, to the boundaries of his survey.</p> <p>[No briefs for either plaintiffs or defendants in error were found on file by the reporter.]</p>

<p>1. A mere promise by the supposed maker to pay a forged note, without any new consideration, and without circumstances creating an estoppel against the promissor, does not become a binding contract creating a liability to pay such note.</p> <p>% The principle of agency, by which a principal may ratify the unauthorized act of his agent, does not apply to the alleged ratification of a forged note; the act of the agent being voidable, may be ratified; the act of the forger is void, and can not he ratified.</p>

<p>1. On appeal, the case will be heard in the appellate court on the pleadings-- and issues made in the court below, unless, upon leave granted in- such appellate court, the pleadings are changed.</p> <p>2. Where there are several issues, one of which is made by a demurrer to a reply, and the case is submitted to the court generally, with a request by defendant for special findings on one of the issues of fact, and the-record shows a special finding and judgment on that issue with an exception thereto; also, a general finding and judgment thereon without exception, but it nowhere affirmatively appears what disposition was made of the demurrer: Sold, in such ease, in the absence of all showing to the contrary, the general finding and judgment will be presumed to include all issues made in the case not specially passed on.</p> <p>8. Where the payee of a note lawfully carrying interest at the rate of ten per cent., having money in his hands belonging to the payor, and the same is credited on the note hy an agent of the payee without the knowledge of either party, though he might properly do so, they may, hy agreement, after the repeal of the ten per cent, law, substitute a new note in the exact terms of the old note, leaving off the credits so put upon the old note, without affecting the rate of interest, if it clearly appears there was no intention or device used to evade the provisions-of the statute regulating the then present rate of interest.</p>

<p>1. On an issue denying partnership, the declarations of one charged with being a partner are competent against him; but such declarations, made when the other alleged partner is not present, are incompetent to> charge the absent party with that relation.</p> <p>2. After the death of G., an action was brought against his administrators,. and one P., charging that P. and G. were, in the lifetime of G., partners in business, and, as such partners, became and are indebted to plaintiff, K. The administrators of G. answered, denying each and every allegation in the petition, except the rejection of the claim. P.. answered: 1. By general denial. .2. Admitting his individual liability, and alleging part payment. 3. Plead his final discharge in bankruptcy, which was not denied by reply or otherwise controverted: Held, Under the pleadings, no testimony was required or admissible to establish a claim against P., and that his declarations tending to prove his liability as a partner of G. were improperly admitted, because calculated to mislead and induce the jury to charge the estate of G. with a partnership-liability.</p> <p>3. When the testimony of a witness, called to discredit another for truth,. shows that he is testifying from his personal knowledge, and not from the general reputation of the person whose testimony is sought to be-discredited, it is not error to exclude it. It is error, however, to reject the testimony, when the answer of the witness manifestly shows he testified from a knowledge of the general reputation of such person for-truth and veracity.</p>

<p>1. Where a railroad company proceeds to appropriate land for its use, it is-essential to a judgment of condemnation that it should prove its corporate existence, and that it has complied with the law giving it the right to exercise the power of eminent domain.</p> <p>2. It is essential to the exercise of the right of eminent domain for the company to prove that it has fully organized, by the election of directors, and that they are unable to agree with the owner of the property upon-the compensation to be paid therefor.</p> <p>3. But a judgment rendered in a proceeding for the appropriation of land under the act of April 80, 1852, will not be reversed for failure to malee such proof on a hearing before the court preliminary to the-impaneling of the jury, if it be made at any time during the trial before judgment.</p> <p>i. Where, in such proceeding, the company has filed in the proper court a. written statement, specifically describing the property sought to be appropriated, no further written or record evidence of the line of the road is essential to the right of the company to have an assessment by a jury of the compensation to be paid for the property so described.</p> <p>. 5. Where it is stated in a record that, for the purpose of proving a series of specified facts, most of which were inadmissible as evidence, a number of witnesses were asked a series of specified questions, without showing what was expected to be proved in reply to any particular one; a judgment will not be reversed on exceptions for ruling out the questions; for it can not be told which one, if any of them, was excluded to the prejudice of the party excepting.</p> <p>< 6. Where land is appropriated for a public use, a compensatory, not a speculative remuneration is guaranteed by the law for land taken, and for the damage occasioned thereby to the remainder of the premises. The difference in the value of the owner’s property, with the appropriation and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situation, and surroundings. It can not be enhanced by proving facts of a contingent and prospective character, such as the probable rents that may be derived from the property, or its special value as a prospective monopoly of a road-way to the adjoining lands of other persons.</p> <p>'7. In a proceeding by a railroad company before a probate judge, underthe act of April 30, 1852, for the assessment of compensation to be paid for land appropriated for its road, it was incompetent for the land-owner to prove, for the purpose of defeating the proceeding, that the corporators procured the incorporation of the company, not for a public use, but for their private purposes merely, and were exercising the corporate privileges in abuse of the law ; nor was it competent to prove for that purpose that there was no public necessity for the road. These questions were not committed by the law to the determination of the probate judge, nor to the jury; but pertained to other proceedings and other tribunals.</p> <p>8. Where no special ground is laid therefor, account-books of persons not parties to the proceeding are not of themselves admissible in evidence to prove the value of the property affected by the appropriation, and quantity of products transported over it from the lands of other parties.</p> <p>'9. Where, on the trial, the land-owner, against the objection of the company, was permitted to ask a witness how much less valuable his land would be in consequence of the appropriation, and the witness named a definite sum; and the same question, when asked another witness by the company, was, at the instance of the land-owner, not permitted to be answered; it was not error for the court to withdraw from the jury the answer to the question asked by the land-owner.</p> <p>•10. A general exception to a charge of the court to a jury, where it contains a number of distinct propositions, some of which are sound in law, is insufficient to bring in review the particular points of the charge claimed to he erroneous. *■</p> <p>21. Where a court, after reading a written charge to the jury, added a remark, not in writing, which as soon as the jury had retired, was excepted to, because not in writing, it was not error to recall the jury, add the remark in writing to the charge, and read it to the jury.</p>

<p>1 Under an assignment, for the benefit of creditors, it is essential to the right of a creditor to participate in the distribution of the assets, that his claim should be allowed as a valid claim, either by the assignee or by order of the court.</p> <p>2. The provision of section 6 of the act regulating assignments, which requires a creditor to present his claim to the assignee for allowance within six months after the publication of notice of his appointment, does not bar the right of a creditor from presenting his claim and having it allowed after that period has elapsed, at any time before the settlement of the trust.</p> <p>3. A creditor may come in at any time for his equitable share of the assets unadministered, or not lawfully disposed of, at the time he presents or prosecutes his claim for allowance in the mode required by the statute.</p> <p>4. Where a creditor presented a valid claim duly verified to the assignee for allowance more than six months after the publication of notice of his appointment, which he refused to allow, except with the qualification that the allowance should be without prejudice to a dividend that had been made, which dividend was afterward set aside, and the trust remained otherwise not fully settled. Held: 1. That in a suit pursuant to the statute for the allowance of the claim, the creditor was entitled to a judgment against the assignee that he allow the same in the settlement of the trust. 2. ‘That the offer of a qualified allowance of the claim by the assignee affected the question of costs only, and not the creditor’s right to an unconditional allowance of his claim. 3. That the disposition to be made of the claim so allowed was not to be determined in such suit, but must be controlled by the tribunal having jurisdiction of the settlement of the trust.</p>

<p>1. A married woman, called as a witness, may testify to all matters within her knowledge, except that she is incompetent to disclose communications between herself and husband made during coverture, or acts done in the presence of each other while the marriage relation between them exists, unless such communication was made or act done in the known presence, hearing, or knowledge of a third person competent of being a witness.</p> <p>2. On the trial of an action brought by a wife, under the provisions of section 7 of the “Act to provide against evils,” etc., as amended (67 Ohio L. 102), to recover damages for alleged injury to her means of support, in consequence of the intoxication of her husband, sales of intoxicating liquors, by defendant to her husband made after the commencement of the action, may be given in evidence and considered by the jury, but only in assessing exemplary damages.</p> <p>3. Where defendant, on cross-examination of plaintiff’s witness, shows the general nature of the business in which he is engaged, it is competent for plaintiff, on re-examination, to inquire into the particulars of his business so far as it reflects upon the issues.</p> <p>4. Whether testimony will be admitted out of time, in the progress of a trial is a question addressed to the sound discretion of the court, and where that discretion is exercised without abuse of the power, the mere irregularity of its admission is not a sufficient ground for the reversal of a judgment.</p> <p>5. When intoxicating liquors are sold, by the drink, under a fictitious name, a person, who has drank of the liquor sold under such fictitious name, may, as a witness, give his opinion as to its true name and quality.</p> <p>6. Where a question put to a witness on the trial is excluded by the court as incompetent, to make such rejection a valid ground for error it must appear in the record what was proposed to be proved thereby, and that it was something material, the rejection of which would be prejudicial to the plaintiff in error.</p> <p>7. Where a single proposition selected from the charge by bill of exceptions is claimed to be erroneous, and other propositions to which it refers as given and to be given in connection with it, are not found in the record, a reviewing court in support of the judgment will presume the charge as a whole was a correct statement of the law of the ease.</p>

<p>1. The Southwestern Transportation and Wharf-boat Company was incorporated under the law (66 Ohio L. 125), which provides for incorporations for the purpose of “building and repairing steamboats and other water-craft.” This corporation, under quo warranto, was ousted of the liberties, privileges, and franchises of using a wharf-boat for the purpose of receiving or delivering, storing or forwarding merchandise and freight. Subsequently the corporators exercising such privileges only were ousted from being a corporation. Such ousters do not determine that a corporation can not be organized for the purpose of “building and repairing" wharf-boats merely, under a proper certificate to that effect.</p> <p>2. Under the above statute for “building and repairing” water-craft, a certificate for the purpose of “building, repairing, and maintaining” water-craft, authorizes a corporation de jure for the purposes named in-the statute.</p> <p>3. The cases of Ohio ex rel. v. The Southwestern Transportation and Wharf-boat Co., 23 Ohio St, 166, and State ex rel., etc. v. McCoy et al., unreported, distinguished.</p>

<p>1. Where, by the terms of a policy of life insurance, the non-payment, of the required annual premium, at the designated time, is declared to be-a ground of forfeiture, but the uniform custom of the insurance company has been to give notice of the time when the premiums fall due, and to collect the same at the residence of the policy-holder, through a local agent residing in his neighborhood, good faith requires that this, mode of collection should not be discontinued, and payment required at the company’s office, without notice to the insured.</p> <p>2. Where the insurance company, under such circumstances, with a view to avoid the policy, gives private instructions to the local agent not to give such customary notice to the insured, .and not to call on him, as usual, for the payment of the premium, no right to declare the policy forfeited arises from a default in payment caused by such strategy and bad faith.</p> <p>3. Forfeitures are odious, and there must be no cast of management or-trickery to entrap a party into a forfeiture.</p> <p>4. If, in such case, the company wrongfully declares the policy forfeited,. and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt evidencing the continued life-of the policy, the assured is, in equity, entitled to demand a rescission of the contract, and a return of the premiums paid thereon, with interest from the times of payment.</p> <p>5. Where the judgment of an inferior court is predicated upon a correct basis, but is erroneously entered for too large an amount, by reason of an arithmetical miscalculation; such error may be corrected by a reviewing court, by a proper modification, and the judgment below be in all other respects affirmed.</p>

<p>1. The employe of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence, or that of such of his fellow employes, engaged, in a common service with him, as have no authority or control over him; but takes no risk arising from the negligence of the company, or of a fellow servant placed by the company in authority over him.</p> <p>2. If, however, such employe, with a full knowledge of an habitual and continued negligence of the company or his superior fellow employe in some particular matter, acquiesces therein and continues in the service of the company, without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the risk upon himself.</p> <p>3. "Whore it was the custom of such employes operating a railroad train to switch cars from the main track to a side track while the train is running, and to make such switches on the order of the conductor, without his personal supervision, as required by a rule of the company: Held, That an employe, who accepted service on the train subordinate to the conductor, with full knowledge of such custom, or continued in the service after acquiring such knowledge, without any objection, and acquiesced in the custom, waives all right he might have against the company arising from such mode of doing the business, or from the neglect of the conductor in not personally superintending it, as required by the rule of the company; and if he be injured in making such customai'y switch through his own neglect or that of a fellow employe on the train having no control over him, no recovery therefor can be had against the company.</p>

<p>Where, in an action by an incorporated town to recover possession of certain streets and alleys, the petition set forth the plat of the town, and facts to constitute a legal establishment of the town and the dedication of the streets and alleys in question to the public use; also other facts pertaining to the case; and the answer admitted that the town had been laid out and established, but denied that the plat set forth in the petition was a correct one, and denied all the other allegations in the petition: Held, 1. That in admitting that the town was laid out and established, there being no specific denials to the contrary, the answer admitted all the facts averred n the petition which were essential to the legal establishment of the town and the dedication of its streets to the public. 2. The general denial applies only to the averments not included in such admission. 3. Upon the issue of the correctness of the plat in question, the record, of the plat made in the recorder’s office of the proper eouniy, which was conceded to be the only record of the plat of the town ever made, was admissible evidence. 4. The recorded plat being correct, and the dedication thereby effected having been acquiesced in more than sixty years, in connection with the other facts admitted, warranted the court in charging the jury that the plat was sufficient evidence of a dedication of the streets and alleys therein des? ignated, and sufficient to confer upon the town a right to the alley in question, and that the same was of the width specified in the plat.</p>

<p>1. Under section 169 of the administration act (1 S. & C. 599), the filing of exceptions to an account of an executor or administrator in the settlement of an estate, raises a matter of dispute between the exceptor and such executor or administrator as to the items of said account excepted to.</p> <p>2. When such matter in dispute has been duly heard and determined by the court, it can not again be called in question by either of the same parties on the hearing of a subsequent account, without leave of the court.</p> <p>3. Exceptions are filed to items of a partial account, which are heard and determined by the probate court. On appeal to the common pleas, the matter in dispute is again fully heard and determined : Held, That the hearing and determination of the matters involved in the exceptions by the common pleas is final and conclusive in the probate court between the same parties, on the hearing of all subsequent accounts. In such case, the probate court has no power to open up or disregard the order or judgment of the court of common pleas in the settlement of the disputed items in the former account.</p> <p>4. The provision of said section 169, which authorizes the opening up of all former accounts for the correction of errors or mistakes therein, upon the filing of subsequent accounts, does not authorize the probate court to open up or vacate, at the instance of either of the parties thereto, a former order by the court of common pleas on appeal, in the settlement of a former account.</p> <p>5. Where the matter has been heard and determined by the common pleas on appeal from the settlement of a partial account, that court will not, on the heai'ing of another appeal on a subsequent account, on the motion of either of the same parties, reopen the former adjudication for the purpose of a rehearing of the exceptions to the partial account, upon the same evidence, or upon evidence that might have been adduced on the former trial.</p> <p>6. While the court of common pleas has power, for good cause, on the hearing of a subsequent account, which comes before it by appeal, to open up the settlement of a former partial account, made before the filing of such subsequent account, yet it is not error for it to refuse to do so. where the only cause assigned for such rehearing is, to enable a party to have a new hearing upon the same facts that existed, and might have been adduced at the former hearing.</p>

<p>Under the act of March 24, 1863 (60 Ohio L. 44), the state granted to the city of Cincinnati, authority and permission to enter upon, improve, and occupy as a public highway and for sewer purposes, a section of one of its canals in said city, between Broadway and the Ohio river, on which there were nine locks for the descent of the water to the river, subject to all outstanding rights and claims, if any, with which such grant might conflict, reserving the revenues derived from water privileges, and on condition that it shall not obstruct the flow of water through said canal, nor destroy or injure the present supply of said water for milling purposes ; and providing that no work shall be done by the city, until the plan of improvement shall be approved by the hoard of public works — Held:</p> <p>1. That the lessees of surplus water at these locks, under the laws of the state, in force in 1836, had no such absolute title or vested interest in the premises, nor any such right or claim, as to conflict with the right of the state, to make such grant, though its effeet, and the improvement made, was, to prevent a future supply of surplus water at such locks.</p> <p>2. This grant, and the construction by the city of a highway and a sewer along the line of the canal, upon a plan of improvement approved by the authorized agents of the state, which rendered it impossible to use the same for the purposes of navigation, was an abandonment thereof for such purposes, and by operation of law, was a surrender by the state of its incidental power to sell or lease surplus water on the part, so abandoned, not expressly saved by the reservations and conditions of said act, as incidental to the reserved right to flow the water from the canal above through to the Ohio river.</p> <p>3. F. was the lessee of the surplus water of lock No. 8 within the granted -section, and owned land adjoining, on which was a factory operated by the power at said lock prior to and until 1855, when the same was destroyed by fire, after which he neither rebuilt nor paid rent, for the nonpayment of which his lease was subject to forfeiture. The state suffered the gates of the lock and the canal to be out of repair, so that for many years prior to the grant to the city, there was no water power there, and the canal could not be, and was not used for purposes of navigation. The plan of improvement approved by the state did not provide for a restoration of such power. Held : That the state was not required by said lease to repair the lock, or restore the power thereat; nor was it liable in damages for a failure to do so; nor did the act of 1863 impose-that duty and liability on the city. The city, by the construction of the highway and sewer according to such plan, is not liable in damages to F., as there was no destruction or injury thereby, to “ the present supply of water for milling purposes,” within the meaning of said act.</p>

<p>The charge of the court to the jury should be founded on and be applicable-to the issues and testimony in the case; and where a party requests the court to give a specific charge to the jury material to a question in the case and substantially correct, and the court refuses to give the charge requested, and wholly neglects to instruct the jury as to the law applicable to such question, error intervenes, for which the judgment will be-reversed.</p>

Error reserved, in the District Court of Clark county. This action was brought to recover the value of a lot of peaches shipped, by defendants in error, from Eort Ancient,. Ohio, to New York city. The first lot, of eight bushels, were shipped Friday, September 11,1868. Saturday morning, September 12th, twelve bushels or boxes were shipped, and forty-four in the evening of the same day.

<p>In an action for the recovery of specific personal property, where the order of delivery is issued and served with the summons, by taking and delivering the property to the plaintiff, the plaintiff’s right to proceed to final trial and judgment can not be defeated by an assignment of the property by defendant, for the benefit of his creditors, after the commencement of the action, and before the service of the order of delivery.</p>

<p>■I. Where an agent of a life insurance company, acting within the scope of his authority, to induce a person to apply for insurance in the company, fraudulently represents to him that, for a specified annual premium, a policy would be fully paid at a given period, and further entitle the holder to certain other specified benefits, and thereby induces such person to apply for a policy on his life, and to pay the premium therefor; if the policy issued to him is materially different from what it was represented to him it would be, he may rescind and recover back of the company the premium paid.</p> <p>:2. Where an affidavit for the continuance of a case, on the ground of inability to procure the testimony of an absent witness, contains a statement of what is expected to be proved by the witness, and such statement is given in evidence on the trial as the testimony of the witness, its credibility may be attacked in the same manner as that of a deposition, by impeaching the veracity of the witness.</p> <p>.3, Where a recovery is sought on the ground of fraudulent representations made to the party aggrieved, similar representations made by the same person to others, are admissible in evidence only for the purpose of showing that they were known to be false by the person making them; therefore, where there is no evidence tending to show such knowledge, they should be excluded.</p> <p>4. One not a party to a life policy in force, can not avoid it for fraud, nor recover back the premiums paid thereon, although he caused the policy to be effected and paid the premiums.</p>

<p>In an action to enjoin actual and threatened trespasses to land by an adjoining proprietor — such as throwing down plaintiff’s fences, closing up his road, erecting fences on plaintiff’s land, etc., under a claim of right growing out of a dispute as to the line and a road between them — the defendant, by answer, joined issue and asserted his rights in the premises, and the case was, without objection to the kind of relief sought, twice tried as a suit in equity; first, in the common pleas, and again on appeal to the district court, upon an agreed statement of facts, and the injunction was granted: Held, That it is now too late to object to the jurisdiction of the court to grant, equitable relief, on the ground that the plaintiff had an adequate remedy at law, although such an objection might have been sustained if made by demurrer or answer, before hearing on the merits.</p>

In the Court of Common Pleas of Cuyahoga county, Brown filed his petition against Miller to recover damages. Plaintiff and defendant had adjoining lots in the village of Berea, defendant being east of plaintiff. The boundary line-between them was undefined, and as plaintiff was about to-erect a brick wall, the parties agreed that it should stand upon the land of each.

<p>1. Where there is nothing in the terms of a policy of insurance which requires the truth of the representations in the application therefor to he-averred as precedent to a right of action on the policy, a good cause-of action may be made in a petition founded on the policy, without, setting forth the application and averring the truth of the representations therein; but the' falsity of such representations, where they are such as to invalidate the policy, may be set up hy way of defense.</p> <p>2. Where it is provided in a fire policy that the insurer, in lieu of paying for a loss in money, may rebuild or replace the property destroyed, such provision is in the nature of a condition subsequent, available only at the option of the insurer. It is therefore unnecessary to aver in the-petition, in an action on the policy for the amount of the loss, that the insurer refuses to rebuild or replace the property destroyed.</p> <p>3. Where a policy requires notice of a loss to be given to the insurer immediately after the fire, such notice is a condition precedent to a right, of action on the policy; hut in such action, under the provisions of section 121 of the code, it is a sufficient averment of the performance of the condition for the plaintiff to state in his petition that he has performed all the conditions on his part to be performed.</p> <p>4. Although a demurrer to a petition for want of a material fact is erroneously overruled, if the fact is properly put in issue by the subsequent pleadings and the case is tried thereon, the judgment can not be reversed for error in overruling the demurrer.</p> <p>7. A general assignment of error, that the judgment was rendered for the-wrong party, strictly raises only the question whether the proper judgment has been rendered upon the pleadings and findings of fact;, but where all the evidence is properly embodied in the record, it necessarily raises the question of law as to whether there is any evidence-tending to sustain the finding of facts. If there be such evidence, and the proper judgment has been rendered on the pleadings and facts-</p> <p>5. The district court, on error pending therein, may, but it is not required-. to, consider errors in the record not assigned; therefore, a judgment of affirmance by the district court will not be reversed for error not assigned in that court.</p> <p>6. The correctness of a verdict of a jury or finding- of facts on the evidence-is not necessarily brought in review hy a general assignment of error, that the judgment was rendered for the wrong- party. To require such review, the overruling of the proper motion for a new trial must be assigned as error. found, where there is no other assignment of error, an affirmance of the judgment by the district court is not erroneous.</p> <p>•8. Where an agent of an insurance company, acting within the general scope of the business intrusted to him as such agent, fills up in his own language an application for insurance from the statements of the insured fully and truthfully made, receives the premium, and issues a policy duly executed by the insurer on such application, the insurer will not be permitted, when a loss happens, to defeat the policy by denying the truth of the application nor the authority of the agent in the transaction, although he has transcended his authority, unless the insured is chargeable with knowledge of his having exceeded his authority.</p>

<p>Error to tbe District Court of Belmont county.</p>

Plaintiff in error, who was plaintiff below, commenced an action against defendant for trespass to real estate, before a justice of the peace. Such proceedings were had in the case that it was appealed into the court of common pleas. There plaintiff filed his petition, alleging, substantially, that the defendant had committed a trespass on his land, by unlawfully entering thereon, aud digging and carrying away gravel, sand, etc., to his damage, ninety dollars.

The original action was brought in the Court of Common Pleas of Wood county, in 1866, by the plaintiff, William Edgar, to recover of the defendant, Fidelia Richardson, forty acres of land in her possession. The plaintiff averred, in his petition, that he was the ownei of the land and entitled to its possession. The defendant answered, averring that her name is Eidelia Edgar, and denied the averments of the petition.

<p>3. "Where a will has been signed for the testator by another person, in his presence and by his express direction, in the absence of the attesting . witnesses, the acknowledgment of the fact by the testator in the hearing of the witnesses, which is requisite, is not required to he made in any particular form of words or any specified manner; but, if by signs, motions, conduct, or attending circumstances the attesting witnesses are given to understand, by the testator, that he acknowledges the signature thereto as his, and the instrument itself as his will, it is sufficient.</p> <p>2. It is not necessary, in addition to such an acknowledgment, that the testator should further acknowledge to each or both the attesting witnesses, that such signing was done in pursuance of his previous express authority and in his presence by the person signing for him.</p> <p>3. The fact of such signing and the authority to sign, when done in the absence of the attesting witnesses, may be shown by the acknowledgment to the witnesses, or by other competent testimony, or may be presumed from the facts and circumstances of the case.</p> <p>4. The due execution of a will can not he assumed in the face of positive evidence to the contrary, or in the absence of all proof on the subject, except, perhaps, in case of ancient wills, merely because it purports to be the will of the testator, and the attestation is in due form; yet it will not he defeated by the failure of memory cr corruption of the attesting witnesses, if it can be established by other competent testimony.</p> <p>5. The original will, when not lost or destroyed, and not a copy from the record in the probate court, used in the pleadings, should be produced to the jury in proceedings to contest its validity. Such will is the basis of inquiry, and the trial, verdict, and judgment should be responsive to the question, whether that paper be the last will of the testator or not.</p> <p>6. "Where in such copy a devise of lands reads : “eighty-six acres off the east side ” of a half section owned by the testator, and the original will reads: “west side ” instead of “ east side,” and the jury finds “ the paper writing produced” to be the will, and the court adjudges “the paper writing mentioned in the petition ” to be such will, the judgment does not follow the verdict, and the whole record leaves it uncertain what is the proper reading of the testator’s will.</p> <p>7. If, upon the face of the will, it is apparent that it has been altered in a material provision, and evidence is offered tending to show that such alteration was made since its execution, as well as to show that it was made before; it is the duty of the jury, in case the will is established, to determine the question in disputo, and establish the will as it read when executed.</p> <p>8. If it appears that such alteration was made before execution, then the paper writing, as it reads after such alteration, is the will; if made after such execution, and such alteration does not invalidate the instrument, then the jury should, by special verdict, establish the will as it read before such alteration.</p> <p>9. Proceedings to contest the validity of a will under the statute are in the nature of an appeal from the order of probate thereof, and all the material facts in issue, are to be heard and determined de novo as though such order of probate had not been made; except that such order of probate is prima facie evidence of the due attestation, execution, and validity of the will, and the burden of proof is on the contestants to invalidate it.</p>