Volume 34 — Ohio State Reports, New Series

<p>Motion for leave to file a petition in error to reverse the judgment'of the District Court of Ashtabula county.</p> <p>The original action was brought in the Court of Common Pleas of Ashtabula county by Alexander McAdams, ;as administrator of the estate of Abel Lockwood, deceased, against Hiram N. Welton, Win. H. Lockwood, and Charles Lockwood, to foreclose a mortgage executed by Welton to secure certain notes of his given to the intestate in his lifetime, and which were alleged to be in the hands of the Lockwoods. Grizzy Lockwood was made a party defendant. Issues were joined, which were tried in the common pleas, resulting in a judgment for William H. and Charles Lockwood, from which the plaintiff appealed to the district court. McAdams dying during the pendency of the action, Erum, administrator de bonis non, was substituted as plaintiff. The district court, by request of the parties, made a special finding of facts, and stated its conclusions of law separately from the finding. To the judgment rendered on the finding, Wm. H. and Charles Lockwood excepted. The finding and judgment were as follows:</p> <p>“ Oil or about the-day of August, 1870, Abel Lockwood, deceased, then eighty years of age, was married to Grizzy Lockwood, then seventy years of age. Failing to .agree, they separated on or about the 1st day of October, 1871. Said Abel was then the owner of personal property, ■consisting of notes secured by mortgage, amounting to about $8,500. He went to live with his son, the defendant, William H. Lockwood, and entered into an agreement with said William H., whereby said William PL, in consideration of $1,500, then paid to him, agreed to support said Abel Lockwood during his life. The note first mentioned in plaintiff’s petition constituted a part of the $1,500 so paid to William IP. for supporting said Abel. The $1,500 was so paid and delivered to said William PI. on the 19th day of October, 1871, and at the same time said Abel delivered to said William PL the balance of his. notes and mortgages, amounting to about $2,000, to be disposed of, as follows: To each son two shares, and to each •daughter one share, amounting to about $400 to each son and about $200 to each daughter; and said Abel, in pursuance thereof, assigned to Charles Lockwood the two last notes mentioned in the petition. That soon after — to wit, October 25, 1871 — and while said property remained in the actual possession of the said William PL, said Grizzy Lockwood, wife of said Abel, commenced suit in the common pleas court for divorce and alimony, making said William IP. Lockwood, Charles Lockwood, Hiram Lockwood, Emeline Goodno, and Esther. Newton, children of ■said Abel, defendants; and in said case a divorce was refused and alimony allowed. Said cause, so far as it related to alimony, was appealed to the district court; and there such proceedings were had that a decree was entered at -the May-term, 1872, of said district court, that defendant, Abel Lockwood, within ten days from the rising of said court, pay to the clerk thereof, for the use of said Gi’izzy, fifty dollars, and the further sum of thirty dollars on the -first day of each July and January thereafter during her natural life, and no longer; and that said Abel pay the ■costs of said suit. That the sum of $1,500 paid by said Abel to said William H. to provide for the support of said Abel during his natural life was just and reasonable; that ■so far as related to the money and property delivered by ■said Abel to said William H. over and above said sum of $1,500 last above mentioned, the court found that said William IP. held the same in trust and as trustee for said plaintiff for the payment of the alimony and cost therein decreed; and it was further ordered that said William H. Lockwood, within thirty days from the rising of said court, deposit said note and securities, over and above said $1,500, with the clerk, or execute and deliver to the clerk of said court, for the use of said plaintiff, a bond, with surety to be approved by the clerk of the court, in the sum of $2,000, conditioned that he would hold, said securities, or the proceeds thereof, in trust for the payment of said alimony and costs. That said William H. executed said bond in all respects as required, paid said alimony and costs in all respects as required by said order, and has ever since paid every installment of alimony as the same became due.</p> <p>“ That after said decree was rendered, and during the lifetime of said Abel, it was agreed by and between said Abel and his said children, that said William H. should assume and pay said alimony as it should become due; and for that purpose, and in consideration thereof, he should retain, and he did retain, the sum of $500; and by direction of said Abel, the balance of said property, after paying the costs of said suit, amounting to $279 for each son, and $139.50 for each daughter, was paid over and delivered by said William H. to his said brothers and sisters, he retaining the $1,500 so paid him for the support of said Abel, and $500 for the payment of said alimony.</p> <p>“ That said Abel Lockwood died on the 29th day of September, 1872, intestate, leaving no property, real or personal, other than that given to said children as aforesaid. That letters of administration were issued to Alexander McAdams, brother of Grizzy Lockwood, May 18,1873, who caused the appraisers to set off' $800 in money for a year’s support to said Grizzy; but no property whatever ever came into the possession of said administrator, and there was no property from which said allowance conld be paid, unless it should be recovered back from said children, it having already been distributed by said Abel in his lifetime. That there was no consideration for the gifts so made by said Abel to his children except natural love and affection; and the same was done to defeat any claim of said Grizzy for alimony and support. That said note first mentioned in the petition was fully paid by the defendant, Welton, to .said William H. before the suit was begun. That in dividing said property in the lifetime of said Abel, said William H. took the second and third notes mentioned in the petition, and paid to his brothers and sisters in said division •the full amount thereof. That said Welton has paid to said William H. the whole amount of the second note mentioned in the petition, and all but $150 of the last note since this suit was commenced. That there was no evidence of fraud on the part of said Abel in giving or of said William'H. or Charles Lockwood in receiving said property so divided to them, unless it arises as matter of law from the want of other consideration than natural love and affection and the relations then existing between Abel Lockwood and his wife Grizzy.</p> <p>“And, as matter of law, the court find that said William and Charles Lockwood hold each the said sum of $279, so received of the said Abel, subject to the debt of said Grizzy for her year’s support as widow of said Abel; that they, said William and Charles, are liable for interest on said sums from the commencement of this suit; that the plaintiff, as such administrator, is entitled to a decree against said William and Charles Lockwood for the amount so received by each as aforesaid, with interest as aforesaid, as a fund with which to pay said debt of said Grizzy.</p> <p>“ Whereupon, it is by the court adjudged and decreed that said William and Charles Lockwood each pay to said plaintiff the sum of three hundred and fifty dollars and seventy-five cents ($850.75), the principal and interest aforesaid, within thirty days from the close of this term of this court, and that they pay the costs of this suit, to be taxed, and that in default thereof that execution issue as upon executions at law ; and as to said Hiram N. Welton this cause is dismissed. To each and all of which findings and holdings and decree, said William and Charles Lockwood, each except.”</p>

<p>Motion for leave to file a petition ,in error to the District Court of Eranklin county.</p> <p>The plaintiffs in error brought an action against the defendant in error, before a justice of the peace, on an account, and at the same time filed an affidavit for attachment, on the ground that the defendant was about to dispose of his property, or a part thereof with intent to defraud his creditors. Such proceedings were had that certain money due the defendant for personal services from Hayden & Co. was attached by garnishee process.</p> <p>Afterward, and before judgment, the defendant moved that the attachment be dismissed and discharged on the ground that the money attached was due him on account •of personal earnings within three months previous, and that the same was necessary to the support of the debtor and his family. In support of the motion the defendant •offered his own affidavit, and thereupon the plaintiff offered counter-affidavits tending to prove that the money attached was not necessary to the support of the defendant or his family. To the introduction of these counter-affidavits the defendant excepted. The motion to discharge the attachment was overruled by the justice and the defendant ex■cepted thereto.</p> <p>Judgment was thereupon, on confession, rendered in favor of the plaintiffs for the amount claimed.</p> <p>On petition in error to the court of common pleas, the order of the justice, refusing to discharge the attachment, was affirmed, and thereupon the defendant filed his petition in error in the district court, to reverse the order and judgment of the justice and of the court of common pleas. In the district court, the judgments below were reversed, and the cause remanded to the justice of the ■peace, with directions that the attachment be discharged.</p> <p>To reverse the judgment and order of the district court, the plaintiffs in error now ask leave to file a petition in ■error in this court. „</p>

<p>If a common carrier is chargeable with knowledge that the article carried is intended for market, and unreasonably delays its delivery, and there-is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered, and the-time it was in fact delivered, such depreciation will, ordinarily, constitute the measure of damages.</p>

<p>Motion for leave to file petition in error to the District. Court of Lawrence county.</p> <p>The plaintiff in error, having recovered a judgment before a justice of the peace, against one Corns, caused an execution to be issued thereon and delivered to the defendant in error, as constable for service. There was found, in-the possession of the judgment debtor, a yoke of oxen, which he claimed was exempt from levy and sale. Whereupon, the defendant in error refused to seize the oxen, under the writ of execution, unless the plaintiff in error would indemnify him from loss and damage in so doing.</p> <p>Thereupon, the plaintiff in error requested and directed the defendant to levy upon and sell the oxen, and promised to save him and his sureties harmless fn the premises. The defendant in error, relying upon this promise of indemnity, seized and sold the oxen, and applied the proceeds to the satisfaction of the judgment.</p> <p>Afterward, the execution debtor recovered a judgment against the defendant in error, for the wrongful seizure and sale of the oxen under said writ.</p> <p>The original action was brought by Joseph, the constable, against Mays, the plaintiff in execution, on said verbal promise of indemnity, and judgment was recovered thereon in the court of common pleas. This judgment was affirmed by the district court.</p> <p>By this proceeding, it is sought to reverse these judgments, upon the following grounds:</p> <p>1. That the promise of indemnity was illegal upon grounds of public policy.</p> <p>2. That it is void under the statute of frauds and perjuries, as a promise to answer for the debt, default, or miscarriage of another person.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Fairfield county.</p> <p>The plaintiff in error, a justice of the peace, entered a judgment in favor of the defendants’ testator, against Jacob Bauman and Jacob Wetzel, on the 4th day of February, 1873, for $103.70. Execution was stayed for two hundred and forty days. On September 22, 1873, the judgment debtors paid the amount due upon the judgment to the plaintiff, who entered satisfaction thereof upon the docket. The original action was brought to recover the sum received by the justice.</p> <p>In answer to the petition of the plaintiff below, the justice admitted the receipt of the money from the judgment debtors, but alleged that on receiving the same he made a special deposit thereof for the plaintiff below with Garaghty & Hunter, a banking house of good financial repute and standing, and then notified said plaintiff that the money had been paid ; that before the money was -called for, the bank failed and made an assignment for the benefit of its creditors. The plaintiff below, in reply, denied the new matter set up in the answer, and prayed judgment. The case was tried to the court, who, on hearing the evidence and arguments of counsel, gave judgment against the plaintiff in error. A motion for a new trial, -on the ground that the decision was against the weight of -evidence, was overruled, and a bill of exceptions taken, embodying all the evidence. From this bill it appears' that on receipt of the amount of the judgment from the-judgment debtor, the plaintiff in error deposited the same in said bank to his own credit, having, however, the same entered in his pass-book opposite a memorandum of the title of the case of JEmde v. Bauman and Wetzel, as follows :</p> <p>Garaghty & Hunter,</p> <p>In account with Y. E. Shaw. Ur.</p> <p>Charles Emde v. Jacob Bauman and J. Wetzel. Hoc. 7, page 90. |107 80. ) $107 80-</p> <p>The date, and figures denoting the .sum deposited, were made by the bank cashier, and the memorandum of the case by the justice. It further appeared that the bank,, when the deposit was made, was in good repute, and that the plaintiff in error was in the habit of depositing, in this manner, money collected in his official capacity, all of which was entered on said pass-book as aforesaid, but as. between him and the bank the money was placed on general deposit to his account and drawn on checks given by the justice as other general depositors drew funds therein deposited.</p> <p>On error, the district court affirmed the judgment of the-court of common pleas.</p>

<p>1. An action before a justice of the peace, to recover damages caused by defendant’s stock breaking through a fence and destroying the plaintiff’s-crops growing on lands of which he was a tenant in possession, is an. action of trespass to real estate, within the meaning of section nine of the justice’s act (S. & C. 771), which limits the jurisdiction to cases id-which the damages claimed do not exceed one hundred dollars.</p> <p>2. If the damages claimed by the plaintiff, and the judgment rendered in-his favor by the justice, exceed one hundred dollars, the court of common pleas can not take appellate jurisdiction of the action.</p> <p>3. 'Where an appeal from such a judgment was attempted, and the plaintiff thereupon filed his petition claiming damages in a sum of which the-court of common pleas had original jurisdiction, and the defendant, without objecting to the jurisdiction, obtained an order of the court requiring the plaintiff to amend his petition, and then demurred to the petition as amended. Held: That the defendant had thereby entered his appearance as in an original action in the court of common pleas..</p>

The original action was brought to contest a nuncupative will, admitted to probate as the will of John H. Baird, deceased. The action was appealed to the district court. On the trial in that court evidence was given by the contestors tending to prove, among other things, that the alleged testator did not request the witnesses to said will to witness the same, and that the words actually spoken by the said, testator were not the same as the words written down by the witnesses.

<p>: Motion for leave to file a petition in error to tbe District. Court of -Clark county.</p> <p>The original action was brought by G. W. Miller against Don Basey and Elizabeth his wife, and others, to forecloseá mortgage executed by Basey and wife to secure the payment of a note, in which the plaintiff also prayed for a personal judgment against Basey, for the amount due on the note.</p> <p>George Spence, plaintiff in error, being a party defendant, answered, setting up a mortgage of indemnity executed to him by Basey alone, and prayed that the amount-of his'lien under the mortgage might be ascertained and its priority declared, etc. ' . ■</p> <p>The court found the mortgage of the plaintiff"to be the-first lien of the premises, and ordered a sale thereof.' A sale was made, and out of the proceeds the plaintiff’s lien was satisfied ; whereupon, Elizabeth Basey, as against the-lien of Spence, demanded the allowance of $500, in lieu of a homestead, under section 4 of the act of April 9,1869 (66 Ohio L. 48).</p> <p>The claim of Elizabeth for an allowance in lieu of a-homestead, out of the balance of the proceeds, was resisted by Spence. The court of common pleas, however, allowed to the wife of the mortgagor, in lieu of a homestead, the sum of $500, which, was preferred to the lien, of Spence; and thereupon Spence appealed from this.order to the district court, the balance of the proceeds of sale being insufficient to satisfy his claim.'</p> <p>In the district court, on motion, the appeal was dis-' missed on the ground that the district court had no jurisdiction of the case, it not being one in which an appeal was authorized.</p> <p>To reverse the order dismissing the appeal, the plaintiff' in error now asks leave to file his petition in error.</p>

therefore dismissed.” The court of common pleas, on error, affirmed the judgment of the probate court, but the district court reversed the judgment of the court of common pleas and the probate court. It is now sought to reverse the judgment of the district court.

Tbe action in the superior court was prosecuted by 'Thomas, receiver of the Dayton Coal and Mining Com■pany, a -corporation organized under the laws of Ohio, to recover a balance of three hundred dollars on their sub.s'cription for six shares of the company’s increased capital stock, each share being one hundred dollars.

John R. Corrington was indicted in the Superior Court of Craven county, North Carolina, at the spring term,. 1876, for embezzling eighty-five dollars, on September 1,, 1875, the m'oneys of J. & J. Johnson, at the county aforesaid. Prank A. Ammons was also indicted at the same term,, for embezzling fifty-five dollars, moneys of the same firm,, on the same day, at the same county.

William Burke was convicted in the Court of Common Pleas of Hamilton county, at the January term, 1876, on an indictment in which he was charged with burglarly by breaking “ into a certain railroad car of the Pittsburg, Cincinnati .and St. Louis Railroad Company,” on the night of November 23, 1875. There was no allegation in the indictment that the company was a corporation.

John Hamilton, Jr., was indicted in the Court of Common Pleas of Greene county, convicted, and sentenced to the -penitentiary, at the January term, 1878, for burglary. The offense, it is alleged, was committed by breaking into the office of the Pittsburg, Cincinnati and St. Louis Railway Company, in the night of October 28, 1874. There was no allegation in the indictment to show whether the injured party was a corporation or a partnership.

The plaintiffs, Rachel H. Whipp and Lonsdale P. Spensley, were jointly indicted and tried for a felonious assault upon Robert Whipp, the husband of said Rachel, “ with intent him, the said Robert, to kill and murder.” The record shows that said Robert Whipp was permitted, against the objection of both the plaintiffs, to testify to the circumstances of the alleged assault. The plaintiff's were convicted and sentenced to the penitentiary.

The plaintiff in error was indicted for forgery. The alleged forgery consisted in the addition of the words “ with interest at eight per cent.” to certain promissory notes, which had been given to plaintiff in error. On the trial the plaintiff in error was examined as a witness on his own behalf, but, in his examination in chief,, gave no evidence touching communications passing between him and his attorney.

The original action -was brought by plaintiff in error, against defendant in error, for injury to plaintiff’s cattle from a passing train on defendant’s road.

The original action was brought by the plaintiff in error .against defendant in error, to recover damages for an assault and battery. The defendant answered that the alleged assault and battery was committed in self-defense. In the •court of common pleas, the verdict and judgment were rendered for the defendant.

Motion, by plaintiffs in error, for leave to file petition in error, to reverse the judgment, in part, of the Superior Court of Cincinnati; and motion, by defendant in error, for leave to file cross-petition in error, to reverse the judgment, in part, of the same court in the same case.

The plaintiff, a corporation created under the laws of the ■state and authorized to construct and operate a-railroad, instituted proceedings in the probate court of said county for the appropriation of certain real estate to the use of its road.

On Thursday, January 20, 1876, Henry S. Williamson filed in the Court of Common Pleas of Clarke county a petition against John B. Nicklin and others, in which he asked for a judgment against them, on a promissory note, for one thousand dollars, with interest at eight per cent, from October 1, 1874.

Eeror to the Court of Common Pleas of Logan county. At the November term, 1877, of the Court of Common Pleas of Logan county, the plaintiff in error, who was jointly indicted with her husband, under the act of April 18,1867 (64 Ohio L. 135), for the crime of destroying a vitalized foetus, was convicted and sentenced to imprisonment in the penitentiary.

<p>1. Under section 22 of the act to regulate tlie fees of jurors, etc. (73 Ohio L., 134), jurors are to be allowed compensation for days spent in whole or in part in going to and returning from court, and for days of attendance during the term, whether impaneled or not; and the cleric is not authorized, in addition to such days, to certify that the jurors are entitled to compensation for days as to which they were discharged and not in attendance.</p> <p>2. The certificate of the clerk is not conclusive, and if he certifies for days in excess of the number for which the jurors are legally entitled to compensation, the auditor may refuse to issue orders on the county treasurer for such excess.</p>

<p>Error to the Court of Common Pleas of Harrison county. Reserved from the district court.</p> <p>The defendants executed to the plaintiff, a national bank, a promissory note, dated January 9, 1871, for $10,066.37, due at sixty days, with warrant, authorizing any attorney at law to appear and confess judgment against them.</p> <p>The bank, on May 23, 1873, caused judgment to be entered on the note and warrant, in the Court of Common Pleas of Harrison county, on the confession of an attorney, for $4,581.85,</p> <p>The defendants, on June 6, 1873, filed in the same court .a petition under the code, section 534 et seq., asking that the judgment be opened and they allowed to .answer, on the ground that the judgment embraced illegal interest. The prayer was granted, and an answer and a reply thereto were filed.</p> <p>On trial of the issue to a jury, at the February term, 1874, it was found that there was due to the plaintiff on the note, on May 23, 1873, only $3,268.30; and thereupon the •court ordered that the judgment be modified so as to stand .as a judgment for that sum, instead of the amount for which it was rendered. The plaintiff then asked for a second trial, which was allowed, and the cause was tried to the court, without a jury, on May 12, 1874. On that trial the court found the facts, which are in substance as follows: The defendants, on July 26, 1869, executed to the bank a note for $4,000, and subsequently executed to the bank another note for $7,000, due January 11, 1870. The amount of the note on which judgment was rendered was thus ascertained, on January 9, 1871: Balance of principal on $7,000 note, $5,441.23; interest on that balance, $474.93 ; principal of the .other note, $4,000; interest thereon, $150.21, making $10,066.37. The interest was computed on each of the notes at a rate exceeding six per cene, per annum in advance. The defendants then (January 9,1871) gave the note sued on and paid to the bank $176.16, as interest in advance at the rate of ten per cent, per annum until the note became due. There was no other consideration for the note' for $10,066.87. The original notes were delivered by the bank to the defendants at the time the latter note was executed, and payments were made as follows: May 10, 1871, $5,000; January 29, 1872, $1,000; July 10, 1872, $172.93. These sums were credited on the note, and no specific application was made of such payments by either party.</p> <p>The finding and judgment of the court conclude as follows : “ The court further find that said note for $10,066.37, to the bank, of the date of January 9, 1871, did ‘ carry with it,7 within the meaning of section 30 of the act of Congress, under which the plaintiff was established, the interest calculated on the former notes, amounting to the sum of $625.14, and which sum must be here held and adjudged to be forfeited under the law; and that the payments made on the note above stated must be applied exclusively to the payment of the principal of the note exclusive of any interest. The court, therefore, finds that the amount legally due on said note on May 23, 1873, the day on which the judgment by confession was entered herein against the defendants, was $3,268.30. Thereupon the plaintiff filed a motion to set aside the findings and decision of the court, and grant the plaintiff a new trial, for causes stated in the motion; and the court having heard and considered the motion, overruled the same, to which overruling of the motion the plaintiff excepted, and tendered its bill of exceptions, which was signed and sealed by the court, and the same was ordered to be made a part of the record. Thereupon it is considered and adjudged that the original judgment rendered in this ease, by confession, on May 23, 1873, be and the same is hereby modified, so as to stand as a judgment for $3,268.30, instead of its original amount of $4,581.85. It is further ordered and adjudged that the defendants pay all the costs herein, except the costs made on the second trial, and that the plaintiff pay the costs on second trial.”</p> <p>On the last trial evidence was given by the bank tending-to show that the original notes w^ere paid off, and that the-note for $10,066.37 was given for a new loan and not as a renewal of the other loans. On the other hand, Thomas, one of the defendants, who was a director of the bank from 1863 until after the last mentioned note was negotiated,, testified that the new note was given as a renewal of the-original loans; and thereupon counsel for the bank asked him, on cross-examination, whether at the time the last, note was discounted, he did not owe the bank upward of $20,000, which he had borrowed of it, besides the loans-above mentioned. The witness objected to the question, the courfisustained the objection, and the plaintiff excepted.</p> <p>The plaintiff prosecuted error from the district court, and. that court reserved the case for the decision of this court.</p>

<p>Error to the District Court of Hamilton county.</p> <p>Keziah Lyon brought an action, before a justice of the peace, against Philip Eleahmann. After judgment, the case was appealed to the court of common pleas, where the plaintiff filed a petition, setting forth that on July 18,1852, she was married to Thomas Lyon ; that she has been his wife ever since; that during a period óf more than one year immediately preceding the commencement of the suit (May 14,1874), said Thomas was in the habit of getting intoxicated, of which habit the defendant had notice ; that ■during that period, at divers times, the defendant, with such knowledge, unlawfully sold and gave away to said Thomas intoxicating liquor, to wit, whisky, to be drank where sold, to wit, at the defendant’s saloon, in Hamilton county; that said Thomas frequently became intoxicated on the liquor so purchased, and unable to work, and he squandered his money, and failed to provide a subsistence for the plaintiff, who has thus been injured in her means of support. The answer was a denial of any such knowledge or sale. On the trial, evidence was given by the plaintiff tending to prove the allegations of the petition, and, on the other hand, evidence was given by the defendant tending to prove the answer. After the evidence was heard, the court charged the jury, among other things, as follows : “ "What illegal sales of intoxicating liquor, if any, during the period named in the petition, were made by the defendant to the plaintiff’s husband ? Any such sale, if made, was punishable as a criminal offense, upon indictment and conviction. Proof, therefore, upon this point must be beyond reasonable doubt. If the evidence, although sufficient to show that the balance of probabilities is on that side, still leaves some reasonable probability on the other, it will be insufficient.” To this charge the plaintiff excepted. A motion for a new trial, based on that, among other alleged errors, was overruled, and judgment was entered on a verdict in favor of the defendant. The district court having affirmed the judgment, the plaintiff asks in this court to revérse the judgments of both courts, on the ground, among others, that the court erred in the charge to the jury.</p> <p>The act of 1854, in relation to intoxicating liquors (2 8. & 0. 1431), provided, as amended (67 Ohio L. 102), as follows :</p> <p>Sec. 1. “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell, in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold, or to sell such intoxicating liquors, to be drank in any adjoining room, building, or premises, or other place of public resort connected with said building.”</p> <p>Sec. 8. “ That for every violation of the provisions of the first . . . section of this act, every person so offending shall forfeit and pay a fine not less than five nor more than fifty dollars, or be imprisoned in the jail of the county for not less than ten nor more than thirty days, or both of them, at the discretion of the court, and shall pay the costs •of prosecution.”</p> <p>Sec. 7. “ That every husband, wife, child, ... or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, . . . shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of •such person or persons, . . . for all damages sustained, as well as exemplary damages.”</p> <p>Since the commencement of this suit, changes have been made in these provisions (72 Ohio L. 35 ; 74 Ohio L. 268), but they do not affect this case. 1 S. & S. 1.</p>

Norman prosecuted an action in the Court of Common Pleas of Champaign county, against Shaul, for an assault and battery. The answer contains, first, a denial; and,, secondly, a statement that the injury to Norman was occasioned by his own misconduct in first assaulting the defendant below. The plaintiff by reply denied the allegations of answer No. 2.

<p>'Error to the District Court of Tuscarawas county.</p> <p>The original action was brought by Nathaniel W. Evans, the defendant in error, as indorsee of a promissory note, .against Elias Knisely, the plaintiff' in error, as maker of the note. The note was executed by Knisely on the 14th •day of June, 1872, and was payable one day after date to Harrison P. Arnold, or order, for four hundred and four dollars and seventy cents.</p> <p>On the 20th of the same month the note was indorsed .-and delivered to Evans by the payee, Arnold.</p> <p>The issues in the cause were submitted to the court for ■trial.</p> <p>The following extract from the record shows the findings •of the court, both as to the facts and law arising in the case:</p> <p>“ And the court having heard the testimony, and one of the parties having requested the court to state in writing the conclusions of fact found, separately from the conclusions of law, with the view of excepting to the decision of the court upon the questions of law involved in the trial, states the conclusions of fact as follows, to wit: That the -defendant, Elias Knisely, did, on the 14th day of June, a. d. 1872, make and deliver his negotiable promissory note — a copy of which is set out in the petition of the plaintiff — to one Harrison P. Arnold; that on the 20th day of June, a. d. 1872, between the hours of 11 o’clock a. m. and 1 o’clock p. M. the plaintiff, Evans, purchased the note from Arnold, .giving therefor one hundred dollars in money, and cancelling the indebtedness of Arnold to him for two hundred dollars for money before that time by him lent to Arnold, and forty-■two dollars for goods before that time sold by him to Arnold, and that Arnold then indorsed and delivered the note to the plaintiff — a copy of the indorsement being set out in the petition of the plaintiff. That on the 20th day ■ of June, A. D. 1872, at 9 o’clock p. m., the defendant, E. Knisely, was served with a copy of an order of attachment and garnishee notice, issued by John Albaugh, a justice of the peace in and for Goshen township, Tuscarawas county, Ohio, at the suit of -Hummell & Brother against said Harrison P. Arnold; that E. Knisely, on the 27th day of June, a. d. 1872, in pursuance of said notice, appeared before said justice and answered as garnishee, admitting his indebtedness to said Arnold upon said promissory note; that the justice afterward, on the 6th day of August, a. n. 1872, to which time said action had been continued by said justice for service of the said Arnold by publication, made an order that Knisely should pay to the justice so much of his said indebtedness as would pay the claim of Hummell & Brother against Arnold, to wit, the sum of $218.75; and that afterward, to wit, on the thirtieth day of August, a. d-1872, pursuant to said order, Knisely did pay to the justice the sum of $218.75, which was applied to the satisfaction of the judgment rendered by the justice in the action of Hummell & Brother against Arnold, in which the order of attachment had issued; and that Knisely down to, and at the time of, the payment of' said money by him to the justice had received no notice that his said note to Arnold had been indorsed, and transferred to the plaintiff, or any other person.</p> <p>“And as conclusions of law upon the facts so found the court states as follows, to wit; That said promissory note was overdue when the same was so indorsed by Arnold to Evans, on the 20th day of June, A. d. 1872; that as against the plaintiff, Evans, the defendant, Knisely, is entitled to be credited as for a payment upon said promissory note, with said sum of $218.75, so paid by him to the justice in said attachment proceeding, as of date of August 30, 1872.”</p> <p>Whereupon, the court, after crediting on the note the amount so paid by Knisely, rendered judgment in favor of Evans, for the l’esidue.</p> <p>On petition in error, prosecuted by Evans, the district court reversed the judgment of the court of common pleas, and rendered judgment in his favor, for the full amount of the note.</p> <p>The object of the present proceeding is to obtain the reversal of the judgment of the district court, and the affirmance of that of the court of common pleas.</p>

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

Appeal. Reserved in the District Court of Marion county. The original action was brought by Thomas C. Bowen, administrator, with will annexed, of Ozias Bowen, against Emma M. Bowen, his widow, and other legatees and devisees under the will, to obtain the advice and instruction of the court as to his duties in the premises, and especially as to the rights of Emma M. Bowen, widow.

Robert Conn, John P. Helbling, John Henry, James M-Manning, James P. Mooney, and J. W. and E. M. Gardner, on the 10th day of November, 1871, entered into a partnership, for the purpose of carrying on the business of packing pork, “ for the then ensuing pork season.” The first five named were interested to the extent of one-sixth, each, and the two last named, together one-sixth. The firm lost money in the venture.

Mandamus. An alternative writ was issued from this •court, in this case, in March, 1878; and an answer having been filed, the case came on for trial on the writ, answer, 'testimony, and arguments of counsel.

<p>1. In an indictment for burglary in a church (74 Ohio L. 248), the ownership of the church must be averred.</p> <p>2. An averment in the indictment that the burglary was committed in “the Saint Bridget’s Church and Meeting House” is merely descriptive of the church, and has no reference to ownership.</p>

<p>1. Proceedings to modify a judgment prosecuted under section 535 of the code of civil procedure, to correct an irregularity in obtaining a judgment or order, must be commenced within three years after the judgment was rendered or order was made.</p> <p>2. The remedy by petition for rehearing, authorized by section 56 of the act of 1831, directing the mode of proceeding in chancery (Swan’s Stat. 714), being inconsistent with the code of civil procedure, was not saved to suitors by the sixth section of the act of March 14, 1853 (1 S. & 0. 383), “to amend an act relating to the organization of courts of justice and their powers and duties,” passed February 19, 1852.</p> <p>3. The remedy by bill of review does not exist in respect to an action commenced and prosecuted under the code.</p>

<p>Mandamus.</p> <p>The facts disclosed in the petition are, that, on October 22, 1878, the relator presented to Bauder, as such auditor, an itemized bill, properly certified, for services rendered by the relator, as sheriff of Cuyahoga county, ■during the years 1877 and 1878, amounting to $1,046.23, in .■serving and returning subpenas for persons therein named to appear before grand juries of that county, and demanded .a warrant on the treasurer for that amount. The auditor, admitting that the services were performed, that they were worth the amount claimed, that the costs are taxed in conformity to the statute, and that the relator has received no -compensation therefor, declined to issue the warrant solely on the ground that, as matter of law, the fees could not be paid from the county treasury, except under section 12 of the act -of 1876 (73 Ohio L. 127), relating to the fees of officers.</p>

<p>Motion for leave to file a petition in error to the Court of Common Pleas of Muskingum county.</p>

<p>Application for a peremptory mandamus.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.</p> <p>On the 16th October, 1865, the defendant issued its policy of life-insurance, insuring the life of'William P. Van Deursen in the sum of $5,000, for the benefit of the said Nan Deursen, his executors, administrators, or assigns. 'The conditions of the policy so far as involved in this ae-tion are as follows :</p> <p>“ That whereas, ¥m, P. Van Deursen . . . has .applied to the Union Mutual Life Insurance Company, by his application dated October 10, 1865, for insurance on ■the life of ¥m. P. Van Deursen, . . ■ . and has also agreed to pay the sum of $251.26 on the 16th day of October, in every year, for ten consecutive years ; and now, the first payment of the before mentioned annual premiums having first been received by the company, . . . and in consideration of such payment having been so received and of the provisions herein for future payment of premiums, the said company do hereby insure thé life'of ¥m. P. Van Deursen, aforesaid, in the amount of $5,000, from the 16th day of October, 1865, at noon, for and during the whole continuance of his life; payments of premium to cease after ten years; and it is hereby understood and agreed that after two or more of said annual premiums have been fully paid, this policy may be exchanged for a paid-up non-forfeiture policy, for ■ an amount equal to the ■sum of one-tenth of that hereby insured for each and every premium which shall have been so paid — requiring no further payments of premiums, subject to no assessments, but •entitled to its apportionment of the profits of the company, made upon their table, No. 1, of regular whole-life rates. The said insurance to be, in either case, by either form of policy, for the sole and separate use of the said ¥m. P. Van Deursen,” etc. . . . “ Provided especially, and this policy is made and it is accepted- by the assured . . . upon the express condition that if the amount of any annual premium herein provided for, is not fully paid, with the interest due thereon, on the day and in the manner so provided for, then this policy shall be null and void and wholly forfeited.” . . . “And it is also a condition of this policy, accepted by the assured therein, that in case it becomes null and void, all payments made thereon, and all dividend credits accruing therefrom and remaining unpaid, shall be forfeited to the company; and no outstanding scrip certificate of any such credit shall entitle the holder thereof to any claim upon the company on account thereof.”</p> <p>“And in case of the termination of this policy, whether by forfeiture or otherwise, prior to the time of declaring any dividend of profits by said company, the holder thereof is not entitled to participate in such dividend.” . . . “ Said company shall have the right to set off any demand they shall have against said assured, his assigns or representative, arising incidentally to, or in connection with, this insurance against any claim for which this company shall be liable thereon. . . . “ Special agreement.— It is expressly understood and agreed, and this policy is accepted by the assured upon the condition that if, at any time, any note, check, or draft (other than the usual premium note for one-half of the annual premium) shall be given in payment or part payment of any premium then due or to become due for or on account of this policy, and such note, check, or draft shall not be paid according to the provisions thereof,-then this policy shall become immediately void, and the company be thereby released from all obligations under it.”</p> <p>In the margin of the policy, in a conspicuous place, and in display type, is printed the term “ non-forfeiture,” and on the back of the policy it is indorsed “Hate October 16, 1865, term of non-forfeiture.” The policy was countersigned and delivered by the agent of defendant at Cincinnati, and all the payments of premiums made on it were made at Cincinnati.</p> <p>In 1866, Van Heursen assigned the policy, with the assent of the company, to George H. Bussing. Eive yearly premiums were paid on the policy, as follows, viz :</p> <p>Cash. Note. Interest on note.</p> <p>1. 16 Oct., 1865..........$150 75 $100 51</p> <p>2. “ ' “ 1866........151 26 100 00 $6 OB</p> <p>S. “ “ 1867.......... 151 26 100 00 12 '03</p> <p>4. “ “ 1868.......... 151 26 100 00 18 03</p> <p>5. “ “ 1869.......... 151 26 100 00 24 03</p> <p>On the last date, what was termed a settlement was made, as follows, viz:</p> <p>r*H á JO o P4</p> <p>“ Union Mutual Life Insurance Company Settlement, October 16,1869.</p> <p>Annual premium........................$251 26</p> <p>Cash part of premium 60 per cent............. 151 26</p> <p>Interest on 4 notes................................. 24 03</p> <p>Extra premium on permit........................</p> <p>Total cash payment..............$175 29'</p> <p>40 per cent, note, part of this premium...$100 00</p> <p>Amount of notes now returned............ 400 51</p> <p>500 51</p> <p>Less present value of surplus to credit... 114 51</p> <p>Total new note..........$386 00”</p> <p>Thus the notes given in part payment of the first four premiums were surrendered to the maker, and a new note taken for the balance of $386, as per above statement.. The note taken for the $386 was as follow's, viz :</p> <p>gs -3 o m s iJ.2 w 8 P3 « <! a Sh O</p> <p>“$386.00. Cincinnati, October 16,1869.</p> <p>“Twelve months after date I promise to pay the-Union Mutual Life Insurance Company or order three-hundred and eighty-six dollars, with interest at six per cent, per annum, for value received.</p> <p>“ And it is an express condition of the acceptance of this note by the said company, in part payment of the annual premium for policy No. 15,154, which condition is fully agreed to by the promisor herein, that such acceptance shall in no wfise affect the condition in this policy respecting the forfeiture thereof, in case of the non-payment of any other portion of said aunhal premium.</p> <p>[Signed,] W. P. Van Deursen.”</p> <p>[Each policy must be settled separately. -No note will be accepted that includes the premium of more than one number.}</p> <p>No other or further premiums were paid on the policy, and on the 9th of October, 1876, William P. Van Deursen •died. Whereupon the assignee furnished the company with proofs of the death of the assured, and in due time made demand for $2,500, less the amount of outstanding premium notes and interest, as upon a paid-up policy.</p> <p>The company having refused to comply with such demands, the original action was brought to recover the .amount.</p> <p>Upon the foregoing state of fact, the court found for the ■defendant, and rendered judgment accordingly.</p> <p>The object of the present proceeding is to obtain the reversal of this judgment.</p>

The plaintiff in error, Charles McGill, at the February term, 1878, of the Court of Common Pleas of Cuyahoga county, was convicted of murder in the first degree, and sentenced to be executed. To reverse the judgment of conviction he filed a petition in error in the district court, which was reserved for decision here. The only assignments of error material to be noticed, are : 1.

<p>1. In an action to recover compensation for land apppropriated by a mu.licipal corporation to public use, the same rule applies for assessing compensation as is applicable where the assessment is made by a jury in a special proceeding instituted, under the statute, for the purpose.</p> <p>2. A municipal corporation is authorized to appropriate an easement in land abutting on a street, for the purpose of making a sloping fill in order to afford lateral support to the street.</p> <p>3. Such appropriation does not divest the owner of his dominion over the property subject to the easement. He may still use it for all purposes not inconsistent with the special purpose of furnishing the neccessary support to the street.</p> <p>-4. Where suci an easement has been appropriated, the land-owner is entitled to be compensated for all the rights of which he has been deprived; hut where he still retains substantial rights in the property, he is not entitled to he allowed the value of the land in fee simple.</p>

George Weber, on December 15, 1874, executed a deed to Alexander Starbuck and Jacob Pfau, assigning his propperty to them for the benefit… Held: and the probate court made and entered on the journal, in the insolvencjr proceeding, the following order: “ Now, on this 20th day of May, a. n. 1878, the proceedings, in writing, of the meeting of the creditors of the estate of said George Weber, signed by said creditors present at said meeting held on the 18th day of May, a. d.…

A judgment was recovered by the Catholic Institute of' Cincinnati against Joseph Gibbons and Anna M. Gibbons,, his wife, at the July term of the Superior Court of Cincinnati, the cause having been reserved from special term. On the 14th of October, 1878, Gibbons and wife, the-present plaintiffs in error, filed a petition in error in the-District Court of Hamilton county, to reverse the judgment.

<p>,1. The'Axeeution of an order remanding a cause for further proceedings, upon the reversal of a judgment of an inferior court, may be stayed by the court in which a petition in error is filed to reverse the judgment of reversal, or by a judge thereof, as provided by section 22, chapter 1, article 4 of the act of May 14, 1878 (75 Ohio L. 806).</p> <p>■2. An order staying the execution of a judgment or final order, as provided for in said section, will only be granted on good cause shown, and the mere pendency of a petition in error tó reverse the judgment of reversal is not a sufficient ground for an order granting such stay.</p>

The original action was commenced by James Good, in tbe Superior Court of Cincinnati, against Albert Stein, John G. Benson, and John Good (tbe latter of whom was not served), for tbe settlement of an account between them as joint owners of certain steamboats and barges.

<p>1. To maliciously enter a store-house, and attempt to steal anything of the-value of thirty-five dollars or more, is an “attempt to commit a felony,” ' within the meaning of section 6, title 1, chapter 4 of the crimes act. (74 Ohio L. 249).</p> <p>2. Tinder section 33, title 2, chapter 6 of the penal code (74 Ohio L. 349), special instructions given to the jury in writing, after argument, are-not required to he taken hy the jury, in their retirement, where the-principal charge is not required to he in writing.</p> <p>3. It is no ground for the reversal of a judgment, that a motion for a now trial was made, argued, and overruled in the absence of the prisoner,, where no objection was made till after sentence.</p>

The original petition was filed by W. E. Gaylord, administrator of Eliza Lemerick, deceased, against the Washington Life Insurance Company, and James R. Kilbreath and others, stockholders in said corporation, to subject the .amount due from them respectively, as stockholders, on account of their stock subscriptions, to the payment of a judgment recovered by Gaylord, as administrator, against the corporation.

At the May term, 1878, of said court, the plaintiff in-error was convicted, on his plea of guilty, and sentenced to the penitentiary, on an indictment which, omitting caption and conclusion, is as follows: The grand jurors, “in the name and by the authority of the State of Ohio, on. their oaths and affirmations, do find and present, that' George B. Kennedy, late of the county of Trumbull aforesaid, on the twenty-eighth day of July, in the year of our Lord one thousand eight…

E. E. Bingham, a judge of the Court of ■Common Pleas of Eranklin county.

<p>Application for a writ of habeas corpus.</p>

The original action was instituted in the Probate Court of Summit county, by the City of Akron, against the Chamberlain Company (a corporation) and others, under the statute (§ 566 of the municipal code), for the purpose ■ of having the damages sustained by the defendants by reason of the improvement of West Market street assessed by a jury.

<p>Mandamus. Lima, a city of the second-class, in Allen •county, obtained in this court an alternative writ of mandamus to compel McBride, auditor of the county, to place to the credit of the city the amount of certain taxes levied by tbe county commissioners for road purposes, in June, 1877, and issue to the city a warrant therefor on the county treasury, or show cause why he fails to do so. The case was heard on the alternative writ, the answer, and an agreement of the parties. The writ contains substantially • the same averments as the application. Omitting merely formal parts, the writ, answer, and agreement are as follows :</p> <p>Writ. — The city of Lima has represented that it is a municipal corporation, duly incorporated as a city of the. ■second class under the laws of the State of Ohio; that it has a population of less than ten thousand, and embraces a county-seat, and is situated in the county of Allen, in said state, and that said Nelson McBride is auditor of said Allen county, Ohio; and that at an adjourned session of the board of commissioners of said county, on June 7, 1877, the following proceedings were had, as appears by their journal No. 4, page 207:</p> <p>“ The commissioners made a levy for county road fund •of four mills, and ordered the auditor to place the same upon the tax duplicate of Allen county, Ohio, for the year 1877, for collection.”</p> <p>And that no other or further proceedings in relation to said levy were ever had by or before said county commissioners.</p> <p>And, further, that said journal is the only record of the •proceedings of the said county commissioners as a corporate body, and that it is kept by said Nelson McBride, auditor as aforesaid, as required by law, and that by reason of said levy as aforesaid, said auditor placed said tax on the grand duplicate of Allen county, Ohio, making one-half thereof to be collected with the installment of taxes due December 20,1877, and the other half to be collected with the installment of taxes due June 20, 1878, and that said duplicate included all the property, both chattel and real, assessed for taxation in said city of Lima, and that the amount collected by the treasurer of said county of Allen, by reason of said levy, was included by him in his February, 1878,. settlement with said auditor ; and, further, that no part of said road tax so by them levied, was set apart by said county commissioners for the purpose of building and repairing bridges in said county, and that no other or further proceedings were had by them in relation thereto.</p> <p>And, further, that no roads known as turnpike roads have ever been located or constructed in the county of Allen.</p> <p>And, further, that a large amount of money, the exact amount of which is unknown to the court, but which the court is informed amounts to the sum of three thousand seven hundred dollars ($3,700), was collected by the treasurer of said county of Allen, by virtue of said tax levy aforesaid, from the property assessed for taxation in said city of Lima, and was included in said February, 1878, settlement of said treasurer of Alleu county with said auditor of Allen county.</p> <p>And, further, that said Nelson ' McBride, auditor as aforesaid, and the treasurer of said county of Alleu, had a settlement in February, 1878, as required by law, and that it was the duty of said Nelson McBride, auditor as aforesaid, immediately after said settlement, to credit said city of Lima, along with other proper items which he did credit, in the account required by law to be kept by him, and which is kept by him, with the net amount of taxes so collected by said treasurer of Alleu county, Ohio, by virtue of said levy, from the property assessed for taxation in the «aid city of Lima, and that said Nelson McBride, auditor as aforesaid, neglected and refused to credit said net amount of taxes to said city of Lima, and still neglects and refuses so to do.</p> <p>And that after said settlement so had between said Nelson McBride,-auditor as aforesaid, and said treasurer of Allen county, in February, 1878, and after said Nelson McBride, auditor as aforesaid, had stated the account of the net amount of taxes from all sources due to said city of Lima from the treasurer of said county of Allen, as ascertained and determined at said settlement in February, 1878, the treasurer of said city of Lima duly demanded from said Nelson McBride, auditor as aforesaid, an order on said treasurer of Allen county, for the net amount of taxes then due to said city of Lima, and said Nelson McBride, auditor as aforesaid, issued and delivered to said treasurer of said city an order for all the taxes then due to it from said county treasurer, except the net amount of taxes collected by virtue of said levy on the property assessed for taxation in said city of Lima, Ohio, and that said Nelson McBride, as such auditor, neglected and refused to include in the order then issued by him as such auditor the said net amount of taxes so collected from the property assessed for taxation in said city of Lima, by virtue of said levy, and still neglects and refuses so to do, and asserts his intention to continue to refuse to make said credit and issue said order.</p> <p>Now, we command you that immediately after the receipt of this writ, you ascertain and credit the city of'Lima, Allen county, Ohio, in the account required by law to be kept by you with said city of Lima, with the net amount of taxes collected by the treasurer of Allen county, Ohio, from all the property, both chattel and real, assessed for •taxation in said city of Lima, by reason of the said levy made by the board of commissioners of Allen county, Ohio, ■on June 7, 1877, and hereinbefore set out, as appears by the settlement had between you and the treasurer of said -county of Allen, in February, 1878, and thereupon that having ascertained and credited said net amount of taxes1 as aforesaid, you, as such auditor, execute and deliver to-the treasurer of said city of Lima an order on the treasurer of said county of Allen for the net amount of taxes so ascertained and credited, or that you show cause before the-judges of our supreme court, on the 13th day of July, 1878, at 9 o’clock A. m. of said day, why you have not. done so.</p> <p>Answer. — That the levy of four mills on the dollar on all taxable property in said Allen county, Ohio, which, in-.the year 1877, was ten millions four hundred and sixty-five-thousand two hundred and ninety-six ($10,465,296) dollars-■of taxable property, was made by said board of commissioners for the purposes and uses provided for in the act of April 30, 1869, and for no other purpose. That said levy was made and intended to be made by said commissioners1 under the authority conferred upon them by said act.</p> <p>That the commissioners, acting and intending to act, under the statute of April 30, 1869, and as they had done-in the years 1875 and 1876, proceeded on the 9th day of May, 1878, to advertise for bids for the reconstruction and repair of certain of the principal highways of said county,, and did on the 30th day of May, 1878, award contracts for said reconstructing and repairing said highways to the amount, at the contract price thereof, of $26,500. That the total tax collected at December collection, 1877, and included in the February settlement, 1878, of money under said levy, amounted to but the sum of $22,477.41. That -no portion of said tax so collected and included in said. February settlement, 1878, now remains in the treasury of said county, which is not already appropriated to the purposes contemplated by said act of April 30, 1869.'</p> <p>That said commissioners claim the right to control the-fund arising from said levy for the purposes named in said act of April 30,1869, and the act supplemental thereto, of April 9, 1873 (70 Ohio L., 118), and deny the right of the-defendant to, in any manner, interfere with the same, except upon the order of said commissioners.</p> <p>That no portion of- said fund has remained in the treasury of said county unexpended and unappropriated for six months after the annual September settlement for the fiscal year during which said road tax was collected. And he says that said September settlement has not yet been made, and said fiscal year has not yet ended.</p> <p>Agreement. — dt is hereby agreed by and between the plaintiff and defendant:</p> <p>First. That all allegations of fact contained in the alternative writ of mandamus issued in this case, upon which proof would be required of the plaintiff by the court, shall be taken and held by the court as proved by the plaintiff.</p> <p>Second. That all allegations of fact contained in the answer of the defendant herein, upon which the court would require proof, shall be taken and held by the court as proved by the defendant.</p> <p>Third. That the above agreements shall not relate to any allegation of a conclusion of law, or any other matter to which proof is not required.</p> <p>Fourth. That this cause shall be submitted upon the motion for a peremptory writ, and this agreement^ as upon final trial of this cause.</p> <p>On March 9, 1868, an act was passed “ relating to roads and highways.” 65 Ohio L. 14; 2 Sayler, 1428. It contains thirty sections. In the 17th section, provision was made for the levy of a road and bridge tax by the county commissioners. That section was amended in 1871 (68 Ohio L. 116; 3 Sayler, 2250); in 1872 (69 Ohio L. 114; 3 Sayler, 2692); in 1876 (73 Ohio L. 149); in 1877 (74 Ohio L, 93) ; and in 1878 (75 Ohio L. 436, 474, 507) ; the latter act being in force. The section, as amended in 1877, was in force when the taxes in controversy were leviedand collected, and provided, among other things, as follows: “ That the commissioners of the respective counties in the state are hereby authorized, at a special session in May, 1877, to levy a tax for road and bridge purposes, as follows, . . in counties where the taxable property is less than twenty , millions of dollars and over ten millions, not more than three mills ; . . . and the auditor- of the county shall place the same-on the tax duplicate for the year 1877, and divide the same equally; one-half to be collected in the installment of taxes due December 20,1877, and the other half to be collected in the installment due June 20, 1878. The county commissioners shall set apart such portions of the road tax by them levied as they may deem proper, to be applied to the building or repairing of bridges in their respective counties, which portiou so set apart shall be called a bridge fund, and shall be entered on the duplicate of taxes for the county by the auditor of the county, in a separate column from the other levies for road purposes, and shall be collected in money and expended, except as may be otherwise provided by any local law heretofore enacted, under the direction of the commissioners of the county, in the building or repairing of bridges and culverts, or both, in their respective counties; provided, that in case an important bridge belonging to or maintained by any county, has been or may hereafter become dangerous to public travel, by decay, or otherwise, and the restoration thereof may be necessary for the-public accommodation, the commissioners of such county may levy a special tax for that purpose not exceeding one and one-half mills on the dollar of the taxable property of such county, the proceeds of which tax shall be applied solely to restoration of such bridge or bi’idges ; and the commissioners may anticipate the collection of such tax by borrowing any sum not exceeding the amount so levied, or to be levied, at any fate of interest not exceeding eight per cent., and issue notes or bonds therefor, payable upon the collection of such tax; provided further, that nothing herein contained shall affect the right of city councils to receive and expend the proportion of levies herein, as authorized by the six hundred and forty-first section of the municipal code.”</p> <p>Section 641 of the municipal code, as then in force, was in 68 Ohio L. 133.</p> <p>Section 21 of the above-mentioned act of March 9, 1868, provided how the tax might be paid, and where it should Re expended. The section was amended by an act passed the same year (65 Ohio L. 78; 2 Sayler, 1537); by the act of April 24, 1869 (66 Ohio L. 51); by the above-mentioned act of 1877 (74 Ohio L. 97): and again by the above-mentioned act of 1878. 75 Ohio L. 436, 478, 507. The amendment of 1877, which, as we have seen, was in force when the taxes in controversy were levied, provided, as- the amendment of April 24, 1869 (66 Ohio L. 51), hád provided, among other things, as follows :</p> <p>“All road taxes collected by the county treasurer shall be paid over to the treasurer of the township or municipal corporation from which the same were collected, and shall be expended on the public roads, and in building and repairing bridges, as hereinbefore provided, in the township and municipal corporation from which the said taxes wTere •collected, under the direction of the trustees of the proper township or council of such municipal corporation; and all funds heretofore levied for road pimposes, an<^ not expended, shall be expended by the trustees of the township or council of the municipal corporation from which the .same were collected, as other taxes collected under the provisions of this act.”</p> <p>Section 487 of the municipal code (66 Ohio L. 149, 231, now repealed; 75 Ohio L. 161, 392), provided as follows :</p> <p>“ Sec. 487. No tax assessed upon property within the territory attached to any corporation as aforesaid, shall be applied otherwise than within the territory in which the same is assessed ; and all taxes charged for road purposes ■on the property within the limits of the corporation, or the territory so attached, and collected by the county treasurer, shall be paid over to the corporation treasurer, to be specially appropriated by the council to street and road purposes within the corporate limits and territory so attached ; and the trustees of the township in which said territory is located and the council may agree upon a different distribution or division of said funds.”</p> <p>The act of April 30,1869 (66 Ohio L. 60; 3 Sayler, 1795), :is as follows:</p> <p>' u Sec. 1. That whenever any one or more of the principal highways of any county have been so damaged br destroyed by freshet, land-slides, wear or watercourses,’ or by any other casualty, neglect, or inattention, as to render the same unfit for travel, and hinder free- and ■ necessary transportation, and the commissioners of •such county shall be satisfied that the ordinary levies authorized by law, for said purposes, will be inadequate to provide money necessary to repair such damages, or to remove' obstructions from, or make such changes in, such road or roads, rendered necessary by the aforesaid cause or causes, they shall be and. are hereby authorized, annually thereafter, to levy a tax at their June session [of] in the year one thousand eight hundred and seventy, and each year, of any sum not exceeding five mills upon the dollar, 'upon all taxable property of any such county, to be expended under their directions, in such manner as may seém tc^ them most advantageous to the interest of any such county, for the construction, reconstruction, or repair of such road or roads.</p> <p>- -'“ Sec.' 2. To anticipate the receipts which may come into the county treasury by virtue of the tax levied under authority of the provisions of this act, the said commissioners are hereby authorized to borrow, from time to time, such sums of money as shall not exceed, in the aggregate, fouf-fifths of the tax levied by this act; provided, that the money so borrowed in any one year shall not exceed four-fifths of the tax levied in any such year ; and the money 'so borrowed shall be paid with lawful interest at the county treasury out of the taxes so levied.</p> <p>■ “ Sec. 3. During such years as the commissioners of any -county shall avail themselves of the piro visions - of this act, they shall levy no tax for road purposes other thau that whi h is prescribed by the provisions of this act.”</p> <p>■ An act supplementary to the last-mentioned statute was passed in 1873 (70 Ohio L. 118; 4 Sayler,'2939). It is as follows-: ■ '</p> <p>“ Sec. 1. That all moneys, assessed and collected by, the commissioners of any county in the state, as authorized by the above-named act, and .remaining in the hands of the-county treasurer, unexpended and unappropriated, for a period of six months after the annual September settlement for the fiscal year.during which said road tax was. collected, shall be paid over to tbe treasurer of the township or municipal corporation from which thg same was-collected, and shall be.expended on the public roads, under the direction of the trustees of the proper township or municipal corporation, in such manner as may seem to them most advantageous to tbe interest of said township or corporation, for the construction, reconstruction, or repair of roads, and in building or repairing bridges.”</p>

<p>A testator devised to his wife, daring life or widowhood, all his real estate, accompanied by a bequest of personalty as follows: “And all my personal property, household goods, and provisions, including moneys and credits of every description which may be thereon at the time of my decease, during hei' natural life; she, however, selling so much thereof as may be sufficient to pay my just debts.” He devised the remainder in said real estate to his three daughters in unequal portions. He bequeathed to one of his daughters, $1,500, to another, $1,000, to a. daughter of a deceased son, $500,. and to her mother, $5 ; said legacies to be paid at the death of his widow; and declared that the legacy to-the granddaughter and the one to her mother, together with a tract of land conveyed to the son before his decease, made for them an equitable share of his estate. He also declared that if “ at the death of my said wife, there should be any of my said personal property or money hereby devised to my said wife and heirs, left unconsumed,” it should be divided between his three daughters and their heirs; and concluded as-follows: “ It is my will that all my money, deposited or otherwise, is to-be left on deposit, at interest, during the natural lifetime of my said wife, except the interest to be drawn and used by her as she may need.” He appointed his wife executrix of his will. Held, that the interest accruing during the life of the widow, on moneys and United States bonds, deposited in bank or otherwise existing, belonging to the testator at the time of his death, is, by said will, bequeathed to the widow absosolut.ely; and what remains at her death of the personal estate left by . the testator at the time of his decease, including the principal of said, moneys and bonds, is to be applied to the payment of said legacies, and the residue divided equally among the testator’s three daughters.</p>

<p>Motion for leave to file a petition in quo warranto.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The Probate Court of Hamilton county appointed appraisers of the personal estate and effects of Ernst Heck, deceased, and the appraisers stated in the inventory of the property, made May 3, 1877, that “ the widow takes under a marriage contract, if entitled to anything.”</p> <p>On July 27, 1877, the probate court, on application of Mary Heck, the widow, appointed new appraisers, who allowed her $600 for a year’s support, pursuant to the statute.</p> <p>A motion to set aside the proceedings, filed by Joseph Heck, executor of said Ernst Heck, on August 8, 1877, was overruled; the court of common pleas affirmed the orders of the probate court, on error prosecuted by the-executor; and the district court, on error, affirmed the-judgment of the court of common pleas.</p> <p>A petition in error has been filed in this court to reverse-the several judgments and orders.</p>

The original action was brought in the Wayne Common Pleas, on November 26, 1873, by the defendant, Hague, against Simon Rohrer, Benjamin Rohrer as executor of the last will and testament of Isaac Rohrer, deceased, and Henry Warren.

The plaintiff' in error was put upon trial, under a single ■count in an indictment, charging him with the crime of rape upon the person of one Annie Catharine Corsmier.

<p>1. The general rule in equity, as at law, is, that joint debts can not he set off ’ against separate debts, unless there he some special equity justifying it.</p> <p>2. If there are such equities, the bankruptcy of the party against whom they exist, is sufficient ground for the allowance of the set-off against . notes not due at the time of the assignment.</p> <p>:3. Where a banker induced a firm to continue its deposit account with him, by deceptively holding himself out as being still the holder of several negotiable notes made to him by the principal member of the firm, when in fact he had assigned them as collateral security for a debt; and there was an understanding between the firm and the banker, from the course of dealing between them, that the notes of the individual member wore to be paid through the deposit account of the firm, and which 'he had a right to treat as his own for that and other purposes; on the bankruptcy of the banker — Held, That after satisfying the debt for which the notes of the individual member were held as security, the latter, as against the assignees of the bankrupt, is in equity entitled to set off the firm account against the balance due on the notes.</p> <p>■4. In an action on a negotiable note which the plaintiff holds by assignment before due, in consideration of, and as collateral security for a loan made by him to the insolvent payee, against whom the maker is entitled to an equitable set-off to the note; the plaintiff will be limited in his recovery against the maker to the amount of the debt which the note secures, and will not, in addition thereto, be allowed the amount of his attorney’s fees in prosecuting the action.</p>

<p>Oi A.'s trial for a crime, he relied on insanity as a defense, and as evidence tending to prove the defense offered a record from the probate court showing that four yeai's previous to the commission of the alleged, crime an inquest had been held in that court, and that he had been ad. ■ judged insane and confined in an asylum. Meld, that the evidence was. admissible.</p>

<p>1. Where a variance between the allegations of the pleading and proof is not material within the meaning of section 131 of the code, the fact that the pleading was not amended to conform to the proof, as provided for by section 132, will not constitute ground for the reversal of the judgment on error.</p> <p>2. In an action brought under the seventh section of the act to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, it is not necessary that the liquor be sold in violation of the act of 1854. If sold in violation of any act prohibiting the sale, or furnished in violation of the act of 1866 (S. & S. 748,', the action will lie.</p> <p>3. The provision of said amended section, which creates a liability on the part of the seller for an injury resulting from intoxication, to which the-liquor unlawfully sold or furnished by him contributes only in part, is-not in conflict with the constitution.</p> <p>4. In an action brought by a married woman, under said amended section, for an injury to her means of support in consequence of the intoxication of her husband, it is not error for the court to refuse to charge that “if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to he, that certain of the illegal sales were made on Sunday.”</p> <p>5. ’Where it appears in such action that the damages awarded by the jury are excessive, the court on error, on a remittitur of such excess, may affirm the judgment.</p>

The original action was brought by plaintiff in error on a bond executed to him by defendants in error, Tidball as-principal, and his co-defendants, Shimp and Brosius, as-sureties, to indemnify the Adams Express Company against loss from the unfaithfulness or dishonesty of the principal as station agent of the company at Alliauce, Ohio, to recover on account of money embezzled by Tidball while acting as such agent.

<p>Under section 557 of the code (67 Ohio L. 116), a person in the possession of real property may maintain an action to quiet his title against a person who claims an estate or interest in the property adverse to the title of the party in possession. It is not necessary that the adverse claim' should relate to or affect the right of present possession. Collins v. Collins (19 Ohio St. 468) explained.</p>

<p>The force necessary to push open a closed, but unfastened, transom, that, swings horizontally on hinges over an outer door of a dwelling-house, is sufficient to constitute a breaking in burglary under our statute, which requires a forcible breaking.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>This action was brought in the Court of Common Pleas of Cuyahoga county, January 20,1870, by Robert Sander-son, John B. Cowle, and Samuel Lord against The ¿Etna. Iron and Nail Company, Warwick Price, William B. Price,. Morrison Foster, E. T. Hamilton, and others. It is a creditor’s suit to enforce payment of a judgment. The only facts alleged in the petition which are not denied in the answer are the following :</p> <p>The .¿Etna Iron and Nail Company was organized as a corporation, under the laws of Ohio, July 15, 1867, “ for the purpose of engaging in the manufacturing of iron, merchant iron, nuts, spikes, bolts, and all other kinds of iron, manufactured, including nails, hoop iron, rivets, etc., and selling the articles and things so manufactured.” The capital stock was $200,000, divided into shares of $500 each. The places where the manufacturing establishment and branch thereof were required to be located were the-city of Cleveland and Newburgh township, Cuyahoga county.</p> <p>Warwick Price and William B. Price subscribed for twenty shares ($10,000) of the capital stock, and the plaintiff for twenty shares ($10,000), all to be paid in cash. The-plaintiffs are still stockholders.</p> <p>At the time of the organization, at a meeting of the-stockholders then held, Warwick, Price & Co. subscribed for sixty additional shares ($30,000), to be paid for by certain coal lands at Salineville, Columbiana county, Ohio. The directors were authorized to examine the property,, and, if in their opinion it would be for the benefit of the company, to approve the subscription, and that a. conveyance should then be executed and the stock issued.</p> <p>On July 18, 1867, the proposition was accepted and approved, and on September 9, 1867, W. and W. B. Price-conveyed the property to the company, and received the-certificates of stock, and thereupon the company took possession of the property, improved it, and mined coal therefrom for use in the company’s business.</p> <p>At a meeting of the directors, September 4, 1868, certain proceedings were had, which were entered on the rec■ords of the company, as follows: “ Sept. 4, 1868. Board met pursuant to adjournment. All the members present. "Whereas, this company purchased of Warwick and William B. Price certain coal lands near Salineville, Ohio, at or for the sum of $30,000, and paid for the same in the stock of the company; and, whereas, a number of stockholders are dissatisfied with the purchase, and desire that the said coal lands be conveyed back, and the stock taken up and canceled ; and the said W. and W. B. Price being willing to receive back said lands, and deliver up the stock to be canceled: Therefore, resolved, that the president be, and is hereby authorized and directed to reconvey to said Warwick and William B. Price said lands, and to receive from them said amount of stock, and cancel the same .....The above resolution was adopted by the following vote: In the affirmative, W. C. Moody, James Loveday, James Farmer, and W. B. Price; in the negative, Robert Sanderson. Then adjourned to meet 14th inst., at :9 o’clock a. m. W. B. Price, Secretary.”</p> <p>Sanderson is one of the plaintiffs. .</p> <p>The stockholders, on the same day, at a meeting held by them, confirmed the action of the board of trustees by the-following vote: In the affirmative, fourteen stockholders, representing one hundred and eighty-two shares of stock; in the negative, five stockholders (including plaintiffs), representing sixty shares of stock.</p> <p>The reconveyance of the .land and transfer of the stock were made accordingly, and that action was confirmed by the board of directors on September 14, 1868.</p> <p>At the same time W. and W. B. Price sold their remaining stock to Loveday, and ceased to have any connection with the company.</p> <p>August 28, 1869, the .¿Etna Iron and Nail Company made .an assignment of its property and assets of every kind to E. T. Hamilton for the benefit of its creditors.</p> <p>November 1, 1869, Warwick and William B. Price ■conveyed the lands in controversy to Morrison Foster, and placed him in possession, and he still retains possession.</p> <p>At the November term, 1869, of the Court of Common Pleas of Cuyahoga county, the plaintiffs obtained a judgment against the company for $9,370.24, which remains-unsatisfied of record; and on January 11, 1870, they caused the lands reeonveyed to the Prices to be levied on by virtue of an execution issued on the judgment, there being no other property.</p> <p>It is not admitted in the pleadings that anything is due from the Prices for improvements ; and, although it is admitted in their answer that at the time they transferred their sixty shares of stock to the company, and received a reconveyance of the land, the company was in debt, it is. averred that the company was solvent, and had assets-more than sufficient to pay all its debts. A large amount of indebtedness remains unpaid, but the Prices deny in their answer that the plaintiffs are creditors of the company. The petition contains many other averments, but they are denied in the answer of the Prices.</p> <p>The prayer of the petition is that the judgment may be enforced against the land, and that the land be sold for the benefit of the plaintiffs and other creditors; that, in case-the land can not be so subjected to the payment of the debts, that Warwick Price, William B. Price, and others named, be compelled to account for the value of the property ; and that other and further appropriate relief be granted.</p> <p>Morrison Poster says, in his answer, that he is a purchaser-in good faith, for a full consideration, to wit, $27,000, without any notice of any adverse right or claim on the part of the plaintiffs or the company or on its behalf.</p> <p>The company, by answer and cross-petition, adopts the petition of plaintiffs, and asks that the relief prayed for • may be granted for the benefit of the creditors of the company.</p> <p>Hamilton, as assignee, in his answer, admits the state-merits contained in the plaintiffs’ petition, and prays for a .sale of the property in dispute, or that the Prices be compelled to account for the value of the property, for the benefit of creditors.</p> <p>The district court, at the September term, 1872, dismissed the petition of the plaintiffs and the cross-petition of the -company. The opinion of the court was reduced to writing and adopted as a finding of law and fact, as appears by .a bill of exceptions, to which the opinion is attached.</p> <p>The errors relied on by the plaintiffs are that the finding is contrary to law, and that the court erred in denying the relief, and in dismissing the petition and cross-petition.</p> <p>The company relies on the same errors in its cross-petition in error.</p>

<p>Error to the District Court of Summit county.</p> <p>The action below was brought by the plaintiff against the defendant to recover the sum of $985,934.02, most of which sum was a balance alleged to be due the plaintiff from the -defendant for the. use of rolling stock furnished by the former to the latter, from February, 1872, to December 10, 1874, under an express contract. It appears from the record that the plaintiff was incorporated under the laws of New York on the 31st day of October, 1871, with a board of five directors empowered to manage its affairs ; and that on December 11, 1871, the defendant was organized as a ■consolidated railroad company, under the laws of New York, Pennsylvania, and Ohio with aboard of thirteen directors ¿.that at the date of the organization of the railroad company, the five directors of the rolling stock company, namely, George B. McClellan, Samuel L. M. Barlow, James B. Hodgskins, William Butler Duncan, and Lawrence Wells were elected and became five of the thirteen directors of the railroad company; that said five persons continued to be the sole members of the plaintiff’s board of directors and five of the thirteen members of the defendant’s board until the 11th day of December, 1873, and that one or more of said directors of the plaintiff continued to be directors of defendant until the termination of the contract on which suit was brought.</p> <p>It further appears that on November 6, 187.1, a provisional contract was entered into by James McHenry, purporting to act for the plaintiff, and Leonard John Woodman, purporting to act for and on behalf of the executive committee of the Atlantic and Great Western Railroad Company, by the terms of which the plaintiff agreed to supply to the defendant and the defendant to receive, at an agreed monthly rental, for the period of seven years, from January 1,1872, the rolling stock'mentioned in a schedule thereto annexed, consisting of locomotives, engines, passenger carriages, petroleum tanks, box and coal cars, and such other description of rolling stock and equipment. as the railroad company required, in the operation of its railway. On the 19th day of July, 1872, this contract, with a certain modification, was ratified and adopted by the plaintiff’s board of directors, and on August 2,1872, was, as modified, adopted, and confirmed by the defendant’s board •of directors. It further appears that at the meeting of the defendant’s board, at which said contract was ratified and' confirmed, only eight of the thirteen members were present, two of whom, McClellan and Hodgskins, were directors of the plaintiff. It was averred in the petition, and not denied by the answer, that the plaintiff furnished to the defendant, under said contract, between the dates first above mentioned, a large amount of rolling stock which was used by the defendant in the operation of its railway. And that “ on the 28th day of February, 1874, there was due from defendant to plaintiff, under said contract for the hire of said cars and rolling stock to said date, and insurance paid by plaintiff on account of defendant, over and above all credits then due from plaintiff to defendant, three hundred and six thousand eight hundred and fifty-eight and forty one-hundredths dollars, as appears-by an account stated of said date between defendant and-plaintiff — defendant acting by Thomas "Warnock, its auditor. A true copy of said account stated is hereto annexed,, marked ‘ B,’ and made part hereof. On or about the first day of March, 1874, plaintiff requested from defendant payment of the moneys admitted to be due as aforesaid, which defendant promised to pay.”</p> <p>The answer alleged that the defendant had paid to the-plaintiff', on account of said rolling stock, used by the defendant, for the whole period of its use, from June, 1872, until December 10,1874, the sum of $1,075,085.15, but that the fair rental value of the same for said period was only $875,000, and denied that said contract “ is or should be in any manner binding upon it,” and averred that it was- “ not liable, except for the fair and reasonable value of the-use of said rolling stock.”</p> <p>Plaintiff “ offered and produced to the jury evidence tending to prove that the directors of plaintiff and defendant respectively, in the passage of the aforesaid resolution respectively, endeavored to act for the best interests of the-stockholders and creditors of the respective corporations aforesaid, and defendant offered and produced evidence-tending to prove the contrary.”</p> <p>The plaintiff“ produced to the jury evidence tending to prove that at the rates of rental specified in said provisional contract, as modified by the resolutions aforesaid, there was due plaintiff from defendant for the use of the rolling stock in plaintiff’s said petitions mentioned, over and above all payments made by defendant to plaintiff, and over and .above the rebate by said contract allowed to defendant, more than $700,000, and defendant offered and produced ■evidence tending to prove that the actual value of the use ■of said rolling stock was less than the moneys by defendant paid to plaintiff.”</p> <p>After argument, the court, at defendant’s request, charged &nd directed the jury “that the fact that the said five directors or trustees of plaintiff were five of the thirteen directors of defendant, with the further fact that the aforesaid two directors or trustees of plaintiff were two of the ■quorum of eight directors of defendant who passed said resolution of August 2, 1872, rendered the written or special contract made between plaintiff and defendant as aforesaid in law invalid and voidable at the election of defendant, irrespective of the motives of the said directors of plaintiff and defendant respectively, in their aforesaid .action.”</p> <p>To which instructions the plaintiff excepted.</p> <p>The court thereupon further charged and directed the jury that they were to allow the plaintiff the fair value of the use of all rolling stock furnished by plaintiff to defendant since November 6, 1871, and allow the defendant the' payments by the pleadings admitted to have been made by defendant to plaintiff, and render a verdict accordingly.</p> <p>A verdict was accordingly rendered for the value of such use, on which judgment was rendered, which, on error, was affirmed by the district court. This petition in error is prosecuted to reverse both judgments.</p>

<p>1. An ordinance providing that the cost of improving a street “shall be assessed upon all the lots and parcels of land benefited thereby in proportion to the number of feet front in each,” is not in conformity to or authorized by section 576 of the municipal code of 1869.</p> <p>2. Non-abutting lots and lands are not subject to assessment for the cost of a street improvement, unless the same be designated and the amount to-be assessed thereon fixed by the board of improvements or city council, in pursuance of section 579 of said code.</p> <p>3. For the purpose of apportioning the cost of a street improvement in-proportion to benefits, the council can not require the board of improvements or a committee of freeholders to report an estimated assessment under section 584, until the property to be charged therewith and the amount to be assessed thereon has been determined and fixed in pursuance of section 576, and, if non-abutting property be embraced, of section 579.</p> <p>4. Where the provisions of section 576, as to abutting property, and of 579, as to non-abutting property, are disregarded in proceedings to assess-specially the cost of an improvement, the assessment is invalid, and. the case does not come within the curative provisions of section 550.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>By virtue of an ordinance passed on the 3d of March, 1874, the city of Cleveland, in that year, improved Chestnut Ridge street, from Lorain street to the southerly limits of the city.</p> <p>The ordinance provided that the costs and expenses of the improvement, except the cost of street intersections, should be levied and assessed upon the frontage of the several lots or parcels of land bounding and abutting on said street between the points aforesaid.</p> <p>The plaintiff is the owner of twenty acres of unallotted land, which has a frontage of over 1,200 feet on the west •side of the street improved, and extending back to an average depth of 800 feet.</p> <p>After the improvement was completed, the city, on the 8th of September, 1874, by ordinance, assessed a special tax, payable in five annual installments, at the rate of $3.52 on each foot front, on the abutting lots and lands, for the purpose of paying the costs and expenses of the improvement. The aggregate amount assessed on the plaintiff’s land was $4,359.80.</p> <p>This assessment was certified to the county auditor, who has placed the same on the duplicate of the county as a charge upon the plaintiff’s tract‘of twenty acres of land.</p> <p>Before the first installment of the assessment became payable, the plaintiff commenced an action in the Superior Court of Cleveland against the defendants, to enjoin the collection of the assessment.</p> <p>The grounds upon which the injunction was sought are substantially these :</p> <p>1. That the preliminary steps essential to the jurisdiction of the council to order the improvement to be made were not taken.</p> <p>2. That if the tax is not wholly illegal, it is to such an extent excessive that its collection should be enjoined.</p> <p>If the assessment is held not to be void, but only excessive, then the injunction is asked as to such excess, and the plaintiff says, that if the amount he ought to pay can be ascertained in any way, he is ready and willing “ to pay the same now into court, as well as his proportion of the installments due as those to become due.”</p> <p>By their answer, the defendants deny each and every irregularity, informality, and defect set forth in the petition, relative to said special assessment; and they ask that the petition may be dismissed, and for other proper relief.</p> <p>On appeal, the cause was heard in the district court, and ■a decree rendered dismissing the petition. A motion for a new trial was made and overruled. The plaintiff took a bill of exceptions, setting out all the testimony taken on the hearing, including the recommendations, declarations, resolutions, ordinances, etc., of the board of improvements- and city council, relating to the improvement, assessment, etc., which is made part of the record.</p> <p>By this proceeding the plaintiff in error seeks a reversal1 of the judgment of the district court.</p>

<p>1. The rule of the English common law that the owners of land situate on the hanks of non-tidal streams, though navigable in fact, are owners of the heds of the rivers to the middle of the stream, is not applicable to the owners of land bounding on Lake Erie and Sandusky bay.</p> <p>.2. The right of fishing in Lake Erie and its bays, is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide.</p> <p>3. The prima facie right of the public is not rebutted by proof of the mere uninterrupted enjoyment of the privilege of fishing for the period requisite to perfect a title by prescription ; the mere lawful exercise of a common right for that period does not establish an exclusive right.</p> <p>4. Where no question arises in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation, the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to the line at which the water usually stands when free from disturbing causes.</p> <p>5. A deed conveying land contained a reservation in the following terms: “And the said grantee shall not have the right to sell or remove sand from said premises, nor shall he have the right of fishing in either the lake or bay, the same being expressly reserved by the grantor. The said grantee shall have the right, however, of landing on either the bay or lake shore for other purposes than to take sand, fish, or to carry to and from seines and fishing tackle, all of which rights are exclusively reserved by the grantor, so that he may lease the same or sell the same.” Held, 1. That the attempted exclusion of the grantee by the first clause of the reservation from the right, disconnected from the shore, of fishing in either the lake or bay, is inoperative. 2. The right reserved to the grantor is the exclusive right of landing on either shore to take sand, fish, or to carry to and from the shore seines and fishing tackle to be used in the adjacent waters in direct connection with the shore; and the inhibition against the carrying of fishing tackle to and from the shore by the defendant, has reference to tackle to be used in connection with the shore in contravention of the right reserved to the grantor; and does not forbid the storing of tackle on the premises conveyed, which is not thus used.</p>

It is shown on behalf of the applicant that he is restrained of his liberty by the sheriff of Clinton county, in the jail of the county, by virtue of an order made by Hon. A. W. Doane, a judge of the court of common pleas in and for that county, on an examination had before him under the act of March 2-3, 1875 (72 Ohio L. 79), “ to regulate the practice of the delivery of fugitives from justice when demanded by another state or territory,” set forth at large, ante, 65.

<p>1. The power of a judge to discharge an alleged fugitive from justice, under the act of 1875 (72 Ohio L. 79), is essentially the same as under the habeas corpus act (75 Ohio L. 754).</p> <p>2. The provisions of the constitution of the United States (article 4, section 2) and the act of congress (U. S. Kev. Stats., § 5278), which provide for the extradition of those “who shall fleo from justice and be found in another state,” are confined to-persons who are actually, and not merely constructively, present in the demanding state when they commit the acts charged against them; and in a proceeding on habeas corpus, for discharge from arrest on a warrant of extradition issued by a governor, in compliance with the requisition of the governor of another stjte, parol evidence is admissible to show that there had been no such actual presence of the accused in the demanding state.</p>

The original proceeding was instituted by the plaintiff, Thomas E. Sturgeon, against the defendant, Henry L. Korte, to contest the election of the defendant to the office of probate judge of… Held: that said inmates were legally entitled to vote in said township, and gave judgment for the defendant. To reverse this judgment is the object of the present petition in error.

Motion to dismiss proceedings in error to the District Court of Licking county. The judgment of which the plaintiffs in error (defendants below) complain, was entered against them, at the July term, 1874, of the District Court of Licking county. To obtain a reversal of the judgment so entered, the plaintiffs in error, in January, 1876, on leave being granted, filed a petition in error in this court. The cause was transferred to the supreme court commission for decision.

<p>This court has no power to rehear a cause decided by the late supreme court commission on the ground that the same was erroneously determined.</p>

Appeal. Reserved in the District Court of Lucas county. The original action was brought by the plaintiffs in error against the city of Toledo, under section 557 of the code, to quiet his title to that part of lot No. 309, in Port Lawrence division of the city of Toledo, which was formerly used and occupied as a part of the Wabash and Erie canal.

There are a number of cases known as the “ Bond street assessment cases,” which were argued, considered, and decided together, one decision disposing of them all. All the questions decided are raised in the cases, although it may be that they are not all raised in the Chamberlain case, which is simply a representative ease, and it is reported as such. The facts stated are common to all the cases.

Ineormation in quo warranto. The information charges the defendants, among other things, with usurping the privilege and franchise of charging each consumer of gas, who consumes five hundred cubic feet or more of gas per month, and compelling him to pay, in addition to the price of said gas, thirty cents, more or less, per month as rent for the meter that measures the gas to the consumer. The defendant, in its third plea, justifies the alleged usurpation under its charter.

The original action was brought by Hubbard, the defendant in error, against Sloan, the plaintiff in error, to recover the possession of certain cattle, of which Hubbard was owner, and which he alleged was wrongfully detained by Sloan.

' The original action, which was in the nature of a creditor’s bill, was brought by defendants in error, against plaintiffs in error, to subject certain real estate, being two-tracts of land, containing, in the aggregate, forty-five and a half acres, alleged to be the property of Owen T. Gunning, to the payment of a judgment against said Gunning- and others.

The plaintiff in error was convicted upon an information founded on an ordinance of the city declaring certain offenses, and providing that any person convicted of any such offense “ shall be fined in any sum not exceeding fifty dollars, or imprisonment at hard labor in the work-house, or both, at the discretion of the court, such imprisonment for the first offense not to exceed thirty days; for the second offense, ninety days; for the third offense, six months, and for the…

<p>1. "When ten per cent, of the capital stock of a railroad company has been subscribed, and the corporation has been fully organized under the general acts relating to railroad companies, assessments on subscriptions to the capital stock may he made and enforced, although the whole amount of such stock, mentioned in the certificate of incorporation, may not have been subscribed.</p> <p>2. If a statute in force at the time a subscription to the capital stock of a railroad company is made, authorizes an extension of the line of the road, the subsequent exercise of such power by the company will not affect the subscription.</p> <p>3. Where a railroad company changes aterminus of its road from one county into an adjoining county, under the act of 1872 (69 Ohio L. 163), the mere fact that the route to the new terminus, selected by the company, passes through a portion of a third county, will not invalidate existing subscriptions to the capital stock.</p> <p>4. Where qne having possession of an agreement to take shares in the captal stock of a corporation, after subscribing in good faith for shares of such stock, induces others to subscribe on the faith of his subscription, and subsequently, without the knowledge of the other subscribers, alters the paper by reducing the number of his shares, and delivers the instrument in that condition to the secretary, who is also a director of the company, this will not affect the liability of one thus induced to subscribe, although, at the time of such delivery, the person making the alteration explains the same to the secretary, who makes no objection thereto.</p>

<p>■ Error to the District Court of Mahoning county.</p> <p>The original action was brought by plaintiffs in error, as heirs at law of James Crooks, Sr., against the defendant in ■error to recover the possession of twenty-five acres of land. They also prayed for the sale of the land as upon partition •among themselves, subject to the dower estate of the defendant, and that a certain deed from James Crooks, Sr., to the defendant, under which she claims title, should be ■declared void and of no effect.</p> <p>The defendant, by way of answer and cross-petition, set up the facts hereinafter stated as the findings of the district court, and prayed to be quieted in her possession, and that the claim of right and title in the plaintiffs should, under the order of the court, be released to her.</p> <p>Upon appeal to the district court, the cause was heard upon testimony, on consideration whereof the court found the following state of facts, to wit:</p> <p>That about the year 1827, Anthony Osborn, Jr., then husband of defendant, for $400 obtained from his father a ■deed of conveyance of fifty acres of land, which includes the twenty-five acres described in the petition; that half ■of the $400 remained unpaid; that Anthony, Jr., about two years after receiving said deed, died, leaving said defendant as his widow, and two minor daughters; that defendant, without taking out letters of administration on his estate, or having anything set off to her as widow, or for years support of herself and family, sold off the per.sonalty, and with the proceeds paid the remaining debt due for the land; that without applying to have her dower set off in said land, she continued with her young daughters, supporting herself and them in the possession of said land for a period of about seven (7) years, when she married James ■Crooks, Sr., the father of James Crooks, Jr., and others, plaintiffs herein; that said James Crooks, Sr., with his four minor children, went to live with said defendant (his wife) and her two minor daughters, on said fifty acres, and said James Crooks, Sr., and defendant occupied said fifty acres thenceforward and supported their two sets of children ; that said James Crooks, Jr., one of the plaintiffs, married one of said daughters of defendant, she being one of the heirs of Anthony Osborn, Jr., and entitled to half of said fifty acres, subject to the dower right of defendant, ■said daughter, without having had partition or possession ■of said fifty acres, died, leaving a daughter (grand-daughter ■of defendant), to whom, after her marriage with one Calvin Osborn, by amicable arrangement with said James Crooks, Sr., and defendant, the east half of said fifty acres was set off, leaving the west half of said fifty acres, where the homestead dwelling-house of defendant and James Crooks, Sr., was situated, being the twenty-five acres in ■dispute, still in the occupancy of said James Crooks, Sr., and his wife, said defendant; that said James Crooks, Sr., in further consideration of $255, received a quitclaim deedi from Mary Ann McMillin, wife of Charles McMillin,. daughter of defendant and heir of Anthony Osborn, Jr., of her interest in said land ; that said James Crooks, Sr.,, and defendant (husband and wife) continued to live in said homestead on said twenty-five acres, where she has lived ever since her first husband’s death, and until the death of James Crooks, Sr., which occurred April 13, 1871, and defendant has remained in possession ever since his death and is still in possession ; that previous to the death of said James he made, executed, and acknowledged in due-form of law, stamped and stamp canceled to said defendant as grantee, a warranty deed in fee simple of said homestead, twenty-five acres of land described in the petition, a copy of which deed is substantially given in the petition, the nominal consideration of which is stated therein at five dollars ; that the witnesses thereto, after the apparent date of the deed, in the fore part of March, 1871, at the request of said James Crooks, Sr., grantor, went to his house, and tñere, in his presence, witnessed said deed, and the same was then handed by grantor to defendant to take care of, but nothing was then paid by defendant to him, nor was it then acknowledged nor was any notary or officer present; that afterward, in a few days, Singleton King, the-notary, went to the house of Crooks and defendant and took the acknowledgment of said deed, and made and sealed his certificate; that when said deed was so completed, the same was then put by Crooks into the hands of said King to keep safely till needed; that said King kept the same till the death of said Crooks, and soon after, in a few days, defendant called on said King for said deed, and said King delivered the deed to defendant, and told her to-put the same on record, which she did accordingly on the 20th of April, 1871, and the same was recorded in the proper office and handed to her after record, and she still holds said deed.</p> <p>The court further finds that no actual consideration in money or property passed from said defendant to her said husband at the time of the making of said deed or the delivering to said King to keep. During said trial, said defendant, in her own behalf, was offered, sworn, and testified ■as a witness, and was inquired of as to matters occurring before her husband’s decease, in relation to said deed and the making thereof, to which plaintiffs objected. Said defendant testified that said James Crooks, Sr., in the presence of said King, handed said deed to King, and told him to keep it safely till it was needed — till the proper time ■came; that said James stated in the presence of a Mrs. Irwin and another that he intended to give his wife all he ■had; what little he had left; that she would need it; that ■he had no money to give her, and nothing to compensate •her for her care of him in his sickness, but this property; to which allowance to testify to said matters, and to which testimony as given by defendant, the plaintiffs excepted.</p> <p>The court finds that the facts as above stated, and natural love and affection, constituted the motives, and the only motives, which induced the said James Crooks, Sr., deoeased, to execute said deed to his said wife.</p> <p>The court further finds that said James Crooks, Sr., made said deed and delivered the same to said King to hold and keep till his decease, for the purpose of being delivered to •said defendant, by said King, after his decease; that he intended to give said property to the defendant; intended that she should have the same at his- decease, and took this mode of giving and transferring the same to her and investing her with title.</p> <p>The court find that said deed was delivered to her by said King, after the decease of said James, according to the intention, purpose, and direction of said James Crooks, the .-grantor, and was recorded as such, and that the deed so made, delivered, accepted by defendant, and recorded, was not void, but was and is valid and sufficient as a conveyance to said defendant. It is therefore considered, adjudged, and •ordered that said petition be dismissed; that said defendant be quieted in her title ; and that said plaintiffs pay the costs of this suit, to be taxed, and this cause is remanded to the court of common pleas for execution. To all which rulings, findings, decision, judgment, and order the plaintiffs-except.</p>

<p>1. The constitutional right of a person accused of felony “to appearand defend in person and with counsel,” can not be denied, or its exercise unreasonably abridged; but the court may limit the argument of the accused or his counsel, provided that the accused is not thereby deprived of a fair trial.</p> <p>:2. On the trial of one charged with a felony, eleven witnesses were examined, and the evidence, which occupied half a day in its delivery, was circumstantial and conflicting. The accused was defended by two counsel, who were limited, by the court, to thirty minutes in the argument to the jury: Held, That this was an abuse of power, which prevented a fair trial.</p>

<p>Error reserved in the District Court of Jackson county..</p> <p>The original petition is as follows :</p> <p>“ The plaintiff, Casander Westlake, for her cause of action, complains of said defendants for that said Welling B. Westlake is the son of said Joseph Westlake, and that she was’married to said defendant, Welling B. Westlake, on the 17th day of September, A. D. 1867, in Jackson county,. Ohio, and ever since has been and now is his lawful wife.. 'That on the 21st day of October, A. d. 1873, at said county, •.said Welling B. Westlake was the husband of said plaintiff, and the said Joseph Westlake, well knowing the same, on said 21st day of October, a. ». 1873, and on divers other days and times prior thereto, wrongfully, unlawfully, and maliciously, without any just cause or provocation therefor, in order and for the express purpose of enticing and procuring the said Welling B. Westlake, her said husband, to become alienated in feeling and affection for and disgusted at and with the plaintiff, as his wife, wickedly, willfully, and maliciously spoke of and concerning her, said plaintiff, to her said husband and divers good people, and •cause to be circulated and told to her said husband, for the purposes aforesaid, divers false, scandalous, and defamatory words of and concerning her, the said plaintiff, expressly in order to procure and cause said Welling B. West-lake to believe his said wife was an unchaste woman, and to cause him to become alienated from her and despise and .refuse to live with her, and to induce said Welling B. Westlake to drive and banish her, said plaintiff, from the home, society, and companionship of her said husband, and -.in order to further procure and induce her said husband to •become alienated from her, and drive and banish her from the home and companionship of her said husband, the .said Joseph Westlake promised and proposed to reward the said Welling B. Westlake with property and money if he would expel and drive her, said plaintiff, from his home and companionship ; and the plaintiff further avers that by reason of the false, scandalous, and defamatory words spoken and circulated as aforesaid, by said Joseph Westlake, of and concerning her, this plaintiff, and by reason of the promise of reward by him made to said Welling B. Westlake, and causing the same to be believed .and relied on by her said husband for the purposes afore-said, caused the said Welling B. Westlake to become so ■•alienated and disaffected from and toward this plaintiff as his wife, that the said Welling B. Westlake, on said 21st •day of October, a. d. 1873, against the will and consent of this plaintiff, caused her, this plaintiff, to be removed from the home, society, and companionship of her said husband, .and then and there, by reason of the said conduct and sayings of said Joseph Westlake, the said Welling B. West-lake, against the plaintiff’s will and without her consent, but in compliance with the request, orders, and commands of said defendant, Joseph Westlake, did take said plaintiff, with a small amount of personal property, into a wagon, .and hauled her and said property to the distance of seven miles, and there unloaded and deposited her and said property into a small tenement house on the land of T. C. Mitchell, and from thence, hitherto by reason of the conduct and sayings of said Joseph Westlake, refuses to permit her, said plaintiff, to return to him, said Welling B. Westlake, and cohabit with him as his wife, and refuses to provide for and support her, or to contribute anything toward her support, although said plaintiff has since repeatedly applied to said Welling B. Westlake personally to permit her to return to him as his wife, and to live with him as such. She' further avers that said Welling B. Westlake, •her husband, has no just or other cause to refuse to receive her back as his wife, than the false and slanderous sayings ■and unlawful doings of said defendant, Joseph Westlake.-</p> <p>“ She further avers she is damaged by reason of the premises by said defendant, Joseph Westlake, in the sum ■of five thousand dollars.</p> <p>“ She further says her said husband, Welling B. West-lake, ever since said Joseph Westlake induced her said husband to cause and compel the said plaintiff to leave and be taken away from her said husband, as above averred, the said Welling B. Westlake is unkind to and unfriendly with the plaintiff, and refuses and is unwilling to join with her in this action as plaintiff' against said Joseph Westlake, and plaintiff therefore makes her said husband party defendant with said Joseph Westlake in this action.</p> <p>“Plaintiff’ therefore asks judgment by reason of the premises against said defendant, Joseph Westlake, for her damages so as aforesaid averred and sustained, to wit., for five thousand dollars and for costs.”</p> <p>The defense was a general denial of the facts stated in the petition. There was a verdict for the plaintiff for $1,700.</p> <p>The defendant moved for a new trial on the grounds, among others: 1. That the petition does not state facts-sufficient to constitute a cause of action. 2. That the coux-t ex-red in admitting the admissions of the husband made to-divers persons, in the absence of the defendant, that he was compelled to separate for a time from his wife because-of the interfei-ence of the defendant, Joseph Westlake. 3. That the court erred in i-efusiug to charge the jury as-requested by the defendant.</p> <p>This motion was overruled, to which the defendant excepted.</p> <p>On the trial the defendant took a bill of exceptions setting out all the evidence, from which it appears that the plaintiff, against the objection of the defendant, was pei-rnitted to prove, by several witnesses, declarations of the husband, made in the absence of the defendant, to the-effect that the old man (Joseph) was doing all he could to-separate them (husband and wife), to which exceptions-were saved.</p> <p>It further appears, that the defendant requested the-court to charge the jury as follows: “ If you find that the-defendant, Joseph Westlake, caused the separation, yet you shall not render a verdict for the plaintiff unless you find the defendant maliciously caused the separation.” Which charge the court refused to give, and the defendant excepted.</p> <p>Judgment was rendered on the verdict, to reverse which-the plaintiff in error, Joseph Westlake, instituted these-proceedings.</p>

<p>1. Where the owner of a stone quarry, by blasting with gunpowder, destroys the buildings'of an adjoining land owner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.</p> <p>2. The owner of a stone quarry hired a person “to go into the quarry, quarry stone therein, break the same to a certain size, and pile them up so they can be measured,” and “had no other or further control” over the employe, who was “to furnish and find the gunpowder and other tools,” and receive compensation at the rate of $1 per perch; and the employe, by blasting with gunpowder, destroyed the buildings of an adjoining proprietor: Held, that the employer is liable for the injury inflicted by the employe.</p>

<p>1. The 17th section, as amended February 12,1863 (S. & S. 397), of the act regulating the mode of administering assignments in trust for the benefit of creditors, operates only upon fraudulent transfers, conveyances, and assignments made by the debtor himself.</p> <p>2. An insolvent debtor purchased real estate, and, with the fraudulent intent to conceal from his creditors his interest or ownership therein, caused the vendor to convey the premises to a third person, who, at the debtor’s request, conveyed the same to the latter’s wife: Held, 1. That neither of said conveyances falls within the operation of the 17¿h section of the act above referred to. 2. That the wife, in equity, holds the legal title to the premises conveyed, subject to the right of her husband’s creditors to subject the same to the payment of their claims.</p>

<p>1. The execution and delivery of the bond required by the act of April 6. 1876 (73 Ohio L. 275), and the supplementary act of April 24, 1877 (74 Ohio L. 466), are conditions precedent to the right to exercise the powers which said acts were designed to confer.</p> <p>2. An eviction of the lessees of the public works of the state from that portion thereof known as the Canal Basin, in the city of Hamilton, by the city council of said city before such bond was executed and delivered,, was.wholly unauthorized, and such eviction constitutes no defense to an, action by the state to recover the rent that accrued during the continuance of the eviction.</p>

<p>Motion for stay of execution.</p>

Motion to modify a judgment entered by the late Supreme Court Commission. The petition in error in this case was filed in this court-on November 17, 1874. The object of the petition was to-obtain the reversal of the finding and order of the Superior-Court of Montgomery county, made in a proceeding to distribute among execution creditors the proceeds of the sale on execution of certain personal property.