Volume 35 — Ohio State Reports, New Series

<p>1. The legislature can not create a liability for acts as to which there was no liability when they were committed; hut where a remedy exists, the legislature may change it, as well as to acts theretofore as those thereafter done.</p> <p>2. The act of March 7, 1873 (70 O. L. 53), which provided a new remedy against those who place obstructions in public highways, applied as well to existing obstructions as to those subsequently placed therein.</p> <p>3. A railroad company wrongfully laid its track in a public highway, and' after it had continued the obstruction more than six years, an action was brought against it under the act of 1873. Held, that neither the limitation of four years, nor that of six years, was a bar to the action.</p> <p>4. Under the act of 1873, relating to obstructions in highways, the measure’ of damages, ordinarily, is the cost of removing the obstruction and restoring the highway to its former condition.</p> <p>5. Where an obstruction is created in a state or county road, and the corporate limits of a municipal corporation are extended over a part of the' road so- obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation.</p> <p>6. An action by the county commissioners, brought for the obstruction of a county road, was pending at the time of the passage of the act of March 7, 1873; and on May 81, 1873, the court, by consent of parties, made an order that the cause should stand as though commenced on that day. Held, that the action must be regarded as one prosecuted under the act of 1873.</p>

<p>Quo Warranto. On February 3, 1879, Hon. Isaiah Pillars, attorney-general, filed in this court a petition in the nature of a quo warranto, against Henry 0. Bonnell and others, asking that each of them be required to answer by what warrant he claims to exercise the office of director of Brown, Bonnell & Co., a corporation. An answer and reply were filed, and testimony was taken.</p> <p>On September 13, 1875, Joseph H. Brown, Henry 0. Bonnell, and, others acknowledged the certificate of the incorporation of a company, under the laws of this state, under the name of Brown, Bonnell, & Co. The object of the corporation was the manufacturing iron, mining coal, etc. The capital stock was $1,500,000, divided into fifteen thousand shares of one hundred dollars each. The principal office and place of business was fixed at Youngstown Ohio. It was further provided in the certificate, “ that the annual meeting of the stockholders of such body corporate, for the election of directors and the transaction of such other business as may be lawful, shall be held on the third Tuesday of January in each year.” The certificate was filed and recorded in the office of the secretary of state, on September 16, 1875, and a certified copy was issued in due form by the secretary of state, on the same day; and thereupon the corporation was organized, and it has ever since been engaged in the business for which it was created, the number of directors being fixed at seven. There was no bylaw as to notice to be given of meetings; but in January of each year, previous to the annual meeting, the secretary gave to the stockholders notice of the annual meeting, stating the hour at which it would be held.</p> <p>Meetings of stockholders were regularly held on the third Tuesday of January, in 1876,1877, and 1878, and directors elected, the following persons being chosen at the meeting in 1878: Joseph H. Brown, Richard Brown, Thomas Brown, George W. Hale, Henry 0. Bonnell, Herbert C. Ayer, and "W. Scott Bonnell, each receiving 13,044 votes. They were duly qualified and entered upon their duties as such officers. The meeting in each year was held in the morning, from ten to eleven o’clock, though, in 1877, the meeting was adjourned until two o’clock in the afternoon, when the election was held.</p> <p>Notice of the annual meeting to be held on the third Tuesday, being the 21st day of January, 1879, at half after ten o’clock, a. m., was served by the secretary on each stockholder.</p> <p>On the night of January 20,1879, an action was commenced by Joseph H. Brown and others, against George W. Hale and the corporation, Brown, Bonnell & Go., in the Court of Common Pleas of Mahoning county. In the petition it was stated that twelve hundred and fifty shares of the capital stock, amounting to $125,000, had been issued to Joseph H. Brown, and that he was legally and justly entitled to vote thereon, at all elections for directors of the corporation; but that, on January 15, 1879, said George W. Hale, having obtained possession of the certificates for said shares, fraudulently surrendered them, and procured the company to issue to himself a new certificate for the same shares, and unlawfully caused himself to be placed on the books of the company as the owner of the shares; that said Hale intended to vote on said stock, at the election of directors, on January 21,1879; that the facts had not come to the knowledge of the plaintiffs, until January 20, 1879, at two o’clock, p. m. The prayer was, among other things, that said Hale be restrained from voting on said shares, and that the company be enjoined from refusing to receive Joseph II. Brown’s vote on said shares.</p> <p>The application for an injunction was made to Hon. William T. Spear, one of the judges of the court of common pleas, on the night of January 20, 1879, Peter M. Hitchcock, George W. Hale, Henry 0. Bonnell, Thomas W. Sanderson, attorney of the company, and others being present. The judge, on January 21, 1879, at two o’clock, A. M., allowed a restraining order, in the following terms: “ By consent, all the parties in this action are hereby enjoined from holding any election, or attempting to hold any election, for officers of Brown, Bonnell & Co., and from transferring, or attempting to transfer, any stock of said Brown, Bonnell & Co., until January 22,1879, at ten o’clock, A. m., unless this order is sooner modified or vacated. January 21, 1879. William T. Spear, judge of the court of common pleas.”</p> <p>The arrangement was that the case should be heard, on the application for an injunction, in the afternoon of January 21, 1879. On that day, at two o’clock, p. m., Mr. Sanderson, attorney of the company, obtained the papers at the court-house, and remarked to Judge Spear that the defendants would be ready, and return with their affidavits for a hearing, within an hour. The judge and counsel for plaintiffs remained at the court-house until half after five o’clock, but, the defendants and their counsel not appearing, the judge made the following additional order: “ The foregoing order is continued in force until January 23, 1879, at ten o’clock, a. m., unless sooner modified or vacated, January 21, 1879. William T. Spear, judge of t]ie court of common pleas.” On the same day, Judge Spear informed Mr. Sanderson that this additional order had been made.</p> <p>A few minutes before the additional order was made— that is, about five o’clock on the evening of January 21st — • certain stockholders, to wit, Peter M. Hitchcock, Richard Brown, ~W. Scott Bonnell, Henry 0. Bonnell, James L. Botsford, and Martin Bonnell, met at the office of Brown. Bonnell & Co., for the purpose of “ saving the charter day,” as some of the witnesses expressed it. No meeting had been previously held on that day. A chairman and secretary were chosen, and, without transacting any other business, the meeting was adjourned until ten o’clock the next morning — that is, January 22d. No other stockholder had notice of the meeting.</p> <p>At the meeting on the morning of January 22d, certain proceedings were had, which appear in the records of the corporation as follows: “ On motion of T. ~W. Sanderson, it was resolved to proceed to the election of seven directors to serve for the ensuing year. . . . The whole number of votes east at said election was 4,806, and George ~W. Hale, George M. Ayer, Henry 0. Bonnell, ~W. Scott Bonnell, Herbert C. Ayer, Peter M. Hitchcock, and James L. Botsford each received 4,806 votes. . . . Thereupon, the chairman deelai-ed the above-named persons duly elected directors for the ensuing year.” The meeting then adjourned.</p> <p>The office of Brown, Bonnell & Co. consists of three rooms. The election was held in the room in the rear, which is reached by passing through the other two. After the meeting had organized, Henry 0. Bonnell, Peter M. Hitchcock, and their associates, saw Henry Crawford, Herbert 0. Ayer, and Henry I. Higgins, whom they knew to be stockholders, in the middle rooms, where they remained a few minutes and went away. Soon after they had gone, the chairman went to the front office and announced that if any stockholders of Brown, Bonnell & Co. were present, they could now come forward and vote for directors. Crawford, Herbert 0. Ayer, and Higgins, when they were present in the middle office, thought Henry O. Bonnell and his associates, in the back room, were preparing affidavi ts to resist the injunction, and none of them suspected that to hold an election was contemplated, until they were informed of the election after it had been actually held. Other stockholders, who had been in Youngstown since January 20th, were not notified of either meeting. This Henry O. Bonnell, Peter M. Hitchcock, and their associates, well knew. As Henry O. Bonnell stated in his testimony, “ no special pains were taken to give them notice.”</p> <p>On the trial of the case of Brown and others against Hale aud others, the court of common pleas, on March 5, 1879, found and adjudged in accordance with the petition, and made the perpetual injunction prayed for, and the defendants appealed to the district court, where the cause is now pending.</p> <p>Herbert C. Ayer has declined to accept under the election of January 22, 1879, and George ~W. Hale neither accepts nor rejects the office. The others elected at that time claim by virtue of such election.</p>

<p>Error to tbe District Court of Huron county.</p> <p>The original action was brought by the plaintiff’, as trustee of' Clarissa Gallup, to recover the possession of sixty-seven acres of land, in the occupancy of the defendants in error, Henry and Sarah Brown, who were husband and wife. The petition alleged that the plaintiff’, as such trustee, had a legal estate in the premises and was entitled to the possession thereof, and that Brown and wife unlawfully kept him out of possession.</p> <p>The defendants, by joint answer, denied that the plaintiff’ had any legal title to, or was entitled to the possession of, the premises, or that they unlawfully held possession thereof. Eor further answer and cross-petition, the defendants alleged that David M. Benedict, a brother of said Clarissa Gallup, while living, and who died in 1888, was seized, in fee simple, of divers parcels of real estate, including the premises demanded, and that, by his last will and testament, he devised to his brother, Jonas B. Benedict, then in life, one equal fourth part of all his estate, real and personal, remaining after the payment of his just debts and funeral charges, to be owned and held by said Jonas B. in his own right; that said testator also devised one equal fourth part of his remaining estate to the said Jonas B., and to his heirs and assigns forever, upon the trust and confidence that he should place all moneys, and the avails of the other personal estate so bequeathed in trust, at interest on good security, or invest the same in stocks, at his discretion, and lease or occupy the real estate devised so in trust, and annually or offcener pay the interest, dividends, rents, profits, and annual income thereof to the said Clarissa Gallup, who was then, and still is, the wife of Hallet Gallup, and which payment was to be made separate from, and independent of, all control of the said Hallet during said Clarissa’s coverture, and if the said Clarissa should survive said Hallet, or at any time be divorced from him, theii upon said divorce, or at the death of said Hallet, the said Jonas B., as trustee, was directed to pay, transfer, and convey all said moneys and estate to the said Clarissa, and to her heirs and assigns forever; hut if tlie said Hallet should survive the said Clarissa, and she should not be divorced from him, then, at her death, the said trustee should pay, transfer, and convey all said moneys and estate to the children of the said Clarissa and their legal representatives — it being the purpose and intent of the said David M. that said Hallet should, in no event, have any beneficial interest in the estate of said David M., and should receive no part of the said interest, dividends, rents, profits, or annual income, or any of the avails of said estate, but the same to be paid to the said Clarissa, and for her sole and separate disposal during coverture.</p> <p>In September, 1846, an amicable partition was made of the greater portion of the real estate devised by said David M. Benedict, and on that day Jonas B., and Hallet and Clarissa, executed to each other their respective deeds of quitclaim, said Hallet and Clarissa receiving a release of Jonas B.’s title to the premises in controversy, as well as to other lands. That at the date of said conveyance the said Hallet and Clarissa were cohabiting as husband and wife, and then had and now have the fob lowing children only, to wit: Catharine, Carroll, Maria, Sarah, Caleb, and Elizabeth.</p> <p>' That in October, 1847, said Hallet and Clarissa conveyed said premises to William F. Kittridge, “ to hold to him, the said Kittridge and his heirs, for and during the life of the said Hallet, upon the trusts, to wit: 1st. To protect and preserve the property described, and to pay the taxes and expenses of the trust. 2d. To pay the rents of the realty and the accruing interest of the personal property to the said Clarissa, during her life, for her separate use. 3d. If the said Clarissa shall die before the said Hallet, then to pay the rents, profits, and accruing interest to the surviving children of the said Clarissa, while the trust shall last. 4th. On the death of said- Hallet, to surrender, deliver, and pay over the property he may hold, to said Clarissa, if living, and to said children if she be dead.”</p> <p>That said Kittridge never took possession of the premises, but the same remained in possession of said Clarissa until February, 1851. That prior to this date, upon a petition for that purpose, to the Court of Common Pleas of Huron county, the proceedings in partition were confirmed, and the partition, as made, was decreed to be just and equitable, and all the parties quieted in their title to the lands set off and aparted to them respectively.</p> <p>That the “ defendant, Sarah Brown, is the daughter of said Clarissa, and long before the 15th day of February, 1851, had become the wife of said Henry Brown; that said defendants were then and have long been residing in said Norwalk, where the said Clarissa was also residing. That said Clarissa was very desirous that said defendants should continue to make said Norwalk their place of residence, instead of removing therefrom, as they then contemplated doing; and as an inducement to the defendants so to continue their residence in said Norwalk, the said Clarissa, repeatedly, prior to the said 18th day of February, 1851, proposed to the defendants that she would appoint, set apart, and give over to said defendants the use, possession, and enjoyment of said premises mentioned in said petition, and so far as she was in law competent to do the same, would sell and convey to said defendants said premises, so that they might build upon, improve, and make the same their permanent home, and to the extent of fifty acres thereof, to make an advancement of the same to said Sarah Brown, regarding the same, then worth only about fifteen hundred ($1,500) dollars. That in pursuance of said proposition of said Clarissa, which was accepted by said defendants, a contract and agreement was prepared and executed by and between the said Clarissa and said Henry Brown, on the said 18th day of February, 1851, for the sale of the premises to said defendants at the price of twenty-one hundred ($2,100) dollars. Fifty acres of said premises being regarded as an advance to said Sarah Brown out of said property so left to said Clarissa and her children, and the price thereof to be deducted from said sum of twenty-one hundred ($2,100) dollars. .That a correct copy of said agreement is hereto attached, marked ‘ A,’ and made a part of this answer. That said agreement was fully approved by those of said children of said Clarissa who were then old enough to understand its purport. That said agreement was entered into by the said contracting parties in the utmost good faith, and in the belief that said Clarissa had the right to place said Brown and his wife in the exclusive possession of said premises, and the further right to sell and dispose of her contingent interest in the same.”</p> <p>The defendant further stated, that in pursuance of said agreement, they entered into possession of said premises, and made improvements thereon of the value of $10,000. That thereafter, to carry out said contract, all of said children of said Clarissa, except one, in consideration of advancements to them by said Clarissa, executed a conveyance of their interest in fifty acres of said premises to said Sarah.</p> <p>That in March, 1848, said Kittridge resigned his trust, and said Henry Brown, was appointed in his stead. That Brown continued trustee until November, 1861, when h«'i resigned, and the plaintiff was appointed. That Kittridge, not having conveyed the title to Brown, under an order of court, conveyed the same to Preston, after the latter was appointed trustee. That before the action was brought, Brown tendered to Preston the amount due for the seventeen acres of said land, which he refused to receive.</p> <p>The defendants prayed that the children of said Clarissa might be made parties defendant, and that on the “ final hearing of the case, said defendants may be quieted in the peaceable possession of said sixty-seven acres of land, and that they, or such of them as may be found entitled, may be invested with the full and complete title to said premises, and have such other relief as they may be found deserving.”</p> <p>The following is a copy of Exhibit “ A: ”</p> <p>“Articles of agreement entered into between Clarissa Gallup of the first part and Henry Brown of the second part, witnesseth that the first party agrees to sell and convey to the second party, his heirs or assigns, the following described parcel of land, to wit: Sixty-seven acres of the south-east part of lot number ninety-five, in the fourth section of the township of Norwalk, Huron county, Ohio, and being the whole of that part of said lot.number ninety-five, partitioned and quitclaimed to the first party by Jonas B. Benedict, except 13.84 acres contained withiu the limits of the corporation of the village of Norwalk. For the consideration of the sale of the above premises the second party agrees to pay -and allow the sum of twenty-one hundred dollars, and pay the same in five years from the date of this agreement with interest thereon annually, and the taxes to be assessed on said land. It'is hereby understood that first party intends that fifty acres of the above mentioned land shall be given to Sarah Brown, wife of the second party, as an advance toward her portion of the estate of David M. Benedict, deceased, by whose last will and testament the said lands were acquired. Furthermore, I, the said Clarissa Gallup, hereby manifest my desire that each aud all of my children shall ratify and confirm this my contract, aud all and each of them (excepting my daughter Sarah, aforesaid) are to execute releases or quitclaims of their respective interests in said land to said second party or his heirs and assigns, and in case of failure of any one or more of my children to execute such release or quitclaim, then I devise as my last will and testament that my administrator or executor shall pay and apply out of my estate a sufficient amount to indemnify said second party, his heirs or assigns, against any loss or damage to. be by him or them sustained in consequence of the neglect or refusal of any one or more of my children to execute such release or quitclaim, and the same to be charged to the portion of such as neglect or refuse to execute releases, in the equal division of my estate.</p> <p>“ Clarissa Gallup, [seal.]</p> <p>“ Henry Brown. [seal.]</p> <p>“ Norwalk, February 18th, 1851.”</p> <p>To the cross-petition the plaintiff demurred for want of facts sufficient to constitute a defense to the action. The court of common pleas sustained the demurrer and dismissed the cross-petition. From the judgment of dismissal,' the defendants appealed to the district court, where the demurrer was sustained, but without rendering a final judgment, the cause was remanded to the court of common pleas for further proceedings.</p> <p>In the court of common pleas the issue at law was next tried, resulting in a judgment for the plaintiff’. On the trial the plaintiff traced his title to the premises from David M. Benedict, through the various conveyances and proceedings set out in the cross-petition. After verdict and judgment in favor of the plaintiff, the defendants made application to the court for the valuation of improvements, and assessment of damages, under the statute for the relief of occupying claimants; and the court being of the opfinion that the defendants were entitled thereto, ordered further proceedings to be had agreeably to the provisions of the statute, to which order the plaintiffs excepted. Thereupon, a jury was impaneled to make a just and true assessment of the value of the lasting and valuable improvements made upon said premises by said defendants, and reported the assessment made at $10,000. Whereupon the plaintiff’ moved to sel the same aside, for the reason, among others, that said defendants were not entitled to the benefit of the provisions of said act. On this motion the facts stated by Brown in his cross-petition were put in evidence and considered. The motion was overruled and an exception taken. A bill of exceptions was allowed setting out all the testimony heard upon said motion, and, on petition in error to the district court, the order overruling the motion was affirmed. A petition in error is now filed by the plaintiff to reverse such judgment of affirmance and the order of the court of common pleas refusing to set aside the assessment.</p> <p>In Jan u ary, 1878, the defendants, upon leave of court, filed their petition in error in this court to reverse the order of the district court sustaining the demurrer to said cross-petition. Both petitions in error are here heard together. It appears from proceedings instituted in this court for revivor, that Hallet Gallup died in July, 1877, and Mrs. Gallup in January, 1878; and that before her death, and after the death of her husband, the trustee conveyed the trust property to her, in pursuance of the directions of the will.</p>

<p>1. A policy required immediate notice, and proof of loss within thirty days. The notice was given, and a protest made out on the day the loss occurred, which was afterward handed to the insurer’s adjuster when he came to investigate the loss, who made the objection that it did not state the cause of the loss, but went on and made a full investigation, after which he told the insured that he did not think the insurer would pay, as he had shown no cause of loss, and that it must have been from unseaworthiness of the boat or negligence; but promised that after he made his report he would write and inform him whether the insurer would pay; and he reported all the facts, whereupon the insurer decided that it was not liable, and so informed the agents through whom the insurance was affected, without stating the ground of the decision, and the adjuster did not write to the insured as he had promised. Held, that whether there had been a waiver of proof of loss by the insurer, was properly left to the jury, under appropriate instructions.</p> <p>2. Where a vessel is lost by a peril insured against, the insurer will be liable, although the loss might have been avoided by the exercise of proper care on the part of' those in charge of the vessel at the time of the loss.</p>

<p>1. On a charge of larceny it is not necessary to the conviction of the accused that he should, at the time of taking the property, have known, or have had reason to believe he knew, the particular person who owned it, or that he should have had the means of identifying him insianter.</p> <p>2. Lost property which has not been abandoned by the owner, is the subject of larceny by the finder.</p> <p>3. The finder is not hound to make search for the owner. His belief, or grounds of belief, in regard to finding the owner, is not to be determined by the degree of diligence that he may be able to use to accomplish that purpose; but by the circumstances apparent to him at the time of finding the property.</p> <p>4. Where, at the time of finding the property, he has reasonable ground to , believe, from the nature of the property, or the circumstances under which it is found, that, if he does not conceal but deals honestly with it, the owner will appear or be ascertained, he will be guilty of larceny, if at the time of taking the property into his possession, he intends to steal it.</p>

<p>Error to the Court of Common Pleas of Ricbland county.</p> <p>In an indictment in the Court of Common Pleas of Rich-land county, it was charged that John Hiltabiddle, on July 4, 1878, at the county of Richland, assaulted the prosecutrix, and committed a rape upon her.</p> <p>On the trial at the March term, 1879, it was proved that at the time stated in the indictment, the prosecutrix was eight years and four months, and the plaintiff in error thirteen years and nine months of age.</p> <p>The assault and penetration, rupturing the hymen, were proved.</p> <p>The verdict ivas guilty; a motion for a new trial was overruled; and it was ordered that the defendant be taken to the reform farm of Ohio, “ and there to be kept until he arrives at full age, unless sooner reformed.”</p> <p>A bill of exceptions, setting forth the evidence and the charge given and refused, was made part of the record.</p> <p>The mother of the prosecutrix testified that she examined the child’s clothing, very soon after the outrage was committed, and that there “ was a stain on the back and front part of her panties — on the seat and partly in the front— right where the panties come up to her privates. It was yellowish and mixed with blood.”</p> <p>Dr. Craig (28 years in practice) testified that “ a boy of •defendant’s age might have an emission, but that it might not be seminal fluid. Whether it would be seminal fluid ■or mucous could only be told by the microscope.”</p> <p>Dr. Patterson (22 years in practice) testified : “ Puberty ordinarily arrives at fourteen. They have sexual desire before this. Maybe an emission when there is the absence •of spermatozoa.”</p> <p>Dr. Irvin (18 years in practice) examined the plaintiff in error during the trial, and testified : “ I made an examination of his sexual organs, and found his organs those of an infant. Do n’t think he can emit semen now. Do n’t think hie could on the fourth of last July. Do n’t think it was possible for him to have emitted semen on the fourth of last July. He has no hair under his arms. He is not above, but rather under the common run of boys at his age. Boys in this climate, in this part of Ohio, rarely reach puberty until they are between fourteen and fifteen years of .age. Not frequent that boys reach puberty in this part of •Ohio before they are fifteen years of age.”</p> <p>The plaintiff in error testified that he never had an emission of any sort.</p> <p>This is all the evidence to the point in controversy.</p> <p>The court charged the jury, among other things, as follows : “ To constitute carnal knowledge, there must be both penetration and emission. Both of these elements are necessary in the crime of rape. I am requested to instruct you, that if you find from the evidence, that the defendant was under the age of fourteen years at the time of the alleged rape, it is a presumption of law that he is incapable of committing the crime. This is true, and this presumption arises from human experience, and the result ascertained, that an infant under that age is ordinarily incapable of committing this crime; that the sexual organs of the male are ordinarily not sufficiently developed at that age to accomplish penetration and emission of seminal fluid. But "this presumption becomes weaker and weaker as the male approaches the age of fourteen years, and as soon as he arrives at that age, the presumption changes, and the probability and the presumption then is, that such male is capable of' committing the crime, and has arrived at the condition of puberty. ... I say to you, as matter of law, that if' you find the defendant, incited by sexual desire thereto, had sexual connection with the prosecuting witness, forcibly and against her will; that at the time he was of the age of' fourteen years, less three months and two days only ; that the sexual organs of the defendant were then so developed that in and by such sexual intercourse, he accomplished the rupture of the hymen of the prosecuting witness by penetration; and that there was then and there sexual emission on his part — at or about the time stated in the indictment — this is sufficient to constitute the offense, and in that case you should find the defendant guilty, unless the-defense satisfies you that the fluid there emitted was not germinal and did not contain seed.”</p> <p>Exception was taken to the charge at the time, and the-plaintiff in error relies for grounds of reversal on the error-in the charge.</p>

<p>Error to the District Court of Van Wert county.</p> <p>George C. Williams, as administrator of the estate of Orlando Meals, brought an action against the plaintiff in error, Squire Darling, under the act of March 25, 1851 (2 S. & C. 1139), for causing the death of Meals.</p> <p>The petition alleged, among other things, that death was caused by malicious stabbing, and that Meals left a wife and five children. Prayer for judgment in the sum of $10,000.</p> <p>The answer denied that the defendant caused the injury, and, secondly, alleged that whatever injury the defendant below inflicted on the deceased was done in self-defense.</p> <p>The matter set up in justification was denied by the reply. A tidal was had, resulting in a verdict, for the plaintiff below, in the sum of $3,000.</p> <p>On the coming in of the verdict the defendant moved for a new trial on the following grounds :</p> <p>1. Because the court erred in its charge to the jury.-</p> <p>2. Because the court erred in refusing to charge as requested by the defendant.</p> <p>3. Because the verdict is contrary to the law of the case.</p> <p>4. Because said vei’diet is contrary to the weight of evidence.</p> <p>The motion was overruled, judgment entered, and an exception taken.</p> <p>From the bill of exceptions setting out all the testimony and the chai’ge of the court, it appears that evidence was given by the plaintiff below, tending to show, that on the 11th of June, 1874, while the deceased was engaged in driving a calf belonging to him out of the defendant’s barn-yard, a hog belonging to the defendant escaped into the public highway, which the deceased undertook to drive hack; and while engaged in so doing, the defendant went out to the barn-yard gate, and after some angry words passed between the two, the defendant moved towrnrd the deceased with clenched fists, whereupon, the deceased knocked him down. The defendant got up, moved toward the deceased again, and was again knocked down. Whereupon, the defendant drew a pocket-knife and stabbed the deceased, inflicting a fatal wound from which he died in less than an hour.</p> <p>Testimony was given by the defendant and his wife, the latter witnessing the transaction, tending to show that the deceased was the assailant, and that he approached the defendant and knocked him down three times, and that after the defendant got up the third time he started for his house, and that the deceased being immediately behind him striking and kicking him, he, to save himself from further serious bodily harm, drew his knife, and struck back at the deceased, inflicting the fatal wound. At the conclusion of the testimony the defendant prayed for the following instructions to the jury: That if, from all the circumstances attending the causing the death of the intestate, Orlando Meals, the jury shall find that the said Orlando Meals was at fault, and guilty of negligence, directly contributing to the injury which caused his death, then the plaintiff is not entitled to recover, and the defendant is entitled to your verdict.</p> <p>The court declined so to charge, to which the defendant excepted.</p> <p>After reading to the jury the statutes under which the action was brought, the court, among other things, gave the following instructions:</p> <p>“ It is to be observed, first, that this case is to be tried in the same manner, and is to be governed by the same principles of law, as if the said Meals had not died of the injuries, and had commenced an action for the recovery of ■damages for these injuries; or, in other words, that this action can be sustained under such state of facts, and under such state of facts only, as would have entitled Orlando Meals (had he lived) to have maintained an action, and recover damages for the injuries which caused his death.</p> <p>“ If, for instance, Meals had been wounded, and had not died of his wounds, and had brought an action against Darling, for damages, if it appeared that Meals had made the first assault, and this defendant had repelled it by force, ■employing no more force than was necessary to protect himself, the plaintiff, Meals, could not recover; but if the ■defendant, Darling, went unnecessarily beyond this, and employed force entirely disproportionate to the attack, such as to show wantonness, malice, or revenge, he himself would become a wrong-doer, and would be liable for injuries inflicted beyond what was reasonable and necessary.”</p> <p>To the instruction that the plaintiff could recover if the deceased made the first assault, the defendant excepted. '</p> <p>The court further charged “it seems now to be well settled that, to justify the taking of the life of the assailant when attacked, there must appear to the satisfaction of the jury : First. That the defendant, if assaulted without any wrong or fault on his part, honestly and truly believes that he is in imminent danger of his death, or of great bodily harm; and if, secondly, he has just and reasonable cause to apprehend such danger, which he can not avoid without taking the life of his adversary, he is excusable.” To which the defendant excepted.</p> <p>The court, at the defendant’s request, further charged as follows :</p> <p>“ That every person has the right to defend himself against attacks, or threatened attacks, of such character as would endanger his life or limb, or to do him great or serious bodily injury, even to the taking of the life of the assailant; and where a person apprehends that another is about to do him great bodily harm, and has reasonable grounds for believing the danger imminent, he may safely act upon such apprehension, and even kill the assailant, if that be necessary, to avoid the apprehended danger.</p> <p>“ That the necessity which permits, in law, the taking, of life in self-defense, may be either apparent or real. It is real when there is actual danger to life, or great bodily harm ; it is apparent when the circumstances, at the time of taking life, to a reasonable mind, indicate the presence-of actual danger to life, or great bodily harm, though there-is, in fact, none.”</p> <p>On petition to the district court, the following errors-were assigned:</p> <p>1. That said court erred in its charge to the jury.</p> <p>2. That the said court erred in refusing to charge the jury as requested by the said plaintiff in error.</p> <p>8. That the said court erred in overruling the motion to-set aside the verdict and grant a new trial.</p> <p>The judgment was there affirmed, and it is now sought to-reverse it.</p>

<p>1. Under section 2 of the act of April 30, 1868 (65 Ohio L. 260), which provides for an election of a superintendent of the irreducible school fund, created and established for that part of Warren county which lies within the Virginia military district, “ by the members of the boards of education of the several townships, parts of townships, separate and special school districts in that part of the county of Warren entitled to said fund,” each member of the several boards of education whose districts are composed of territory in whole, or in part only, within the military district, and entitled to share in the fund, is entitled to vote at such election, whether such member resides within the military district or not.</p> <p>2. By the same section it is made the duty of the auditor of the county, on. a specified day, and in the presence of the clerk of the court of common pleas and probate judge, “ to open, count, and declare the result” of such election from “returns signed, sealed, and delivered by the clerks of the several boards of education” to him before the next'Monday after said election. But such auditor will not be compelled by mandamus to count returns delivered to him unsealed or sent to him by mail without any disclosure of contents, and opened by him in the-absence of the clerk and judge previous to the day specified.</p>

<p>Error to the Court of Common Pleas of Huron county;</p> <p>The plaintiff in error, defendant below, was convicted in. the Court of Common Pleas of Huron county, on an indictment, containing a single count, charging him, as agent of Thomas B. Poster, with the embezzlement of certain sums of money belonging to Poster, which, it was alleged, had come into his possession by virtue of his employment as such agent, from divers persons^ to wit: the sum of $50.00 received from one A. W. Maynard; $74.00 received from one John Scott; $70.00 received from one H. Gambie; and $72.00 received from one John Baxter. The sum found by the jury to have been embezzled was $47.50. .</p> <p>The record shows that Durston, Wood & Co., of Syracuse, N. Y., being the owners and holders of certain promissory notes executed by Maynard, Scott, Gambie, and Baxter, respectively, indorsed and transfered the same to said Poster, of same place, without consideration, and for the purpose of collection merely," and that Poster transmitted the same, by mail, at different times, to the defendant below, for the purpose of collection. The defendant, who resided at Huron county, Ohio, accepted the employment, and undertook the collection in consideration of a certain percentage of the amount collected.</p> <p>The testimony offered on behalf of the state tended to prove that the Maynard note, calling for $65.00, was transmitted to the defendant on the 4th day of October, 1876; the Scott note, for $68.93, November 28, 1876; the Gambie note, for $69.00, December 18, 1876; and the Baxter note, for $-, February 21, 1877.</p> <p>The testimony, on the part of the state, also tended to prove that the defendant received the sum of $50.00 from Maynard, at Huron county, on the 3d'of November, 18.76; the sum of $10.00 from Gambie, at Seneca county, on the 26th of January, 1877, and the amount of the Scott note at a time and place not stated.</p> <p>On the 4th of January, 1877, the defendant wrote to Poster that Maynard’s note had been left with a justice of the peace, and that the judgment therein would likely be stayed for nine months, and that he need not expect that money (with some other money named) before the end of nine months.</p> <p>On the 20th of September, 1877, Poster, by letter, directed the defendant to deliver to Hurston, Wood & Co., all the notes, or proceeds of notes, sent to him for collection ; and afterward, about the 22d of December, 1877, one Griffin, the attoi'ney of Durston, Wood & Co., demanded of the defendant the notes or proceeds, at which time, the defendant admitted the receipt of the moneys above mentioned, and also admitted that he had converted the same to his own use. Shortly after this demand, and upon the failure of the defendant to account, this prosecution was commenced.</p> <p>At the close of the testimony on the part of the state,.the defendant moved the court to require the prosecuting attorney to elect on which of the. transactions stated in the indictment, and which the testimony tended to prove, the state would proceed and rely. This motion was overruled, and defendant excepted.</p> <p>Such further statement of the case as is necessary to understand the points decided, will be found in the opinion.</p>

<p>1. The general rule of evidence is, that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.</p> <p>2. Upon an indictment for unlawfully using an instrument upon the person of a woman, with intent to destroy a vitalized embryo, in consequence of which she died, her dying declarations are inadmissible. '</p>

<p>Error to the District Court of Jackson county.</p> <p>Motion of Orlando M. Anthony and others, defendants in error, for leave to file cross-petitions in error.</p>

<p>1. In an indictment for obtaining goods by false pretenses, the pretenses^ consisted of representations by the accused of the value of several stocks of goods he owned, of the amount of his indebtedness, and of' the amount that he was worth: Held, That negative averments in the-indictment, which, in effect, merely deny the representations to be literally true, but which do not negative their substantial truth as a means whereby the accused obtained credit in the purchase of goods, are bad.</p> <p>2. Where, in such an indictment, the only description of the property is “ a. certain lot of dry goods,” the description is insufficient.</p>

On January 3, 1874, Cynthia Myers brought suit in the Court of Common Pleas of Hardin county, against William, John, and Charles Kirchner.

<p>Error to the District Court of Mahoning county.</p> <p>On the 2d day of April, 1874, Catherine Cobb, a married woman commenced a civil action against the Lawrence Railroad -Company to recover damages for an alleged injury to her lot and dwelling-house by reason of the construction of the defendant’s road.. The defendant’s road was constructed in 1865 and 1866 on the center of a public highway upon which the plaintiff’s lot abutted, and the alleged injury was caused by an excavation in front of the lot, whereby access to the lot was destroyed, etc. It was also alleged that the continued operation of the railroad from the time of its construction to the commencement of the action had destroyed the street as a public highway, to the injury of the plaintiff’s property. The defendant filed an answer, among other things, denying that the plaintiff’was the owner of the lot, and that she was a married woman. The issue was tried by a jury, which rendered a verdict'in favor of the plaintiff’ for $475.08. On the overruling of a motion for a new trial, the defendant filed its bill of exceptions, setting out all the testimony and a part of the charge. The part of the charge excepted to was as follows :</p> <p>“ If you find that the plaintiff was a married woman at the time the railroad was constructed, and so remained until the commencement of this suit, then she would not be barred from recovering, because this suit was not brought within two years from the completion of the railroad at the place in question, nor would the statute of limitations bar her from recovering; that to prove the marriage of the plaintiff, it is not necessary that there should be record evidence of her marriage, or that persons should testify that they saw the wedding ceremony performed, but it would be sufficient if you find that plaintiff and Mr. Cobb lived and cohabited together as husband and wife, and raised children.</p> <p>“ To entitle plaintiff to recover, it is not necessary to show a connected chain of title in her, back to the original proprietors of the land, but if you find that the railroad was built and has been kept up without any authority obtained by the defendant, then if you find that the plaintiff has been in the possession and occupancy of this house and lot for some time prior to the building of this road, and up to this time, and if you find that the plaintiff has a quitclaim deed of the land, this is sufficient evidence of title to enable plaintiff to recover, though there may be' no evidence of perfect paper title in plaintiff.</p> <p>“ If you find for the plaintiff*, in estimating the amount of damages, I do not say that you should compute interest, but I do say you may consider the length of time which she has been kept out of her money.”</p> <p>The chief contention by the plaintiff* in error against the judgment below, is based upon alleged errors in these instructions.</p>

<p>Where the form of a promissory note, with blank spaces, payable to payee or bearer, was printed, and. after the spaces were filled, the maker signed his name in front of a device consisting of a bracket and the word seal therein, thus, “[seal,]” which device was also a part of the form and. •was printed in ink — Held:</p> <p>1. That the device mentioned is a “scrawl seal,” and under the statute of this state has the effect of a common law seal.</p> <p>.2. That by affixing his signature in front thereof, the maker adopted the device as his seal.</p> <p>3. Such a sealed note is only negotiable by virtue of the statute which requires the negotiation to be by “ indorsement thereon.” S. & C. 862.</p> <p>4. In an action on such a note in the name of the holder to whom it was transferred by mere delivery, the maker may set up any defense he could have made against the payee.</p>

Omitting the formal parts, the original petition in the case is as follows : “ Plaintiff says that on or about the 10th day of September, a. d. 1873, the defendants were the owners of and in possession of a certain crop of grapes — to wit, at Clermont county, Ohio, on the premises of defendants — then in readiness to be harvested and for market. “Plaintiff says that the defendants then and there, in consideration of the promises of the plaintiff hereinafter made, sold, and…

<p>1. A judgment for a sum greater than the amount due upon the cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error.</p> <p>2. Sections 3Tl and 378 of the code of 1853, authorizing a judgment without pleadings, apply only to a proceeding wherein the debtor appears personally in court and confesses judgment.</p> <p>3. Where money is loaned at the highest rate of interest allowed by law, a contract to pay a sum in addition to'such rate in consideration of an extension of the time of payment is usurious.</p>

<p>1. A judgment rendered on a special finding of facts made by the court may be reviewed on error, although such finding was not made at the request of either party.</p> <p>2. The holder of a promissory note, accepted in good faith, from one of the principal makers thereof, who, to the knowledge of the holder, was insolvent at the time, a conveyance of a parcel of land in payment of the note. Subsequently, and within four months from the time of the conveyance, the holder of the note, on demand therefor, surrendered the property conveyed to an assignee in bankruptcy of the grantor: Beld, That such conveyance did not operate as payment of the note, nor to discharge a surety thereon.</p>

<p>1. Although there may have been no manual delivery of a deed, nor any thing- said, in terms, about its delivery, yet the fact of delivery may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument.</p> <p>2. "Where real estate is conveyed by a husband to his wife, through the intervention of a trustee, the destruction of the unrecorded deeds by the husband, with the assent of the wife and the trustee, will not, of itself, estop the wife, as against the grantor’s heir, to claim the land under such conveyance.</p>

The indictment against the defendant contains eleven counts. The indictment was demurred to generally, there being no reference in the demurrer to the particular counts. The demurrer was overruled. On the trial the defendant' was convicted on the second count, and acquitted on the remaining counts. The arguments in the case relate to the second count, which is the only one passed upon by the-court.

<p>Error to the District Court of Wood county.</p> <p>Wright, Taylor & Co. brought a civil action in the Court •of Common Pleas of Wood county, against A. E. Smith, and caused him to be taken into custody on an order of arrest in the action ; whereupon, Henry Coller and James Y. Owens executed, and the sheriff approved, an undertaking, dated May 13, 1873, which, after reciting the commencement of the action, the amount demanded, and the arrest, contained the condition, that they, said Coller and Owens, did thereby undertake to said Wright, Taylor & Co., in the sum of $671.50, that said Smith, if judgment should be rendered against him in the action, would render" himself amenable to the process of the court thereon, or in default pay the condemnation money and costs.</p> <p>At the September term, 1873, judgment in the action was rendered against Smith for $347.60 and costs; and thereupon an execution against the property and body of Smith was issued, of which writ, on January 7,1874, the sheriff made due return that he could find no property of Smith, nor could his body be found.</p> <p>On February 6, 1874, Wright, Taylor & Co. brought a civil action in the Court of Common Pleas of Wood county, against Coller and Owens, on the undertaking, setting forth in the petition all these facts, and praying for judgment.</p> <p>A summons was issued and served, the return day being February 16, 1874.</p> <p>On March 7, 1874, which was the day named in the summons for the answer, the defendants filed a demurrer to the petition, which was submitted.</p> <p>On March 15, 1875, the demurrer was overruled, with leave to answer by April 3, 1875, and the cause was continued.</p> <p>An answer was filed April 3, 1875, and a reply May 6, 1875.</p> <p>On May 7, 1875, on motion of defendants, the court allowed them further time, until May 13, 1875, at four o’clock p. M., to surrender Smith to the sheriff, in discharge of their obligation in the undertaking.</p> <p>On May 11, 1875, the defendants, on leave, filed an additional answer, setting forth the last mentioned order; that on May 10,1875, they surrendered Smith to the sheriff, who thereupon executed to them an acknowledgment of such surrender; and that on producing such acknowledgment to the clerk of said court of common pleas, he entered on the undertaking an indorsement to operate as an exoneration of the defendants as such bail; whereupon they asked to be dismissed.</p> <p>On the same day, the plaintiffs demurred to the additional answer, which demurrer was, on July 23, 1875, overruled; and the plaintiffs declining to reply to the additional answer, judgment was rendered in favor of the defendants.</p> <p>The district court having affirmed the judgment, a petition in error was, on leave, filed in this court.</p>

<p>Application for a writ of mandamus.</p> <p>June 23,1879, the defendants, in accordance with an act •of that date entitled “ an act to provide for the printing nnd distributing the laws of the present session and the revised statutes in permanent form, and to repeal an act therein named,” advertised for proposals for furnishing materials and printing the revised statutes of Ohio.</p> <p>So much of the act as is necessary to an understanding of the case will be found in the opinion.</p> <p>The Transcript Printing Company duly filed its proposal, which among other things stipulated that it would execute the contract for printing the revised statutes of •Ohio, in accordance with the provisions of the notice for proposals, “ on or before the first day of December, 1879, or thirty days sooner if copy is furnished.”</p> <p>The proposal of Peter G-. Thompson contained the same stipulation, as to time, except the condition “ or thirty days sooner if copy is furnished.”</p> <p>The contract was let to H. W. Derby, who had also filed a proposal.</p> <p>Each of the relators claims that the contract should have been awarded to him, as the lowest and best bidder, and has filed his petition in this court, for a writ of mandamus to compel the defendants to award the contract accordingly.</p> <p>To each of the petitions the defendants filed a general ■demurrer.</p>

<p>Error to the Court of Common Pleas of Morrow county, reserved in the district court.</p> <p>The defendant in error, to whom a sealed note, payable to J. N. Cooley or bearer, had been transferred by delivery, took a judgment thereon against the makers, plaintiff in error, by confession under a warrant of attorney attached thereto, at the October term, 1874, of the court of common pleas.</p> <p>The following is a copy of the note and warrant of attorney :</p> <p>“ $200. , Elint, Ohio, October 17,1871.</p> <p>“ One year after date, we, or either of us, as principal debtors, for value received, promise to pay to J. N. Cooley or bearer the sum of two hundred dollars, payable at the Eirst National Bank of Mt. Gilead, Ohio.</p> <p>“We hereby authorize any attorney at law to appear for us, or either of us, at any time after the maturity of the above note, in any court of record in the State of Ohio, or elsewhere, and waive the issue and service of process, and confess judgment in favor of the holders of said note, for the amount of said note and interest, and interest on said judgment at the rate of eight per cent., together with costs of suit, and release all errors, and waive all right of second trial in said action.</p> <p>“ Witness our hands and seals this 17th day of October, 1871.</p> <p>“ C. M. Clements, [l. s.]</p> <p>“ C. C. Clements, [l. s.]</p> <p>[stamps.] “ Susan W. Clements.” [l. s.]</p> <p>Thereupon the plaintiffs in error filed their petition in error, in the district court, to reverse said judgment, and made the following assignments of error:</p> <p>“ 1. That said court erred in rendering judgment for said Isaac Hull, who was not the payee of said note.</p> <p>“ 2. That said court had no jurisdiction of the persons of these defendants, and erred in rendering said judgment.</p> <p>“ 3. That said court erred in rendering judgment upon said cognovit without first bringing in said defendants below by summons.</p> <p>“4. That said court erred in rendering a judgment in favor of Isaac Hull upon said warrant of attorney.”</p> <p>The proceeding in error has been reserved here for decision.</p>

<p>1. Under the act of May 1, 1873, entitled “an act for the reorganization and maintenance of common schools” (70 Ohio L. 195), boards of education are invested with the title to the property of their respective districts in trust for the use of public schools, and the appropriation of such property to any other use is unauthorized.</p> <p>2. A lease of a public school-house for the purpose of having a private or select school taught therein for a term of weeks, is in violation of the trust; and such use of the school-house may be restrained at the suit of a resident tax-payer of the district.</p>

<p>The provisions of the act of April 18, 1874 (71 Ohio L. 85), relating to the inclosing of railroads by fences and cattle-guards, apply to all railroads then in operation and unfenced, and extended the time within which such railroads were required to be fenced for the period of six months after the date of the passage of the act; and until the time thus extended had elapsed, no liability for an-injury to trespassing animals arose from the failure to construct such fence.</p>

<p>Petition for mandamus.</p> <p>The case is stated iu the opinion.</p>

The original action was brought by the plaintiff against’ Joseph L. Hall, R. C. M. Lovell, J. H. French, Miles Greenwood, B. Homans, Jr., J. Smith Homans, Jr., Francis Howland, and Nathan T. Johnson, as copartners on a promissory note, of which the following is a copy: “ 557,500. Cincinnati, June 10, 1869. “ Hinety days after date, we promise to pay to the order of R. C. M. Lovell seven thousand five hundred dollars, payable at the office of Homans & Co. Value received.

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

On July 14, 1878, Asahel Philo filed a petition in the Court of Common Pleas of Wood county, against John R. Eay, and his three sisters, setting forth that he, Philo, was in possession of the premises described in the petition, and had a legal estate therein; and that the defendants claimed an estate in the premises adverse to his estate, and he asked that his title might be quieted.

<p>An indictment in which it is charged that the defendant unlawfully killed the deceased, is sufficient, notwithstanding the change in the language of the section of the crimes act defining manslaughter (74 Ohio L. 244, • § 4), and in the section relating to the sufficiency of indictments for that offense (74 Ohio L. 335, § 6). Wolf v. The State, 19 Ohio St. 248, approved.</p>

<p>1. The court having caused its findings on an issue in an action to he entered on the journal, the defendant then filed a motion for a new trial, alleging one of the grounds in these words: "Newly discovered evidence.” At the next term, to which the cause had been continued for want of time to hear the motion, the court refused to hear affidavits containing material testimony, filed shortly after the trial term, in support of that ground, although no objection had been previously made to the form of the motion, and also refused to permit the motion to be so amended as to show the names of the witnesses and the newly discovered facts sought to be established by their testimony, and thereupon overruled the motion and rendered judgment on the findings: Held, that this was error.</p> <p>2. While the court retains jurisdiction over a motion for a new trial on the ground of newly discovered evidence, the hearing of the motion is not limited to evidence discovered during the term at which the motion was made, but may include evidence subsequently discovered, and which, in the absence of such motion, could only be brought before the court by petition in accordance with the civil code (2 SOI). The object of the provision requiring the application to be made by petition, is to bring the matter within the jurisdiction of the court in cases where, in the absence of such provision, control over the subject would have been lost in the particular case.</p>

<p>Error to the District Court of Lucas county.</p> <p>The action in the court of common pleas was brought by Holt, receiver of the Washington Woolen Mills Company, on a policy insuring its property against loss by fire, issued by the Fireman’s Insurance Company of Dayton on the 10th of July, 1868, between which time and the 8th of January, 1870, five additional policies were taken out by the Woolen Mills Company, on the same property, all of which policies, if they were valid, were in force at the time the property was destroyed by fire on the 27th of March, 1870.</p> <p>The policy issued by the Fireman’s Insurance Company, which was valid at its inception, and was the first insurance on the property, contains this condition : “ And if the said assured, or their assigns, shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this ■ company, and have the same indorsed on this instrument by the secretary, or otherwise acknowledged by them in writing, then this policy shall cease and be of no further effect.” The principal defense, and the only one that will be noticed, was, that this condition had been broken by the insured, in taking out subsequent insurance, without the consent or knowledge of the insurer, on the same property ; and that the rights of the insured under the policy were thereby forfeited. One of the conditions common to the subsequent policies was (quoting from one by way of example), that “ if the property to be insured be held in trust, or on commission, or be a leasehold interest, or equity of redemption, or if the interest in the property be other, than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured; it must be so represented to the company and expressed in the written part of the policy, otherwise the policy shall be void.” The condition in each of the others, if not in the same words, was, in legal effect, the same.</p> <p>After the destruction of the property, the companies that had issued the subsequent policies compromised with the insured, and paid a part of the amounts insured by them respectively, which was accepted in satisfaction of the whole.</p> <p>The reply to the defense above stated was, that the subsequent policies “ were uncollectible, invalid, and void, and were not other insurances on said property ; and so denies the averments of the answer in relation thereto.”</p> <p>There was a judgment for the defendant below in the court of common pleas. On error prosecuted by the plaintiff below, the district court found that the subsequent policies “ were not other subsisting and valid policies of insurance, and that they did not in fact and in law contravene or violate any conditions contained in the policy of insurance sued upon by plaintiff, and that the same were not and are not in fact and in law a bar to prevent the recovery by plaintiff of the amount due to him on said policy of defendant.” The judgment of the common pleas was thereupon reversed, and judgment rendered in favor of the plaintiff below for the amount due on the policy.</p> <p>The finding and judgment of the district court are assigned for error here.</p>

<p>.Error to the District Court of Washington county.</p> <p>The original action was by Dye, against Scott, as indorser of a promissory note, made payable to his order by Harmar Plouring Mill Company, dated January 29,1873, and due one day after date. The note was indorsed by -Scott to Dye on the day of its date. It is substantially averred in the petition, that Scott indorsed and delivered the note to Dye, with the understanding and agreement between them, that Dye should give the flouring mill company time on the note, for the payment thereof, beyond its maturity; and that Dye did give the mill company a reasonable time for its payment after maturity, to wit, three months, at which latter period he demanded payment of the mill company, which was refused; of which demand and refusal he gave Scott notice.</p> <p>By his answer, Scott denied making the agreement and the giving of notice, as alleged in the petition. The answer also set up other matters of defense that need not be noticed.</p> <p>On the trial, Dye gave evidence to the jury tending to maintain the issues on his part, and rested. Thereupon Scolt moved the court to arrest the case from the jury and render judgment for him; which motion was overruled, and Scott excepted.</p> <p>Thereupon Scott gave evidence to the jury tending to maintain the issues on his part, and Dye gave evidence in rebuttal; and, the evidence being closed, Scott requested the court to charge as follows: “ If the jury find, from the ■evidence, that Scott agreed with the plaintiff, at the time of indorsing said note, that the said plaintiff was to extend the time for the payment thereof beyond its maturity, ■that then, before the plaintiff can recover in this case he must show, by a preponderance of the evidence, that he made demand on the said mill, defendant, as alleged in said petition, and that he gave said Scott notice of said demand ■or non-payment immediately thereafter, or as soon as it uould be done, taking into consideration the distance be-, tween said Dye’s and Scott’s places of residence.” Which request was refused, and in connection therewith the court ■did charge: “That said notice will be in a reasonable time, and therefore sufficient, if before said notice was given, said mill, the maker of said note, is not shown by the evidence to have become insolvent; the burden of showing such insolvency resting with the defendant.”</p> <p>The court further charged: “ That if the jury find from the evidence, written or oral, or both, that any witness in the case is discredited or impeached as to his testimony on .any one material fact, then, and in that case, the jury may, in their discretion, regard the testimony of such witness, not corroborated or supported, as discredited or impeached as to other statements' he makes in his evidence.” To which refusal to charge, and the charges so given, Scott uxcepted. There was a verdict for Dye.</p> <p>A motion for a new trial was made by Scott, on the ground that there was error in the rulings above excepted to, and also on the ground that the verdict was against the law and the evidence.</p> <p>The motion was overruled, and a judgment rendered on the verdict. A bill of exceptions was taken, setting out all the evidence, which is made part of the record.</p> <p>The district court, on error, reversed the judgment, on the ground that there was error in overruling the motion to arrest the case from the jury and render judgment for defendant.</p> <p>To reverse the judgment of reversal, Dye prosecutes: this proceeding in error.</p>

<p>1. The capacity cf the county commissioners to sue is not limited to the cases enumerated in section seven of the “Act establishing boards of county commissioners and prescribing their duties. In the cases enumerated in section seven they are not only authorized but required to sue.</p> <p>2. "Where a cause of action in favor of the county arises out of a subject-matter within the control of the board of county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode.</p> <p>8. Where work has been done on account of the county, under an agreement with the commissioners, and has been accepted and paid for, no action lies at the suit of the commissioners, in the absence of fraud or mistake, to recover back the money thus paid.</p> <p>4. In such action, where it is averred in the answer that the work was done on account of the county, in pursuance of a contract with the commissioners, the presumption is that the contract was duly entered into. If the alleged contract is sought to be impeached by the reply as being void, as against the county, for non-compliance with the requirements of the act of March 9, 1866, relating to the duties of county commissioners . (S. & S. 86), the reply ought to show that the subject-matter of the contract is within the purview of that act. Whether, if the contract were shown to be made in contravention of the act last named, it would make any difference as to there being no right to recover back the money, queere.</p>

<p>Error reserved in the District Court of Wood county.</p> <p>The original action was brought by the plaintiff in error to recover the possession of the south half of the northwest quarter of section 21, town 4, north of range 10, east, situate in Wood county. A jury was waived, and the cause tried to the court. Erom a bill of exceptions taken at the trial, setting out all the testimony, it appears that the plaintiff's title was derived-from a conveyance to him by Chai’les Baker, dated May 20, 1874. Baker bought the land from the government in 1835, and received his patent therefor on the 18th day of April, 1837.</p> <p>The defendant purchased the land from Emeline A. Wadsworth, on the 8th day of August, 1871, and immediately went into possession, the land being unimproved, and wholly unoccupied up to that date.</p> <p>Mrs. Wadsworth traced her title to a delinquent tax sale of the land made to her deceased husband, Wm..W. Wads-worth, in 1842, for the taxes of that year, and the delinquent taxes, interest, and penalty of 1841. The auditor’s deed was dated November 25, 1846.</p> <p>It was admitted by both parties, that the land in question was, in the year 1842, taxed on the duplicate of Wood county, Ohio, in the name of Charles Baker, and so continued to be taxed in his name until the year 1846, when it was transferred to the name of Wm. W. Wadsworth, and taxed in his name up to the year 1871, and from said time has been taxed in the name of Squire Carlin. It was further admitted by both parties that said William W. Wads-worth and the representatives of his estate paid all taxes assessed on the land from the year 1846 to 1871, and that Squire Carlin has paid all taxes assessed on said land from and including the year 1871, to the present time, and that all the tax receipts from and including the year 1846 to 1871 were to William W. Wadsworth, and in his name.</p> <p>It was admitted by plaintiff', that all tbe tax proceedings whereon said tax deed to William W. Wadsworth was founded, were regular and in all respects according to law, except the return of the treasurer of Wood county, Ohio, of the delinquent taxes of the year 1841, made in January, 1842, and his verification of the same.</p> <p>And the defendant, to show the regularity of the same, introduced a copy of said treasurer’s return, which is in the words and figures following, viz: The following is a list of lands and town lots in Wood county, Ohio, returned delinquent for the non-payment of taxes charged thereon for the year 1841, by John Bates, treasurer of said county, to-wit:</p> <p> </p> <p> The State of Ohio, Wood county, ss. </p> <p>I, John Bates, treasurer of said county, do solemnly swear that the foregoing is a correct list of lands and town lots returned delinquent for the non-payment of taxes charged thereon as therein stated and set forth for the year 1841, and that good reasons exist for returning the same delinquent.</p> <p>{Signed) John Bates, Treasurer.</p> <p>Subscribed and sworn to before me, this 3d day of January, A. d. 1842.</p> <p>Addison Smith, Auditor of Wood county.</p> <p>Evidence was also introduced from which the court may have found, that at the time the plaintiff purchased the land from Baker, he had knowledge of the tax sale and of the payment of the taxes on the land by Wadsworth and those claiming under him, from the date of the tax deed; and also that he had knowledge that from the date of said tax sale, they had openly and notoriously claimed title to the premises. Whereupon it was claimed, by virtue of the act of May 7,1869, to improve the law of evidence concerning the titles of real estate (66 Ohio L. 338), that such facts, as against the plaintiff, constituted conclusive proof of adverse ¡sossession of said premises, in the defendant and those under whom he claimed, for a period of more than twenty-one years previous to the date of the plaintiff’s purchase from Baker.</p> <p>The act reads as follows :</p> <p>“ Section 1. Be it enacted, etc., That in all cases where unoccupied or unimproved real estate has been or shall be sold at any tax sale in this state, and the purchaser thereof has received, or shall receive a deed therefor, and said real estate has been or shall, from and after said sale, be placed upon the tax duplicate of the proper county, in the name of said purchaser or those claiming title under him, and be so continued upon said duplicate, and said purchaser or those claiming under him, shall from and after said sale, openly and notoriously claim the title and ownership of said real estate and pay the taxes thereon from and after said sale, the same shall, as against any title acquired by deed executed after such tax sale, be held and deemed in all cases, in all courts, as prima facie proof of the possession of said real estate by said purchaser or those holding under said purchaser, from and after the date of said sale, until the said sale has been or shall be set aside in a civil action or suit, in a court of competent jurisdiction, or has been redeemed according to the laws of this state; and as to all persons acquiring title by deed executed after such tax sale, having knowledge of said sale and the payment of taxes and claims of title and ownership as aforesaid, said facts aforesaid shall be taken as conclusive proof of such possession, and be so held by all courts in this state in all cases.”</p> <p>“ Sec. 2. This act shall be in force from and after its passage, and its provisions shall apply to all tax sales heretofore or hereafter made in this state.”</p> <p>It did not appear who paid the taxes for the years 1843, 1844, and 1845. Baker, however, testified that he did not. The court gave judgment for the defendant.</p> <p>it is assigned for error that the court improperly overruled a motion for a new trial, on the ground that the finding and judgment were not sustained by sufficient evidence.</p>

<p>Where a judgment is reversed for error occurring on the trial, and the cause is remanded for a new trial, the party against whom the reversal is had, by voluntarily submitting to a new trial which results in a verdict and judgment, waives his right to prosecute a petition in error to reverse the judgment of reversal. Collins v. Davis, decided by the Commission (33 Ohio St. 567), approved and followed.</p>

The action below was brought by the plaintiff to recover the possession of the southeast quarter of section 31, township 7, north of range 13 east, and the west half of the southwest quarter of section 32, same township and range, in . Ottawa county. A jury being waived, the cause was tried to the court, and judgment given for the defendant.

<p>Petition in error. Motion to strike petition in error from the files for want of verification.</p> <p>At the June term, 1879, of the District Court of Licking county, a decree was rendered in favor of defendant in error, Jared Sperry, and against Benjamin W. Pratt, intestate-of plaintiff in error, then in full life, which, among other things, directed Pratt to surrender certain promissory notes into the hands of the court to be canceled. Subsequent to the rendition of the decree, Pratt died, and the plaintiff in error was duly appointed and qualified as administrator of his estate.</p> <p>The petition in error, now pending, to reverse the decree-of the district court, was filed by the plaintiff in error, and contains among other things, averments of the death of ;Pratt since the rendition of the decree, and the appointment and qualification of the plaintiff in error as administrator, etc.</p> <p>.The petition in error is not verified by affidavit, and the defendant in error seeks by this motion to strike the petition from the files for want of verification.</p>

<p>Error to the Court of Common Pleas of Mahoning ■county, reserved in the district court.</p> <p>The original proceeding was instituted by Henry Wick, in the Probate Court of Mahoning county, against the Cleveland and Mahoning Yalley Railway Company and the Atlantic and Great Western Railroad Company, under ■section 21 of the act. of April 28, 1872, prescribing the mode of assessment aud collection of compensation to the owners of private property appropriated by and to the use of corporations. 69 Ohio L. 88.</p> <p>The plaintiffs in error having failed to institute proceedings, the defendant in error, Wick, on the 3d day of March, 1873, filed his petition in the probate court, in ac■cordanee with the provisions of said section.</p> <p>On the 29th day of July, 1873, the cause was submitted to the jury, and a verdict returned. Thereupon the defendants filed a motion for a new trial, specifying the grounds upon which the new trial was asked. The record then proceeds as follows :</p> <p>“ Which motion is overruled by the court, and the court having carefully examined said proceedings and verdict, and finding them in all respects legal and correct, do approve and confirm the same; it is therefore ordered, adjudged, and decreed by the court, that said defendants pay into court, within thirty days from the date hereof, for the use of said Henry Wick, said sum of seven thousand dollars, the amount of such verdict, and also that they pay the costs of this proceeding, to be taxed.</p> <p>“And that upon such payment within the time herein prescribed, they hold said property and premises for the purposes for which the same are sought to be appropriated by this proceeding, and that upon failure on the part of said defendants to pay said sum within the time herein prescribed, that execution issue to collect the same as upon judgments at law.</p> <p>“ To all of which findings, verdict, confirmation, judgment, and rulings of the court thereon, said defendants by counsel except, and ask the court to sign and seal a bill of exceptions, which is accordingly done in open court. And thereupon, on the 29th day of July, in the year aforesaid, .said defendants filed their bill of exceptions herein, which said bill of exceptions follow in these words and figures, to wit-:” ...</p> <p>The transcript of the proceedings in the cause in the probate court was duly authenticated by the probate judge, and was filed by the plaintiffs in error with the petition in error, in the court of common pleas, as an authenticated transcript of the record of the proceeding in the •cause upon which the judgment was sought to be reversed.</p> <p>A petition in error was filed in the court of common ■pleas to reverse the judgment of the probate court. The transcript of the proceedings had in the court of common pleas, shows that the petition in error was filed in that •court on the 24th day of September, 1873, and that the cause was continued until the January term, 1876, when the following judgment was rendered:</p> <p>“ This cause came on for hearing on the petition of plaintiff, and the record of proceedings and judgment of the probate court attached and error assigned and was argued by counsel, on consideration whereof the court are of opinion aud find that, in said proceedings of the probate court, there is no. error as alleged, and hereby confirm rsaid judgment and proceedings of the probate court. And the court order and adjudge that said plaintiffs pay said •defendant Wick, the amount found and adjudged in his favor by said probate court, to wit: the sum of seven thou.sand dollars, with interest from August 29, 1873, and that the above plaintiffs pay the costs of this proceeding to be taxed.”</p> <p>The present petition in error was filed by the plaintiffs in «error in the district court to reverse the judgment of the court of common pleas. With this petition in error was filed an authenticated transcript of the proceedings in the court, of common pleas, showing the foregoing facts: and also the-transcript of the proceedings in the prohate court.</p> <p>In the district court the case was reserved for decision by this court.</p>

<p>1. Where money has been paid on a contract which has heen subsequently rescinded, and the repayment of the money is the only thing remaining to be done, apetition for money had and received is sufficient; but while the-contract is subsisting, the action can only be brought on the agreement.</p> <p>2. Where it is alleged that the court of common pleas erred in various particulars, among others, in overruling a motion for a new trial based on the ground that the verdict was against the evidence, and the district court reverses the judgment without setting forth the ground of reversal, and remands the cause for a new trial, and it appears that the evidence was conflicting as to a material point in issue, and that the charge to-the-jury was in some respects obscure, the judgment of reversal should not be reversed, even if, in the opinion of this court, the preponderance-of evidence be in favor of the verdict, and although the other errors-may not have heen well assigned.</p>

<p>QUO WARRANTO.</p> <p>On May 24, 1878, the attorney-general filed in this court an information, on the relation of Lyman S. Colburn, praying that a judgment of ouster be pronounced against the defendant, The Oberlin Building and Loan Association, a corporation under the daws of this state. It is averred in the information that the defendant has forfeited its rights, privileges, and franchises as a corporation in various specified particulars.</p> <p>An answer and a reply were filed, and the case was heard on the pleadings, an agreed statement of facts, and certain testimony.</p> <p>Colburn is a member of the corporation, and was formerly a director.</p> <p>The association has never received deposits.</p>

<p>Keal estate inherited by a married woman since the passage of the act of 1861 (S. & S. 391), which declares such inheritance to bo her separate property, can not be charged in equity for the payment of a liability incurred by her prior to the passage of the statute.</p>

<p>Error to the Court of Common Pleas of Summit county.</p> <p>John Hager was convicted and sentenced to the penitentiary, at the September term, 1879, of the Court of Common Pleas of Summit county, on an indictment, in which it is charged, that on August 5, 1879, in that county, in the night season, be maliciously and forcibly broke and. entered the store-room of John E. Roth, with intent to steal bis personal' goods, etc. No objection was made to the indictment, except by motion in arrest of judgment.</p> <p>The statute provides as follows : “ Whoever, in the night season, maliciously and forcibly breaks and enters any dwelling-house, kitchen, smoke-house, shop, office, storehouse, ware-house, malt-house, still-house, mill, pottery, factory, water-craft, school-house, church or meeting-house, bam or stable, or railroad car, car factory, or station-house, with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the i penitentiary not more than ten nor less than one year.” 74 Ohio L. 248, § 5; Rev. Stats. § 6835.</p>

<p>Error to the District Court of Huron county.</p> <p>The original action was brought to subject the separate estate of Ann Avery, wife of Charles Avery, to the payment of the sum found due on their promissory note, which was in the following words and figures:</p> <p>“$1,030. New IjOKDOn, Huron County, O., July 6, 1870.</p> <p>“Two years after date, we promise to pay to the order of George Vansiclde the sum of one thousand and thirty'dollars, with interest payable annually in Now London, Ohio. Value received. Int. to commence July 27, 1870. “ Charles Avert,</p> <p>“Am Avert.”</p> <p>The note was secured by a mortgage executed by Charles and Ann Avery, on the real estate conveyed to the wife by Vansickle, the payee of the note, and was given witb the mortgage, to secure the payment of the parehase-price of the land conveyed. It appeared, from the record, that the mortgage had been foreclosed in a former action, and that the proceeds of the sale of the property mortgaged were exhausted in the extinguishment of prior liens on the property, leaving said mortgage debt wholly unsatisfied.</p> <p>It further appeared that, in said foreclosure suit, the amount due from said Ann Avery on said note was ascertained, and a judgment rendered for said amount against Charles Avery, but that neither be nor said Ann bad paid any part of the same, and that he was wholly insolvent.</p> <p>The petition prayed for a personal judgment against Ann Avery, and that her separate estate, specifically set forth in the petition, be subjected to its payment, alleging— a fact denied by the answer — that she intended and agreed to charge her separate estate with the payment of said note.</p> <p>She testified, on the trial in the district court, subject to exception, that, at the time tbe note was given, there was no agreement that her separate property should be charged with its payment, and that she had no intention of so charging it. There was no further evidence of intent to charge her estate, except that manifested by the transaction of the purchase of the property, and tbe execution of the note and mortgage.</p> <p>The district court gave judgment subjecting Mrs. Avery’s separate estate to the payment of the note, which judgment, by the present proceeding in error, it is sought to reverse.</p> <p>The assignments of error are:</p> <p>1. That the cause was not appealable from the common pleas to the district court.</p> <p>2. That the judgment in the action to foreclose the mortgage is a bar to the present action.</p> <p>3. That all right of action on the note was merged in the judgment against Charles Avery.</p> <p>4. That no charge was created against the separate estate of Mrs. Avery.</p>

<p>Error to tbe Court of Common Pleas of Marion county.</p> <p>The defendant below was indicted for assault with intent to commit a rape, on the person of Ada "Wyatt, on which charge he was convicted and sentenced to the penitentiary.</p> <p>On the trial, after the admission of testimony proving that Ada is twenty-three years of age, but an imbecile, mentally incapable of testifying as a witness, the state called Mrs. Mary Wyatt, the mother of Ada, who testified that, on the day of the alleged assault, she was absent from the house for a short time, having left Ada in the care of her grandmother, during her absence. That as ■she was returning to the house, Ada came and met her, •and told her that a peddler of rat medicine had been at the house in her absence. The witness was then permitted to go on and give Ada’s declarations as to what the peddler had done to her in the wood-house, which declarations tended strongly to prove the commission of the alleged offense. This testimony, so far as it gave the declarations of Ada, was objected to by the defendant, but the objection was overruled, and the declarations admitted, .and the defendant excepted.</p> <p>In relation to this testimony, the court instructed the jury: “ That said testimony was incompetent for the purpose of proving any of the facts stated by said Ada Wyatt,, and should not be considered as tending to prove any of the facts stated -by her, but only to show how she was conducting herself when her mother found her.” To which instruction exception was taken.</p> <p>There was no rupture or mark of violence on the person of Ada, that could be discovered by physicians who were-called by the mother to examine her, on the evening of the same day. There is a highway in front, and some distance from, the residence and outbuildings of Mrs. Wyattr in one of which the offense was alleged to have been committed.</p> <p>The defendant passed along the highway at about the hour the offense was alleged to have been committed. One witness testified that he saw him out of his wagon, and standing in the highway, in front of the house; but no-witness testified to seeing him inside of the yard, or in or about the house or wood-house, so that the corpus delicti was proved only by the declarations of Ada, as given by her mother.</p> <p>The testimony, and also the instructions by the court in reference to the declarations of Ada, are made part of the-record, by a bill of exceptions. A motion for a new trial, on the ground that the verdict was against the evidence,, was overruled, and exceptions taken.</p> <p>By this proceeding, the defendant below seeks a reversal of the judgment of the court of common pleas, on the grounds that the court erred in admitting the declarations-of Ada, and in overruling the motion for a new trial.</p>

Error, to the Superior Court of Cincinnati. Motion to dismiss proceedings in error. The original action was brought by defendant in error against plaintiffs in error, and final judgment was rendered therein in favor of the plaintiff on the 29th day of June,, 1867. The petition in error was filed in this court on the 17th day of August, 1878.

<p>A railroad company, in laying its track in a public street, in pursuance of authority from the proper officers of the municipal corporation, necessarily lengthened a bridge across such street, and extended the approaches to the bridge along the street in which it was situated, by which means the grade was raised in front of A’s residence, to her injury. A’s premises did not abut upon the street in which the track was laid, but were near thereto. Held, that the case is governed by section 12 of the general act of 1852, relating to corporations, as amended in 1857 (54 Ohio L. 133), and hence the action was barred in two years from the completion of the work.</p>

<p>Error to tbe Superior Court of Cincinnati.</p> <p>The original action was brought by Henry Brachman against John H. Diehl and others, to foreclose a mortgage executed by said Diehl upon a certain lot of ground in the city of Cincinnati, and described therein as follows, to wit: “ That certain lot of ground in Cincinnati known as lot. No. two (2), on a plat of partition between Ross, Gregory and others, recorded in plat book 1, page 800, Hamilton county records, commencing on the west side of Harriet,, at the center of Catharine street, as to be extended northwardly along the west line of Harriet street one hundred and twelve and a half (112J) feet; thence westwardly, on a line' parallel with Catharine street, as to be extended eighty (80) feet; thence southwardly, on a line parallel with Harriet street, one hundred and twelve and a half (112J) feet, to-the center of Catharine street, as to be extended thence-eighty (80) feet to the west line of Harriet street, the place of beginning.”</p> <p>The defendant, Diehl, made defense on the ground that the mortgage debt was a part of the purchase money on a-, sale of the same property by Brachman to him, and which-had been conveyed to him by Brachman by deed, containing the same description of the property, and covenants against incumbrances and of title. And that a portion of the premises so conveyed to him was within the limits of a public street, which the city of Cincinnati, by virtue of a title paramount to the defendant’s, had taken possession of to the exclusion of the defendant, whereby the covenants of the plaintiff contained in said deed had been broken. The defendant, Diehl, prayed that the city of Cincinnati might be made a party to the suit, and that the damages resulting to him from the breach of the plaintiff’s covenants might be counterclaimed against the balance due on said mortgage. The city was made a party, but sought to be dismissed by demurrer and by motion, which wore overruled.</p> <p>Among other things, the following facts appear in the record: As early as 1845, the premises described in the petition were owned in common, as part of a larger tract of •land, by the parties to the following agreement:</p> <p>“ Whereas, Ezekiel Ross, Moses Brooks, and Joseph L. Morris lately purchased of Daniel II. Horne the undivided half of a tract of land on the north side of Eighth street, bounded on the west by Millcreek, etc.; and whereas, N. Longworth owns the other half of said tract; now, it is agreed by the parties that Eighth street is to be continued west, and thirty feet of it to come off of the south side of said tract, and that Kemble street shall be laid out parallel ■to Eighth street, 60 feet wide, and 202 feet from Eighth street; and that Richmond street shall be laid out, 60 feet •wide, 213 feet north of and parallel with Kemble street; •and that Catharine street shall be, when laid out, 60 feet wide, parallel to Richmond street, and 244 feet north of it; and that Horne street shall be extended, the same width it is, from the river to the canal, until it strikes Millcreek.</p> <p>“ It is further agreed, that said Longworth, and Ross, Brooks, and Morris divide so much of said tract as lies west of Horne street, and between Eighth and Richmond streets, as follows: Said Longworth takes the strip of 202 .feet wide, .running from Horne street west to the middle of Mill creek, between Eighth and Kemble streets, and is to give to the other party $50 for this choice. And the said Ross, Brooks, and Morris are to take, in lieu thereof, a strip running from Horne street west to the middle of Mill creek, being 213 feet wide, between Kemble and Richmond streets, Cincinnati. “ N. Longworth,</p> <p>“ M. Brooks,</p> <p>“ Jos. L. Morris,'</p> <p>June 9,1845. “ Ezekiel Ross.”</p> <p>This agreement, however, was not executed by the parties previous to 1854, when Alexander TI. McGnffey, who had succeeded to the rights of Ezekiel Ross, in trust, etc., filed his petition in equity for the partition of said lands, and for the specific performance of -said agreement. Such proceedings were therefore had in said case, all the parties in interest being before the court, that on the 30th of June, 1855, among other things, it was ordered:</p> <p>“ Wherefore, and to the end that partition may be made, and the share of said plaintiff set apart to him in severalty, the court ordered that the sheriff of Hamilton county, by the oaths of George P. Terrence, William Price, and John H. Gerard, three judicious and disinterested freeholders of the vicinity, cause to be set off and divided to the plaintiff his said share and proportion of said tract of land first hereinabove described; and that in making said partition they be governed by the following rules:</p> <p>First. They shall lay off the said Horne, Eighth, Kemble, Richmond, and Catharine streets in said tract, as provided in said contract between Longworth, Brooks, Ross, and Morris.</p> <p>“ Second. They shall set apart and divide to said plaintiff the equal undivided one-sixth part of said tract, subject to said streets; except so much thereof as lies west of Horne street, and between Eighth and Richmond streets.</p> <p>“ Third. They shall set off and divide to the said plaintiff the equal undivided one-third part of that portion of said tract which lies west of Horne street, and between Kemble and Richmond streets; excepting the lot above described as conveyed to Mullins, at the corner of Horne and Kemble streets, twenty feet in front on Horne, by eighty feet on Kemble street.</p> <p>“ Fourth. When they shall have thus set apart and divided to the plaintiff his share of said tract, they shall, out of the said share thus set apart and divided, and subject to said streets, set apart and divide to Edgar M. Gregory, as, and for his share and proportion of the tract hereinabove described, three and one-half acres of land.</p> <p>“ Fifth. In case said tract can not be divided without a manifest injury to the value thereof, they shall subdivide the same into lots, as they may deem to the best advantage, and return to the court a iust valuation thereof, by lots and in bulb.”</p> <p>The commissioners, among other things, reported as follows :</p> <p>“ After laying off Horne street, Eighth street, Kemble street, Richmond street, and Catharine street, through the tract of land described in said order, as provided in the contract between Longworth, Brooks, Ross, and Morris, they set apart and divided to the plaintiff, as his share of the property to be partitioned, subject to the rights of Edgar M. Gregory, under deed from E. Ross, and subject to said streets, lots marked and designated on the accompanying plat by the numbers 1, 2, 13, 14, 15, 21, 22, 23, 24, 37, 38, 41, 42, 47, 48, 50, and 51.</p> <p>“And having thus set apart and divided to the plaintiff the entire share of said property to which he was entitled prior to the conveyance by Ezekial Ross to Edgar M. Gregory, they then set apart and divided, and subject to said streets, set apart to Edgar M. Gregory his three and one-half acres of land, in the following described lots as numbered and designated in the accompanying plat (hereinabove referred to), viz: 1, 14, 22, 24, 37, 41, 48, and 51, leaving to the plaintiff as his separate share of said property, subject to said streets. And after setting off the three and one-half acres, conveyed by Ezekial Ross to Edgar M. Gregory,, the following described lots, which lots we have set apart, and do hereby set apart and partition to the plaintiff, to be held by him in severalty, to wit, lot numbered two (2) on the plat hereto annexed, the same being described as follows : Beginning on the West side of Harriet street, at the center of Catharine street, as to be extended westwardly in accordance with the agreement referred to in the order of partition, and running thence northwardly along the west line oí Harriet street one hundred and twelve and one-half (112J) feet to the south line of lot No. one (1), as designated on the accompanying plat; thence westwardly at right angles with Harriet street eighty (80) feet; thence southwardly parallel with Harriet street one hundred and twelve and one-half (112J) feet to the center of Catharine street, as to be extended westwardly; thence eastwardly along the center of Catharine street eighty (80) feet to the place of beginning.”</p> <p>This report was confirmed by the court, and it was further ordered by the court that “ the map made and returned by the commissioners be recorded in the recorder’s office of Hamilton county.”</p> <p>Said lot number 2 was afterward conveyed, by a like description as follows : By Alexander II. McGuffy to Brown Mathewson in January 31, 1859. By Brown Mathewson to Henry N. Wenning, June 6, 1862. By Henry N. Wenning to Henry Brachman, the plaintiff below, May 22,1869. And on same day Brachman conveyed the same, by like description, to John II. Diehl, defendant below, with mortgage to secure the purchase-money in part,, namely, two notes for $2,500 each.</p> <p>Many other facts relating to Catharine street, the change of its name to Court street, its acceptance and improvement by the city, its possession by the adjoining proprietors, etc., are set out in the record, but from' the view taken of the case by the court it is not deemed necessary to state them.</p> <p>The decree sought to be reversed is as follows :</p> <p>“And thereupon the court, proceeding to hear the cause on the pleading, exhibits, and testimony, and the intervention of a jury being waived, and the issues joined being submitted to the court, and the court having heard the testimony offered, and being fully advised in the premises, find that there is due to the plaintiff, Henry Brachman, from said defendant, John H. Diehl, on the note in his petition described, the sum of twenty-five hundred dollars, with interest from May 22, 1869, to the first day of this term, amounting to $604.15, making due on said first day of this term the sum of $3,104.15.</p> <p>“And the court further finds that said sum is a lien on the said real estate in plaintiff’s petition described, by virtue of the mortgage in plaintiff’s said petition described; that said mortgage was duly recorded, as stated in said petition in mortgage book 302, page 271, in the office of the recorder of Hamilton county, Ohio ; that said mortgage has become absolute in law, by reason of the said John II. Diehl not paying the same at maturity; and that the plaintiff is entitled to have said mortgage foreclosed, and the said mortgaged premises sold for the payment of the amount above found due, free of the claims of all the parties hereto.</p> <p>“And the court further find that the said defendant, the city of Cincinnati, has no valid right, title, or claim, in or to said real estate in the petition described, or in any part thereof, as a public highway, and that the same is not, nor is any part thereof a part of Court street, nor has any part thereof, ever been lawfully dedicated to the public use as a highway, and it is therefore ordered that the cross-petition of said city be, and the same is hereby dismissed, and that said city pay the costs of its co-defendant, Diehl, from the time it was made and became a party to this cause, to the close of the trial herein.”</p>

<p>Error to the District Court of Rutler county.</p> <p>The action below was brought by the defendants in error against James Williams and Mary, his wife, upon a promissory note, of which the following’is a copy :</p> <p>$503.88.] Millevii.le, Ohio, August 5, 1870.</p> <p>On or before the first day of January next, we, or either of us, promise to pay unto Urmston & Uancock, or their order, the sum of five hundred and three dollars and eighty-eight cents, value received, with ten per cent, interest till paid. James "Williams,</p> <p>[U. S. Eevenue Stamp, canceled, 30c.] Maky J. "Williams.</p> <p>The object of the action was to subject the separate estate of Mrs. "Williams to the payment of the note. She was the owner of a separate estate, consisting of real and personal property of the value of $10,000. It appears from the testimony of the defendant, Hancock, that the note was given for goods bought by Williams and wife at the store of the defendants; that during the year 1868 Williams, to the knowledge of the defendants, became financially embarrassed, and before the note was given in 1870 was wholly insolvent; that during the years 1868 and 1869, Mrs. Williams, when purchasing goods at the store of defendants, said to them, “ we will see you paid ;” on the faith of which statement goods were sold and charged to the account of Williams ; that in August, 1870, Hancock informed Williams that he wanted security for the debt, and gave him a note to have his wife sign, extending the time for its payment until January 1,1871, which Williams took to her, and procuring her signature thereto, returned the same to the defendants. This note is the one in suit.</p> <p>Mrs. Williams testified that she signed the note at the request of her husband, not knowing what it was, and denied that she ever agreed to pay for the goods bought at defendants’ store.</p> <p>Williams also testified that he asked his wife to sign the note, but did not tell her what it was. On rebuttal, it was shown, in contradiction of a statement of Mrs. Williams, that she testified on a former trial that Urmston was present when she signed the uote.</p> <p>The foregoing is the substance of the material evidence given at the trial. The district court found that Mrs. Williams intended to charge her separate estate with the payment of the note, and decreed accordingly.</p> <p>Mrs. Williams moved for a new trial, on the ground that the judgment of the court was against the law and the evidence; which motion was overruled, and an exception taken. This judgment, it is now sought to reverse.</p>

<p>1. Where, after an order of sale is made in a foreclosure suit, the land is appropriated hy a railroad company, and the compensation agreed upon is paid to a receiver in the cause, and thereupon another mortgage creditor, hy answer and.cross-petition, seeks to impeach the appropriation proceeding for fraud, and to foreclose his mortgage, and the court dismisses such answer and cross-petition, as to the charge of fraud and the claim to foreclose, and remits the party to his lien on the money in the hands of the receiver, which money is distributed at a subsequent term, the order of dismissal is final, and a proceeding to reverse it is barred in three years.</p> <p>2. In an action to foreclose a mortgage, the lienholders were so numerous that it was impracticable to bring them all before the court, and some of them were allowed to .prosecute for the benefit of all; and a special master having been appointed, with instruction to report the names of the lienholders, and the amount due each, those who appeared before the master and proved their claims are as much bound by a judgment or order affecting the subject-matter of the suit as if they had been formally made parties.</p> <p>3. An action for wrongfully depriving a mortgagee of his security is barred in four years, whether such action is for a tort or for relief on the ground of fraud by charging the guilty party as a trustee. In the former case, the action is deemed to have accrued at the time of the injury; in the latter case, on the discovery of the fraud.</p>

<p>1. Where a party seeks to enjoin an assessment on the ground that the city council making the same did not comply with the provisions of the act of April 5, 1866 (S. & S. 834), he must aver in his petition that the city ordering such improvement belonged to the class embraced within the provisions of that act.</p> <p>2. "Where no damage resulted to abutting lots or lands from a street improvement made in 1866, under laws then in force, the publication of notice by the city of its determination to improve the street was not a precedent condition to the authority of the city to make an assessment on the abutting property, to defray the cost of the improvement.</p> <p>R. Where a party seeks, in equity, to enjoin the collection of an assessment by the city council, on the ground that the improvement was not recommended by the board of city improvements, he must show such fact by averment and proof.</p> <p>•4. By an assessing oz'dinanee, passed by the city council of the city of Cleveland, on the 31st day of July, 1866, under authority of the act of May 3, 1852 (2 S. & C. 1493), the abutting lot owners were required to pay the assessment on the 28th day of the same month: Held, That the defect in the ordinance was within the curative pi-ovisions of section 31 of said act.</p>

, Error to the Superior Court of Cincinnati. The original action ivas brought by the defendant in error against the plaintiff in error, on a promissory note. The following, omitting the formal parts, is a copy of the petition: “ The plaintiff states that it is incorporated as a life insurance company, under the laws of Ohio; that it is the owner and holder of a certain promissory note, made by the defendant, of which the following is a copy, to wit: “ $800.

<p>Error to tbe District Court of Butler county.</p> <p>The original action was brought by tbe Union Central Life Insurance Company against James P. Curtis, to foreclose two real estate mortgages executed by said Curtis to tbe Home Mutual Life Insurance Company, of Cincinnati. One of tbe mortgages was dated November 16,1867; the other, December 24, 1867, and each was given to secure a promissory note of eight hundred dollars, executed by said Curtis to said Home Mutual Company.</p> <p>The condition of defeasance in the first mortgage is as follows:</p> <p>“Provided, nevertheless, that if the note for the sum of eight hundred dollars, bearing date of November 14, 1887, signed by James P. Curtis and Geo. L. Masters, and payable to the said Home Mutual Life Insurance Company, on demand, shall be paid, with interest, within (60) sixty' days after such demand is made by the auditor of the State of Ohio, for the said Home Mutual Life Insurance Company, then these presents shall be void.”</p> <p>The condition contained in the second mortgage is similar, differing only in the description of the note it was given to secure.</p> <p>These notes and mortgages were assigned and transferred by the Home Mutual Company to the plaintiff, the Union Central, in pursuance of a written agreement entered into between the two companies, bearing date October 13, 1871, by which the Home Mutual transferred all its assets to the Union Central, and the latter, in consideration, assumed the risks and debts of the former. The agreement is fully set out in the case of Ehrman v. The Union Central Life Insurance Co., heretofore reported, ante p. 324. The petition averred demand of payment, by the auditor, according to the conditions in the mortgages, and that the sixty days therein provided for had elapsed.</p> <p>The defendant answered, settiug up five defenses, the third of which was withdrawn before the trial.</p> <p>He also, on behalf of himself and other stockholders of the Home Mutual Company, who might consent thereto, interposed matters by way of cross-petition, upon which he asked to have the agreement between the two companies set aside and declared void, and to have an account taken of the assets and liabilities of the Home Mutual Company, and, after applying the assets to the discharge of such liabilities, to have the surplus, if any, distributed among the stockholders.</p> <p>The cross-petition was also withdrawn before the trial.</p> <p>The remaining defenses were, in substance, as follows:</p> <p>1. That the notes and mortgages were deposited with auditor of state, as security for policy holders; that the withdrawal was in violation of law — were not withdrawn for any purpose for which same were deposited with the auditor; that the plaintiff is not owner of the notes; that the auditor never made any call or demand for payment.</p> <p>2. That defendant is now, and was on 13th October, 1871, a stockholder in the Home Mutual Life Insurance Company ; that, under a pretense of reinsurance of its risks, the Home Mutual agreed to transfer all its property and assets to the Union Central, which latter agreed to pay all the debts and liabilities of the Home Mutual (except those specified in agreement); and that plaintiff’s only title to the notes and mortgages is by virtue of said agreement. That said agreement was not, in fact, a contract for reinsurance, but was a shift to obtain all the property of the Home Mutual by undue means — to take up the policies issued by the Home Mutual, and issue its own instead, and thereby absorb its property and business. All which it has done, and which is a fraud upon him as a stockholder. That the contract by which plaintiff acquired title to the notes and mortgages was fraudulent, ultra vires, against public policy, and invalid.</p> <p>3. That plaintiff is only authorized to do a life insurance business, has no power to purchase notes and mortgages from the Home Mutual, by reason whereof the purchase was unauthorized and void.</p> <p>4. That the notes were given for balance due on capital stock in the Home Mutual held by defendant; that the sole purpose between the Home Mutual and Union Central companies, in transferring said notes and mortgages, was to put an end to the corporate existence of the Home Mutual, to destroy forever its business, and make its stock valueless. That the only consideration for the transfer was that plaintiff should assume and pay the debts of the Home Mutual, and become possessed of all its business, policies of insurance, and other assets. Defendant avers that thereby his said stock did become wholly valueless, and its business transferred to plaintiff', and the Home Mutual ceased to do business, and its existence as a corporation practically ceased, all which was without defendant’s consent.</p> <p>The allegations of the answer were denied by the reply, except the averment that the plaintiff was a stockholder.</p> <p>On the trial, the court found the issues in favor of the defendant, and dismissed the petition.</p> <p>A motion for a new trial was made, on the ground that the finding was against the evidence and against the law. The motion was overruled, and a bill of exceptions duly taken, setting out all.the’evidence. The present petition in error is prosecuted to reverse this judgment.</p> <p>The following indorsements were on the first mortgage:</p> <p>“ Cincinnati, 0., November 29, 1872.</p> <p>“ The within mortgage is assigned to the superintendent of Ohio Insurance Department, in trust for the Home Mutual Life Insurance Company, in accordance with an act passed April 27, 1872. . John Cochnower,</p> <p> President Home Mutual Life Ins. Co.” </p> <p>“ Columbus, January 8, 1874.</p> <p>“ The within mortgage is hereby reassigned to the Home Mutual Life Insurance Company.</p> <p>¥m. E. Church, Superintendent.”</p> <p>The following indorsement was on both mortgages:</p> <p>“ I hereby declare the payment of this note necessary to discharge the liabilities of the Home Mutual Life Insurance Company, and call for payment thereof. Such payment to be made to John M. Phillips, president Home Mutual Life Insurance Company, or his order.</p> <p>“ May 16,1872. Jas. Williams,</p> <p> Auditor of State of Ohio.” </p> <p>There was no evidence that demand of payment of either of the notes had been made, either by the auditor, superintendent of insurance, or by the Home Mutual Company, or the plaintiff, before the bringing of the suit.</p> <p>It appears from the testimony that at the date of the agreement between the companies of the 18th of October, 1871, the Home Mutual Company was insolvent, and that its liabilities exceeded the value of its assets about fifty thousand dollars ; that a large amount of death claims existed'against it, which were due, and which it was unable to pay, and that its credit was bad.</p> <p>It also appears that all the policies of the Home Mutual Company have been taken up by the Union Central Company, or exchanged for its own policies, and that the securities deposited with the auditor of state and the superintendent of insurance were not withdrawn until the liabilities of the Home Mutual Company were discharged; that the Union Central Company has fully performed the said agreement on its part, and has paid off the liabilities of every kind of the Home Mutual Company, including nearly six millions of insurance, which was outstanding at the date of the agreement.</p> <p>It likewise appears that the Home Mutual Life Insurance Company was dissolved by decree of the Court of Common Pleas of Hamilton county, in January, 1877, and a receiver appointed for said company.</p> <p>The notes secured by the mortgages sued on were given for unpaid balances on the stock subscription of the defendant to the Home Mutual Company, and he never sold or disposed of his stock.</p>

<p>Error to the District Court of Hancock county.</p> <p>The original action was brought to foreclose a mortgage executed to secure the payment of a promissory note given by the defendant, the mortgagor, to the Home Mutual Life Insurance Company, in payment of stock subscription.</p> <p>The plaintiff below sued as assignee of the note and mortgage. The mortgage deed was upon this express condition :</p> <p>“ Provided, nevertheless, that if the note for the sum of eight hundred dollars, bearing date August 8, 1867, signed by E. P. Jones and R. B. Hurd, and payable to the said Home Mutual Life Insurance Company on demand, shall be paid, with interest, within sixty days after such demand is made by the auditor of the State of Ohio, for the said Home Mutual Life Insurance Company, then these presents shall be void.”</p> <p>To this action divers defenses were set up, viz.:</p> <p>1. It was denied that the plaintiff had any interest in or title to the note or mortgage, by reason of the fact that the transfer from the Home Mutual Life Insurance Company to the Union Central Life Insurance Company was ultra vires as to both companies, and, therefore, absolutely null and void.</p> <p>2. It was also denied, that a demand for the payment of the note had, at any time before the commencement of the action, been made by the auditor of state or any other person authorized to make such demand.</p> <p>The following defenses were also set up, to wit, that previous to the assignment of the note and mortgage to the plaintiff by the Home Mutual Company, the defendant had paid, to the Home Mutual, four hundred dollars. This payment was induced by the action of the Home Mutual Company, viz.:</p> <p>[Extract from Minutes of Home Mutual Life Ins. Co., of June 13, 1871.}</p> <p>“ Whereas, By reason of continued heavy losses which the company has sustained, the recent act of the Michigan legislature, requiring a deposit of $50,000 United States or state bonds, in order to enable the company to continue to-do business in that state; the raising of the valuation on-policies in this state from four and a half per cent, to four per cent., and thereby impairing or reducing the capital of the company nearly $50,000, it has become necessary that some-action shall now be had, or some new method adopted, in order to enable the company to continue in business, and' entitle it to the confidence and respect of the community therefore,</p> <p>“Resolved, That the board of directors now present to-the stockholders of the company the alternative either to pay in an amount in cash equal to fifty per cent, of the-amount of the reduced certificates of stock held by them respectively, or to pay fifty per cent, on their respective-certificates of reduced stock to some person who will assume and take their place in the company, and return to-them their notes and mortgages now on deposit, at Columbus, with the state auditor, upon the receipt of the fifty percent. of their said certificates of reduced stock, and thereby release them from all further liability.</p> <p>“Hesoloed, That, in the opinion of the board of directors,, should the stockholders fail to comply with either of the foregoing alternatives, the only course then left to pursue,, will be to reinsure its policies upon the most favorable terms, and wind up its affairs and business, which will, in the opinion of the board, not only take the full amount off the notes and mortgages on deposit with the state auditor, but will require, from the stockholders, the payment of an additional amount.”</p> <p>[July 13, 1871.]</p> <p>“Resolved, That all the money furnished the company by the stockholders, under and in pursuance 'of the action of the hoard of directors of June 13, 1871, is to be treated as .•a donation as to all policy holders and creditors, and k to ■be treated as a loan as between the stockholders. Unanimously adopted.”</p> <p>[August 1, 1871.]</p> <p>“ On motion, it was unanimously resolved that the payment of E. P. Jones of fifty per cent, upon his forty shares of reduced stock in this company, amounting to four hundred dollars, made to the company under the provision of the resolution of this board, under date of June 13, 1871, if not returned, on demand, to said E. P. Jones, is hereby declared (so far as said directors, in their official capacity .as a board of directors of said company, have power so to do) be in satisfaction to the amount of said sum of four hundred dollars, of the individual liability of said E. P. Jones for the debt of said company under the laws of the State of Ohio, providing for the individual liability of stockholders iu incorporated companies created under the laws ■of the State of Ohio.”</p> <p>The amount paid under these circumstances, was claimed ■•as a counterclaim against the sum secured by the mortgage.</p> <p>Also, that in September, 1868, the defendant, who was the principal debtor in said note, before the transfer of the note and mortgage to plaintiff loaned the Home Mutual ■Company one hundred dollars, which was to have been repaid or credited upon the note.</p> <p>Also, that in January, 1868, the Home Mutual Company declared a dividend to its stockholders, to be credited upon the stock notes, whereby the defendant became and was ■entitled to a credit of twenty-one dollars and thirty-seven ■cents upon said note of that date.</p> <p>By a supplemental answer, the following was set up by way of defense, namely, that after the commencement of the original action, one John Cochnower, a receiver of all the property of the Home Mutual Life Insurance Company, duly appointed as such, was made a party to an action by the plaintiff against James Turner, pending in the Superior Court of Montgomery county, wherein said receiver filed an answer and cross-petition, making the defendant, Elijah E. Jones, a party who was duly served with summons, in which cross'-petitiou of said receiver, the circumstances of the transfer of the defendant’s note and mort- . gage by the Home Mutual Company to the Union Central Company, as part of the entire assets and property of the II ome Mutual, were set forth. And it was also averred, in said cross-petition, that doubts had arisen as to the validity of such transfer ; whereupon, said receiver prayed that, in ■case the Union Central Life Insurance Company should be held not to be entitled to the assets and property so transferred by the Home Mutual Life Insurance Company, that judgment might be rendered in his favor against the debtors of the Home Mutual, to the end that he, as such receiver, might administer his trust, etc., and that said action in said Superior Court of Montgomery county was still pending.</p> <p>Judgment having been rendered in the court below in favor of the defendant, this proceeding is prosecuted by the plaintiff to reverse the judgment below.</p>

The original action was brought by the plaintiff in error against the defendant in error, to foreclose a mortgage given by the defendant, on certaiu real estate therein described, to the Home Mutual Life Insurance Company, to ■secure the payment of a promissory note in the following words and figures: $400.

<p>"Where, in an action involving several issues of fact, the finding is in favor of the defendant on all the issues, when it should have been in his favor on one only, it is error for the court, on motion therefor, to refuse to set aside the finding on the issues so erroneously determined, where the effect of the judgment rendered on said issues is different from what it would have been if only rendered on the issue rightly determined, and where said judgment may prove prejudicial to the plaintiff.</p> <p>[Counsel in this case submitted briefs making substantially the same argument as is reported in the Ehrman case, ante 324. — Rep.]</p>

The original petition in this case was filed in the court of common pleas on the 12th of September, 1874. The pleadings and evidence in the case are the same as. in the case of the plaintiff in error against James P. Curtis {ante, p. 343), with one exception. The exception consists of an extension of time granted in this case for the payment of the note secured by the mortgage. The following is a copy of the note, with its indorsements : •“ 800.00.

<p>The city of Columbus is a school district of the first class. On the 15th of July, 1879, the committee on text-books made a report to the board of education, condemning the Cornell series of geographies, which had been adopted by the board as text-books on that subject more than three years previous to that time, and recommended for gradual introduction in their stead, a part of the Eclectic series of geographies. The report was laid over for action, and on the 12th of August, at a regular meeting of the board, the report was taken up, and a proposition was then received from H. "W. Derby & Co., containing terms as to tbe prices upon which they would furnish Harpers’ geographies for the use of the schools. Thereupon the report was amended by substituting tbe name of Harpers’ geographies for that of the Eclectic series, and the report as amended was adopted by the board, and thereupon the board adjourned, no motion to reconsider having been made. On the 26th of August, the board, by a vote of six to five, assumed to reconsider its action of the 12th of August, and six of the eleven members of the board now claim that this action left the Cornell series as the text-book in the schools, and refuse to permit the child of the relator, the latter being a resident tax-payer of the school destrict, to use Harpers' geographies in the schools: Held, 1. That the action of the board on the 12th of August, 1879, was, within the meaning of section 52 of the school law (70 Ohio L. 209), an adoption as of that date of Harpers’ geographies as the text-books to be used in the schools on that subject. 2. That there could be no change in such text-books within three years after that date, without the consent of three-fourths of the members of the board, given at a regular meeting thereof. 3. By the action of the board on the 12th of August, Cornell’s geographies are to be gradually excluded, and Harpers’ geographies to be gradually introduced into the schools, so that no pupil will be required to purchase a new book who already has the old. 4. That Harpers’ geographies were adopted in connection with the proposition of H. W. Derby & Co., dated August 12, 1879, the terms of which, as to prices, are to be considered as conditions upon which they were adopted. 5. That the action of a mere majority of the board on the 26th of August, 1879, did not rescind or otherwise affect the action of the board on the 12th of August, 1879, and the determination of the last-named date is still in full force. 6. It was the duty of the board to carry into effect its determination of August 12, 1879, and this duty may be enforced by proceedings in mandamus on the application, of the relator.</p>

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

Motion to strike cause No. 122 on the general docket from the files, on the ground tbat the record, etc., have not been printed.

Mueller was plaintiff' in the original action. He sought to enjoin the collection of $28.54, being the taxes assessed on $1,000, added to his return of personal property for the year 1878 by the board of equalization of the city of Cincinnati. The court of common pleas sustained a demurrer to the petition, for the reason that it did not state facts sufficient to entitle the plaintiff to the relief asked.

Error reserved in the District Court of Lucas county. The original action was brought by plaintiffs in error, against defendants in error, to recover the possession of real estate, described as the undivided one-sixteenth part of River tract, No. 5. The whole tract contains -149.85 acres. A sixteenth part thereof is estimated to be 9.24. acres. Stephen B. Comstock was the common source of title, and, previous to November 4, 1885, was the sole owner of the tract.

Reserved in the district court. At the October term, 1879, of the court of common pleas, Harry Hulse was convicted and sentenced to the penitentiary, on an indictment in which he is charged with the commission of a felony in the preceding February. Several bills of exceptions were signed at his request during the trial, and, in the petition in error filed by him in the district court, thirty-one errors are assigned.

Error. Reserved in the District Court of Brown county. The action in the court below, was brought December 23, 1866, by the plaintiff, as administrator of one Pelix Coonce. It was founded on a decree of foreclosure of a mortgage, rendered in 1843, in a suit then pending in the common pleas of Brown county, wherein said Pelix Coonce was complainant, and the present defendant was the respondent.

Mandamus. Reserved in the District Court of Hamilton county. On tbe application of William M. Corry, the relator, an alternative writ of mandamus was issued by the District Court of Hamilton county against Silas Hoffman, auditor of the city of Cincinnati, to compel him to perform the duties enjoined upon him by the act of May, 8, 1879, entitled “ an act providing for the relief of W. M. Corry” (76 Ohio L. 256).

The action below was brought by the plaintiff in error against the commissioners of Logan county and others, to enjoin the commissioners from contracting for the construction of a road improvement as prayed for by the petition of J oseph N. Kauffman and others.

Mandamus. The court having allowed an alternative writ of mandamus, which was issued June 20, 1877, and an answer having been filed, the cause was heard on the pleadings. They show the following facts : Green Lawn Cemetery Association was incorporated in 1848, under a statute passed that year.

<p>1. The appropriation of land for the opening of a street, by a municipal corporation, through a parcel of land which stands upon the tax duplicate as a single lot or parcel, severs the same into two lots or parcels, for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of taxation.</p> <p>2. Where the same is assessed as two lots, and the assessments thus made are certified to the auditor of the county for collection, by order of the council, it is error to add the assessments made on each side of the street together, and charge the same upon the whole lot, as if no severance had been made.</p> <p>'3. The making of a street improvement required the construction of a stone and brick culvert, as well as earthwork. Each class of work was let and done separately, by different contractors, the culvert being first completed, accepted, and paid for. In making up the amount of the assessment to pay for both classes of work, it was error to include the cost of repairs of said culvert, made after it was accepted.</p> <p>•4. So, it is error to add to the cost of an improvement an estimated percentage to pay for collecting an assessment based thereon.</p> <p>5. Where an assessment is per foot front, and is based upon an estimate of the cost, and a certain number of feet frontage, and the cost of the work falls below such estimate, the court, in reducing such assessment to the actual cost, and in fixing the cost per front foot, should not deduct from the frontage actually assessable when the improvement was ordered, any part thereof subsequently appropriated by the municipal corporation for streets.</p>

The defendant, Davis, was the owner of 200 shares of $100 each of the capital stock of the Toledo and Wabash Elevator Company, a corporation organized under the laws of Obio, for the purpose of elevating and storing grain, and carrying on its business at Toledo.

<p>Error to the District Court of Eranklin county.</p> <p>Motion to dismiss the proceeding, on the ground that the plaintiff in error had failed to comply with the statutory provision in relation to printing the record.</p> <p>The petition in error was filed June 24, 1879; but the record not having been printed, the defendant in' error, on January 29, 1880, filed a motion to dismiss the petition in error for that cause.</p> <p>The plaintiff in error claims that the case is controlled by the Revised Statutes, § 6711, which did not go into effect until January 1, 1880; and hence, that the plaintiff in error might file the printed copies, or deposit with the clerk money to pay for the printing, at any time within sixty days from January 1, 1880.</p>

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

<p>A bill of exceptions, authorized by the act of April 12, 1858, “to relieve district courts” (S. & 0.1155), must be sealed as well as signed.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>The original action was brought by defendants’ in error against the plaintiffs in error, in the Court of Common Pleas of Cuyahoga county.</p> <p>They set out in their petition, substantially, that on the 9th day of September, 1854, the Cleveland and Mahoning Railroad Company issued to Voce, Perkins & Co., of New York, two certificates for twenty shares each, of fifty dollars value per share, of the capital stock of the said railroad company. The certificates were numbered 340 and 341, and were in the ordinary form, transferable by their terms and by the by-laws of the company, on the books of the company, upon the surrender of the certificates.</p> <p>That on the 16th day of September, 1854, said Yoce, Perkins & Co., for value, sold said stock, and delivered said two certificates for said stock to Elias Eassett, the plaintiffs’ •intestate, and on the 22d day of November, Yoce, Perkins & Co. executed a power of attorney on the back of each of the said certificates, authorizing the transfer of said shares to the said Eassett.</p> <p>That no transfer of the shares was ever made by the said company to the said Eassett in his lifetime, and that lie continued to hold said certificates until his decease, which occurred May 29, 1863, up to which time no dividends were declared on the stock.</p> <p>That Elias Eassett, in his lifetime, mislaid said certificates among certain old papers of the said Eassett, and upon his decease said certificates came with all his papers into the possession of the plaintiffs, as his administrators, and they have ever since held the same, though the same were not discovered by the plaintiffs tobe among said papers, nor found by them, until on or about the 1st day of December, 1871; immediately after which said company and said Burke and Perkins were notified of such finding.</p> <p>That the said railroad company, having full notice from its stock and transfer books that the said certificates so issued to the said Yoce, Perkins & Co. were still outstanding and had never been surrendered, and also that the said Elias Eassett had become the holder and owner of the said stock on the 8th day of May, 1863, at the request of the said Yoce, Perkins & Co., the said O. M. Burke and Joseph Perkins, without full or any other proof than the representations of the said Yoce, Perkins & Co. of the pretended loss of the said certificates, said Yoce, Perkins & Co., then claiming to own the same and the stock represented thereby, and representing that they had lost the same, procured said company to issue and deliver to the defendant, O. M. Burke, for himself and said Josejjh Perkins, two other certificates, numbers 1759 and 1760, for the same number of shares of the said stock, to be by him held in place of the said cei’tificates, numbers 340 and 341, so claimed by the said Yoce, Perkins & Co. to have been lost.</p> <p>That the said Burke, prior to, and at the time of the issumg of the said certificates to him as aforesaid, was the acting secretary of the said railroad company, and that said Perkins was vice-president and one of the directors thereof. That the said O. M. Burke had previous to such issue to him for his own and the benefit of said Joseph Perkins, bought of said Yoee, Perkins & Co. their pretended title to said shares of stock, with notice of the rights of the said Elias Eassett, at the rate of fifty cents on the dollar of the par value thereof, and the said Burke and Perkins claimed to be the legal holders of the said forty shares of stock in virtue of the said purchase until April 18, 1872. That at and before the time of such purchase of said pretended title, said Burke and Perkins, and said railroad company had full notice and knowledge of the fact that said certificates, numbers 340 and 341, were still outstanding, and of all the facts in relation thereto, therein stated, and that, therefore, and by reason of their relations to the said railroad company, such attempted purchase of said pretended title by them of the said stock was fraudulent, and invested them with no bona fide right or title thereto, as against the plaintiffs. That the said Burke and Perkins remained officers of the said company long after the said attempted purchase, and the said Perkins so. remained until April 18, 1872. That the said O. M. Burke and Joseph Perkins, on the said 8th day of May, 1863, delivered to the said railroad company a bond of indemnity, signed by the said Voce, Perkins & Co., by J. V. Voce in liquidation, in the penalty of $2,347.33, conditioned that if the said Voce, Perkins &. Co. should at all times indemnify and save harmless the said railroad company against'any loss, damage, or dividends arising out of the loss of said original certificates, numbers 340 and 341, and the issuing of the new ones in the stead thereof, and the return to the said railroad company the-said forty shares of the stock so issued, in case the lost certificates should thereafter be found by the said Voce, Perkius & Co., or be in the hands of any innocent holder claiming title thereto, or, if unable to return the said certificates issued to them, or other stock of said company for like amount, should pay to the said company the full, not exceeding the par value thereof, then said bond to be void, otherwise in full force.</p> <p>That on the 8th day of May, 1863, the defendants, O. M. Burke and Joseph Perkins, executed and delivered to the railroad company their written guarantee, therein reciting that the Cleveland and Mahoning Railroad Company had on that day, at their request, and upon the delivery therewith of the bond mentioned, issued stock certificates, numbers 1759 and 1760, for forty shares to O. M. Burke, they thereby bound themselves, their heirs, executors, and administrators to the said Cleveland and Mahoning Railroad Company in the sum of $4,000, that the said Yoce, Perkins & Co. should well and truly fulfill all the terms and conditions of their said bond of indemnity ; and the said Burke and Perkins would pay any and all additional loss or damage that the said company might sustain by reason of the return or delivery of said stock certificates, numbers 340 and 341, over and above what said Yoce, Perkins & Co. had stipulated for.</p> <p>That the said railroad company, by their order entered upon the records, approved the said bond and guarantee, and authorized their said vice-president and secretary to issue new certificates for the said stock, which order is dated on the said 8th day of May, 1863, and in pursuance of which order said certificates were so issued to the said Burke for the joint benefit of himself and said Perkins.</p> <p>That the said Burke and Perkins purchased said stock with a view to an anticipated advance of the value of the same, and in view of large dividends upon said stock, which had-been earned and were about to be made, and which they then knew would, and which afterward did occur. That the said Burke and Perkins, as holders of the said certificates for the said shares, have from time to time since the purchase thereof, received from the said railroad company sundry dividends on said shares of stock, both in money and in additional shares to them, to wit, October 26, 1863, a dividend paid in stock, thirty-four and one-half per cent, upon the said stock, amounting in stock at par to $690.</p> <p>On March 7, 1864, a dividend paid in stock, of ten per cent, amounting at par to $200.</p> <p>It appears from the petition that the railroad company paid to the said Burke and Perkins upon the capital stock so increased by the said stock dividends, cash dividends, at suudry times, between November 10,1863, and November 10, 1871, amounting in the aggregate to $1,841.60.</p> <p>The petition further alleges, in substance, that the said Burke and Perkins held said certificates and received all of said dividends as such holders, and continued to hold said certificates until April 18, 1872, when they sold the same at and for the price or sum of $3,556.12, which they then received therefor; and thereupon the said railroad compauy, at the request of the said Burke and Perldus, transferred said stock to such purchasers, all of which was done by said railroad company and Burke and Perkins, with full knowledge of all the facts hereinbefore stated; that the said Burke and Perkins have never paid the plaintiffs any part of the moneys so had and received by them, nor in any manner accounted to the plaintiffs therefor; that, on the 3d of April, 1872, the plaintiff’, Francis Dunlevy, as one of the administrators of Elias Fassett, presented said certificates 340 and 341 to the secretary of said railroad company, at his office in Cleveland, and demanded payment of all dividends that had been declared and were then due on the said stock, and also demanded a transfer of the said stock on the books of said compauy to the names of the administrators of the estate of the said Elias Fassett, deceased, which demand the secretary declined to comply with, and the railroad company still refuses to make such a transfer.</p> <p>The plaintiff’s allege that they bring said certificates 340 and 341, and tender the same in court, and ask that by a proper action of the court, the railroad company be required to issue to the plaintiffs new certificates of stock in lieu of those which they hold, with interest thereon, and they ask that in the event that it shall be determined that said company has become incapacitated to so issue certificates for stock or are not liable to so issue the same, that then said company be required to pay the plaintiffs the value of said stock and dividends and interest; and'in case this court shall find that the said company is not, by reason of its said transactions with the said Burke and Perkins, or otherwise, liable to either issue said stock to the plaintiffs or account therefor, and for the dividends and interest thereon, then and in that case plaintiffs say: That the said Burke and Perkins become and are by reason of the facts set forth in this petition liable to account to the plaintiffs for the said stock, for the said dividends by them received thereon, with interest upon each from the date of its receipt, and for the amount received by them for the said stock up to the said sale thereof by them, with interest thereon, specifying over again the amount for which they claim the stock was sold and the amount of dividends received by the said Burke and Perkins, and they ask that judgment be given for the plaintiffs against said defendants, and execution awarded for the said sum, with interest, and for such further relief as to the court shall seem just.</p> <p>To this petition the railroad company and Burke and Perkins filed separate answers. The railroad company, in its answer, admits that it issued to Voce, Perkins & Co. the certificates of stock mentioned in the petition, and that said stock was transferable only upon the books of the company. It denies any knowledge of a sale of stock by Voce, Perkins & Co. to Eassett, and denies that such sale was made. It admits that no transfer was ever made to Eassett upon its books. It denies all knowledge that the said Eassett was ever the owner of or that he lost or mislaid said certificates of stock. It denies also that these certificates of stock came-into the hands of the plaintiffs as the administrators of Eassett. It alleges that the stock stood in the name of Voce, Perkins & Co., upon its books, from the date of said certificates of stock up to the 8th day of May, 1863, when it alleges that the said stock was duly and legally transferred upon its books to tbe defendants, Burke and Perkins; that at the time of the transfer to Burke and Perkins it had no knowledge or information upon the subject of the ownership of the said stock, except so far as it appeared upon its books, and so far as it was represented by Yoce, Perkins & Co. to be their stock; and the company denies that it had any knowledge whatever that the said stock, or any part thereof, belonged to Elias Fassett or to any other person .than Yoce, Perkins & Co.</p> <p>It further states that the said Yoce, Perkins & Co., at the time of the transfer to Burke and Perkins, claimed to be the owners, and claimed to have lost the certificates which had been issued to them, and which are mentioned in the petition ; that the railroad company, fully believing that the said stock was the property of Yoce, Perkins & Co., and Yoce, Perkins & Co. having presented to it satisfactory proof of the loss of the said certificates, it thereupon duly permitted said stock to be transferred upon its books from Yoce, Perkins & Co. to the said Burke and- Perkins; that such transfer was allowed and made by the railroad company in the utmost good faith, without any design to hinder, oppress, embarrass, or injure said Fassett or any one else. It admits the execution to it of the bond of indemnity at the time of the making of such transfer. It admits the demand by the plaintiff, Dunlevy, for the transfer of said stock to the plaintiffs upon its books, and admits that it refused to permit such transfer, and says that it refused to make such transfer for the reason that the said stock had been previously and legally transferred to the said Burke and Perkins. It admits that Burke was the secretary of the company at the time he purchased the stock, and that Perkins was at that time one of its directors. It admits that the dividends alleged in the petition to have been made upon said stock have been made as alleged, and it charges that it has paid regularly to the persons in -whose name said stock stood upon its books all the dividends made.</p> <p>It is unable to state at what time said Burke and Perkins sold said stock, or any part thereof, but it denies that they sold said stock at the time or times alleged in the petition. And it alleges that the said Burke sold the half of said stock held by him within a few months after he purchased the same.</p> <p>The defendant denies that it is bound to transfer any stock whatever claimed by the plaintiffs, upon its books, and denies that it has the-powerto issue to them any stock whatever upon account of the certificates held by them, and denies all the other allegations in the petition contained.</p> <p>The railroad company also pleads that the plaintiffs ought not to maintain their action because that it did not accrue to them or to their intestate at any time within four years ; and further, in a separate defense, pleads that the action ought not to be maintained, because it did not accrue to the plaintiff or said Eassett at any time within six years next before the commencement of the action.</p> <p>The answer of Burke and Perkins is joint, and is substantially the same as the answer of the railroad company. They admit the purchase of the stock, the receipt of the dividends up to the time that they sold out. They set out in the answer that Burke sold out in 1866 and Perkins in 1872. They say that they purchased the stock in the utmost good faith in the full belief that Voce, Perkins & Co. were- the owners thereof, and without any knowledge or conception that it belonged to any other person. They deny ' all allegations of fraud or notice of wrong charged in the petition. They claim to have purchased the stock in the utmost good faith and to be the owners thereof.</p> <p>The plaintiff, by reply, denied the new matter contained in these answers.</p> <p>Upon the trial, the plaintiff offered in evidence the following by-law of the Cleveland and Mahoning Railroad Company, to wit:</p> <p>“No certificate of new stock shall be issued, unless in obedience to the orders of the board of directors, or on subscriptions made and accepted by their authority and on full payment therefor being made.</p> <p>“No new certificates shall be issued in place of any certificates previously issued until such previous certificate shall have been surrendered and canceled, and such cancellation, with the date thereof, plainly written on the face of the certificate so surrendered.</p> <p>“A certificate or certificates may be issued on the special order of the board in place of certificates lost or destroyed, on full proof being made of such loss or destruction, and on receiving adequate security to indemnify the company against all loss consequent upon the issue of such new certificate or certificates.”</p> <p>The plaintiffs also offered in evidence the following resolutions, which were unanimously adopted at a meeting of the board of directors of said railroad company, held April 9,1863, to wit:</p> <p>“Resolved, That the large surplus of earnings of this company’ over and above its current expenses, interest and taxes fully entitle the stockholders to some income from their investments, and that the present situation and prospects of the company justify an early dividend upon the capital stock.</p> <p>“jResoloed, That it is the true policy of this company to commence paying dividends as early as July next, and that measures be taken to provide therefor.”</p> <p>At a meeting of the board of directors of the company, the bond of Vose, Perkins & Co., for c'ertificates of stock said to have been lost, was approved, and the vice president and secretary authorized to issue new certificates.</p> <p>Such further facts as are necessary to an understanding of the ease will be found in the opinion.</p> <p>On appeal in the district court the following decree was rendered:</p> <p>“ This cause came on to be heard upon the petition of the plaintiffs, the separate answer of the Cleveland and Mahoning Railroad Company, the joint answers of Oscar M. Burke and Joseph Perkins, the replication thereto, the exhibits and testimony, and was argued by counsel. On consideration whereof the court do find the facts stated in the petition to be true; that said railroad company and said Burke and Perkins had notice in equity when said new certificates of stock Nos. 1759 and 1760 were issued to said Burke and Perkins, in place of certificates Nos. 340 and 341 previously issued to Yoce, Perkins & Go., and by said Yoce, Perkins & Co. sold aud delivered to Elias Bassett; that said last mentioned certificates were owned by some other party than said Yoce, Perkins & Co., and that the issue of said new certificates in place of said certificates previously issued, was a violation of the by-laws of said railroad company, aud of the assurances of the railroad company embodied in said certificates, as well as in said bylaws, that no new certificate should be issued in place of any certificates previously issued, until such previous certificate should have been surrendered and canceled; that said issue of certificates No. 1759 aud 1760, in place of said certificates Nos. 340 and 341, was a violation of corporate duty on the part of said railroad company and in law fraudulent, and conveyed no title in equity in said stock represented by said new certificates to said Burke and Perkins.</p> <p>“ And the court do further find, that prior to the commencement of this suit said Burke and Perkins conveyed all of said stock so wrongfully issued to bona fide purchasers without any notice of any outstanding equity in the plaintiffs as administrators of Elias Eassett, deceased ; that plaintiffs made demand for the transfer of said stock and for the dividends which had accrued thereon, of said company, on the 3d day of April, 1872; that the railroad company refused to transfer said stock and to pay said dividends; that the law and equity of the ease are wdth the plaintiffs, and that they are entitled to have and receive from the defendants the value of said stock on said 3d day of April, 1872, so wrongfully conveyed away from them, with the increase and dividends thereof, with interest on said cash dividends from the time the same were payable, and with interest on the value of said stock from the time of the demand thereof until the first day of this term.</p> <p>“ The court do also further find that said original issue of stock had been increased by said stock dividends from $2,000 to $2,890; .that the value of said stock so increased as aforesaid to $2,890, was on said 3d day of April, 1872, $3,368 ; that the interest on said sum of $3,368, to the first day of this term, is $808.32; and that the amount of cash dividends declared and payable on said stock after the same was so wrongfully issued to said Burke and Perkins, up to the 3d day of April, 1872, and the interest thereon from the date of said cash dividends respectively, to the first day of this term, is $2,908.18. The court do therefore find that there is due from the defendant, the Cleveland and Mahoning Railroad Company, to the said plaintiffs, as administrators of said Elias Eassett, deceased, in the premises the sum of $7,084.50, with interest thereon from the first day of this term, and order, adjudge, and decree that the said defendant,-the Cleveland and Mahoning Railroad Company, within teu days from the rising of this court, pay to said plaintiffs said sum of $7,084.50, with interest thereon as aforesaid, and the costs of the suit to be taxed, and that in default of such payment, execution issue therefor.”</p> <p>A motion for a new trial was overruled. To which ruling and to the said judgment and decree the defendants excepted.</p> <p>The object of this proceeding is to obtain a reversal of the judgment and decree of the district court.</p>

<p>A petition was filed by an executor under the act of 1857 (54 Ohio L. 202;. 8; Rev. Stat., § 6202), in which he states that doubts are entertained by himself and others as to the validity of a certain provision in the testator’s will, requiring him to erect a monument; and that he desires the direction and judgment of the court whether the provision is valid; but it is not alleged that there is now in his hands, or will come within his control, any money or property which might be applied in defraying such expense : Held, That sufficient facts are not stated to require such direction or judgment of the court.</p>

The defendant in error was prosecuted before the mayor of the city of Piqua and a jury, for keeping open a bouse on Sunday, October 31,… Held: prima facie, a keeping •open of such house, shop, room, booth, arbor, cellar, or other place, within the moaning of the first section of this ordinance, and when established to the satisfaction of the mayor of said city, shall subject the offender to the penalties therein set forth.” The prosecution terminated on November 17,1875,…

The plaintiff in error was convicted at the October term, 1879, of the Court of Common Pleas of Greene county, of the crime of grand larceny.

November 7, 1868, the board of education of school district No. 1, Perrysburg township, Wood county, being then engaged in tbe erection of a public school building, and having incurred obligations therefor, resolved to issue and sell bonds to aid in paying the same, under the act of May 13,1868.

September 20, 1873, Josiah Robbins commenced an action against the plaintiff in error, a railroad corporation, in possession of and operating the Cleveland and Mahoning Railroad, to recover compensation for the value of land unlawfully appropriated, and damages for the incidental injury to the residue of the parcel.

The original action was brought by the defendants in error to recover damages for the loss of a valise and samples of merchandise therein. The plaintiffs’ agent was a traveling salesman, selling by samples. Ho bought a ticket at Bucyrus, Ohio, to go to Eorest, Ohio, on the 8th day of November, 1871. He put his valise into the possession of the servants of the defendant, and took a check for the-same, to be carried to Eorest, nothing being said as to what it contained.

<p>Error to the District Court of Butler county.</p> <p>On June IB, 1874, William H. Scobey, guardian of Eliza Kinney, commenced an action in the Court of Common Pleas of Butler county, against John Cox, administrator of Abraham P. Cox, and Charles L. Cano.</p> <p>An answer by Cano and a reply thereto were filed, the administrator making default; and the cause having been submitted to the court of common pleas on the testimony, that court found in favor of the plaintiff, Seobey, and rendered judgment in his favor, as such guardian, for $1,591.72.</p> <p>A motion for a new trial having been (overruled, a bill of exceptions was allowed, containing all the evidence, and, on error prosecuted by Gano, the judgment was reversed by the district court.</p> <p>A petition in error was filed in this court, on leave,to reverse the judgment of reversal.</p> <p>The material facts are as follows : Horatio S. Kinney dying in 1861, Amanda, his widow, was appointed by the Probate Court of Butler county as his administratrix. In 1865, Abraham P. Cox was appointed, by the same court? guardian of the person and estate of Kinney’s daughter, Eliza, then five years of age. Charles L. Gano was surety in his bond as such guardian. Cox continued to act as guardian until his death, which occurred in October, 1872, but he filed no settlement account in the probate court. Soon after his death, John Cox was appointed as his administrator.</p> <p>Amanda Kinney having, with her daughter, Eliza, removed to Hamilton county, of which county they became residents, Amanda was, on November 6, 1872, appointed by the probate court of that county guardian of the person and estate of Eliza, and gave bond and received letters of guardianship.</p> <p>On November 21, 1872, Amanda, at the request of John Cox, attended at the Probate Court of Butler county, where he, as administrator, filed a settlement account of A. P. Cox as guardian of Eliza Kinney. Amanda, as guardian, then gave him a receipt for $1,356.58, and he received credit in the settlement for the payment to her of that sum in money. In fact, however, no money was paid, but instead thereof, John Cox, as administrator, gave to Amanda a due bill for the amount, payable to her as guardian of Eliza Kinney; but no part of the due bill was ever paid. She says that the due bill was not received in payment; and it is clear that she did not fully understand the nature of the transaction.</p> <p>On April 6, 1874, Amanda and Eliza had again become residents of Butler county. On that day, Eliza, then nearly sixteen years of age, and living with her mother, went to the probate court of that county, and made choice of William II. Scobey as her guardian, and he was accordingly appointed guardian of her person and estate.</p> <p>On April 17, 1874, Scobey and John Cox appeared in the Probate Court of Butler county and consented to a modification of the settlement account; and thereupon the court entered an order modifying the settlement, so as to show that, while the true amount due to Eliza Kinney from the estate of her former guardian, A. P. Cox, was $1,356.58, yet that no part of it had been paid; and that Amanda had no authority to receive the due bill. The due 'bill was then surrendered, and the court ordered John Cox, as such administrator, to pay into com-t, forthwith, the amount so found due, with interest from November 21, 1872.</p> <p>The order to pay the money into court not having been complied with, Scobey, as guardian, brought this suit against John Cox, administrator, and Charles L. Gano, on the bond of Cox, as guardian, with Gano as surety ; and, as already stated, the district court having reversed the judgment which Scobey obtained, he seeks in this proceeding to reverse the judgment of reversal.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The original action was brought by plaintiffs in error against defendants in error, in ’ the Court of Common Pleas of Hamilton county, to quiet their title and possession to lot number two of a certain plat and subdivision of a tract of land known as the Turkey Bottom farm. At the hearing in the common pleas a decree was rendered in favor of the plaintiffs; but, on appeal to the district court, the petition of the plaintiffs was dismissed. A motion for a new trial was made and overruled, to which the plaintiffs excepted, whereupon a bill of exceptions was taken setting out all the testimony. It is now assigned for error that the finding of the district court was contrary to the evidence.</p> <p>The testimony very clearly establishes the following state of facts: Nathaniel W. Stites, being the owner in fee of lots numbers one and two in said subdivision — the last-named lot, number two, being subject to the life estate of one Ann "W. Thompson, executed a mortgage to one Perris upon.said lot number one, “containing 26.21 acres,” and also upon “ all his interest, present and prospective, in lot two of said plat and partition.” Lot two contained 29 acres and a fraction of an acre.</p> <p>Iu a proceeding to foreclose this mortgage (and two others upon lot number one) the premises were described in the petition as above set forth. A sale was decreed of “the premises in the petition described.” The order of sale issued to the sheriff* described the property as it was in the petition. Under this order an appraisement was returned, “ that the premises above described, upon actual view thereof, are of the value of $135 per acre.”</p> <p>In reporting the sale, the return was as follows: “Agreeably to the command of the within order, I have appraised and advertised the within described lot or parcel of land, . . . and sold to Prancis Portman the following described real estate (describing the same as in the petition), “ for the sum of $165 per acre. . . . Amount of sale, $4,324.65.” This amount was paid, and no more. Sale was confirmed and deed executed, describing the property as in the petition and order of sale. The defendants claim title to lot number two under this proceeding, as the heirs of the purchaser, Práncis Portman. The plaintiffs, the life estate of Thompson having terminated, entered into possession of lot two, and seek to be quited in their title as heirs of Stites, the mortgagor.</p> <p>On the trial in the district court, the plaintiffs proved, under objection by the defendants, that the appraisement of $135 per acre was of lot number one alone, and that the interest of Stites in lot number two was not considered by the appraisers, and also, that at the sale by the sheriff lot number one was offered for sale, without reference to the interest of Stites in lot number two, and was sold for $165.</p>

<p>Error to tbe District Court of Hamilton county.</p> <p>The courts below sustained a demurrer to plaintiffs’ second cause of action. It seeks to enforce a mechanic’s lien, in favor of the plaintiffs as railroad contractors, against defendant, an Ohio railroad corporation, for a balance due for constructing eleven miles of its railroad, from Columbia station, Hamilton county, to Mount Carmel, Clermont county, Ohio.</p> <p>The defendant’s road, as provided for in its charter, extends from said first named station, through Clermont, Brown, and Adams county, to Portsmouth, Scioto county. Of this line, only the western end has been completed under plaintiffs’ contract, while some work has been done further east, but all work is now suspended on the uncompleted part.</p> <p>Plaintiffs claim a lien on the railroad and right of way on entire line of said railroad from Columbia to Portsmouth, including not only the road itself and the defendant’s interest in the land on which it is located, but also on all its property, income, and franchises. The laud on which this lien is sought, is described as' “ a strip of land” from twenty to one hundred feet wide, extending from Columbia to Portsmouth, constituting defendant’s right of way. From the former point to Georgetown, the route is specifically described as passing through sections and surveys designated; but from thence to Portsmouth, it is generally described as passing through the counties above-named.</p> <p>It is stated that the work was done under a contract, which need not be here set out, and that there is a balance due, for which this lien is sought.</p> <p>The affidavit filed with the recorder states, that it is made to secure a building lien on said premises, lands, rights of way, structures, railroad bridges, and all parts of said railroad, etc.</p> <p>The contract as modified, and under which the work was done, included graduation, masonry, bridges, culverts, trestles, and such other work as would be required to complete the road ready for the rolling-stock, at agreed prices for the different classes of work, to be paid for upon estimates and measurements of the defendant’s engineer.</p>

<p>Error to the District Court of Allen county.</p> <p>On February 26, 1874, an action was brought in the Court of Common Pleas of Allen county, by the trustees of Zion’s English Evangelical Lutheran Congregation, of Lima, Ohio, against Alexander S. Bartholomew, Henry Boose, Samuel Boose, Ephraim Roush, and others. The object of the suit was to enjoin the defendants from molesting the plaintiffs in the control and occupation of a Lutheran church building, and to quiet the plaintiffs’ title. An answer, an amendment thereto, and a reply were filed; and after judgment had been rendered in the court of common pleas, the case was appealed to the district court, where judgment was rendered in favor of the plaintiffs below, and the defendants were perpetually enjoined, as prayed in the petitiou. A motion for a new trial was overruled, and a bill of exceptions, containing all the evidence, was taken. A petition in error was subsequently filed in this court, on leave.</p>

<p>Error. Reserved by the District Court of Preble county.</p> <p>Tlie original action was commenced in the court of common pleas by plaintiffs in error against defendant in error to recover the possession of divers lots and parcels of land, and also for the recovery of mesne rents and profits. The several lots and parcels of land described in the petition are also mentioned in the second defense set up in the defend-, ant’s answer, which is as follows:</p> <p>Second defense. — And for a second defense to said plaintiffs’ petition, defendant says that, on the 13th day of December, 1832, he was lawfully married to one Polly Holliday, and that he and the said Polly lived and cohabited together, as husband and wife, until the 22d day of June, 1873, when she died iutestate, never having bad any issue born alive by said defendant, but leaving the said Erancis B. Denny and Levina C. Minor, her only children and heirs at law, and who were such children and heirs by a former husband of said Polly. And defendant further says that his said late wife, Polly McCabe, became seized in fee simple of all the real estate described in said petition, except said lots Nos. 399, 529 and 388, in Eaton, by deeds of conveyance to her in her life time and during her said coverture with this defendant, at the times following, to-wit: Of said first described piece (undivided half of lot No. 101, in said town of Eaton), on the 31st day of December, 1844 ; of said second described piece (parts of in-lots Nos. 151, 152 and 153, in said town of Eaton), on the 7th day of May, 1853; of said third described piece (south half of lot 337, in said town of Eaton), on the 5th day of January, 1861; of said fourth described piece (out-lot No. 27 and part of out-lot No. 22, in said town of Eaton), on the 13th day of May, 1861; of said fifth described piece (lots Nos. 372 and 373, in said town of Eaton), on the 5th day of March, 1862; of said sixth described piece (part of the northwest quarter of section three, township seven, range two, east, in Preble county, Ohio), on the 20th day of April, 1863 ; of said seventh described piece (lot No. 436, in said town of Eaton), on the 25th day of February, 1867.</p> <p>Defendant further says that, at the commencement of this suit, he had and still has a legal estate for and during the term of his life in all of said real estate (except said lots Nos. 399, 529 and 388, which were purchased by said Polly after 1869, in said town of Eaton,) as tenant by the curtesy, by virtue of his said marriage with said Polly Holliday, since deceased,; and the said Francis B. Denny and Levina C. Minor had at the commencement of this suit and still have only a remainder in said premises, and they will not become entitled to the possession thereof until after the death of this defendant.</p> <p>After a demun'er to this defense had been overruled, the plaintiffs replied and the cause was submitted to the court, upon certain admissions and testimony, whereupon the court found the facts stated in the said second defense to be true, together with the additional fact that neither of the lots or parcels of land came to the wife of defendant by deed of gift from the defendant or any of his ancestors.</p> <p>Upon this state of facts the court rendered judgment in favor of plaintiffs for each parcel which had been conveyed to the defendant’s.wife prior to the 1st of July, 1853, or subsequent to the 1st of July, 1869, and for the defendant for the several parcels which had been conveyed to her between those dates. The plaintiffs also recovered $726.48 as mesne rents and profits.</p> <p>Thereupon each party moved for a new trial, which mo- . tions being overruled, each party excepted.</p> <p>The plaintiffs filed their petition in error in the district court to reverse so much of the judgment- as was in favor of the defendant, and the defendant filed his cross-petition to reverse the judgment in favor of plaintiffs as to those parcels of land that were acquired by his deceased wife prior to July 1, 1863.</p> <p>In the district court the cause was reserved for decision in this court.</p>

The plaintiffs brought their action against the defendants, Nathan Tucker, Robert P. Halliday, the fir.m of Rowland & Talmage, and William C. Manson, receiver, to recover out of the funds in the hands of said receiver belonging to said Tucker the sum of $145.

<p>Error to the District Court of Portage county.</p> <p>The action ivas brought in the count of common pleas, by Bliss, to enjoin Messenger from acting as his guardian, and from any further control, interference, or management of his property. The petition also prays for general relief.</p> <p>The answer takes issue with the petition, and, on appeal to the district court, a special finding of facts was had, upon which that court rendered judgment for the plaintiff; to reverse which,.this action is prosecuted.</p> <p>The special findings present the legal questions, and areas follows:</p> <p>“ This cause came on to be heard on the petition, answer, record, exhibits, and testimony produced in open court, and was argued by counsel. On consideration whereof, the court, on application by defendant, find the following statement of facts: On the 8th day of November, 1877, Worcester Bliss was then, and fora long time prior had been a resident of Windham, in Portage county, Ohio, and over eighty years of age; on evidence produced, to the satisfaction of the probate court of said county, on a hearing had in said court, he was found and adjudged to be an imbecile, and the defendant, William A. Messenger, was appointed a guardian over the person and property of said Bliss; and said Messenger appeared and gave legal bond for the faithful performance of said trust, which was approved by said probate court, and letters of guardianship were duly issued to said Messenger, who entered upon the duties imposed by said appointment, and still continues to act as such guardian.</p> <p>“That said hearing and appointment were entirely without notice to said Bliss, and he was not present himself, or by attorney, and did not know of said hearing or appointment for some days thereafter. That on the 16th day of November, 1877, the said Worcester Bliss, by his attorney, appeared in the said probate court and tiled his motion to set aside said adjudication and appointment of a guardian in his absence, for the reason that ‘ the grounds set forth by the applicants for said appointment were not true.</p> <p>“ That a full hearing was had in said court, on notice to all the parties, said Bliss and his counsel being present, and said motion for removal was overruled, and said guardianship was ordered to be continued, and said Bliss gave notice of his intention to appeal to the Court of Common Pleas of Portage county.</p> <p>“ Said Bliss also tendered his bill of exceptions in said probate court, which was .signed, filed, and ordered to be made part of the record.</p> <p>“ That said motion was duly appealed to said common pleas court, and there dismissed on the ground that it was not appealable. Said Bliss also took said case to the court of common pleas on error, and was duly heard therein, and the judgment of said probate court was affirmed.</p> <p>“ The court further find, that on the 28d day of November, 1878, the said Worcester Bliss again filed his motion in said probate court that said court should order that said guardianship terminate, on the ground that said Bliss had no notice of said application for appointment on the 8th day of November, 1877, and also on the further ground, that at the time of said application said Bliss was not an imbecile, and was then of sound mind, and that no reason existed for the appointment of said Messenger as guardian for said Bliss; and also that said Bliss is now fully competent to transact his own business and preserve his property, and no reason now exists for the continuation of said guardianship. Said motion was duly and fully heard in said probate court, and on the 22d day of April, 1879, said motion was dismissed, said Bliss found, by said probate court, still to be an imbecile, and said guardianship continued.</p> <p>“ On the 28th day of December, 1878, said Bliss filed his petition in this case against said Messenger, in the court of common pleas of said county, the object and prayer of which will appear in. this record.</p> <p>“ On consideration whereof, the court find that for the reason that said Bliss had no notice of said hearing and proceeding for the appointment of said guardian on the 8th day of November, 1877, the said appointment was void, and of no legal force or effect whatever. That said Messenger is not now, and never has been, the legal guardian of said Worcester Bliss.</p> <p>“ The court further find, that at the time of said appointment said Worcester Bliss was not an imbecile, nor has he, at any time since, been an imbecile, and that he has not squandered any of his property.</p> <p>“It is therefore ordered, adjudged, and decreed that said appointment of said Messenger as guardian for said Bliss by said probate court be taken and held for naught, and said William A. Messenger be forever enjoined and restrained from further acting as such guardian, and that he also be perpetually enjoined and restrained from further controlling, managing, or in any way interfering with the property or rights of said Bliss; and that said Messenger pay the costs of this proceeding, for which judgment is hereby rendered against him, and execution awarded. To all of which said defendant excepts, and thereupon said defendant filed his motion for a new trial and rehearing, which was overruled by the court, and a new trial and rehearing refused, to which defendant also excepts; and it is ordered and adjudged by the court that defendant pay the costs of this suit, to which he also excepts, and this cause is remanded to the court of common picas, for the purpose of carrying this decree into execution.”</p> <p>To reverse this judgment, the errors assigned 'are: In holding that Messenger was not the legal guardian, and in holding his appointment void upou the facts stated, and in granting the relief asked.</p>

<p>Error to tbe District Court of Pike county.</p> <p>The action below was brought by tbe plaintiff against tbe defendant, to quiet his title to a small strip of land lying near tbe line dividing tbe farm of the plaintiff from that of the defendant. He alleged, by bis petition, that he was the owner in fee simple and in possession of said strip, and that the defendant set up an adverse ownership to the same. The tract of land comprising the two farms at an early date was owned in common by several persons, by whom it was amicably divided into two parts by a line commencing at a gum stump, “ running thence north eighty-nine degrees, west five hundred and seventy rods to two red oaks and a sugar tree standing on the east bank of the Scioto river.” The north division of said tract was denominated the “Vanmeter farm,” and the south division the “ Harness farm.” The Vanmeter farm was purchased by the defendant Hughes about 1860, and the Harness tract was purchased by the plaintiff in 1865. The plaintiff alleged, by his petition, that for the greater part of thirty years prior to his purchase of the Harness tract, an old division fence stood on said dividing line, up to which, on each side, said lands were cultivated by their respective occupants. He then, among other things, alleged that, ■“ until said Hughes purchased the said Vanmeter tract, there was no controversy whatever as to said fence being the true-division line between said two tracts. That in 1861, and shortly after the said Hughes purchased the said Vanmeter tract, he removed said division fence from where it had stood for so many years, and built a new fence along a line-which he claimed as the true division line between the two tracts. Said new line, upon which said fence was built, commenced at a point on the bank of the Scioto river between two or three rods below, or south of where said old fence had stood, and ran from there acz-oss the bottom land,, approaching the old line gradually until it struck and finally crossed the line where said old fence had stood. When the plaintiff made his said purchase and took possession of the said Harness tract, he found the said Hughes-in possession of said lands down to said new fence, and claiming that to be the true division line between the said two tracts.</p> <p>“Plaintiff thereupon commenced in this couz-t an action against the said defendant Hughes to recover possession of said lands lying between where the said Hughes had built said new line fence and the line where the said old division fence had stood. And such proceedings were had in such action that, upon the final trial thereof at the April term,. 1870, of this court, the said Hughes succeeded in establishing to the satisfaction of the court and jury that said new fence had been built along and upon a line which had been run, staked off, and agreed upon as the true division line between the said Vanmeter and Harness ti-acts, by and between the said Hughes and the owner-s at the time of the said Harness tract, and that said parties had, up to and until the plaintiff became the purchaser of the said Harness tz’act, held, occupied, cultivated up to, and acquiesced in and treated said new fence as the true division line between said two tracts, and that by reason thereof the plaintiff’ failed in his said action. He avez-s, that by virtue-of said adjudication, the line upon which said new fence-was built wrns established as the true division line between the said tracts now owned by him and Hughes, respectively,. and he has accordingly acquiesced in and treated that as the true line, and has continued ever since he became the owner of said tract to hold and cultivate up to said line. He was not aware when he became the purchaser of said Harness tract that said new line had been agreed upon between the áaid Hughes and those under whom the plaintiff holds, and believing that where the old fence stood was the division line between the two tracts, he commenced and prosecuted said action, but since said trial is willing and now here offers to abide by said new fence as the true dividing line, and occupy and hold up to the same.</p> <p>“ He avers, however, that the said Hughes refuses to be bound by said line, as agreed upon by him and the Harness heirs, but threatens to take possession and occupy lands below, and south of said line, where said new fence stood. He avers further, that a dispute has arisen between the plaintiff and defendant as to where said new fence stood, or rather where said agreed line was staked off. Defendant now claims and insists that the lino where said new fence stood, or rather where said new line was run, is about two rods, at certain points along the line, south of where said fence was in fact established, and is continually encroaching upon the lands of the plaintiff, and disturbing, and threatening to disturb, his peaceable and quiet possession thereof. He says that said line, upon which said new fence was built, -was run and staked out by one-• Percy, who is now deceased. That the fence built originally upon said line, so run out and staked off, lias been washed away by high waters until there is nothing but an imaginary line of division between the lands of the plaintiff and defendant. Plaintiff says he is in possession of the lands up to where said new fence stood, and not north of that. That the lands along said line, south of the turnpike road, are valuable for agricultural purposes. Plaintiff' avers that he has plowed the ground and planted corn on his side of said line and up to the same, and that the defendant, in the absence of the plaintiff', crosses said line and plows up a portion of the ground and the com so planted by tbe plaintiff. • In consequence of said acts of the defendant, and his threats to persist in the same, the plaintiff avers that he is disturbed in the possession of a portion of his said land, and in the quiet enjoyment thereof.”</p> <p>Prayer to be quieted in his title and possession, and for alternative relief. A demurrer to the petition was sustained by the district court, and the petition dismissed. This action of the district court is assigned for error.</p>

<p>1. An indictment in which it is averred that P. assaulted and purposely-wounded B., with the intent to kill him, of which wound B. died, sufficiently charges that P. purposely killed B.</p> <p>2. A court of common pleas, held by a single judge, has power, under the act of 1875 (75 Ohio L. 47, § 8), to appoint an attorney to assist the prosecuting attorney in the trial of any case pending in such court; and the rule is not different in Hamilton county, although the prosecuting attorney and an assistant prosecuting attorney appointed under section 9 of the same act, be present and participate in such trial.</p> <p>8. The court should not appoint an attorney, under said section 8, to assist in the trial of one charged with crime, merely because the prosecuting attorney, the injured person, or his friends, request that such appointment be made, nor unless, in the opinion of the court, the public interest requires such appointment; but, where such appointment has been made, it will be presumed, in the absence of any showing to the contrary, that it was properly made.</p>

<p>1. The plaintiff attached to and filed with his petition, and as part thereof, a copy of the policy of insurance on which his action was founded. On trial in the common pleas, and on error to the district court, the copy of the policy was treated as part of the petition, without objection by either party : Held, that it is not error in a reviewing court to treat said policy as a part of the petition.</p> <p>'2. Where, in a policy of insurance, the written application is referred to and expressly made part of the contract, such application thereby becomes part of the same as fully as if embodied in the policy.</p> <p>3. One condition of the policy was, “ and any false representations made by the assured of the condition or occupancy of the property, or any material fact — material to the risk,” avoids the policy: Held, that representations concerning a matter material to the risk contained in the application, if untrue in fact', avoids the policy, whether made intentionally or otherwise.</p> <p>4. In said application the question was: “Is the property incumbered? If so, state to what amount, and the value of the premises.” Ans. “Yes; mortgage $2,000 — $10,000.” When the fact was, this mortgage, which was made by the insured, was $3,200 principal and $240 accrued interest: Held, that this was a false representation, material to the risk, which avoided the policy.</p> <p>•5. It was a condition of the policy that, “if the property be sold or transferred, or any change take place in the title, either by legal process or otherwise, . . . without the consent of the company, the policy shall be void.” This condition was not broken by the execution, of a mortgage on the property, without such consent.</p>

October 28, 1874, the village of Avondale commenced an .action in the Court of Common Pleas of Hamilton county against Reuben Springei’, Patrick O’Donnell, and the United Colored Amei’iean Association. The petition is, in sub,stance, as follows: Avondale is an incorporated village, ■•having at the last federal census a population less in numher than four thousand, situate in Hamilton county,-which contains a city of the first class.

<p>1. In an action for an injury, occasioned by negligence, where the circumstances require of plaintiff the exercise of due care to avoid the injury, and his testimony does not disclose any want of such care on his part, the burden is upon defendant to show such contributory negligence as will defeat a recovery.</p> <p>2. But if plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.</p> <p>3. In an action by a traveler on a public highway, against a railroad company, to recover for injuries by collision with a passing train at a public crossing, alleged to have been caused by negligence in the management of the train, where the evidence tends to show that he did not exercise proper care and caution to avoid the injury, it is competent for him to show that there was no signboard up, as is required by law, as reflecting upon the question of his want of care, although the want of such signboard is not alleged as a ground of recovery.</p> <p>4. "Where a person familiar with a dangerous railroad crossing, in passing over the same, neglects the exercise of any care to ascertain if a passing train is near, and in consequence of such neglect is injured by a collision with the train, he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing will not excuse such neglect.</p>

The original petition was filed in the Court of Common. Pleas of Muskingum county, by William S. Nelson and •John Nelson, two of the heirs of Susannah Forsyth, deceased, to contest her last will and testament. The legatees, ■devisees, and executors named in the will were made defendants in the petition, as were also the other heirs of the testatrix, to wit: James Nelson, Sarah Nelson, and Mary Ann Nelson.

M. L. Hiler recovered a judgment in the Court of Common Pleas of Brown county, at the June term, 1872, Against Jacob J. Hiler and Rudolph Hiler, for $159.25 and costs. Jacob J. Hiler thereupon commenced a proceeding in error, in the district court, to reverse the judgment. During the pendency of the proceeding, one of the attorneys of M. L. Hiler informed Jacob J. Hiler, that unless 'the judgment was paid, he would cause execution to issue.

Error. Reserved in the District Court of Clermont county. Held: that the college had no legal authority to raise the subscription sued on, nor to sell perpetual scholarships, and, thereupon, gave judgment for the defendant. A motion for a new trial was overruled, and on error to the district court, the cause was reserved for decision here. The date of reservation was September, 1869.

Appeal. Reserved iu the District Court of Medina county. The original action ivas brought by Julius A. Upson, as administrator of Maud Young, to determine, as between conflicting claimants, the rightful distribution of the assets in his'hands. The plaintiff’s intestate, Maud Young, was the bastard child of Minnie A. Noble, born in the year 1867.

-' The petition in ei’ror in this case was filed on the 22d day of September, 1879, to reverse a judgment rendered by the District Court of Butler county, April 21,1877, in favor of' George W. Kennard against George G. Kennard. At the time of the filing of the petition in error, the alleged plaintiff in error, George G. Kennard, was deceased, he having-died on the 8th day of April, 1878.

<p>1. An attachment, under the civil code, is an auxiliary proceeding in an. action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon.</p> <p>"2. About 11 o’clock, a. m., an order of attachment was issued upon the filing of an affidavit and giving bond. It was served and returned about 3 o’clock, p. m., but no petition was filed until about 6 o’clock, p. m., of the same day. Held, that, the attachment was issued without authority of law, and as against other attaching creditors and lienholders gave no priority.</p> <p>:3. In an action by one of several attaching creditors against the others, after judgment, to determine the priority of the several liens acquired by seizure under the respective orders of attachment, the lien of any attaching creditor may be defeated by showing that his attachment was issued without the authority of law.</p>

<p>Error to the District Court of Muskingum county.</p> <p>The original action was brought in the Court of Common Pleas of Muskingum county by the plaintiff in error against defendant in error, to recover the possession of a thousand barrels of salt. An order of delivery was issued to the sheriff of said county. The defendant, by answer, denied the right of the plaintiff to the possession of the property, and by cross-petition alleged, among other things, that the contract under which the plaintiff claimed was illegal and void, and prayed for an injunction, restraining the plaintiff from interfering in any manner with the property in dispute. The salt in question was manufactured by defendant at bis salt furnace, known as the Harrison furnace, In the Muskingum valley. The plaintiff is an unincorporated, association of salt manufacturers, doing business in the Muskingum and Hocking valleys, formed for the purpose of controlling the manufacture and sale of salt in those valleys, and is composed of thirty or more parties, engaged separately and independently in the manufacture of salt. The articles of association are in writing, of which the following is a copy :</p> <p>“ "We, the undersigned, owners of and lessees of the salt furnaces of the Muskingum and Hocking valleys, for the purpose of regulating the prices and sustaining the quality of salt made by and for us, do hereby agree, and do bind ourselves, each with and to the others, jointly and severally, and our heirs, executors, administrators, and a.ssigns, to the terms and conditions of the following contract, to wit: We agree that from this fifteenth day (15th) of September, 1871, and for a period of five years from the above date, we do hereby form ourselves into an association for the Sale and transportation of salt.</p> <p>“ The association shall be called and known by the name-of the Central Ohio Salt Company.”</p> <p>“ The officers of the company shall consist of a president and five directors ; two of the said directors shall be chosen from the Hocking valley and two more from .the Muskingum valley, and one from Guernsey county, Ohio.</p> <p>“ The aunual meeting of the company shall be holden at the company’s office, on the second Tuesday of May of each year, for the election of directors and the transaction of such other business as may come before the meeting,, except that the first election shall be held immediately after the organization of the association, at such time and place as may be agreed upon by the members of the association.</p> <p>“ The representation of the stockholders shall be one vote to each furnace.</p> <p>“ It shall be the duty of the directors to regulate the-price and grades of salt, and settle all disputes and- questions in regard to the same; also to employ an agent or agents, who shall be governed by them in all matters per-tabling to the business of the company. The directory «hall require a satisfactory bond from the agents for the faithful discharge of his or their duties, and safe-keeping •of the funds of the company while in his possession.</p> <p>“ A majority of the board of directors shall constitute a quorum to do business.</p> <p>“ The manner and time of receiving and distributing salt shall be under the control of the directory.</p> <p>“ All salt made or owned by the members of this association shall be branded as the directors may require, and becomes the property of the company when packed out in barrels.</p> <p>“ Each member of the association binds himself to sell «alt only at retail, and then only to actual consumers at the place of manufacture, and at such prices .as may be fixed by the directors from time to time.</p> <p>“ And it is further agreed by the members of this association, that in case of any sale, lease, or other disposition •of any furnace or furnaces now owned, operated, or controlled by them, such sale, lease, or transfer, shall be subject to each and all of the conditions of this agreement, and the vendee or lessee shall at once become a member of this association.</p> <p>“ Eor the faithful performance of the covenants and stipulations herein named, we do severally bind ourselves, executors, heirs, administrators, and assigns, to the association in the sum of two thousand dollars ($2,000), which sum shall be taken as liquidated damages, to be paid by any party who may fail in such faithful performance.</p> <p>“ This contract may be amended by a two-thirds vote of the members of- this association.</p> <p>“In case of any removal, resignation, or death of any member of the directory, it shall be the duty of the assoeiation to elect some one to fill the vacancy without delay.</p> <p>“ In testimony whereof, we have hereunto subscribed our names and affixed our seals, this 31st day of August, 1871.</p> <p>“ Salina Salt and Coal Co. [seal.] by G. T. Gould.</p> <p>Hocking Valley Coal and Salt Co., by John McCracken,. Acting Director.</p> <p>Ben. G. Converse. E. M. Scott, [seal.]</p> <p>Abraham Morrison. Henry Krigbaum.</p> <p>S. A. Guthrie. J. R. Patterson.</p> <p>George McClure. John T. Havener.</p> <p>C. Kinsel. Jesse S. Baker.</p> <p>H. Blandy. James Moore.</p> <p>Hiram Cowell. John Stevens.</p> <p>Caleb Wilson, Sen. S. H. Guthrie.</p> <p>0. Ballou.</p> <p>“ I, James Morrison, for myself and Charles Stone, do-hereby agree to pay to the directors of the Central Ohio-Salt Company ten cents per barrel for all the salt that we-shall manufacture and sell, so long as the said company shall keep the price at not less than one dollar and seventy-five cents per barrel, at Zanesville, Ohio, for the term of five years from this date, and we do .bind ourselves to be-governed by the Central Ohio Salt Company’s rates, and not to undersell them at any time during said term of five-years.</p> <p>James Morrison. September 27,1871.</p> <p>William Sherwood. “ W. 0. Sherwood.</p> <p>Havener & Benjamin. E. M. Stanberry.</p> <p>J. W. Kinzel. C. Wilson, Jr.</p> <p>Henry Stainbrook. E. Sherwood.</p> <p>B. Kinzel. B. Wilson.</p> <p>S. H. Guthrie, Agent Harrison Furnace, and for his wife.”'</p> <p>“Amended September 7, 1871 :</p> <p>“ It is understood and agreed, that the penalty in the-foregoing article of association (of $2,000) shall only apply to each individual who may violate the same.</p> <p>“ These articles of association shall not be binding upon any until all the salt-makers and lessees in Hocking and Muskingum valleys have signed the same.</p> <p>“Joseph Kelly, Jonathan Barnes, Joseph Herrald, to have privilege of retailing salt at my mill.”</p> <p>The ease made by the cross-petition of defendant was "tried in the court of common pleas, where a decree was rendered in his favor. On appeal to the district court a like decree was rendered.</p> <p>On the trial, testimony was offered showing that salt manufactured in other localities was placed in the same markets with the salt under the control of the plaintiff, and .also, that the association does not include all the manufacturers of salt within the valleys of the Muskingum and Hocking rivers. It also appears that defendant, for some "time after the organization of the plaintiff, complied with the terms of the articles, but afterward refusing to deliver to "the company, salt manufacture by him, the original action was brought to enforce the agreement.</p>

Tbis cause was commenced in the Superior Court of Cleveland by Q-eo. A. Baker against Calvin Carr and .David A. Dangler, upon a bond conditioned in the penal •sum of $20,000, alleged to have been executed and delivered by said defendants to said plaintiff on tire 20th of August, 1867. The plaintiff avers in his petition that the conditions uf the bond had been broken, whereby Carr and Dangler had bécome indebted to him in the sum of $2,440.25.