Volume 36 — Ohio State Reports, New Series

Reserved from the District Court. On August 19,1874, Iugbam & Brothers brought suit in the court of common pleas of Hamilton county, against Greorge Lindemann, to recover damages for an alleged conversion of personal property to bis own nse.

<p>Appeal, reserved in the District Court of Columbiana county.</p> <p>The plaintiff, ‘Maria Collier, is the half sister, on the part of her mother, of Oris M. Painter, deceased, and as such is the solo distributee of his personal estate. The.object of the petition is to enforce a trust alleged to arise under the fourth item of the will of Samuel Painter, deceased.</p> <p>The following is a copy of the will:</p> <p>“Whereas, I, Samnel Painter, of Perry township, in the County of Columbiana, and State of Ohio, being of a sound and disposing mind and memory, do make this my will, hearty] revoking all other will or wills heartrfore by mo made, this onely to be and remain my last will and testimoney in manner, as follows: ,</p> <p>“ 1st. I direct my funeral expenses <mcl and all my just depts to be paid.</p> <p>“2d. I bequeath to my two sons and grandson, nameley, Seth Painter, Samuel Painter, and Oris M. Painter, a certain tract of land, being and lying in Vanwart County, in the State of Ohio, containing three hundred and thirty two acres and seventy six hundredths, wieh land I hold by patent from under the hand of Martin Yan Burén, president of the United States, dated twenty-first day of August, eighteen hundred and thirty seven, to them and their hairs, for ever to be equeley divided between them, one hundred and eleven acres each.</p> <p>“ 3d. T bequeath to my three daughters, namZey, Louise Thomson, wife of John Thomson, Lucinda Grimesey, wife of John Grimesey, and Lydia Ann Painter, a certain, tract of land lying in Goshen township, Mahovng County, State of Ohio, containing thirty-two acres, to be equeley derided between them according to value.</p> <p>“ 4tb. I will and bequeath to my wife Mary, the hold and ■soald use of all my reail estate not hea/rtofore hequeth, so long as she remains my widow, and at tlie time she sesetk to be my widclow, the joroffets and benefits of the above said read estate shall be equeley devided between my six Children and my grandson Oris Painter, share and share alike.</p> <p>“ I direct that when my son Samuel Painter shall arive at the age of twenty-one years, that the above mention real estate shall be soald, (provided that my wife’s widd,ow-hood shall have seeth before that time,) and to be decided between them as follows: Seth, Samuel and Oris two shares each, and the, rest of my children one share each.</p> <p>“ And lastley, I constitute, nom,amate, and apoint my son Seth Painter, and my son-in-law John Grimesey, my executors, to act and see the accomplishment of this, my last will and testimony, aeordmg to the true jmtent and onenmg thereof. In witness thcvreof.\ I Tiearunto set my hand and seail this thirty-first day of August, in tlie year one thousand eight hundred and fov/rty eight.”</p> <p>The testator at the date of his will was in the 60th year of his age, and he died July 29, 1851. His will was duly admitted to probate in the same .year, and letters testamentary were granted to John Grimesey — the other executor named, Seth Painter, declining to accept the trust. The widow elected to take under the will. At the date of the will she was fifty-five years of age; and the testator’s son, Samuel, was, at that time, in the 9th year of his age.</p> <p>. The widow’s estate determined on May 18, 1874, by her death. The testator left six children surviving him, and liis grandson, Oris M. Painter, who was a son of a deceased son of the testator. Oris died September 17, 1864, intestate, and without issue, leaving the plaintiff his half-sister, as before stated.</p> <p>The petition states that all of the legatees named in the fourth item of the will, except Oris, “ conveyed away their interests in said premises, under said will, by deeds in fee, and that the defendant, John Pow, holds said interests, and is now in the possession of the same.”</p> <p>The petition also avers, “ that said real estate was devised to be sold by said will, and the proceeds to be divided among the legatees, and thereby became personal property, and that; on the death of said Oris M. Painter, all his pérsonal estate descended to plaiíitiff as his sister of the half blood, including; his interest of one-fifth in the real estate aforesaid, and that she, the plaintiff, is the owner of all said Oris M. Painter’s interest in said lands.”</p> <p>■ The plaintiff prays, in substance, for the sale of the premises by the executor, and for general relief.</p> <p>■ John Grimesey, the acting executor, and John Pow, are; made defendants.</p> <p>In the court of common pleas the case was heard on petition, answer and reply, and a decree was rendered for the plaintiff.</p> <p>On appeal, the defendants on leave withdrew their answer, and each filed a demurrer to #the petition on the ground that there was a defect of parties, and also on the ground that the facts stated did not constitute a cause of action.</p> <p>On the motion of the defendants the cause was reserved for. decision by this court.</p>

<p>Error to the District Court of Hamilton County.</p> <p>On February 1, 1862, George H. Pendleton, Elliott H. Pendleton, Martha L. Dandridgo, and Anna 0. Schech, being the owners in fee of certain premises, situated on Court street and Gilbert avenue, in the city of Cincinnati, executed a lease for the same to Samuel Davis, Jr., for the term of ten years, at a rent of $600 a year, payable quarterly, and placed him in possession. It was stipulated in the lease that Davis should pay all taxes, charges and assessments of every kind, which were or thereafter should be assessed, taxed, charged and levied on the premises or any part thereof, or which should in any manner depend upon or grow out of the said lease, during the term therein granted. At the expiration of the term, February 1, 1872, Davis continued in possession of the premises, holding over under a verbal agreement with the owners in fee to give him another term of ten years upon'the same terms and conditions as those contained in the written lease. He remained in possession until judgment was rendered in this case, as hereinafter mentioned, and for aught that appears is still in possession.</p> <p>• On May 8, 1872, proceedings were commenced in the common council of the city of Cincinnati, with a view to the construction of sewers in certain streets, among others in that part of Court street upon which the property in question abuts. That sewer was constructed by J. IB. II. Nolte, under a contract with the city made January 26, 1871, and an assessment by the frontage, amounting to $739.82, was, on June 12,1871, levied on the property in question.</p> <p>The assessment not having been paid, the city, suing for Nolte, brought suit in the court of common pleas, on February 2, 1875, against Davis and the owners of the fee, to recover the same, ashing in the petition a personal judgment against them and an order for the sale of the premises. Davis denied that he was the owner of the premises, and claimed that he was not liable to a personal judgment. The cause was submitted to the court, and on request the "facts and conclusions of law were found. The facts so found were substantially as above set forth, and judgment was rendered-against Davis for $810.21, the amount of the assessment, penalty and interest, and the property assessed was ordered to be sold to satisfy the amount so found to be due. The court further found that the owners in fee were not liable to a personal judgment. On error, prosecuted by Davis, the district court affirmed the judgment, and this petition in error was filed by him to reverso the judgment of affirmance.</p>

<p>1. By tlie provisions of the act of May 11, 1878 (75 O. L. 436) an owner, residing in Ohio, of shares of stock in a foreign corporation, is required to list the same for taxation, notwithstanding the capital of the corporation is taxed in. the State where the corporation is located.</p> <p>2. The provisions of said act subjecting such shares of stock so owned to taxation in this State, are not in conflict with the constitution.</p>

The original action was brought by plaintiffs in error, as vendors, to enforce the specific performance of a contract against Samuel Doyle, the purchaser.

<p>Error to the District Court of Stark county.</p> <p>Hannah Knowles, the plaintiff below, brought her action against the plaintiff in error, to recover for injuries to her person and to her means of support, by reason of the intoxication of her husband, Hiram Knowles, caused by the unlawful sale of liquor to him by defendant below.</p> <p>The injury to her means of support is alleged to be caused by the intoxication, rendering him unable to perform his usual labor, whereby she was deprived of food, fuel, clothing, &c.</p> <p>The injury to her person arose from his beating and ill-treating her while so intoxicated</p> <p>The defendant moved the court to. compel the plaintiff to separately state and number her causes of action; and in argument claims that there are two causes of action ; one for injury to her person, and one to her means of support.</p> <p>This motion was overruled and the defendant excepted. He then answered to the merits, denying all the material allegations of the petition, except that she was the wife of ITiram Knowles.’</p> <p>The issue thus joined was tried by a jury, resulting in a verdict for the plaintiff.</p> <p>To set aside this verdict the defendant filed a motion for a new trial, alleging that there were errors at law occurring at the trial, and that the verdict was contrary to the evidence; but no bill of exceptions was taken on the overruling of this motion.</p> <p>The court rendered judgment on the verdict, and' on error to the district court this judgment was affirmed.</p> <p>To reverse this judgment this action is brought.</p>

The original action was brought by Hugh Madden against The Cincinnati & Muskingum Yalley Railway Company, to recover for the breach of an agreement entered into between the parties.

<p>This was an action by defendant in error, as the assignee of a policy of insurance, issued by the plaintiff in error, a mutual insurance company incorporated under the laws of Wisconsin, on the life of Stephen P. Bonner, who died December 22, 1874.</p> <p>From the pleadings and exhibits it appears, that on October 27, 1865, the policy was 'issued on the application of Mary Bonner, a sister of Stephen P. Bonner, the assignor of plaintiff below, at which time she paid $136.75, and gave the note of the assured for $91,’ making the total premium $227.75 for one year, for which a policy of $5,000' was issued on what is called the ten-year plan.</p> <p>At the beginning of each successive year, the second, third, fourth, fifth and sixth years’ premiums were paid by payments of a like amount of cash, and by the notes of the assured for $91 each, except that at some time during these six years, the cash part of the premium was paid semi-annually in advance. The material parts of this policy are as follows :</p> <p>- “ The Northwestern Mutual Life Insurance Come any.</p> <p>“ Number, 13,161; age, 29; amount, $5,000; premium, $227.75.</p> <p>“ By this policy of assurance, in consideration of the representation made to them in the application for this policy, and of the sum of one hundred and thirty-six dollars and seventy-five cents, to them in hand paid by Mary Bonner, sister of Stephen P. Bonner, physician, and of the annual premium note of ninety-one dollars and — cents, and the annual cash premium of one hundred and thirty-six dollars and seventy-five cents, to be paid at or before noon on or before the twenty-seventh day of October, in every year during the first ten years of the continuance of this policy, do assure the life of Stephen P. Bonner of Oincinnati, in the county of Hamilton, state of Ohio, for the sole use of the said Mary Bonner, in the amount of five thousand dollars, for the term of his natural life. And the said company do hereby promise and agree to pay the said sum assured, at their office, to the said assured, or her executors, administrators or ássigns, in ninety days after due notice and proof of death of the said person whose life is hereby assured (the balance of the year’s premium and all notes given for premiums, if any, being first deducted therefrom), and in case of the death of the said assured before the death of the said person whose life is assured, the amount of the said insurance shall be payable to the heirs at law of said Stephen P. Bonner. And the said company further • promise and agree that if default shall be made 'in the payment of. any premium, they will pay, as above agreed, as many tenth parts of the original sum insured as there shall have been complete tmnual premiums paid at the time of such default.”</p> <p>The 2d, 3d and 6 th conditions are :</p> <p>“ 2d. If the said premiums, or the interest upon any note given for pi'emiums, shall not be paid on or before the days above mentioned for the payment thereof, at the office of the company, or to agents when they produce receipts signed by the president or secretary, then, in every such case the company shall not be liable for the payment of the whole sum assured, and for such part only as is expressly stipulated above.</p> <p>“ 3d. In every case where this policy shall cease and determine or become null and void, for other reasons than nonpayment of premiums, all payments thereon shall be forfeited to this company.</p> <p>-x- -x- -x- * «-</p> <p>“ 6th. This policy shall not take effect and become binding on the company until the mshpremium shall be actually paid to the company or to some person authorized to receive it during the lifetime of the person whose life is assured.”</p> <p>The applicant, in answer to the question as to the “ sum to be assured, and what kind of policy; premium, how paid, .whether all cash or part note; annually, semi-annually or quarterly ? ” answered; “ $5,000 annually; ten years; cash and note.” *</p> <p>On October .27, 1870, when the sixth payment on the annual plan became due, the following premium receipt was presented and paid, and the last note there termed, “ Annual Loan Note, No. 6, $91,” was given as follows :</p> <p>“ Northwestern 'Mutual Life Insurance Company, General Office, Milwaukee, Wisconsin. prem, Cash prem. for six months, . . . $69 60 Interest on Loan Notes, 16 47 Total cash, $86 07 Note Annual Loan No. 6, ". . . $91 00 Premium, as above, received this 27th day of Oct., 1870. John F. Johnson, Agent. (Per A. Hagemeyer.) Policy No. 13,161, insuring the life of Stephen P. Ponner, is herefyy made binding for sine months from the 27th day of Oetober, 1870, provided payment, as per mai’gin, is made in due time, and the receipt is countersigned by J. F. Johnson, agent at Cincinnati. Aug. Gaylord, Secretary.”.</p> <p>This payment continued the policy to April 27, 1871, when another receipt for half cash premium, then paid, was given, as follows:</p> <p>“Northwestern Mutual Life Insurance Company, Home Office, Milwaukee, Wisconsin. Cash prem. for six months, . . ,. $69 60 Interest on Loan Notes,--$69 60 Note Total cash, . Annual Loan No....... Premium, as above, received this 27th clay of April, 1871. J. E. Johnson, Agent. Policy No. 13,161, insuring the lire of Stephen P. Bonner, is her Ay made binding for six months, from the 27th day of April, 1871, provided payment, as per margin, is made in due time, and the receipt is by J. F. John-countersigned son, ., agent at Cincinnati. Aug. Gaylord, Secretary.” \</p> <p>From this, it appears, that the cash payment and interest on loan notes, $16.47,and a sixth “Loan Note of $91,” was given, for which said policy on the life of Stephen Bonner “ is hereby made binding for six months from April 27th, 1871;” i. e., to October 27, 1871.</p> <p>The first and second premium notes are here copied. The others are the same as No. 2.</p> <p>Exhibit “_S.” Note No. 1.</p> <p>“$91.00. Cincinnati, October 27, 1865.</p> <p>“ For value received, I promise to pay to the Northwestern' Mutual Life Insurance Company, ninety-one dollars, with interest at the rate of seven per cent, per annum, which interest shall be paid annually, or the policy be forfeited / this note, being given for part of the premium on policy No. 13,161, is to remain a lien upon said policy until the death of Stephen P. Bonner, when it shall be deducted from the amount of said policy, unless sooner paid. The di/oidends on the policy are\ to be applied to the payment of the note.</p> <p>“ S. P. Bonner.”</p> <p>Exhibit “ O.” Note No. 2.</p> <p>“91.00. Milwaukee, October 27, 1866.</p> <p>“For value received, I promise to pay to the Northwest eral Mutual Life Insurance Company", ninety-one dollars, with in-\ terest at the rate of seven per cent, per annum, which interest shall be paid wivnualh/, or the policy be forfeited; this note being gi/ven for part of the premium on policy No. 13,161, is to remam a lien upon said policy until it becomes due by limitation, or by the death of Stephen P. Bowner, of Cincinnati, when the note shall be deducted from the said policy unless sooner paid.</p> <p>“ The dividends on the policy are to be applied to the payment of the note.”</p> <p>“ S. P. Bonner.”</p> <p>The payment made April 21,1811, was the last made. On October 21, 1811, there was due, by the terms of the policy, $136.15 cash, and another loan note of $91, and one year’s interest on balance due on previous notes, but default was then made, and no payments have, since been made.</p> <p>Dividends were made on this policy, one in 1868, on the business of 1865 ($111.53), and one in 1869, on the business of 1866 ($108.25), which paid off premium notes Nos. 1 and 2, and all of No. 3, except $53.22, leaving that balance, and the third, fourth, fifth and sixth notes unpaid at the time default was made, and also one year’s interest, $22.83, due thereon from October 21, 1810, to October 21, 1811.</p> <p>"When default was made, October 21, 1811, the company, claiming the right so to do, declared the policy forfeited, as to eight-tenths thereof. This was done on its interpretation of the second condition of the policy providing for a forfeiture.</p> <p>The plaintiff below claims, that by the payments made, and by the terms of the policy and the premium receipts, it was a .’paid-up policy for six years, and therefore that only four-tenths was subject to forfeiture.</p> <p>The controversy is, whether the payment of the cash premiums and the notes constitute six “complete annual premiums,” or whether the j>remium notes must also be paid in cash.</p> <p>The plaintiff in error claims that, inasmuch as only two of these notes were paid, only two complete annual payments were made.</p> <p>Erom tbe evidence it appears that, in 1871, a third dividend was made, of §35.96, which was credited on the balance due on -Qia principal of the third note. If this dividend should have been credited on the witerest then due on all the notes, there would have been no default at that date, as to interest on prior premium notes.</p> <p>It also appears, that by the non-payment of interest on these notes, the insrued was not entitled to dividends. Notwithstanding this, the company declared dividends on a two-tenths policy in the years 1872, 1873, 187J and 1875, payable in cash, which were not applied in payment of either notes or interest, or otherwise paid. The court below gave a judgment for six-tenths of the face of the policy, less the balance due on premium notes without interest, and without any credits for the subsequent dividends. Of this the plaintiff in error complains.</p>

<p>1. M. engaged in the management of the business of H. Beyond tbe first year there was no agreement as to tbe time tbe service was to continue, nor as to tbe compensation to be paid ; but it was tbe expectation of tbe parties that they would come to an agreement as to such compensation. After many years of service and before tbe contemplated agreement was consummated, M. became a bankrupt: Held, that on the adjudication of bis bankruptcy the right to demand the value of the services already rendered passed to tbe assignee, who, by operation of law, succeeded to all tbe rights of tha bankrupt in respect to such demand.</p> <p>2. Before a bankrupt can maintain an action on a claim, which, under tbe adjudication in bankruptcy passed to tbe assignee, on the ground that tbe assignee elected not to take such claim, it devolves upon the bankrupt to show that tbe assignee was informed of the nature of tbe claim and that he elected not to take it.</p> <p>3. In an action brought by a bankrupt upon a cause of action which passed to his assignee, it is immaterial whether the right of the assignee to sue on the causo of action is barred or not.</p> <p>4. The objection, that the cause of action for which the plaintiff sues was assigned before the commencement of the action, does not relate to the capacity of the plaintiff to sue, but to the fact that the right of action sought to be enforced is not in the plaintiff. To warrant a recovery the petition must show a cause of action in the plaintiff.</p>

<p>Error to tbe Superior Court of Ciucinnati.</p> <p>The original action was brought by the defendants in error, against John W. Patrick and Ruth A. Patrick, husband and wife, for services rendered and money paid for them, under the following written agreement:</p> <p>“ Cinti, October 9, 187J.</p> <p>“ To Jos. H. Littell & Co.</p> <p>“You are hereby authorized to negotiate for us a loan of $10,000 on our house and lot, 50x136, Imown as No. 53é Court st., between Baymiller and Freeman, sts., on a basis of a 10 years’ lease, we to give a good and sufficient deed of general warranty, free of dower and clear of incumbrances, and to receive a lease for 10 years, with privilege of redemption at the expiration of said term; we to pay ground rent, at the rate of 8 per cent., that is to say, $800 per annum, payable quarterly, and all taxes and assessments that are or may be levied against said property. We also agree to pay attorneys’ fees for examination of title, and your commission for negotiating loan. Commission to be one per cent.</p> <p>“ J. W. Patrick.</p> <p>“ Rutii Ann Patrick.”</p> <p>Tt appeared that the defendants had paid $50 attorneys’ fees for the examination of the title, and had secured the loan of $10,000 upon the property, in accordance with the above terms. The defendants below refused to receive the loan, and the action was brought to recover the agreed commission of $100, and the $50 paid for the examination of title.</p> <p>The petition alleged that the contract so executed by Ruth A. Patrick related to her separate estate, and was for its benefit, and that said Ruth held the legal title to the property described in said contract. These allegations were not denied.</p> <p>The answer, after setting up Mrs. Patrick’s coverture as a first defense, alleged that the transaction only contemplated a mortgage of the property of Mrs. Patrick, to secure a loan, and that the form it was to assume, of an absolute conveyance with lease back for ten years, with right of redemption, was to evade the revenue laws of the state, by enabling the lender of the money to treat the transaction on his part as a purchase of the property, and not as a mere loan of money, secured by lien upon the property conveyed. . This allegation was not denied by the reply. A personal judgment was rendered in the superior court, in special term, against both defendants below, and the judgment against Mrs. Patrick was declared to be a lien upon her separate estate. In the general term, upon petition in error by Mrs. Patrick, the judgment of the special term against her, was affirmed.</p> <p>She now prosecutes this petition in error to reverse such judgments.</p>

<p>In an action by a railroad passenger (who was, in fact, without fault himself), for a personal injury, against a defendant whoso negligence directly and proximatcly concurred with the negligence of the railroad company in producing the injury, the concurrent negligence of the company cannot be imputed to the plaintiff so as to charge him with contributing to his own injury.</p>

<p>Error to the District Court of Franklin county. Motion to dismiss the proceedings in error.</p>

<p>1. April 3, A., B. and 0. commenced actions and sued out attachments, which were on the same day served by seizure of a stock of goods of the defendant. April 5, 6,14 and 20, other creditors also issued attachments, which were delivered to the same officer, at their respective dates, and levied on the goods in his custody under the prior writs; each of said levies being made subject to prior levies. May 3, A., B. and C. obtained judgments, and on the same day issued general executions, instead of orders of sale of the attached property, under which a sale was made of the same May 20, and the money brought into court.</p> <p>2. June 15 the other creditors also obtained judgments and orders of sale, and while a motion of A., B. and C. was pending to award to them the money, which was not sufficient to pay all, on the ground of their prior attachments, the other creditors issued orders of sale thereon. Held, that the issuing of a general execution, instead of an order for the sale of the attached property, and a sale of said property thereon, were not of themselves a waiver or abandonment of the priority acquired by the attachment, and that the money arising from such sale should be distributed according to such priority.</p>

<p>Error to the Court of Common Pleas of Cuyahoga county. Reserved in the district court.</p> <p>The plaintiffs, on October 24, 1853, all being minors and residents of Pickaway county, Ohio, were the owners of the premises in the petition described, which are situated in Cuyahoga county, Ohio. The probate court of Pickaway county having appointed and qualified Isaac Shelby and Nancy M. Foresman guardians of said minors, said guardians, on said October 24, 1853, filed their joint petition in the probate Court of Cuyahoga county, against the said minors, praying for authority to sell said real estate.</p> <p>An order for the sale of the premises was granted by said court, and the premises were sold in pursuance thereof, by said guardians, the sale confirmed, and deed executed accordingly.</p> <p>The plaintiffs having arrived at majority, brought this action to recover the premises, and in their petition, they set out the proceedings had in the probate court of Cuyahoga county. To this petition the defendant demurred. The court of common pleas sustained the demurrer. A petition in error was filed in the district court to reverse the decision sustaining the demurrer, which was by the district court reserved for decision by this court.</p>

<p>Error to the District Court of Warren County.</p> <p>The action below was brought by Angeline Ward against James Barnett, upon a petition in the following words and figures :</p> <p>That the plaintiff, at the time of the committing by the said defendant of the grievances hereinafter named, was, and still is, an unmarried woman, and did then sustain a good name and character among her neighbors and acquaintances for virtue and chastity, and was never suspected of the crime of fornication. Yet the said defendant, well knowing the premises, and maliciously intending to injure the good name and character of the said plaintiff, and to cause it to be believed that she had been unchaste and guilty of fornication, on, to wit, October 20, a. d. 1873, at Warren county, Ohio, in a certain discourse which he there had, of and concerning the plaintiff, and in the presence and hearing of divers good people, falsely and maliciously spoke and published, of and concerning the said plaintiff, the false, scandalous and malicious words following:</p> <p>1. That is to say, “ She ” (meaning the plaintiff) “ slept with John Fox.”</p> <p>2. “Angline Ward ” (meaning the plaintiff) “was sleeping with John Fox” (meaning an unmarried man) “when her watch was stolen.”</p> <p>3. “ Fox ” (meaning an unmarried man, as aforesaid) “ said he was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”</p> <p>4. “She” (meaning the plaintiff) “was sleeping with John Fox ” (a man having that name) “ when her watch was stolen.”</p> <p>5. “ Angeline Ward ” (meaning the plaintiff) “ was sleeping with John Fox ” (meaning a man who had before that time stolen the plaintiff’s watch) “ when her watch was stolen.”</p> <p>6. “She” (meaning.the plaintiff) “was sleeping with Fox” (meaning a man by the name of John Fox) “the night her ” (the plaintiff’s) “ watch was stolen.”</p> <p>7. “ John Fox ” (meaning a man who had stolen plaintiff’s watch) “ was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”</p> <p>And by means of the speaking of said defamatory words the said plaintiff hath been greatly injured in her good name and character, to the damage of the plaintiff $10,000.</p> <p>To this the defendant demurred.</p> <p>First — For the reason that the words set forth did not import the crime of fornication.</p> <p>Second — Petition did not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was overruled, and the following answer was. filed by defendant.</p> <p>First — lie denies that he spoke the words in the petition set forth by plaintiff as spoken by him, and denies that he spoke either of the sets of words in the petition set forth, and charged in manner and form as therein set forth; and he denies any and all malice therein charged.</p> <p>Second — He denies that the plaintiff sustained damages or was injured, as in the petition set forth; and he denies each and every material allegation in said petition set forth.</p> <p>The case went to trial upon the following testimony:</p> <p>Lewis LIurst testified: That the defendant stated, in his hearing, the following words of and concerning the plaintiff: “ How in the devil did he come to get it without he had been sleeping with her 2”</p> <p>Ann Turney testified: Tliat tlie defendant stated in her hearing, “ That is how he came to find the watch; he was in bed with her.”</p> <p>Thomas Turney testified : That tlie defendant stated in his hearing, of and concerning the plaintiff, “ I said, ‘ liow did he ever think of going to look for the watch in the bed ?’ ITe said, ‘ he was in bed with her, and that is how he found the watch.’ A few days after defendant was at my house, and he said ‘ the way he (Fox) found the watch, he was in bed with her?”</p> <p>WilUam Buts testified: That defendant was going to Franklin and asked him to ride with him, and he (witness) got in defendant’s wagon, and defendant said: “ He had heard that tlie fellow was sleeping with her, and he wondered how he had got the watch.”</p> <p>And this being all the testimony offered by the plaintiff, she rested.</p> <p>And thereupon defendant, by his counsel, moved the court to arrest the testimony from the jury, and to direct a nonsuit, for the reason that the testimony of the plaintiff did not sustain the allegations in the petition, and because the words proved are not the words, nor the substance of the words, alleged in the petition. And the court sustained the motion, and the plaintiff excepted to the ruling of the court, and thereupon moved to amend her petition by alleging the words as proved by the witness Turney. And it appearing that the words so proven by Turney were spoken before the filing of the petition, and more than one year before said motion, the court overruled said motion to amend, and to which ruling the plaintiff excepted, and judgment was rendered for the defendant ; whereupon the plaintiff tendered her bill of exceptions, which was signed and sealed by the court, and contained the proceedings, evidence and rulings of the court, as herein above set forth.</p> <p>On petition in error the district court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. It is here sought to reverse the judgment of the district court.</p>

<p>Appeal. Reserved in tbe District Court of Athens County.</p> <p>The plaintiffs brought an action for themselves and others, lessees of Ohio University farm lands, against the defendants, the President and Trustees of the Ohio University, a corporation of that name, in the court of common pleas of Athens county, Ohio, to restrain the defendants from collecting certain additional rents for said farm lands.</p> <p>The petition, as amended, is largely made up of acts of the general assembly and averments as to their intendment and construction. The petition, as amended, contains the following averments, to wit:</p> <p>“ That by two resolutions of congress of the 23d and 27th of July, 1787, the ‘ Board of the Treasury ’ of the then general government was authorized to contract with any persons for the grant of land described in them, on the north-west side of the Ohio river, and within the present state of Ohio ; one of the terms of the contract for the grant to be, that not more than two complete townships were to be laid off within the grant by the purchasers, to be given perpetually for the purpose of an university, and to be applied to the intended object by the legislature of the state thereafter formed, and including the land. Under the resolutions the Board of Treasury, on the 27th of October, 1787, entered into a contract for the grant, with the agents of the directors of the Oiiio Compauy of Associates on the conditions of the resolutions. The agents of that company, thereupon, laid off for the purpose of an university, the eighth and ninth townships of the 14th range in said tract. Under the act of congress of April 21, 1792, the land including the two townships was in that year patented by the United States to the directors of the company, whereby the two townships became and were given perpetually for the purposes of an university. That the legislature of Ohio, on the 18th of January, 1804, passed an act entitled ‘An act establishing an university in the town of Athens,’ which act is attached to and made a part of the petition, as ‘Exhibit A,’ and which, including other things not important for consideration, by the 1st section established the Ohio University, and by its 2d section, created in it a body politic and corporate under the name of ‘ The President and Trustees of the Ohio University;’ and by its 11th section vested in such corporation the twro townships of land for the sole use, benefit and support of the university forever; and by the 12th section provided for the appraisement (and laying oil into farm lots, by the trustees, of not less than eighty, or more than two hundred and foyty acres) of the lands of the townships, not including those in the town of Athens, within six months of the passage of the act; and after having given four weeks’ notice, to malee out leases of the tracts to such of the ‘present occupants’ as should apply within three months after such notice, and to all persons who should apply thereafter, for the term of 90 years, renewable forever, on a yearly rent of six per centum on the amount of the valuation so made, the land so leased to be subject to re-valuations at the end of thirty-five, sixty, and ninety years from the commencement of the term of each lease, the rent arising on tlie valuation at tlie end of 90 years, to shift and adjust itself at the end of each twenty years, to correspond to the average price of wheat at Marietta for the five preceding years; the leases to reserve a right of distress and reentry for non-payment of rent, at any time when it shall have been due two months, the said 12th section terminating with a proviso, as follows.:</p> <p>“ ‘ Provided always, that the said corporation shall have power to demand a further yearly rent on the said lands and tenements, not exceeding the amount of the tax imposed on property of like description by the state, which rents shall be paid at such time and place, and to such person, and collected in such manner as the corporation shall direct.’</p> <p>“ By the 13th section of the law, it was provided that the town of Athens should be laid off conformable to a certain plan, and being then laid off and the plat recorded, the trustees of the university, first giving six weeks’ notice, were to ‘ proceed to sell from time to time, at public auction, such of the house and out-lots as they may think proper,’ for which lots, on payment being made, or satisfactory security given, according to the conditions of such sale, they shall execute to the purchasers, respectively, leases for the term of 90 years, renewable forever, on an annual rent equal to and not exceeding six per centum of the amount of the purchase-money, which lots, with the improvements which may be made on the same, shall be subject to such further yearly rent as may be equal to the tax imposed, from time to time, on property of like value and description, by the state.’</p> <p>“ By section 14 it is provided, ‘ That the clear annual rents, issues and profits of all the estate, real and personal, of which said corporation shall be seized or possessed in their corporate capacity, shall be appropriated to the endowment of the University, in such maimer as ■ shall most effectually promote the end of the institution. ’</p> <p>“ By section 17: ‘ That the lands in the two townships appropriated and vested as aforesaid, with the buildings which are or may be erected thereon, shall forever be exempted from all state taxes.’</p> <p>“ That on the 21st of February, 1805, an act was passed by the Legislature of Ohio, amendatory of the foregoing act of February, 1804, made a part of the petition as ‘ Exhibit B,’ — by the first section of which act five persons therein named were appointed appraisers of the said two college townships, and they, or any three of them, were required to appraise the townships, within nine months at the present (then) real value as in its original and uncultivated state, and report to the Board of Trustees of the University, £ and the said trustees shall lease the same to any persons who have or may apply, agreeable to laxo, for the term of 99 years, renewable forever, with a fixed annual rent of 6 per centum on the appraised valuation : Provided, that no lands shall be leased at a less valuation than at the rate of $1.75 per acre.’</p> <p>“ Sec. 2. £ That the commissioners shall meet on the 1st day of April, at the town of Athens, and proceed to discharge the duties imposed on them by this act, and the act to which this act is an amendment. . . . ’</p> <p>£.£Seo. 5. £ That so much of the aforesaid act, passed 18th of February, 1804, as is contrary to this act, be and the same is hereby repealed.’</p> <p>“ That on the 16th of November, 1832, the corporation, — the land having been appraised under the act of February 21,1805, —leased by written indenture to the plaintiff Goodspeed, 80 acres of said land, from January 1, 1833, renewable forever, at an annual rent of $9.84, being 6 per centum of such appraised valuation. This indenture is part of the petition as £ Exhibit C,’ and grants in this language: £ That the said President and Trustees by virtue and in pursuance of the trust reposed in them by a law of the state of Ohio, entitled . “ An act establishing an University in the town of Athens,” passed the lSth day of February, A. D. 1804, and another law of the said state, entitled ££ An act to amend an, act entitled an aet establishing an University in the town of Athensf passed the 21 st day of February, 1805, for and in consideration of tlie rents and covenants hereinafter reserved and contained, have leased, let, and to farm let tinto the said Ezra Goodspeed, the 80 acres of land described in it.’</p> <p>“ That on the 22d of November, 1810, the corporation, the land having been appraised under said law of 1805, leased by written indenture to Josiah Coe, for 99 years from January 1, 1808, certain land in said township, at an annual rent of $17.93, being 6 per centum on the appraised value, which land, by mesne conveyances, is vested in the plaintiffs, James R. Cable and Charles R. Cable, which lease is made a part of the petition as ‘ Exhibit D,’ and contains the same language as the first-named lease, showing that it was made by the President and Trustees of the Ohio University, in pursuance of said two acts of the Legislature.</p> <p>“ On the 4th of February, 1826, an act was passed by the' legislature of Ohio, entitled ‘ An act authorizing the. Trustees of the Ohio University to dispose of certain lands,’ which is made a part of the petition as £ Exhibit E,’ and was amended January 10, 1829, by an act entitled £ An act to amend the act entitled an “ act authorizing the Trustees of the Ohio University to dispose of certain lands,” ’ made a part of the petition as £ Exhibit F; ’ the first of which authorizes the Trustees of the University to sell and convey, in fee simple, all the lands in the college townships, not encumbered by outstanding leases, and to convey to any lessee of such lands the fee simple on payment to the treasurer of the board, such sum as will, at an in-’’ terest of 6 per centum per annum, yield the sum which is' yearly reserved in such lease; the money arising on such sales to be deposited in the state treasury, to bear interest at 6 per centum, for which interest the faith of the state was pledged;" and by the last-named act providing that the Board of Trustees' should report annually to the auditor of state, the amount of money arising from such sales, to be certified by him to the' treasurer of state, and upon the money being deposited with him under said law of 1826, to receipt for the same, which receipt the treasurer of said board should deposit with the auditor of state, who was to charge the amount to the treasurer of state, and credit the university therewith.</p> <p>“ The plaintiffs further aver that since the parsage of the act of Feb. 21, 1805, the corporation never claimed any right to have or demand any rent from the lessees of the land excepting'the fixed yearly rent which, the lessees respectively stipulated to pay by their leases, and no other rents have been demanded or paid; and that it has been the understanding of all in interest, that the lands were subject to no other than the fixed yearly rent stipulated in the leases to be paid. That construction of the act of 1805 has been uniformly acted upon by all concerned, until the adoption of the resolutions of the corporation on 21st of June, 1876, which resolutions are made a part of the petition, and which resolutions recite that the law under which the university was established exempted the lands of the university from state taxation, and vested in the institution the right, in addition to a rent of 6 per cent, per annum on the valuation of the lands, a further yearly rent, not exceeding the taxes imposed on property of like description by the State; and that the General Assembly,' by an act which took effect on the 1st of July, 1875, had required the trustees to levy and collect said rent; and instructed the treasurer of the university to proceed and transfer to proper books the valuations of the lands of the townships made for county taxation, and collect such further yearly rent, not exceeding the taxes imposed on property of like description by the state.</p> <p>“ That on the 10th of March, 1843, the legislature of the state passed an act entitled c An act to declare the true intent and meaning of the first section ’ of said act of February 21,1805, whereby the true intent and meaning of .the act was declared to be ‘ That the leases granted under and by virtue of said act, and the one to which that was an amendment, should not be subject to a re-valuation at any time thereafter, as was provided for in the act to which that was an amendment,’ which act is made part of the petition as ‘ Exhibit IT.’</p> <p>“ That the plaintiffs file the petition for themselves and 227 other persons holding similar estates in said university lands, lying outside of the town of Athens. That the defendant, E. IT. Moore, is the treasurer of the corporation, and threatens to carry the directions of the resolutions into effect. That the resolutions operate to the injury of the plaintiffs, and all the persons in whose behalf the suit is brought,' and that the suit is necessary to prevent a multiplicity of suits.</p> <p>“ Tlie prayer of tlie petition is that an injunction may bo granted to restrain the collection of the additional tax, and that said claim may be adjudged unfounded and without right and illegal, and for such further relief as the nature of tlie case may require.</p> <p>“ The amended petition was demurred to by the defendants, for the reason that it did not state facts sufficient to constitute a cause of action, which was sustained by the court of common pleas. The plaintiffs appealed to the district court, by which court the case was reserved to the supreme court for hearing on the demurrer.”</p> <p>The following is a copy of the resolutions passed by the Board of Trustees of the Ohio University, at their annual meeting, June 21, 1876 :</p> <p>“TViieüeas, The law of the state under which the Ohio University was established, exempted the lands of the university from state taxation, and vested in the institution the right to collect, in addition to a rent of six per cent, per annum on the valuation of tlie lands, a further yearly rent not exceeding the taxes imposed on property of like description by the state; and,</p> <p>“’WiiEKEAS, In view of the fact that the Trustees 'have never collected this further yearly rent not exceeding the state-taxes, the General Assembly of Ohio has passed an act requiring them to levy and collect the said rent, which act took effect on the first day of July, 1875 ; therefore be it</p> <p>“ 1. Iiesol/oed, By the Board of Trustees of the Ohio University, that the treasurer of the university is hereby instructed to provide himself with the books necessary for the purpose, and transfer to them from the duplicate of the auditor of Athens county, the present valuations placed, for the purpose of county taxation, on the leasehold lands of the university.</p> <p>“ 2. Hesolved, That the said treasurer is hereby directed to proceed on the first day of January, 1877, to the collection' of the said rents then due for the year and a half, beginning on tlie first day of July, 1875, and to collect the same hereafter, annually, ou the first day of January.</p> <p>“ 3. Besolved, Tliat lease-holders shall be allowed the same privilege in the payment of this rent which is allowed them by law in the payment of the other, namely : That no rents paid on or before the first day of March in each year, shall be considered in arrears.</p> <p>“ Ohio University, Athens, June 21, 1876.</p> <p>Attest: J. M. Dana,</p> <p> Secretary of the Board.” </p>

<p>D. executed a codicil to her last will and testament, as follows:</p> <p>“Item 1st. I desire and do hereby change and modify Item 8th in said will, so as to read as follows : I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, his heirs and assigns forever, the equal one-half of all those pieces of land purchased by me of Wesley Claypool, situate in Ross county, state of Ohio, and being described in Item 8th of said will. And the other one-half of said Claypool land, described in Item 8th, and by said 8th Item of said will devised to James W. Hays, Peter B. Hays and John Hays, I devise to Peter B. Hays and James D. Corwine, son of John W. Corwine, and their heirs and assigns forever. My wish and desire being to exclude John Hays and James W. Hays from any interest in said Claypool farm. The said Peter B. Plays and James D. Corwine to have their half of said Olaypool farm on the upper side thereof and the said Mace on the lower side.”</p> <p>Item 8th of the will referred to in the codicil was as follows:</p> <p>“Item 8th. I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, and unto his heirs and assigns forever, the equal undivided one-half of all those pieces of land purchased by me of Wesley Claypool, situated in Ross county, state of Ohio, containing about eleven hundred and seventy-four acres, one rood and twentjr-nine poles, which is particularly described in the deed made by Wesley Claypool and wife to me, bearing date April 39, A. D. 1850. And I hereby devise and bequeath unto James W. Hays, Peter B. Hays and John Hays the remaining one equal undivided half thereof, to be shared equally between them.”</p> <p>Held, 1. The devisees named in the codicil took the estates as tenants in common, subject, however, to be aparted among them so that the interests of Hays and Corwine should be located on the upper side and that of Mace on the lower side of the farm. 3. In making partition between them the part on the upper side to be set off to Hays and Convine should be of equal value with that part on the lower side set oil to Mace. 8. Such partition may be enforced by a civil action under the code.</p>

<p>C., who was a large stockholder of a business corporation, and president thereof, verbally promised M. that if he would subscribe and pay $500 to the capital stock of the company, lie should, within one year, receive fifteen per cent, on the amount invested. M., in consideration of this promise, subscribed and paid for the stock. Wo dividends were made " or earned within the year. Held, that this was not a contract to answer for the debt, default or miscarriage of another.</p>

<p>Error to the Superior Court of Ciucinuati.</p> <p>The original action was brought by the defendant in error, a New York corporation, against J. W. D. Hall and Carter Cook, partners, under the firm name of Hall & Cook, on a promissory note, of which the following is a copy:</p> <p>“ $1,165.98. Cincinnati, Nov. 1, 1812.</p> <p>“ Ninety days after date we promise to pay to the order of A. F. Waters, agent, eleven hundred and sixty-five 98-100 dollars at Fourth National Bank, Cincinnati, Ohio. Value received.</p> <p>“Hall & Cook.”</p> <p>The petition averred that A. F. Waters, the payee, was the agent of the corporation in taking the note.</p> <p>Carter Cook alone answered. He denied the execution of the note on his behalf.</p> <p>■ The issue was submitted to the court for trial, a jury being waived. It appeared on the trial that Carter Cook was a member of the firm of Hall & Cook, in Cincinnati, from April 1, 1871, to February 1, 1872; that at the date last named the firm was dissolved, and a firm of the same name was formed by L. B. Cook, a son of Carter, and said Hall. All the customers of the old firm were notified of the dissolution, and of the formation of the new firm ; but there was no publication in any of the newspapers of notice of such dissolution. The sign over the door of “ Hall & Cook,” in ten or twelve inch letters, was allowed to remain; birtthe names of the members of the firm, which were painted on the side of the door in one and a half inch letters, were changed, the name of L. B. Cook being substituted for Carter Cook. After the change in the firm, Carter Cook had nothing to do with its business; but he engaged in business in Cincinnati for himself, carrying on the roofing, stove and tinning business.</p> <p>It appears from the testimony of George H. Waters, a witness for the plaintiffs, that he was their traveling agent, and took the order for the goods for which the note was given, and also the note after the delivery of the goods. He states that ho took the order from Hall at the store, on the 11th of September, 1872, and that neither Carter Cook or L. B. Cook was present. He also testified as follows:</p> <p>“ After I got the order, on same day, I inquired at store of Dunn & Witt, who were the partners in Hall & Cook ? and Mr. Brown, the book-keeper of Dunn & Witt, told me Carter Cook was one of the partners; I did not notice names of individual partners on the order / I learned that Carter Cook was one of the partners at store of Dunn & Witt, and thereupon had the order filled ; I noticed nothing on sign hut Hall & Cook; did not notice names of individual partners on door; the note was signed by L. J3. Cook; I supposed he had authority to sign the firm name; he gave it to me; Hall was not there; I never saw Carter Cook before this suit was brought; I never personally inquired of mercantile agency about Hall & Cook, but my brother did.”</p> <p>The order was written under one of the printed letter heads prepared by Hall & Cook while Carter Cook was a member of the firm, and in which the names of J. W. D. Hall and Carter Cook 'were printed as constituting the firm. These letter heads were left in the drawer at the dissolution of the old firm, and they were used by the new firm without the knowledge of Carter Cook.</p> <p>The plaintiffs offered in evidence the following reports from a mercantile agency:</p> <p>“ Hall & Cook, Cincinnati, O. Roofers. New firm. ‘ C.’ is capitalist, and is estimated worth 60 to 70 M $. Hall has no means; the business will be well managed, and they will in all probability be good for what they buy.”</p> <p>“ Hall & Cook, 259 ~W. 3d St., Cincinnati, O. Tin and slate roofing.</p> <p>“ Sept. 18, N2. — Are amply responsible for all they buy, and in excellent credit; safe customers. Estimated worth ail the way from 60 to 100,000 $.”</p> <p>The introduction of this evidence was objected to by the defendant, but his objection was overruled and. the evidence admitted, to which he excepted:</p> <p>Goods were subsequently furnished by the plaintiffs to Hall & Cook, amounting to the sum of $211.19; but it is not sought to charge Carter Cook with this amount.</p> <p>Afterwards, Hall & Cook became insolvent, and made an assignment for the benefit of creditors to Carter Cook. The plaintiffs presented their account against Hall & Cook, including the note sued on, to Carter Cook, as assignee, for allowance.</p> <p>Subsequently to the giving of the-first order, several letters were written to the plaintiffs by Hall & Cook, under the printed letter heads of the old firm ; but in the view taken by the court of the case, they need not here bo particularly noticed.</p> <p>The court found the issue in favor of the plaintiffs, and gave them judgment for the amount due on the note.</p> <p>On error, this judgment was affirmed by the court in general term. The present proceeding in error is prosecuted to reverse these judgments.</p>

<p>One charged with the commission of a misdemeanor was prosecuted by information, and the information being unsupported by oath or affirmation, the accused moved to quash it for that cause, -which motion was overruled. Held, that in overruling such motiou there was error.</p>

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

<p>1. The act of January 31, 1871 (68 OhioL. 15), in so far as it requires the owner of a dam constructed across a stream not navigable, and who has enjoyed the adverse use of such dam for the period of twenty-one years, to construct and maintain, at his own expense, a chute or pas- ' sage-way over the same for fish, is unconstitutional. Whether the act is valid where the adverse use is less than twenty-one years, is not, decided.</p> <p>2. Where a cause is appealed from a justice of the peace to the court of common pleas, the latter court is limited, in its appellate jurisdiction, to the amount for which the justice is authorized to enter judgment.</p> <p>3. The clause in section 108 of the justice’s code of 1853, which authorized the defendant to withhold the amount of his claim which is in excess of the jurisdiction of tiie justice, and to make the same the subject of a subsequent action, does not relate to a claim for unliquidated damages. Where such is the nature of the claim the whole excess must, be remitted, or the justice is without jurisdiction to act upon the claim. '</p>

On March 12, 1868, James, the defendant in error, commenced the original action against McEwing, the plaintiff in error. Tbe action was founded on a promissory note bearing ■date May 26, 1856, payable one year after date.

This is a petition by the original plaintiff, to reverse the-district court, which reversed a judgment by the common pleas of Marion county, in his favor. At the February term, 1859, March 1, 1859, the Marion Deposit Bank recovered a judgment by confession upon warrant of attorney, against Gordon McWilliams, John McWilliams and Ebenezer Peters, the plaintiff herein, as drawers of a bill of. exchange, for $2,009.33 and costs.

Reserved in the District Court. The original petition was filed to enforce the collection of an assessment made for the improvement of Third street, in the city of Columbus, between Kossuth street and Reinhard avenue. The ordinance directing the improvement to he made, is as follows: “ An ordinance to grade and pave the unpaved sidewalks, gutters and crossings, and grade and gravel the roadway on Third street, from Kossuth street to Reinhard avenue. “ Suction 1.

<p>Error to the District Court of Eranklin County.</p> <p>The plaintiff brought an action against the defendant, the-city of Columbus, to recover the sum of $809.85 and interest thereon, for the deposit of 5,399 loads of clay in Goodale Park, in said city, at the price of fifteen cents a load, as per contract made with the duly constituted agents of the city.</p> <p>The city denied the making of the contract, but averred,, that at the time the same was alleged to have been made,. “ there was a duly authorized committee of the defendant on the public parks of the city, of which John Walsh, a brother of the plaintiff, was chairman; that said committee neglected to advertise for bids for the performance of said labor, although the cost of said imjn’ovement exceeded $500, but that said John Walsh fraudulently and illegally entered into a verbal contract with the plaintiff, by which the latter was to supply and haul said clay at fifteen cents a load, a rate much higher than others were willing to perform the work and supply the-material for.”</p> <p>The reply denied the making of the contract by John-Walsh alone, on the part of the city, but alleged that it was-made by said committee in good faith, stipulating to pay but a fair price for said labor and materials, and not higher than the price for which others were willing to supply the same.</p> <p>On the trial, the plaintiff gave in evidence a deed of Lincoln Goodale to the city of Columbus, of a tract of forty acres of land, being the ground converted into said park, dated November 15, 1851, by which said Goodale conveyed said land to said city in fee simple upon the following trusts :</p> <p>“I. The said city of Columbus shall, within a reasonable time, lay out a public street, sixty feet wide, on the east side of said tract, to be called East Park street, and another street on the south side of said tract, sixty feet wide, to be called Bond street, as shown by said plat hereinbefore referred to.</p> <p>“ II. The said tract hereby conveyed, excepting said streets, shall be-denominated ‘ Goodale Park,’ and shall be forever kept and preserved as a. public park or pleasure ground, for the free and common use of the inhabitants of said city of Columbus, but to be under the care and (subject to said use) the exclusive direction and control of said city and their successors. '</p> <p>“III. The oversight, improvement and care of said grounds shall always be intrusted by the city council of said city to a committee of three, of their own number, excepting that during the life-time of said Lincoln Goodale, said committee shall consist of four persons, of whom said Goodale shall be one.</p> <p>“IV. The said city shall, as far as practicable, protect the birds upon said grounds, and prevent all shooting at a mark or at any game upon the-same.</p> <p>“ Y. The said city shall cause a good fence to be built about said grounds, exclusive of said streets, within one year from the date of this conveyance.</p> <p>“ YI. The said Lincoln Goodale shall have the right to designate hereafter such entrances to said grounds, from the different streets adjoining, or that may adjoin it, as he may think proper, in addition to such as may be designated by the said city. The said city shall not permit any living trees, on said grounds to be cut down or destroyed, except by the direction of said committee above mentioned, nor by the direction of said committee, except with a view to the improvement and ornament of said grounds. And in the event that the premises hereby conveyed shall be appropriated-by the said city council, or by their successors, to any other object or purpose than keeping the same as a public park or pleasure ground for the free and common use of the inhabitants of said city of Columbus, then this deed of conveyance shall become null and void, and said premises-shall revert to the heirs of said Lincoln Goodale, or to such devisees as he-may designate by his last will and testament. ”</p> <p>Testimony was offered showing that the contract was made-with the plaintiff, by the committee appointed by the council, composed of three of their number, and not by John Waish alone; and chat the compensation agreed to be paid for the-labor and material for filling up the park, was no more than the same were reasonably worth. It further appeared that, the committee did not advertise for bids for doing the work or supplying the material for filling.</p> <p>At the close of the testimony the city moved the court to-arrest the evidence from the jury, which motion the court' overruled, and the city excepted. The jury returned a verdict, for the plaintiff for the amount of his claim, which, on motion therefor, the court refused to set aside, and the city excepted.</p> <p>The city also excepted to the judgment rendered on the-verdict.</p> <p>On error to the district court, the judgment of the common pleas was reversed on the ground, as stated in the record, “ that, the contract between said Walsh and said city was void.”' The object of the prosecution of the present proceeding in error is to reverse the judgment of the district court, and to affirm the judgment of the common pleas.</p>

<p>Error to tlie District Court of Mahoning County.</p> <p>The common pleas rendered judgment for the plaintiff below, who is plaintiff here; the district court reversed that judgment, and this court is now asked to reverse the district court.</p> <p>The action was brought to recover the annual sum of $150 per year, for a series of years, by reason of failure to commence mining coal under a contract, of which the following is a •copy.</p> <p>“Coal Contract.</p> <p>“Deacon Cook to Andrews & Hitchcock.</p> <p>“ This article of agreement, made and entered into this 12th ■day of January, a. d. 1864, by and between Deacon Cook, of Green Township, Mahoning county, Ohio, party of the first part, and Chauncey H. Andrews and W. J. Hitchcock, of Youngstown, Mahoning county, Ohio,</p> <p>“Witnesseth:</p> <p>“That the said party of the first part agrees to sell and lease all the mineral stone coal that is or may underlie the following described tract Or lot of land, situated in the Tow.n-•ship of Green, Mahoning county, Ohio, and is bounded as follows: On the north by land of Andrew Cochel, east by land •of F. M. Frederick, on the south by the highway, on the west by land of M. Pettit and Pearson D. Cook, and containing in the whole about one hundred and sixty acres of land. It is .agreed by the parties, that first party may have all of the coal he may want for his own domestic purposes, at the bank mined from his own land; free of charge, and the further sum of fifty tons per annum, by his paying the first cost of the same at the bank should he want it. And the second party agrees to pay the United States revenue tax on said coal, and also grants the exclusive right to test, open mines and remove said coal, and further, grants the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing of said coal. No coal to-be mined under the house or barn, or an area of five acres thereabouts.</p> <p>“ Second party have the right to abandon said premises at any time, and remove all houses and fixtures.</p> <p>“And-it is agreed by the party of the second part, that they will, within one year after the railroad is in running order from Niles to ’Wasliingtonville, test said land, by drilling or otherwise, and, if in case there should be discovered’ a minable vein or basin of stone coal of sufficient quantity and quality to justify the opening and mining of said coal, in the opinion of the said second party, then they agree to pay the following rate per ton for all coal mined on said premises, to wit: Pay fifteen cents for each ton of twenty-two hundred and forty pounds of merchantable coal, the payments to be made and continued in the following manner, to wit: Pay in hand one dollar, in an internal revenue deed stamp; the signing and sealing of this contract is an acknowledged receipt thereof.</p> <p>“ Should second party fail to commence mining within one year after the construction of said railroad, then they agree to pay first party one hundred and fifty dollars per annum thereafter, but such payments, when made, shall be treated as advance payments on coal to be subsequently mined, and this lease shall terminate in twenty years after the construction of said railroad. It is also agreed that' all coal mined on said premises is to be accurately weighed, and the weight .to be kept in a book which shall, at all reasonable times, be open for the inspection of the said first party. It is further agreed that the said party of the second part is to have the privilege of using the said railroad, underground entries, buildings and fixtures for the purpose of mining and removing coal from other lands, and after the said mines become exhausted or unminable, they may continue the use of said railroad, underground entries, buildings and fixtures, by paying the party of the first part the sum of twenty-five dollars for each year they may use them for the purpose of transporting coal. All moneys due under the contract to be paid or made in bankable funds of the State of Ohio, and the payments for coal so ■jnined to be made quarterly. And we, the parties to the signing and sealing of this contract, bind oursel ves, our heirs, our assigns and legal representatives, to strictly adhere to the several covenants and agreements of this lease, as witness our hands and seals the day and year above written.</p> <p>“ Deacon Cook.</p> <p>“ 0. IT. Andrews.</p> <p>“ W. J. Hitchcock.”</p> <p>The amended petition (filed in pursuance of an order consolidating several causes of action to recover for annual rent for successive years), after specially alleging the obligations incurred by defendants, avers that said railroad was completed August 1, 1869 ; that defendants have entered into possession of said premises under this contract, retained and still hold, and refuse to surrender the same to plaintiff; also that they have failed and refused to test said land for coal by drilling or otherwise, and have failed to commence mining coal on said lands within the time named in said contract.</p> <p>The answer puts in issue the time when the railroad was completed, denies that 'defendants failed to test for coal, or that they are liable, unless there was coal in this land. They aver they did make a search for coal, and found none, and that there was in fact none on the land, suitable for mining. Wherefore it is claimed there is nothing due on said lease.</p> <p>They also set up a surrender of the lease by mutual agreement.</p> <p>The reply denies the search for coal, denies that coal did not exist on the land, and denies the surrender of the lease.</p> <p>Upon the issues thus made, the case was tried to a jury, resulting in a verdict and judgment for the plaintiff for part of the amount claimed. A motion for a new trial was made and overruled, a bill of exceptions was taken, but it was not made part of the record, by journal entry.</p> <p>The district court reversed the court of common pleas, and remanded the cause. And this court is asked to reverse the judgment of the district court.</p>

The action was brought by the defendant in error, against' the plaintiff in error, in the court of common pleas of Jefferson county.

<p>Error to the District Court of Marion County.</p>

<p>Error to the District Court of Hamilton County.</p> <p>The originial action was brought by Alfred Hill against J.. B. II. Nolte, in .the court of common pleas of Hamilton-county, to recover damages for the breach of a contract. Hill was the lessee of a lot in the city of Cincinnati, bounded on the east by a lot owned by one Christopher. Nolte, father of defendant. On the lot of Hill, a three story brick house had been erected, abutting on the line of Nolte’s lot. The cellar and foundation wall (of stone) under Hill’s house were about five and one-half feet below the level of the curb. During the summer of 1875, Christopher Nolte was engaged in the erection of a building on his lot, extending to the west line of the' lot, and touching upon the brick house of Hill, with a cellar and foundation wall extending eight feet below the curb, or two and a half feet below the foundation wall of Hill’s house. The, damages sought to be recovered by Hill in the original action was for injury to his house, resulting from the excavation for the cellar on Nolte’s lot, whereby the walls of his house were broken down.</p> <p>It was alleged in the petition, that “ on or about July 2,. 1875, defendant, who was then engaged in excavating a cellar, and laying the foundation and cellar walls on the lot of land next to, and immediately adjoining plaintiff’s said building on the east, entered into a contract with plaintiff, and there and then agreed to underpin the foundation walls of plaintiff’s said building, so as to prevent the said building from falling or being otherwise weakened or injured, by reason of the excavation of said cellar as aforesaid.</p> <p>“Defendant wholly failed to perform said contract and underpin said building; but, on the contrary, did negligently and carelessly contrive to excavate said cellar without underpinning said building, and securing the same, as he had agreed, to do; by reason of the negligence and carelessness of defendant in failing to underpin and secure said building according-to the terms of said contract, and by reason of the negligence and carelessness of defendant in excavating said'cellar before underpinning and securing said building, the foundation wall of said building gave way, and said building was injured and damaged in the sum of thirty-five hundred ($3,500) dollars.”</p> <p>To this petition the defendant filed an answer denying generally the allegations of the petition.</p> <p>Afterward an amendment to the petition was filed, of which the following is the material part:</p> <p>“Plaintiff says, by way of amendment to his original petition, that ho is the lessee of said promises under a certain, lease dated March 14, 1872, for a term of five years from March 14, 1872.</p> <p>“ Said lease contains a privilege of purchase of said premises at any time during said term. Said building was erected by plaintiff on said premises since he leased the same as aforesaid, and while he held the same as said lessee.”</p> <p>The trial resulted in a verdict for $2,160.00, for the plaintiff. A motion for a new trial was overruled. A bill of exceptions, containing all the testimony and charge, Avas taken, and judgment rendered for the plaintiff. This judgment was affirmed by the district court.. The principal grounds of error are alleged: namely, in admitting incompetent evidence, in the charge to the jury, and in overruling motion for a ne\v trial.</p> <p>A further statement of the case will be found in the opinion.</p>

<p>Error to the Court of Common Pleas of Athens County.</p> <p>At the June term, 1880, of the court of common pleas of .Athens county, the grand jury returned into court an indictment, which they had found against Cyrus S. Koons; charging him, in the first count, with having forged a check in the preceding March, and in the second count, with uttering and publishing, as true and genuine, a check, knowing the same to have been forged, the latter offense also being alleged to have been committed in the preceding March. The defendant pleaded not guilty, and, at the same term, was placed on trial. :The verdict was that Koons was not guilty as charged in the first count, but that he was guilty’as charged in the second count of the indictment. A motion for a new trial having been overruled, Koons was sentenced to the penitentiary for the term of five years.</p> <p>The forged check, as set forth in the indictment, was in these words and figures :</p> <p>“ Athens, Ohio, March 25, 1880.</p> <p>“ Bank of Athens, pay to J. B. Ellis or bearer, five hundred and forty dollars. John B. Brown.”</p> <p>On the trial several bills of exception were taken. In one of these it is stated that the state called James D. Brown as a witness, who testified that he was a. banker, skilled in the comparison and examination of handwritings; that he was then cashier and manager of the Bank of Athens ; that he was present in the bank on March 31, 1880, when Koons presented the above-mentioned check for payment; that he was familiar with the genuine signature of John B. Brown, and that, in his ojfinion, the signature on said check was not the genuine signature of John B. Brown. The check was handed back to Koons and the witness had not seen it since. The check was not produced in court. The witness further stated that he had no knowledge or acquaintance with the handwriting in the alleged forged check, and that he never saw the defendant write, nor was he familiar with his handwriting. Thereupon a promissory note in the following words and figures was shown to the witness:</p> <p>“ $43.59. June 20, 1871.</p> <p>“ One day after date I promise to pay Patterson & Curfman, or bearer, the sum of forty-three dollars and 59 cts. with' eight ' pe/ cent., for value received. O. 8. Koons.”</p> <p>The defendant admitted that the signature “ G. S. Koons ” was written by him, and the prosecuting attorney admitted that the filling up of said note was not written by said Koons. The witness said that he had never seen the said signature of said Kpons, nor any other signature of his until that day. The prosecuting attorney then said to the witness: “ Look at the signature ‘ C. -S. Koons/ in this note, and say if the liandwritlng of the check signed John B. Brown, and presented to you March 31, wTas the same as this signature.” The defendant objected to the question, the court overruled the objection, and the witness answered: “ The signature to this note, ‘ O. S. Noons,’ has a similarity to the handwriting of the check.” The defendant moved the court to rule out the answer, but the ■court refused to do so, and permitted the same to go to the jury. And the defendant excepted to the ruling of the court both in permitting the question to be answered and in refusing to rule ■out the answer. The prosecuting attorney further asked the witness : “ State whether or not, in your opinion, the signature to the note, and' handwriting and signature to the check, are in the same handwriting.” To this question the defendant objected, but the court overruled the objection and the defendant •excepted. The witness answered, “ I should think they probably were.” And the witness further said, “ My remembrance of the check, and my examination of certain other papers brought to me by Mr. Wolf since the check was presented, makes me think so.” The defendant objecting, the court ruled out the following: My remembrance of the check, and my examination of certain other papers brought to tne by Mr. Wolf since the check was presented, makes me think so.” The defendant ■objected to ruling out those words unless the whole answer of the witness should be ruled out, but the court overruled the objection and the defendant excepted.</p> <p>Further, to maintain the issue, the state called R. H. Stewart, wdio testified that he was an expert in the examination of handwriting, and was a clerk in the Bank of Athens when the .alleged forged check was presented, and examined it; that he ■did not recognize the handwriting, but was sure the signature, John B. Brown, was not genuine; that he had never seen the defendant write, nor had he seen the signature of C. S. Noons ■until then, nor had he seen the alleged forged check since March 31. And thereupon the above-mentioned note to Patterson <fc Curfman was shown to the witness, and, against the •objection of the defendant, the court permitted the witness to .state that there was a similarity between the handwriting in .■said check, and the signature “ G. S. Noons,” to_the note ; and, over like objection of the defendant, the witness was allowed testate that in his opinion the forged check and the signature “ O. S. Koons ” “ were probably in the same handwriting.”' The defendant asked the court to rule out and exclude said-testimony of Stewart, but the court refused, and permitted the same to go to the j ury, and the defendant excepted.</p> <p>In the motion for a new trial, which was overruled, the admission of the testimony of Brown and Stewart were assigned, as ground for the motion, and it was further assigned as ground for such new trial, in the same motion, and the truth of which was shown, that the sheriff of the county and his deputy had given evidence material for the state on the trial of the cause, and that during the deliberations of the jury, in the room where they were considering of their verdict, the sheriff was present a considerable portion, and the deputy the remaining-portion of the time. It appeared that the room was a hall,, sixty by eighty feet, but it does not appeal1 whether.the sheriff or his deputy heard the deliberations of the jury, nor does it appear that the jury were under any restraint in their deliberations, by reason of the presence of those witnesses.</p> <p>On motion, leave was given to file, in this court, a petition, in error to reverse the aforesaid judgment.</p>

<p>Error to the General Term of the ■ Superior Court of Cincinnati, affirming a judgment at Special Term, in favor of the defendant in error, entered on the verdict, and affirming an ■order denying a motion for a new trial.</p> <p>Action upon a policy of life insurance, issued upon the life ■of Charles E. Cheever, by the plaintiff in error for the sole benefit of the defendant in error, wife of said Charles, on November 27, 1872. •</p> <p>It was agreed by the parties that the policy was given in place of one for the same amount, issued upon the same terms and conditions, upon the life of said Charles E. Cheever, by the Cincinnati Mutual Life Insurance Company, and dated July 31, 1871, and in consideration in part of the representations made in the application for insurance to the latter company. The ajjplication was signed by both Charles E. Cheever and his wife. The policies of both companies contained, among-others, the following clauses. *</p> <p>“ This Policy is issued and accepted by the insured upon, the express conditions and agreements contained upon the back hereof, which are to be used and referred to in order to explain the rights and obligations of -the parties hereto, in all. cases not herein specially provided for.”</p> <p>Among the conditions were—</p> <p>“ 1st. That the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any facts relating to the health or circumstances of the insured, affecting the interests of said company.</p> <p>“8th. That in case of violation of the foregoing conditions, or any of them, this policy' shall become void.”</p> <p>The defense relied on was intentional misrepresentation and concealment, by Cheever, in answer to the following question, contained in the application for insurance by the Cincinnati Mutual, of the date of July 28, 1871: “Have you had, during-the last seven years, any sickness or disease ? If so, state the particulars, and the name of the physician or physicians who. prescribed or were consulted.” Answer, “No.”</p> <p>The reply denied that the answer to said question was untrue. It appears from the pleadings, and a bill of exceptions, containing all the testimony, that the said Cheever died on March 23, 1874; that in the year 1870 there appeared upon his neck a tumor or sore, which, prior to July 28, 1871, the date of the application, had been examined and treated by-several physicians, some of whom were of the opinion that it. was a cancer, while others pronounced it an innocent growth, or glandular affection, of a character that would readily yield to treatment, leaving no permanent injurious effect. Among the physicians who pronounced the tumor to be a malignant cancer was Dr. Gratigny, who, among other things, testified as follows:</p> <p>“ I have been practicing medicine and surgery in this city for about thirteen years. I devote my time and labors to the-treatment of cancers, tumors, and scrofulous diseases, as a specialty. I knew Charles E. Cheever; he came to me for-treatment on the 18th day of August, a. d., 1870. He had an open tumor on the left side of the neck below the ear; it-was malignant; by malignant, I mean that it was a cancer. I treated him for about six consecutive weeks, commencing August 18; I gave him medicines, and removed the cancer by means of outward applications, so that the diseased structure was separated from the healthy tissue, and wholly removed. This removal was effected in about three weeks; I saw him every d'ay during that time. It was of the species known aseucephaloid cancer; when the diseased parts were removed from the sound or healthy parts, it left a healthy granulating surface, which soon healed up, leaving a natural surface and a, healthy scar; when he left me he was well.”</p> <p>The witness testified that a paper shown him, of which the-following is a copy, was in the handwriting of Charles E.. Cheever, and was delivered to him by Cheever.</p> <p>“ Cint’i, Jany 1st, 1870.</p> <p> “ Dr. L. H. Qratigm/: </p> <p>“ Dear Sir : — About one year ago a lump or swelling commenced coming on the left side of my neck. At first I paid no attention to it, but as it kept increasing, I applied to my physician, who gave me outward applications first and after-wards operated on it, which done no good. After being under his charge for some time and growing worse daily, I changed physicians and tried sei^ral, but to no use. At a consultation held on my case last summer, my complaint was pronounced cancer, and I was told that I could not be cured, and that my time here was getting short. By accident hearing of you and. of some remarkable cures you had made, I called on you — you gave me some encouragement, and after visiting, myself, some-of your old patients, I commenced with you on the 18th of last August. I am happy to say, that in 7 weeks from that date, my neck was entirely healéd up sound and well (something my former physicians said couldn’t be done), and I am now strong, hearty, and never felt better in my life. From all indications, •I am entirely well, and think it my duty to you and to all •others afflicted, to give you the above plain statement of facts. You are at perfect liberty to use the above in any manner you see fit, and to refer all afflicted in a similar manner to me. My place of business is 228 and 230 Main street, and can refer you to most of the principal business men in this city.</p> <p>“ Charles E. Cheever.</p> <p>“ Chas. E. Cheever,</p> <p>No. 228 and 230 Main St.,</p> <p>Dec. 31, ’70.”</p> <p>This letter was offered in evidence by the company, and on the objection of the plaintiff below was excluded, the defend.ant excepting.</p> <p>The witness further testified, that a letter handed him, signed Job S. Haworth, dated Lewis, Cass county, Iowa, July 12, 1871, was delivered to him by Charles E. Cheever, and that the words in pencil, at the bottom of it, are in his handwriting ; the words in pencil are: “ Sent him one of your books and wrote him. Charlie.”</p> <p>This letter was as follows :</p> <p>“ Lewis, Cáss Co., Iowa, July 12, ’71.</p> <p>“ Mr. Oheever:</p> <p>“ Sir : — I am agoing to write you a line Concerning One Doctor Gratigna Curing Cancer I see a Statement1 in the Times as having cured One Charles E Chever of Cancer & as I am supposed to have Cancer One my Nose„I thought I would try find out the certainty of the case</p> <p>“ I want you to Answer & give me the facts in the ease if you Please & Oblige Yours Job S Haworth</p> <p>“ direct to .Lewis Cass Co Iowa ”</p> <p>“ Sent him one of your books & wrote him</p> <p>“ Charlie</p> <p>“Job. S. Hayworth, Lewis Iowa To Charley Cheaver answered July 15 1871.”</p> <p>This letter was also offered by the defendant below, and excluded by the court. The book mentioned in the note at. the bottom of this letter,' contained, among other things, a printed copy of the letter of the insured to the witness.</p> <p>N. "W. Harris was called, and testified that he was the secretary and general manager of the defendant below, and had been since 1867; and that a book shown him, containing eight, pages, was prepared by him and issued to the agents of the company.</p> <p>The plaintiff below then offered the book in evidence, but upon objection withdrew the offer. In the argument of the case to the jury, counsel for the plaintiff was permitted in “ illustration of his argument, ” and over the exception of the defendant, to read and comment upon the matter contained in said book. The following js an example of its contents.</p> <p>“ QUALITIES OR A GOOD AGENT.</p> <p>“ The public generally forms its opinion of a life insurance company by its acquaintance with its agents. The good agent appreciates this fact; and, also, that men will judge of the whole system of life insurance by him. He has high ideas of his work. He looks upon it as benefiting the party assured by giving to him quiet of mind; by inducing habits of economy, sobriety, and forethought; by setting before him an honorable motive to action and enterprise; and by leading him to the discharge of a sacred duty. He considers that his efforts are helping to rid the community of poverty and its frequent attendants, vice and crime; and also, that he is strengthening the sinews of social life by every policy he obtains ; and, what is more, that he is befriending the poor and needy, wiping sorrow from eyes dimmed with tears, and deserving the tribute of gratitute awarded to one of old: ‘When the ear heard me, then it blessed me ; and when the eye saw me, it gave witness to me; because I delivered the poor that cried, and the fatherless, and him that had none to help him. The blessing • of him that was ready to perish came upon me, and I caused the widow’s heart to sing for joy.’</p> <p>“Agents should cultivate the acquaintance of the clergy, ■ and, by every suitable means, endeavor to secure their inhu•ence. In most cases a minister will give a note of introduction, or a general letter, commendatory of the agent and the •company. Often, too, a pastor will furnish a list of the members of his parish who are most likely to insure. It is of great importance to effect an insurance upon the minister’s life. If .you are associated with Sunday-schools, churches, or any other •organization, avail yourself of the acquaintance it will give .you. _</p> <p>_ “ When a death occurs in a community, especially if the party be assured, and where it is of great advantage to the sur'viving members of a family, particulars may be profitably obtained, and the circumstances commented upon. Perhaps 'the relatives and fr.ends may be induced to insure. Yery few communities do not furnish examples where a life-policy upon •a deceased parent wquld have been a god-send to the afflicted household. It is not only proper to refer to such cases, but an ■agent is not fulfilling his duty if he does not interpret and apply such providences as a warning against the neglect of life .insurance. Sudden death gives especial point to such appeals.”</p> <p>Whether Oheever died of a recurrence of the ailment which Dr. Gratigny treated, or of a new disease, was a point of much •conflict in the testimony given at the trial.</p>

<p>Error to the Court of Common Pleas of Muskingum County.</p>

In 1871, the city of Toledo passed an ordinance for the improvement of a certain street, the cost and expense whereof (less the cost of street crossings), were to be assessed npon abutting property, payable in ten annual installments. The estimated cost, as reported by tbe city civil engineer, was $69,767.26. Tlie work was completed in 1873, when tbe .actual assessable cost was ascertained to be $51,274.67.

<p>1. Where it appears that a justice of the peace has taken and approved bail for stay of execution, on a judgment on his docket, by which execution was stayed for the time provided by the statute, it will be presumed, on proceedings in error by the judgment debtor, to reverse said judgment, that the judgment was stayed at his instance.</p> <p>2. In such a proceeding, the judgment debtor cannot allege, as error, want of jurisdiction of the court below over his person, his causing an undertaking for stay of execution, being a waiver of any defect in the service of the summons in the action. Bussell v. Giles, 81 Ohio St. 293, distinguished.</p>

<p>1. In an action brought by an employee of a railroad company against it, to recover for injury sustained while in the discharge of his duty, the negligence charged was the moving of a car under which the plaintiff was working, without notice or warning. The proof showed that the negligence in not giving notice or warning of the moving of the car was attributable to the foreman under whose control the plaintiff was working and not to those engaged in moving the car.</p> <p>Held, that the case was not one of a failure of proof under section 133 of the Code, but, at most, of variance under sections 131 and 133.</p> <p>3. It is the duty of a railroad company to make such regulations or provision for the safety of its employees as will afford them reasonable protection against the dangers incident to the performance .of their respective duties.</p> <p>3. A foreman was put in charge of a set of hands, whose business it was to repair freight cars while standing on the track, in the yard of the company in which trains were accustomed to be made up; it was also the duty of the foreman to participate with the hands in doing the work. While the foreman and a hand were engaged in repairing a caT, and the latter was at work under the car by the order of the foreman, he was injured by the striking of the car on which he was working by another car moving on the same track. Held:</p> <p>1. That tbe hand was the subordinate of the foreman, in respect to the work in-which he was engaged at the time he was injured.</p> <p>3. That it was the duty of the foreman, in putting the hand to work under the car, to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of cars and the making up of trains on the same track ; and for an injury resulting from the want of such care, the company is liable.</p>

Reserved in the District Court. John McLandsborough, on May 21, 1877, brought suit in •the court of common pleas of Harrison county, averring that lie was then a citizen of said county, and a resident land-owner and taxpayer in Scio special school district in North township in said county ; that Joseph MeElveen, about March 29,1877, was the duly elected and qualified treasurer of said school district, and had given bond with sureties for the performance of his duties as such…

Appeal. Reserved in the District Court of Miami County. The original action was brought by the plaintiff, James H. Youngs against Henry Heffner et al. in partition. ITe asserted ■title to two undivided sevenths of the premises described.

Appeal. Reserved in the District Court of Cuyahoga ■County. This action is prosecuted by the plaintiff corporation against the defendant corporation, the president and directors thereof, the city of Cleveland, the mayor and members of the city council, for the sole purpose of obtaining an injunction perpetually restraining the defendant corporation from running its cars upon the track of the plaintiff corporation’s railroad.

Appeal. Reserved in the District Court of Cuyahoga County. The action below was brought by plaintiff, to enjoin the auditor and treasurer of Cuyahoga county, from collecting the taxes and assessing penalties thereon, for the year 1877, on its property, known as Case Block, in the city of Cleveland. .

The original action was brought by Leopold Burckhardt, the plaintiff in error, against Frederick Burckhardt, the defendant in error, to foreclose a mortgage on real estate, given to secure the payment of two promissory notes, each for the sum of’ $27,666.66|. The notes and mortgage were dated October 25, 1871. The prayer was for the sale of the mortgaged property and the application of the proceeds to the payment of the-notes.

On exception by the prosecuting attorney of Butler County to the judgment of the Court of Common Pleas of that county. At the January term, 1880, of the court of common pleas of Butler county, Richard Jackson was indicted for perjury. The-defendant, by his counsel, demurred to the indictment, the-court sustained the demurrer, and the prosecuting attorney excepted.

The original action was brought by the defendants in error against the commissioners and auditor of Putnam county, to. enjoin the improvement of a public highway under the act of March 29, 1867, and the acts amendatory thereof.

Mandamus. Tlie American Union Telegraph Company, a corporation of the .state of New York, is engaged in doing a general telegraph business in the state of Ohio and elsewhere, with an office in the city of Columbus, Ohio. The Baltimore and Ohio Railroad Company, a corporation of the state of Maryland, is engaged in doing a general railroad business in the state of Ohio and elsewhere, with an office in said city.

Motion, to strike tbe petition in error from tbe files, and tbe case from tbe docket, because no summons in error bad been issued for or served upon any of defendants. Tbe judgment was rendered at tbe April term, 1877, of tbe district court of Washington county. June 9, 1877, a motion was filed in this court, for leave to lile a petition in error.

Tbis was an action to enjoin the village authorities of tbe village of Franklin, in Warren county, from taking any steps to carry into effect certain proceedings for the extension of tbe corporate limits of tbe village, upon the’ ground that .such proceedings were void. Tbe plaintiffs were resident taxpayers of the territory sought to be annexed.

1 The indictment contains two counts. A demurrer to each ■was filed by Elliott, who alone was before the/Court,' and overruled, and exceptions were noted. Upon plea of not guilty by him, a trial was had, resulting án a general verdict of guilty, as charged in the indictment. After a motion for a new trial, and in arrest of judgment, had been overruled, a sentence to one year in the penitentiary was passed upon him.

Mandamus. The only facts necessary to be noticed in this case are the ■following: On the 16th of April, 1880, the house of representatives adopted the following resolution, viz.: “ Resolved, that the porters of the House, George Riley, James Lewis, John Downing and Samuel Sloan, be allowed twenty-five dollars •each for services in cleaning up the hall after the adjournment •of the house.” By the appropriation act passed by the general assembly on the day preceding the…

<p>1. Where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.</p> <p>2. Section 799 of the revised statutes is a substantial re-enactment of section 10 of the act of April 27, 1809 (60 O. L. 52), and section 794 is a re-enactment of the first section of the act of May 5, 1877. (74 O. L108.) Hence, in so far as the • two sections are irreconcilable with each other, effect must be given to the latter.</p> <p>3. O., by sealed proposals, offered to supply the materials and perform the- “ cast and wrought-iron work ” which was to enter into the erection of a court-house-in Shelby county, for the sum of $33,900, and H. P. O. & Co. for $32,800; both sums being within the preliminary estimate of the architect. The commissioners awarded the contract to C., as the lowest and best bidder, and upon his failure to enter into the contract and execute the bond required by the statute, they refused to award the contract to II. P. C. & Co. as the nextlowest and best bidder, although demand was duly made therefor, and a good and sufficient bond tendered, but re-advertised for further proposals for supplying the materials and performing the work.</p> <p>Held, that a writ of mandamus will not be issued to compel the commissioners to award the contract to H. P. C. & Co.</p>

The original action was brought in the court of common pleas of Lucas county, by defendant in error, against the plaintiff in error, to recover a balance claimed to be due him for material and labor in and about the plastering of a certain house belonging to the defendant below, and also to enforce a mechanic’s lien, which was alleged to have been secured under the statute.

The original action was brought before a justice, December 21, 1872, by Crain against Harper, to recover $140, the value of one horse, sold and delivered August 27, 1872. Harper denied the indebtedness, and set up as a defense that the horse was sold upon a wager on the presidential election, ■and that before that event he returned the horse and drew the wager. After a trial and judgment the case was appealed.

- The action in the court below was brought by Moore against. Cramer, upon four negotiable notes given by Cramer to Allen & Hopkins, March 13, 1868, and shortly after, and before due, indorsed to Moore. Cramer answered that the notes were-obtained by fraud for a worthless patent right, and -that Moore-was aware of the fraud, and took the notes to aid in its consummation.

The plaintiff and defendant were banking corporations, organized under the act “ to authorize free banking,” passed March '21, 1851 (1 S. & C. 168). Their corporate existence, except for purposes of winding up their affairs, ceased on the 1st day ■of January, 1873.

<p>1. In an action under the code for the recovery of real estate, whereof the legal title is in the plaintiff, a defense, grounded on an equitable title and right of possession under it in the defendant, must be pleaded.</p> <p>3. In such case, where the answer contains a general denial of the plaint-ill’s title merely, it is error to adijiit testimony of such equitable estate-in the defendant, and to charge the jury that such equitable estate, if duly proved, constitutes a defense to such action.</p>

<p>Error to the District Court of Butler County.</p> <p>The plaintiff in error brought an action to recover a balance-due on the following note:</p> <p>“ $1,000. Hamilton, April 16, 1851.</p> <p>“ Nine months after date I promise to pay to the order of ¥m. Bebb, one thousand dollars, value received, at the Ohio-Life Insurance and Trust Co., Cincinnati.</p> <p>“ L. D. Campbell.”</p> <p>Which was indorsed and transferred to plaintiff’s intestate,. Wm. E. White, before due.</p> <p>He avers that on the 27th of November, 1852, at defendant’s request, White agreed to let him have further time to-pay said note, in consideration whereof the defendant executed the following agreement:</p> <p>“ I hereby agree to allow Wm. E. White ten per cent, interest on a note signed by myself and payable to and indorsed by Wm. Bebb, for one thousand dollars, dated April 16, 1851, payable nine months after date, the said ten per cent, to be-, allowed until the same is paid.</p> <p>“ L. D. Campbell.</p> <p>“ Hamilton, Nov. 27, 1852.”</p> <p>It is alleged that by virtue of said agreement, which beeamepart of said note, it bore interest at the rate of ten per cent from and after November.27, 1852.</p> <p>■ By an amendment to his petition, the plaintiff alleges that. White did, in pursuance of said promise by Campbell to pay ten per cent., give and extend time to liim, in consideration of which he paid said interest.</p> <p>Sundry credits are indorsed on the note, beginning with January 6, 1853, and ending March 31, 1870.</p> <p>The answer claims that these payments, indorsed, were paid as interest at ten per cent., denies the validity of the contract to pay that rate for want of any consideration to support the-defendant’s promise, and denies generally all plaintiff’s allegations touching the agreement to give time for payment of the note.</p> <p>Upon this issue the case was submitted to the court. The plaintiff testified -that he was the executor of White, and that, he found among his papers a writing signed by Bebb, the payee and indorser of the note. This paper was offered in evidence by the plaintiff, in support of his case, made by the pleadings, but was ruled out, and to this ruling plaintiff excepted. It reads as follows:</p> <p>“ Cincinnati, March 16, 1852.</p> <p>“Whereas, I negotiated to Wm. E. White the note of Hon. L. D. Campbell, dated April 16, 1851, for $1,000, payable nine months after date, at the Ohio Life and Trust Co., Cincinnati. And whereas, by reason of fires, &c., Mr. Campbell has not been able to meet said note at its maturity, and asks further time, which Mr. White has consented, with my consent, to grcmt:</p> <p>“ Now, I agree that in consideration of said forbearance, that if the said Campbell will not pay to the said White ten per cent, per annum interest on said note, from and after its maturity, I will; and I agree that the mortgage lien shall remain unaffected by said forbearance, and that I will remain surety, as. heretofore, until I give written notice to the contrary, and sixty days thereafter.</p> <p>“Witness my hand: Wm. Bebb.”</p> <p>Without further testimony by either party, the case was submitted, and the court computed interest on said note at ten per cent, until the repeal of the ten per cent, statute, and after that at six, applying the excess of interest paid after that date, to the payment of principal.</p> <p>This judgment was affirmed in the district court. To secure .so much of the same as allows six per cent, interest only after the repeal of the ten per cent, statute, is the object of the present proceeding.</p>

<p>Error to tbe District Court of Malioning County.</p> <p>Hugh B. Wick and Paul Wick, partners by the firm name •of Wick Brothers & Co., brought an action as indorsees against Henry Tod, on a promissory note in the following words and figures:</p> <p>“ $5,000.00. Youngstown, O., April 9, 1873,</p> <p>“ Twelve months after date, I promise to pay to the order of H. K. Forbes, five thousand dollars at First National 'Bank of Youngstown, O. Yalue received, with interest, six per cent.</p> <p>“HENRY TOD.”</p> <p>Tod’s first defense was, that the note sued upon was given by defendant for an interest in a pretended patent right for a pretended improvement in “ Mortising Machines,” without the words, “ Given for a patent right,” written or printed in said note, as required by the statute law of Ohio ; and that plaintiffs, at the date of their purchase of said note from the payee, were cognizant that the same was given for an interest in such patent.</p> <p>The second defense was, that said pretended patent right was neither new, valid, nor of any value as a patent, but was worthless, and that the payee and one R. N. Pool, a joint owner of the patent, and acting for himself and Forbes, among other things, falsely and fraudulently represented that said patented invention was .new in some of its parts, and in its combination and arrangement, and in its movements, and was of great value and utility, and that plaintiffs had knowledge of said facts at the date of the purchase of said note.</p> <p>Another defense was that the payee of the note fraudulently concealed from Tod, at the time he executed and delivered the note, that it was agreed between said payee and Tod;s attorney, who had been acting for him in the premises, that the words, “ Given for a patent right,” should be written thereon, said Tod being ignorant that the statute required said indorsement, and also ignorant of such agreement.</p> <p>The plaintiffs, in reply, denied knowledge that said note was. given for an interest in a patented invention, and alleged that, they bought the note, before due, in the usual course of trade, for value, and in ignorance of any defect or-infirmity therein. They also alleged that they were assured by the'defendant, by letter, before their purchase of said note, that the same would be promptly paid at maturity, and that, in reliance thereupon, they purchased said note in good faith.</p> <p>It appears from the bill of exceptions sealed at the trial, that evidence was offered by each party tending to support the facts alleged by them to exist. The evidence disclosed the fact that the plaintiffs, as bankers, purchased said note a day or two after its date, paying therefor $4,400. The letters patent and specifications attached were offered in evidence, and commented on by the court in its charge.</p> <p>The court, among other things, charged the jury as follows:</p> <p>“If this note was given for an interest in a patent right,, which was of no value, .or if the note was obtained by fraud, even though the patent right was of value, then the parties to. whom it was given, to wit, Pool and Forbes, could not recover thereon, and then plaintiffs cannot recover tinless they are protected by certain rules of law which I will explain hereafter.</p> <p>“ If you find that Pool obtained from defendant the note ¡sued upon for an interest in the patent right, with the knowledge as to the statutory requirements, and under such circum■stances and by the means alleged in the amended answer, then ¡said note, while in the hands of Forbes or Pool, was invalid as to them whether said patent right had any validity or not, and they or either of them, if suing,- would not be entitled to recover on the note.</p> <p>“ If said note was obtained from defendant by said Pool for .a patent right consideration, and the patent right was invalid •or was worthless, then neither he nor Forbes could recover thereon, if suing.</p> <p>“ If the consideration of the note was an interest in a patent .right, and if it was agreed that said note should have the words, Given for a patent right,’ written on the note when made, .and said Pool, by the fraudulent means alleged in the answer, obtained said note of defendant without said words, defendant being ignorant of said statute requirement and of said agreement as to said words, then neither Pool nor Forbes, if suing, -could recover on the note, even if the patent had some validity and value.</p> <p>“If the note was given for a patent right, and if Forbes and Pool knew that the statute, .under a penalty of fine and imprisonment, required said words'to be printed or written on it, and if, for the purpose of evading said law, they omitted said words from said note, they could not, either of them, if suing, recover upon it, even if the patent right was valid and valuable.</p> <p>“ If said note was given for an interest in a patent right, and if said patent right was invalid or worthless for any reason, then neither said Forbes nor Pool could.recover thereon, if suing.</p> <p>“ If the note was given for a patent right, and if that patent right was' valid and valuable, then said Forbes and Pool, if •suing, could recover if the note was obtained honestly and fairly and without fraud, and if, further, said words, ‘ Given for a' patent right,’ were not omitted by design, but were omitted by mistake merely. But neither Forbes nor Pool could recover, if .they were plaintiffs here, if said note was obtained by fraud, or given for a worthless patent right, or if said ’words were, omitted by design for the purpose of evading the law, even if" the patent right was valuable.</p> <p>“ If said note for any reason could not be collected by Forbes and Pool, then Wick Brothers & Co. cannot recover in this-action unless they are protected by the commercial ’rule, as it is called, or are protected by this letter of Mr. Tod’s by way of' estoppel, which I will explain more fully hereafter.</p> <p>“ A few words 'as to the commercial rule aside from and. distinct from this estoppel.</p> <p>“ If plaintiffs purchased this note before it was due, for a. valuable consideration, and in the usual course of trade, without knowledge of facts which impeach its validity between Tod and Forbes and Pool, then your verdict should be for plaintiff's.. And this is the commercial rule.</p> <p>“Three of these propositions must be affirmatively established by the plaintiffs before they are protected, to wit: Purchased before due, for a valuable consideration, and in the-usual course of trade, and when they do that, they are entitled to recover, unless defendant shows knowledge on their part of facts which impeach its validity.</p> <p>“ If this note could not be collected by Forbes and Pool, and. if you so find, and if you further find that said plaintiffs acquired it for substantially or considerably less than what plaintiffs had reason to believe was its fair and reasonable value,, then the plaintiffs cannot recover by reason of the commercial rule; that is, to bring the plaintiff's within the protection off the commercial rule they must satisfy you affirmatively that they paid a fair and reasonable value for the note and in the-usual course of trade.</p> <p>“ If you find from the proof that $4,400 was much less than-the fair and reasonable value-of said note in the market of Youngstown, where the note was made payable, and where the-plaintiff's and defendant lived, and if you find that plaintiffs were acquainted with the defendant, his means and circum stances, and knew him to be perfectly good and responsible,, then plaintiffs would not be regarded as Iona fide purchasers for a fair and reasonable value and- in the usual course of business in the commercial sense, and could not recover-of defendant unless Pool and-Forbes conld recover. By this iaif and reasonable value which they must have paid for the note, I mean such sum as would not notify them that there was something wrong in the note. If it was offered at and sold for a sum so disproportioned to its fair and reasonable value as to indicate an imperfection in the note, and show bad faith or want of honesty on the part of plaintiffs, that would not be a fair and reasonable value, and they cannot be protected.</p> <p>“ What is meant by .the usual course of trade ? It does not mean that plaintiffs must have been accustomed to buy notes like i ho one in controversy; but if they paid a fair and reasonable sum for the note, as defined above, and bought it before due, and if it does not appear that plaintiffs acted in bad faith in such purchase, then they did purchase in the usual course of trade. But if they did not pay a reasonable sum for the note, but if the sum was grossly inadequate, or if they did not, in buying, act in good faith, then you should find that they did not purchase in the usual course of trade.</p> <p>“ If the plaintiffs bought the note before due, for awaluable consideration, fair and reasonable value, and in the usual course of trade, then the plaintiffs ought to recover unless the defendant shows affirmatively that they, the plaintiffs, had knowledge of facts which impeach or destroy its validity, as between Pool and Tod.</p> <p>“ If the jury find that the plaintiffs, at the time they obtained the note, knew that the note was given for an interest- in a patent right, then they would hold the note on the samé terms as Forbes and Pool, and subject to the same defenses as against them, and if for any reason they could not recover, then plaintiffs would not be protected by the commercial rule.</p> <p>“ The patent of Forbes, mentioned in the answer and exhibited in evidence is not a patent for any of the things or devices or functions mentioned in the specifications attached, but simply for the combination of all, as stated in his claim at the end of the specifications — crank, pitman, &c. I refer you to the paper introduced in evidence. If the machine made under the letters patent, and according to the claim therein, was substantially the same as other machines which had been in use before the claimed invention of Forbes, then this- patent right was of no value. So also it is of no value in preventing others from making and using other machines which would contain any less ■or any greater number of parts, nor a combination of the same number of parts, any one of which should substantially differ from any of the parts in the machine described in the letters patent, and therefore it would not constitute an exclusive Or valuable monopoly if other machines slightly variant in parts, or form or combination would produce the same result;</p> <p>, “The Forbes patent, if not valid, or if worthless, would not be a sufficient consideration for the note in the hands of the original parties to the note.”</p> <p>To the various propositions of the foregoing charge' the plaintiffs excepted.</p> <p>The jury returned a verdict for the defendant, Tod, on which judgment was rendered.</p> <p>On error to the district court the judgment was reversed, on the ground that the court below erred in charging the jury as follows: ‘</p> <p>“ If the note was given for a patent right, and if Forbes and Pool knew that the statute, under a penalty and fine and imprisonment, required said words to be written or printed on it, and if, for the purpose of evading said law, they omitted said words from said note, they could not, either of them, if suing, recover upon it, even if the patent right was valid and valuable.</p> <p>“But neither Forbes nor Pool could recover if they were plaintiffs here, if said note was obtained by fraud, or given for a worthless patent right, or if said words were omitted by design, for the purpose of evading the law, even if the patent right was valuable.</p> <p>“ If the jury find that the plaintiffs, at the time 'they obtained the note, knew that the note was given for an interest in a patent right, then they would hold the note on the same terms as Forbes and Pool, and subject to the same defenses as against them; and if for any reason they could not recover, then plaintiffs could not be protected by the commercial rule.”</p> <p>No other questions arising on the record were passed upon by the district court.</p> <p>The defendant below now seeks the reversal of the judgment •of the district court and the affirmance of that of the common pleas.</p>

<p>Under the act of April 16, 1867, entitled “An act to authorize and require-the payment of bounties to veteran volunteers,” as amended April 16, 1880 (77 Ohio L. 294), the class of volunteers therein designated as “re-enlisted veteran volunteers” does not embrace “veteran volunteers ” who were not in the field at the time of their enlistment as veteran, volunteers.</p>

<p>1. The principle decided in Qa/oit v. Chambers (3 Ohio, 496), that the owners of lands situate on the banks of navigable streams running through the state are also owners of the beds of the rivers to the middle of the stream, as at common law, has become a rule of property, and, irrespective of the question of its original correctness, ought not to be disturbed.</p> <p>2. The same rule applies to lands bordering on the Sandusky river, in the tract of two miles square surveyed and sold under the act of congress of April 26, 1816. 8 Statutes at Large, 308.</p> <p>3. Hence, the riparian owner can recover for sand tortiously taken from the bed of the river.</p>

<p>1. The special appropriation act of May 13,1878 (75 Ohio L. 539), whereby the board of public works was limited to $20,000 of the appropriation from the general revenue in the purchase of dredges, &c., required to keep the public works in repair, was not intended as a limitation upon the power to purchase implements necessary to keep the works in repair, as conferred upon the board by the act of April 4, 1859 (Revised Statutes, 1901), nor upon the power of the board to use the income of the public works, arising from tolls, fines and water rents, for the purchase of such necessary implements, as appropriated by such special act. And although the appropriation thus made expired, by constitutional limitation, at the end of two years, a like appropriation was made in the general appropriation act of 1880.</p> <p>'2. The board of public works having purchased of the lessees of the public works certain dredges, &c., for $38,820, to be paid as follows : $20,-000 in hand, and balance in equal payments at three and six months, and being afterwards advised, and believing that the promise to pay in excess of $20,000 was unauthorized and void : Besclved, to pay on such contract the said sum of $20,000, leaving it to the lessees to obtain a ratification of the contract by the general assembly, and an appropriation to pay the balance ; and, thereupon the lessees, with knowledge of said resolution, accepted the $20,000.</p> <p>Held, That the lessees were not thereby precluded from demanding payment from the board, in accordance with the terms of the contract.</p> <p>3. The state is not bound by the terms of a general statute, unless it be so expressly enacted.</p> <p>4. In the absence of a statute requiring it, or a promise to pay it, interest cannot be adjudged against the state for delay in the payment of money.</p> <p>-5. In a proceeding in mandamus, where judgment is given for the plaintiff, section 6753 of the Revised Statutes does not authorize the assessment of damages against the state in favor of the relator.</p>

<p>1. The allowance of an injunction by this court in a case on error, under section 5573 of the Revised Statutes, is not the exercise of original, but of appellate jurisdiction, and is intended only for the protection of the rights of the parties in the suit or matter under review.</p> <p>2. Where the judgment, for the reversal of which error is prosecuted in this court, is pleaded as an estoppel in another suit between the same parties, it is competent for this court to enjoin the prosecution of such suit until the case in error is determined.</p>

<p>1. On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company.</p> <p>2. Where a passenger, to avoid impending danger, attempts to leave the car in which he is riding,- believing, upon reasonable grounds, that by so doing he will escape injury, and, while in the act of leaving, is injured through the company’s negligence, he is not chargeable with contributory negligence, although, had he made no attempt to leave the car, the injury would not have happened.</p> <p>3. Where a party remits a part of a judgment in his favor to avoid a reversal of the same, he cannot prosecute error to reverse the judgment thus reduced in the amount, although the court may have been wrong .in finding that the judgment was excessive.</p>

<p>Under section 33, chapter 8, title 1, oí the crimes act of May 5,1877, it is unlawful to shoot at or kill wild ducks on the lands of another person, although within the channel of a navigable river, when the owner has set up, in a conspicuous place on the shore, “aboard inscribed in legible English characters, thus, ‘No shooting or hunting allowed on these premises.’ ”</p>

Mandamus. Error to the District Court of Pike County. On July 1,1876, the relator was employed by the local directors of sub-district No. 1, Jackson township, Pike county, to teach school in said sub-district for the term of six months, in consideration of $40 per month. In pursuance of such employment, the relator taught such school for six months, commencing September, 1876, and ending March 2, 1877.

Tbe original action was prosecuted in tbe name of tbe state by John Little, attorney-general, on the relation of James Crosby, Patrick McGee, and Francis M. Kemp, citizens and trustees of Mad River township, Montgomery county. Tbe object of tbe petition was to enjoin tbe defendant from obstructing a public county road, by tbe construction and operation of its railroad.

. The action below was brought by Sylvester H. Rosecrans against Elizabeth McQuade and John McQuade, administrator de bonis non of Hugh Reiley, to foreclose two mortgages executed by said Reiley and his wife Elizabeth, now the plaintiff Elizabeth McQuade, to secure the payment of certain promissory notes, amounting in the aggregate .to $1,600, executed by Hugh Reiley and delivered to Emanuel Thinpoint, the defendant’s testator, in the years 1857 and 1858.

This was an action below, by Barrett and Walton, to recover tbe value of lard and meat, wliicb wTas destroyed by fire, while in tbe custody of plaintiff in error. Only so much of tbe facts as relate to tbe lard need now be stated, as tbe action for tbe meat is not before the court.

<p>Error to the District Court of Brown County.</p> <p>The plaintiff, William A. Pepper, brought an action against W. N. Raney and N. H. Sidwell, as administrator of the estate of J ames Sidwell, deceased, on a promissory note joint in form and dated April 1, 1866, by which said Raney and James Sidwell promised to pay to the order of the plaintiff, the sum of $1,218.50, with interest at ten per cent, at twelve months from date. The petition did not aver that the note or claim had been exhibited to the administrator for allowance, and by him disputed or rejected, nor that eighteen months had expired from the date of the administration bond, or the further time allowed by the court for the collection of the assets of the estate of James Sidwell; nor were facts stated showing the case to fall within any of the exceptions of section 98 of the administration act.</p> <p>No demurrer was interposed to the petition, and the only-defense set up by the answer of N. H. Sidwell, administrator, was that James Sidwell was only a surety on the note, and that after the sam« became due, the plaintiff and Raney, the principal mater, entered into a valid agreement for the extension of the time of payment of the note without the consent of said intestate.</p> <p>Wherefore, he prayed to be dismissed with costs.</p> <p>Issue was joined by a reply, and the case went to trial to a jury. On the trial, the defendant Sidwell proved, without objection, that the probate court extended the time for the settlement of said James Sidwell’s estate, first for one year from March 24, 1868, and again from February 10, 1871, until October 10 of the same year. The suit was brought long before this time expired.</p> <p>The court was ashed by the defendant Sidwell, to instruct the jury as follows:</p> <p>“ If the jury find from the evidence in the ease, that the said defendant was appointed administrator in the month of October, 1866, and that on the 26th day of March, 1868, the probate court of Brown county, Ohio, on application of said administrator, gave him the additional time of one year to collect the assets of said estate, and that said time had not expired at the date of the commencement of this action against said administrator, then the verdict of this jury must be for the said defendant.”</p> <p>The instruction was refused and an exception noted. The jury found a verdict for the plaintiff, on which judgment was rendered in the court of common pleas, but which the district court reversed. This is a petition in error to reverse the judgment of the district court.</p>

In June, 1861, E. E. Henderson, by deed of that date, conveyed and assigned all his property to James P. Ross, in trust for the benefit of his creditors. Ross accepted the trust and executed the bond required by section 1 of the act regulating the mode of administering assignments in trust for the benefit of creditors (1 S. & C. 709), with liis co-defendants, John Bell and J. M. Lane, as Iris sureties.

<p>Error to tlie District Court of Licking County.</p> <p>Tlie court of common pleas and district court sustained a demurrer, filed by defendants Flory and Shields, to the following petition, on the ground that no cause of action was stated against them.</p> <p>“ The said plaintiff, William A. King, as the guardian of Caroline E. Cooper, for cause of action herein, says:</p> <p>“ That on or about the 4th day of February, a. d. 1856, the said Samuel S. Bell was appointed by the probate court of said county to be the guardian of the said Caroline E. Cooper, who was then a resident of said county, an infant, and (as the plaintiff is informed and believes) a person of unsound mind; that the entry of said appointment, made upon the records of said probate court, did not contain any express adjudication that the said Caroline was then a minor or of unsound mind ; but stated that said Bell was appointed guardian of Caroline E. Coojier, aged seven years, heir-at-law of Elijah Cooper: that the said Bell then gave bond according to law, and entered upon the discharge of his duties as such guardian; tliat the said Caroline became eighteen years old on or about the 20th day of April, a. d. 1867, and at the time of arriving at that age she was and has ever since then been a person of unsound mind, and incapable of managing her business affairs; that the said Bell, from that time until the 16th day of September, A. d. 1874, acted as her guardian, and from time to time, and in the years of 1867, 1869 and 1871, filed his accounts as such guardian, in the said probate court, in which accounts he asserted himself to be such guardian; and his said accounts were passed upon and settled by said court accordingly; that on or about the 3d day of April, a.d. 1871, the said Bell appeared in and before the said probate court, and represented to the same that Justin Morrison and Alexander Morrison, his sureties on his bond, as such guardian, theretofore given in said court, were non-residents of Licking comity; thereupon, upon the motion of said Bell, the following order or judgment was made by said court:</p> <p>“ 1 IN THE MATTER OF THE GUARDIANSHIP OF CAROLINE F. COOPER.</p> <p>“ ‘ This day came Samuel S. Bell, guardian of Caroline F. Cooper, and on his representation that Justin Morrison and Alexander Morrison, his sureties on his bond, heretofore given in this court, as such guardian, are non-residents of Licking county, and for other causes on the motion of said guardicm, it is ordered by the court that said guardian enter into a new bond in the sum of $12,000, as such guardian, with William Shields and Abraham Flory, freeholders of this county, as his sureties, conditioned according to law, and the said guardian having entered into said new bond, the same is approved and filed.’</p> <p>“ That on the said 3d day of April, a. d. 1871, the defendants made and delmered to the judge of the said court of probate, their writing obligatory of that date, sealed with their seals (and a copy of which is attached to the original jtetition herein, and made a part of this petition), and thereby bound themselves, jointly and severally, to pay to the state of Ohio the sum of $12,000.</p> <p>“ That the said bond was and is subject to the condition that it should become void if the said Bell should faithfully discharge his duties as such guardian, and otherwise, to be and remain in full force; that on the same day the said bond and sureties were approved by said court.</p> <p>“That on the said 16th day of-September, 1874, the said Bell resigned his said guardianship, and certain proceedings were had in said probate court touching the same. The record whereof is in the following words:</p> <p>“ ‘ Be it remembered, that on this day, Samuel S. Bell, guardian of Caroline Cooper, a lunatic, tendered to this court ■his resignation as such guardian; and which resignation, for reasons satisfactory to the court, is hereby accepted, and said guardian is hereby ordered to file his final account herein, which is accordingly done.’</p> <p>“ That, thereupon, on the 22d day of September, 1874, the plaintiff herein was appointed by said probate court to be guardian of the said Caroline as a lunatic or person of unsound mind, and on that day he gave bond, with sureties, according to law, which was approved by the court, and he entered upon the discharge of his duties as such guardian.</p> <p>“ That during the time the said Bell was so acting as guardian, as aforesaid, there came to his hands, of the moneys and estate of the said Caroline,the sum of five thousand dollars or more; that the said Bell having, on the 14th day of October, 1874, filed liis final account as'such guardian in said probate court, the same was, on the 24th day of November, 1874, settled, and it was then found and adjudged by said probate court that there was, and in fact there then was in the hands of the said Bell, of the moneys aforesaid, the sum of four thousand one hundred and twenty-six dollars and eighty-four cents ($4,126.84), interest being computed to the said last named day, and which sum the said probate court then ordered the said Bell forthwith to pay to the plaintiff.</p> <p>“ That on the 8th day of December, a. d. 1874, the plaintiff, as such guardian, demanded of said Bell the payment of said last named sum; but he has not paid the same or any part thereof, except the sum of $330.14 paid by his assignee on January 8th, 1875. The plaintiff demands judgment against the defendants for the sum of three thousand eight hundred and twenty-six dollars and eighty-nine cents, with interest from the said 8th day of January, a. d. 1875. “ J. Buckingham,</p> <p>Attorney.</p> <p>“ The plaintiff, yielding to the defendant’s motion in that behalf, says that .the said sum of five thousand dollars, or more, received by said Bell was so received before the kid 3d day of April, a. d. 1871, and before the making of the bond, on which this writ is founded. “ J. Buckingham,</p> <p>Plaintiff’s Attorney.</p> <p>BOND.</p> <p>“ Know all men by these presents, that we, Samuel S. Bell, William Shields and Abram Flory, are held and firmly bound unto the state of Ohio, in the sum of twelve thousand ($12,000) dollars, for the payment of which we hereby jointly and-severally bind ourselves,'our heirs, executors and administrators.</p> <p>“ Sealed with our seals, and dated at Newark, this 3d day of April, a. D. 1871.</p> <p>“ The condition of the above obligation is such, that, whereas, the above bound Samuel S. Bell has heretofore been appoint- ■ ed by the probate court of Inching county, Ohio, guardian of the person and estate of Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased, late of Licking county, which appointment the said Samuel S. Bell has accepted, and a new bond being required of him by the court. ■</p> <p>“Now, if the said Samuel S. Bell shall faithfully discha/rge all Ms dnties as such guardian, as is required bylaw, then the above obligation to be void, otherwise to remain in full force.</p> <p>“ Samuel S. Bell, [Seal.]</p> <p>“¥m. Shields, [Seal.]</p> <p>“ Abram Flory, [Seal.]</p> <p>“ This bond approved in open court, this 3d day of April, a. d. 1871. W. IT. Shircliee, Probate Judge.”</p> <p>The demurrers of Flory and Shields to the petition were sustained,,and final judgment rendered in their favor, leaving the case to stand as to Bell in the common pleas. He is not a party to this proceeding in error.</p>

<p>1. A judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar t.o an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.</p> <p>2. Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.</p> <p>3. A judgment is conclusive by way of estoppel only as to facts, without the proof or the admission of which it could not have been rendered.</p>

<p>Appeal. — Reserved in the District Court of Highland County.</p> <p>The plaintiff, suing for himself and others tax-payers in Highland county, brought an action to enjoin the commissioners of said county from taking further steps towards the construction of certain turnpike roads, under the act of March 29, 1879. Revised Statutes, §§ 8047-8057, inclusive. The petition stated, among other things, that the commissioners had caused the roads to be laid out, under said act, and were proceeding to cause advertisements to be made for bids for the construction of a part thereof. That a large number of free turnpikes, or improved roads, had been constructed in said county, and a large number were in course of construction; for the construction of which a large number of acres of land in said county' had been assessed, by reason whereof said lands would be exempt from bearing any of the burden of taxation necessary to the construction of said roads, that the commissioners were then establishing under said act. A perpetual injunction was prayed. To the petition the defendants demurred, upon the ground that facts -sufficient to constitute a cause of action were not stated therein. The court of common pleas overruled the demurrer and gave judgment for the plaintiff. The defendants appealed to the district court, where the cause was reserved for decision here.</p>

<p>1. The act of May 1, 1861 (58 O. L. 118), which exempts from sale the property of persons belonging to the militia of Ohio, who have been mustered into the military service of the United States under any requisition of the president, is an act conferring upon a certain class of persons a right or privilege, which must be asserted by him who seeks its benefit.</p> <p>2. Where, after judgment and order of sale have been duly and regularly entered in an action to foreclose a mortgage, the mortgagor becomes entitled to this exemption, by being mustered into the United States’ service for three years, if the war should last that long, and a sale is made and confirmed, and deed executed to the purchaser, while he is still in such service, the sale and proceedings are not void, but voidable only.</p> <p>3. In casé of a sale of the mortgaged premises upon a decree of foreclosure, while the mortgagor is entitled to such exemption, and the sale is confirmed, deed made and possession taken without objection by him, his proper mode of relief, if entitled to any, after confirmation, and the proceedings are not reversible for error, is by a direct proceeding in that case, to have such sale and confirmation set aside.</p>

The original action was brought by the plaintiff in error, Andrew Emerine, against Thomas O’Brien, to recover the amount alleged to be due on a promissory note, executed by the defendant as surety of John T. Mitten'.

The original action was brought by William G. Eish, as vendor, against Michael Hayes, John Z. Smith, James Hayes and J. H. Steadman, as vendees, in the court of common pleas of Lucas county, on March 21, 1874, to compel specific performance of a contract for the purchase of certain real estate.

Appeal. Reserved in the District Court of Ashland. County. This action was commenced on December 26, 1874, by the plaintiff, in the court of common pleas of Ashland county, to subject certain real estate, as the property of Thomas C. Cary, to the satisfaction of certain alleged liens, by mortgage and levy of execution, which the plaintiff claimed to have secured for certain indebtedness of said Thomas to him.

The original action was brought by Emma J. Perhamus, the defendant in error, against the plaintiff in ' error, Maggie Morgan, to enjoin the latter from carrying on the millinery or dress-making business in the town of Felicity, Ohio, or at any place so near thereto as to interfere with like business being carried on by the defendant in error.

Reserved in the District Court. On September 23,1874, the First National Bank of Warren, plaintiff in error, brought suit in the court of common pleas of Trumbull county, against Henry Fowler and James H. Ilumiston, defendants in error, on a promissory note executed to the plaintiff by the defendants for $1,067.25, dated April 15,1874, and payable four months after date.

. ■On October 25, 1875, the plaintiff in-error brought an action ¡against Jacob Hively, W. H. Robinson and II. C. White, before a justice of the peace of Portage county, on a negotiable ^promissory note for $100.00, payable three months after date, made by Hively to Robinson and indorsed, in blank, by Robinson to White, and by White to plaintiff, before maturity, for .a valuable consideration. Service of process was made upon Hively and White, but not upon Robinson.

<p>Section 48 of (he Code, as amended April 16, 1867 (S. & S. 641), authorized an action upon a policy of life insurance, issued by a company organized under the laws of this state, to be brought in the county where the death of the person insured occurred.</p>

■ On April 13, 1869, James Conley, defendant ■ in error, commenced an action on a promissory note, before a justice of the peace, against Elisha McRill and another, and at the same time instituted proceedings in attachment and caused notice of garnishment to be served upon Samuel M. Cbilcote, plaintiff in error, to subject certain money in his hands to the satisfaction of plaintiff’s claim against McRill.

<p>1. The 36th section of the act of 1816 (2 Chase, 935), which gave to courts of common pleas the power to appoint guardians to minors, and to authorize .such guardians or any guardian theretofore chosen or appointed to sell all or part of the real estate of their wards for their support or education, did not authorize the court to order a sale of the lands of an infant femme covert upon the application of her husband, made under said section.</p> <p>2. It is essential to the validity of a conveyance of the wife’s estate in lands, under section 2 of tlie act of 1805 (1 Chase, 485), that the same should be acknowledged before an officer named therein, and that the-certificate of such acknowledgment should show a substantial compliance with all the requirements of said section.</p> <p>3. If such conveyance of the wife’s land is signed, sealed and delivered in the presence of the attesting witnesses by husband and wife, not acknowledged before an officer by the husband, but is defectively ackD owledged by the wife only, it is a deed or conveyance of husband and wife within the curative provisions of the act of 1857 (1 S. & C. 694), as revised (75 O. L. 786, div. 7, ch. 16, §6.)</p> <p>4.' If it appears that it was the manifest intention of the husband and wife to convey the wife’s lands, and they join in signing, sealing and delivering a deed for that purpose, but the saméis not a valid conveyance of her estate by reason of the mistake of the parties in acknowledging the ■same before an officer not authorized by law to take such acknowledgment, or for the reason that his certificate is defective in form,' such deed or conveyance may be cured under the provisions of said statute.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>This case was considered with Dengenhari v. Cracraft, just reported.</p> <p>The agreed statement of facts in that case is applicable to this, and need not be repeated.</p> <p>The rights of the parties in this case depend on the validity and effect of a deed to Samuel Broadwell, acknowledged and delivered in 1820. He was a purchaser undertbe same judicial proceedings and sale as in Dengenhart’s case.</p> <p>In this case the Broadwell deed was not signed and sealed by Mrs. Dudley, but was acknowledged by her in the same defective form as the Park deed, and before the same officer, and was subsequently duly acknowledged by her husband.</p> <p>The additional facts will be found in the opinion.</p> <p>The counsel in this case are the same as in Bcngenharri v. Cracraft, the case immediately preceding, and such parts of the argument in that case are referred to as are applicable to this.</p>

<p>Error to the District- Court of Franklin County.</p> <p>, Jane Fleury brought an action in the court of common pleas of Franklin county against William Gallagher and James Gallagher to recover possession of two lots of land in the city of Columbus, described in the petition, of which real estate she alleges she is the owner in fee simple.</p> <p>The defense to the action, as set forth in the answer, is, in substance, as follows:</p> <p>That Patrick Laughlin filed a petition in the court of common pleas of said county against his wife, Maria Laughlin, for a divorce. That she filed a cross petition in that case, asking for a divorce and alimony. That in 1866 the court decreed to said Maria a divorce, on her cross-petition, and in the same decree awarded to her alimony in these words : “ This decree being based on the aggressions of the plaintiff, it is further ordered, adjudged and decreed by the court, that there be and hereby is allowed to the defendant, Mai’ia Laughlin, as and for alimony, out of the plaintiff’s x-eal property, accordixxg to the statute ixx such case made and px’ovided, the following described real estate.” (Ilex’e the property is described as in 1 he petition in this ease.) It is further alleged in the answex-, that since said decx’ee was rendered Patrick Laughlin has died, leaving the plaintiff in this case, Jane Pleuxy, as his sister and heir; and that in 1876 Maria Laughlin died, leaving William Gallagher and James Gallagher, sons by a former husband, as her only heirs.</p> <p>In a reply it is alleged, among other things, that the real estate decreed to Maria as alimony was mox-e than one-lxalf in value of Patrick Laughlin’s real -estate, aixd that she took by the same decree all his personal property.</p> <p>A demux-rer to the answer having been overruled, and a demurx’er to the x’eply sustained, the caxxse was submitted to the court on the petition and answer, and the court rendered judgment in favor of tlxc Gallaghers.</p> <p>In 1877, the district court revex-sed the jxxdgment, and this petition in error was filed in this court to reverse the judgment of reversal.</p>

<p>Error to the District Court of Butler County.</p>

<p>A policy of life insurance was to be void, if either of the answers to the following questions was false or untrue: “Has the party whose life is to be insured ever been intemperate?” “Ho.” “Is the party now of correct and temperate habits ?” “Yes.” Held, that these questions and1 answers refer to the habits of the insured as to the use of intoxicating liquors, and not to occasional practices; and if his usual and general habits were to abstain, or to use in moderation, an occasional indulgence to excess does not render the answers false or untrue. But it is not necessary to the existence of intemperate habits, that the excessive use of intoxicating liquor should be continuous and daily, and an instruction to the jury, that a continuous and daily use of intoxicating liquor is necessary to constitute such a habit, is erroneous.</p>

The object of the plaintiff’s petition in the court of common pleas was, to enjoin the collection, by the county treasurer, of an assessment against the plaintiff’s land, to defray his share of the cost and expenses of laying out and constructing a ditch through the same. This assessment had been properly certified and placed upon the tax duplicate.

This was an action by Mary Jane Abbott against Henry S. Bosworth, for dower in the south half of the premises below described. Tbe court found the following facts, and upon them gave judgment for the defendant. “1.

The plaintiff in error issued to Simon Archer a policy of insurance for five years, from July 19th, 1871, for $700; $500 of which was on his dwelling-house, and $200 on furniture and clothing, of which the insured was the owner. The action below was to recover $500 for a total loss of the dwelling-house, by fire, on the 24th of August, 1874. Several defenses were pleaded, but one only will be stated, as it presents the legal point considered by the court.

At the October term of said court, 1880, J. Manford Kerr, charged in an indictment with selling and conveying land without title, was convicted and sentenced to the penitentiary; and, on his application, leave has been granted to file in this court a petition in error to reverse the judgment.

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

Thomas Murphy and Charles Morrow were jointly indicted in said court, charged with grand larceny, committed March 24, 1880, by stealing divers articles of clothing, “ the goods, chattels and property of the Pittsburgh, Cincinnati and St. Louis Railway Company,” said company “then and there being a body corporate.” Murphy pleaded not guilty, was separately tried at the June term, 1880, a verdict of guilty was rendered, a motion for a new trial was overruled, a bill of…

On May 2, 1871, the incorporated village of Carthage granted to the Cincinnati and Springfield Railway Company the right of way through the village on Lebanon street, by ordinance, which contained the following proviso : “ Provided, however, that the cuts and fills for said railway shall not be greater than shown in the accompanying plan or profile, and that in constructing said railway through' said Lebanon street, or across any other streets in said village, the said…

<p>1. The act of 1868 (65 Ohio L. 155), in relation to making and widening ditches, is a valid enactment, as applied to cases in which damages are not claimed ; and a proceeding for the purpose of widening any such ditch might he instituted hy one petitioner, though the ditch was confined to his own lands.</p> <p>2. A report or finding of a jury under that act is invalid, where such report ■ or finding was not unanimous.</p> <p>3. Lands in an incorporated village may he assessed hy the trastees of a township in which the village is situated, for the cost of widening a ditch within the township, but outside of the village limits ; and the fact that the village has a hoard of health will make no difference.</p>

<p>W. was treasurer oí C. county from September, 1870, until September, 1872. He was ex-officio treasurer of the city of S. and.of its board of education, and also treasurer of the township of S., in which the city is situated, and of its board of education. As received, he mingled and kept the moneys of these various corporations together. During his term of office there was a deficit. The county commissioners having, at W.’s settlement in September, 1872, found money in the treasury precisely sufficient to satisfy the amount due from W., as such treasurer, to the county, directed the same to be placed to the credit of the county and appropn ated to county purposes. The money was appropriated as directed. Held, that the moneys, so mingled together belonged to the several cox porations pro rata, and the county commissioners could not appropriate the whole to the exclusive use of the county; and that, consequently, the county is liable in equity to account to the other corporations for their proportionate share of the fund so appropriated.-</p>

<p>' 1 Where it is necessary for a traveler, in going from one place to another, to pass-over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and baggage the whole distance, or that its liability shall be confined to loss or damage occurring on its own road ; but the collection, by such contracting carrier, of fare in advance for the entire journey, without agreement as to risks, renders it liable, on receipt of such traveler’s baggage, 'to transport it safely to the end of the route, and there deliver it, on demand, to such owner.</p> <p>2. Words on a railroad ticket or baggage chock limiting the liability of the carrier to a specific amount for loss of baggage, are not binding on a passenger, unless, with knowledge of such limitation, he agrees to it.</p> <p>3. A passenger by railroad train, as soon as practicable after its arrival at the place of destination, presented to the agent in charge of the baggage-room a check for his baggage and’demanded the same, which baggage he had delivered to the carrier when he took passage on tne train. The agent being unable to find the baggage, took the number of the check, and requested the passenger to call again. On the same evening the passenger returned to the depot, but the agent informed him that he had made further search and the baggage could not be found : Held, that such acts and declarations of the agent were competent evidence for the passenger in his action against the carrier for loss of such baggage.</p>

Samuel S. Brown and James M. Schoomaeker, administrators of William H. Brown, brought suit in the superior court of Cincinnati against the Canal Elevator and Warehouse Company, a corporation, to recover $2,799, with interest from September 1, 1879, being the cost of certain improvements made by said William H. Brown and one Murphy while in possession of certain real estate under a lease from said corporation, Murphy having sold his interest in the claim to Brown.

Appeal. Reserved from the District Court of Adams County. Abraham Williamson brought suit in the court of common pleas of Adams county, against John Carskadden and others, asking in his petition that the amount secured to him by a certain mortgage of real estate in that county should be ascertained, and the lands sold to satisfy such amount.

<p>1. The individual or personal liability of stockholders, under section 79 of the Corporation Act of May 1, 1852 (1 S. & C. 810); also under section 8 of April 10, 1861, regulating street railroad companies (S. & S. 136), attaches in favor of creditors at the time the debt is contracted or the liability incurred by the corporation.</p> <p>2. After such liability attacbcs to a stockholder, it is not discharged by the subsequent assignment or transfer of his stock; but the successive assignees or holders, by accepting the stock, and the benefits arising therefrom, impliedly undertake to indemnify or discharge the assignor from the liability which attached to him as stockholder while he held the stock.</p> <p>3. In a suit by creditors to enforce such liability against the stockholders of an insolvent corporation, the existing stockholders are severally chargeable with the payment of such liability.</p> <p>4. If, by reason of insolvency, the amount due from any stockholder is not collectible, the assignors of his stock up to the time the liability attached may be charged with the deficiency.</p>