Volume 37 — Ohio State Reports, New Series

<p>Mandamus.</p> <p>On March 21, 1881, the general assembly passed the following act:</p> <p>“ An act to appropriate money not otherwise appropriated, to repair the buildings of the Ohio University.</p> <p>• u Section 1. Be it enacted by the General Assembly of the ffoate of Ohio, That the sum of twenty thousand dollars, from any money not otherwise appropriated, is hereby added to the fund now existing in the treasury of the state, for the purpose of repairing the buildings of the Ohio.University.</p> <p>Section 2. The treasurer of state is hereby directed to pay, on the warrant of the auditor of state, to the treasurer of said university said sum of money in installments not exceeding five thousand dollars.</p> <p>“ Section 3. This act shall take effect and be in force from and after its passage.”</p> <p>Afterward, the auditor of state, upon demand duly made, refused to issue his warrant upon the treasury for the first installment of $5,000, claimed by relator to be due under this act, whereupon this proceeding was commenced to compel the issuing of such warrant.</p> <p>The case is now submitted upon the pleadings and an agreed statement of facts.</p>

<p>1. In. this state, it is not unlawful for a person, on the Sabbath day, to ride or drive, for pleasure merely, upon public highways.</p> <p>3. A person owning lands through which a public road passes, who gives his assent to the cutting down of a tree standing thereon within a few feet of the traveled track, is guilty of obstructing the highway, if the tree falls within the road and is suffered to remain therein to the hindrance or inconvenience of travelers.</p> <p>8. A condition attached to such assent that the tree should not be felled into the road, does not relieve the owner from liability.</p>

<p>1, An injury to the person of a married woman, by an assault and battery, is a violation of her personal rights, and a right of action accrues to her for such an injury, which is, by the act of 1861, concerning the rights and liabilities of married women (S. & S. 889), and by subsequent amendments, the separate property of the wife, and under her sole control.</p> <p>2. An action to recover for such an injury is an action concerning her separate property, under section 28 of the code, in which a married woman may sue alone.</p> <p>3. An authenticated mandate from the district court of the judgment remanding the cause to the court of common pleas for further proceedings, cannot he impeached in the latter court, by showing that the clause remanding the case was not part of the order of the district court, but was added to the judgment, without its authority. The proper remedy is to apply to the district court to correct its records.</p> <p>4. In an action for an assault and battery, with a general prayer, damages for a permanent injury, the natural and necessary consequence of the unlawful act, may be recovered without being specially pleaded.</p> <p>5. In such an action by a married woman, she cannot testify to instructions and advice given her by her husband before the act was committed, in the absence of the accused, as to how she should act in case she was assaulted.</p> <p>6. Although the jury may, in an action to recover damages fora malicious personal injury, allow a reasonable fee to plaintiff for the services of her attorney in the action, yet such allowance, and the amount thereof, rest in the discretion of the jury, to be determined under all the circumstances of the case, but neither party can call witnesses to prove the value of such services.</p>

<p>Error to tlie Probate Court of Hamilton County.</p> <p>William Nolte having been sentenced and committed to the workhouse, by the police court of Cincinnati, sued out a writ of habeas corpus from the probate court of Hamilton county, against James Morgan, Superintendent of the workhouse, to obtain his discharge from custody.</p> <p>The return showed that Nolte was held in custody under a commitment from the police court, issued in pursuance of his conviction and sentence by that court. A certified transcript of the proceedings in the police court was also made part of the return, from which it appears that a prosecution was instituted in said court by the city of Cincinnati against Nolte, upon an affidavit containing the following charge :</p> <p>“That one William Nolte, on the 21st day of December A. D. 1880, at the city and county aforesaid, being a known thief, was found in the city, contrary to the ordinance ■ of said city.”</p> <p>The defendant pleaded not guilty to the charge, and on the trial having waived a jury, was tried to the court. The court, after hearing the testimony, found him guilty, and ordered that he be committed to the workhouse for the term of thirty days.</p> <p>On the return to the writ of habeas corpus, the probate court ordered the discharge of Nolte from the custody of the superintendent of the workhouse.</p> <p>The object of the present petition in error is to obtain the reversal of this order. On account of the public interest in volved in tlie question, and owing to the fact that conflicting decisions have been rendered on the question by judges of the court of common pleas, the petition in error has been allowed directly to the probate court.</p>

<p>Error to the District Court of Allen County.</p> <p>The original action was brought by the defendant in error against the plaintiffs in error, John Wheeler and D. J. Shuler, and others, to enforce their statutory liability as stockholders in the Lima Wheel Company, a corporation duly organised under the laws of this state, in 1871. On October 25, 1875, a judgment was rendered against the company in favor of Faurot for the sum of $13,102.96, on five promissory notes of the company, two of which were dated in October, 1874, and the remaining three in November of the same year, each falling dne in ninety days from its date. After exhausting the assets of the company there still remained due on the judgment the sum of $8,500, with interest from December 23, 1875. Wheeler was an original subscriber to the stock in the sum of $500, and Shuler in the sum of $1,000: each had paid up his stock in full.</p> <p>Wheeler and Shuler answered, among other things:</p> <p>“ That on the-day of December, a. d. 1874, and while said company was carrying on business, and at a period more than six months prior to the suspension of business by said company, they in good faith and for valuable considerations sold and transferred the stock by them respectively owned in said corporation to other persons, to wit: The defendant Shuler to one J. A. Newell, and the defendant Wheeler to one George W. Overmyer, both of said parties being then and now residents of Lima, Ohio, solvent and responsible. And defendants say that their said sales and transfers were reported to and recognized and confirmed by said corporation, the certificate of stock by these defendants, then held, returned to and canceled by said corporation, and new certificates issued by said corporation to the said Newell and Overmyer for the respective amounts of stock so by them purchased.” ■</p> <p>The defendants prayed that said Newell and Overmyer might be made parties defendant, and charged with the liability sought to be enforced against these defendants.</p> <p>As a second defense these defendants further answered:</p> <p>“ That they are informed and believe and so aver that the said indebtedness in favor of said plaintiff, and on account of which his judgment was obtained as set out in his said petition, was originally evidenced by the promissory notes of said corporation of the dates and for the amounts set out in said petition ; that after these defendants ceased to be members and stockholders in said corporation, said notes were canceled and paid by the execution of new notes by said corporation, duly signed by the officers thereof, and at dates subsequent to the time that these defendants ceased to be members and stockholders of said corporation, and that said plaintiff by collusion with the officers of said corporation, and with the intent to wrong and defraud these defendants, obtained the notes that had been paid and canceled as aforesaid and procured his judgment upon them against said corporation on cognovit and without process, which said judgment is wholly void as against these defendants.”</p> <p>A demurrer to each of these defenses was sustained in the common pleas, and judgment given for' the plaintiff. On appeal the district court gave a like judgment.</p> <p>To reverse this judgment is the object of the present proceeding in error.</p>

<p>1. Where one falsely and maliciously publishes of and concerning another, that his house had been searched, under legal process, for the discovery of goods recently stolen, and supposed to be secreted therein, he is guilty of libel.</p> <p>2. Where the language complained of as libelous will bear the meaning ascribed to it by the innuendo, whether such was the meaning intended is a question of fact for the jury.</p>

<p>Error to tbe Court of Common Pleas of Hamilton County.</p> <p>At tbe January term, 1880, of tbe court' of common pleas of Hamilton county, tbe plaintiff in error was indicted and was afterward convicted and sentenced to tbe penitentiary, for forging an instrument, of wbicb tbe following is a copy:</p> <p>“ Bond.</p> <p>“ By virtue of the Act of the General Assembly of the State of Ohio, entitled, an act to authorize the Board of County Commissioners to lay out and establish free turnpike roads, passed March 29th, 1875, and amendments thereto, passed March 28, 187G, the Commissioners of Biddinger Road Improvement in Hamilton County, do hereby acknowledge that the County of Hamilton, for the purpose of raising the money necessary to meet the expense of the Biddinger Road Improvement, is hereby hold to pay to S. P. Bowles or bearer, the sum of eight hundred and fifty dollars, on the first day of October, 1880, payable at the office of Treasurer of said Comity, with interest semi-annually at seven per cent, per annum, upon presentation of the coupons annexed.</p> <p>“ In witness whereof, we, the Commissioners of Biddinger Road Improvement of Hamilton Comity have hereunto set our hands and the Auditor has affixed the seal of the County this first day of October, in the year 1878.</p> <p>“ Auditor’s Office Hamilton County.</p> <p>“F. J. Biddinger,</p> <p>[seal.] George ~W. Arnold,</p> <p>Heinrich Wurzler.</p> <p>“ Commissioners of Biddinger Road Improvement in Hamilton County, Ohio.</p> <p>“ Attest, ~W. S. Cappeller, Comity Auditor.”</p> <p>* Further facts, necessary to an understanding of the case, will be found in the opinion.</p>

<p>1. An agreement between a city and a gas company for the supply of gas for a period beyond that authorized by law, will riot affect the authority of the city to regulate the price of gas, although the agreement has been performed by both parties for the period for which it was legally authorized.</p> <p>2. A provision in a city ordinance regulating the price of gas, continuing the price as fixed for a specified period, operates, under section 2479 of ' the Revised Statutes, as a proposition to the gas company to supply gas upon the terms prescribed in the ordinance, which, if accepted in the mode provided, precludes the city from lowering the price for the period named. If not thus accepted, the power of the council to regulate the price is as ample as if the ordinance contained no such provision.</p> <p>3. The presumption is in favor of the good faith and validity of the action of the city council in passing such an ordinance; and this presumption can only be overcome by the averment of issuable facts showing the contrary. It is only where the facts show not a real, but the mere colorable exercise of the authority vested in the council, that the ordinance can be held invalid.</p> <p>4. In the absence of facts showing fraud or bad faith on the part of the council, the inadequacy of the price of gas as fixed by the ordinance is not the subject of inquiry.</p>

<p>Error to the District Court of Licking County.</p> <p>The original action was brought by the plaintiffs, against the defendant, to recover the contract price for building a cemetery vault. The petition alleged performance by the plaintiffs of all the conditions of the contract, except that relating to the roof, which, by a subsequent agreement of the parties, was to be made of slate, instead of stone flagging, at an additional cost to defendant of $66. The answer denied the performance by the plaintiffs of all or any of the conditions of the contract, and enumerated specifically, several particulars, in which the work done and the materials furnished, failed to conform to the agreement. A reply was filed, denying the averments of the answer, setting up the particulars in which the plaintiffs failed to perform their agreement.</p> <p>The pleadings set up no modification or waiver of any of the conditions of the contract, except as above specified. The vault was to be built in the cemetery of the Licking Baptist Church. The contract was in writing, and contained, among other things, the following stipulations.</p> <p>“ 1. The earth is to be excavated for the space of nine feet long, eight feet wide and two feet deep and then filled with good limestone, or some other good stone, well cemented together, so as to make a good substantial foundation for said vault.</p> <p>“ 2. The two side walls and the back end wall of said vault to be of Ohio brown stone, of best quality for durability, the said stoue each to he nine inches thick, and to be of good size otherwise and to be well dressed-and cemented together in the walls, which are to be nine inches thick and the side walls each six feet and six inches high, and the back wall eight feet high .in the center of the back end; the hight of said walls to be measured from the top of the foundation to the top of the walls, and the front wall of said vault to be built of the best Vennont clouded marble, well dressed and polished in the most durable manner.</p> <p>A space two feet wide and four feet six inches high to be left in the middle of said front wall for doors; the wall on each side of the door to be of one solid'bloek of marble, and the space above the door up even with the top of the side walls to be in one solid block of marble, on which is to be lettered such inscription as said Stone may direct, and on top of said last named block of marble is to be placed another block of marble reaching to the roof of said vault, and said last block, of marble is to be finished with a carved ornament or oval .¡Moulding, enclosing in the center an open bible, with a rose on each side, all neatly and elegantly carved and finished.</p> <p>“6. The floor of said vault to be of best Waverly flagging stone two inches thick, completely dressed, and laid in mortar and firmly cemented together so as to be solid and level.</p> <p>“ There is to be one slab of sand stone four inches thick and twenty inches wide, and long enough to reach from side to side of said vault inside, said stone to be placed on its edge across the back end of said vault and in front of it, and at a proper distance is to be placed on its edge a clouded marble slab of same length and width and three inches thick, well dressed and polished on the front side ; the two slabs thus set on edge to support the floor of the platform for coffins, which floor is to be of clouded marble flagging, three inches thick, and completely dressed and polished and cemented together so as to make a level, tight floor six feet long, and reaching from side to side of the vault.</p> <p>“ 8. All of the above work of said vault tobe made in good workmanlike manner, and the vault to be thoroughly durable and substantial, and be completed on or before the 1st day of June, 1875 ; and any additional work the party of the second part may do that is not named in the above specifications, shall be done without any additional charge therefor.</p> <p>“ And the said Samuel Stone does hereby promise and agree to pay said Oscar F. Mehurin & Son for said work the sum of $1,050, as follows: $525 to be paid when the work of said vault is completed; $262.50 to be paid in six months after said work is completed; $262.50 in twelve months after said work is completed, this sum to bear six per cent, interest for the last six months.”</p> <p>The fact was undisputed at the trial that the only excavation made for the foundation of the vault was a trench under the outer walls, nine feet'long by eight feet across the ends, two feet wide and two feet deep. The dirt tilling the space between the trenches was not removed.</p> <p>It was also conceded that the space in the front wall between the “ solid block of marble ” immediately above the door, and the roof of the vault was filled with four pieces of marble instead of one.</p> <p>It was also admitted that no flagging stone was placed under that portion of the vault covered by the platform for coffins, and that no slab of sand or other stone was placed on the edge across the back end of said vault to support the platform for coffins.</p> <p>The plaintiff, O. F. Mehurin, testified without objection, that he cut shoulders in the walls for coffin platforms with the defendant’s consent. Both of the plaintiffs testified that the defendant frequently saw the stone and marble while they were engaged in dressing it, and made no objection to it, and expressed himself satisfied with the same.</p> <p>■ The plaintiffs called Allen Coffin as a witness, who testified that he was a builder and had been employed as such for twenty-two years. Whereupon “ plaintiff’s counsel read to witness the provision of the contract, as to the way a foundation was to be built, and asked him to state his opinion, as a mechanic, what kind of a foundation it provided for; whether such foundation was to be under outer walls, or was in addition to include an excavation within the space surrounded by the walls, and tilled with stone and cement, as under the walls.” To this question, counsel for defendant objecting, the court sustained the objection, to which ruling the plaintiffs excepted.</p> <p>After the defendant rested his case, the plaintiffs proposed to read sundry depositions to the jury, containing testimony bearing upon the quality of the material that went into the construction of said vault. On objection by defendant the court excluded the depositions and the plaintiffs excepted.</p> <p>The court among other things charged the jury as follows :</p> <p>“ That the action to be tried by them was founded on a claim by plaintiffs to recover of defendant the price of building a burial vault.</p> <p>■ “ That there was a written contract between the parties, containing specifications as the manner and plan of constructing said vault, and fixing the price to be paid by defendant.</p> <p>“ That in the petition of the plaintiffs it was alleged they had performed all the conditions of the contract on their part, which allegation was denied by defendant.</p> <p>“ Thus the only issue for the jury was as to performance by plaintiffs according to the terms of the contract.</p> <p>“ If the contract has been performed, the plaintiffs may recover. If not, they are not entitled to recover anything. If the work was done substantially according to the contract it is sufficient.</p> <p>“ It is claimed by defendant that the contract was not complied with, because the plaintiffs were required to insert one solid block of marble for the gable—one solid marble^ stone. This was made in pieces, and if considered material by the parties that it should be solid, the contract is broken and plaintiffs cannot recover.</p> <p>“ Proof that defendant, if he considered this part of the contract material, did not object to the manner of doing the work in its progress will not avail, for the pleadings do not allege any variation or modification of the agreement, and defendant has a right to recover, because the work is not done as ho contracted.</p> <p>“ The court further charged that as matter of law, the contract where it provided for a floor within the vault, was to be construed as requiring such floor to be built so as to extend and occupy the entire space within the walls of said vault, and if the jury find such floor had not been made, then the plaintiffs could not recover.”</p> <p>The plaintiffs excepted to the several charges of the court as above set forth at the time, and such exceptions are made pari thereof.</p> <p>The plaintiffs asked the court before retirement of the jury, to charge as matters of law, the following, viz.:</p> <p>I. If the jury find that the plaintiffs entered on the construction of said vault with the intention of complying with the contract, and did construct the same substantially as required by the contract, and as the same was changed by consent of parties during the progress of the work, then plaintiffs are entitled to the contract price, although there may be slight omissions or deviations from the specifications, less the amount which would be required to supply the omissions, or less the difference between the value of the vault as completed, and its value if it had been completed according to contract.</p> <p>The jury returned a verdict for the defendant on which judgment was rendered. On error to district court, the judgment was affirmed. It is the object of this petition in error to reverse both judgments.</p>

<p>Error to the District Court of Hamilton County.</p> <p>The original action was in quo wa/rra/nto, on relation of the prosecuting attorney of Hamilton county, against James P. Chalfant, Andrew J. Mullane and Balthaser Roth, charging them with un lawfully holding and exercising the offices of directors or trustees of Longview Asylum.</p> <p>The defendants severally answered and set up their respective titles as directors of the said asylum, under appointments duly made under section 2 of the act of April 5,1878, entitled an “ Act to provide for the reorganization, government and better regulation of Longview Asylum,” &c. The appointment of one of the defendants was made by the judges of the court of common pleas; of another by the probate court; and of the other by the county commissioners, as provided by section 2 of the act above referred to.</p> <p>The answers were demurred to by the relator, the demurrers sustained, and judgment of ouster rendered against the defendants.</p> <p>The object of the present petition in error is the reversal of this judgment.</p>

<p>The receiving of stolen goods of the value of $35, knowing them to be such, with intent, by concealing the same, to induce the owner to pay to the receiver money for the return of the goods to him, is a crime within the meaning of section 26 of the crimes act of March 7, 1835.</p>

<p>Error to tlie District Court of Adams County.</p> <p>The facts necessary to an understanding of the points considered by the court are found in the opinion.</p>

<p>Section 16 of tke act of March 13, 1858, concerning notaries public, which ' declares that an act done by a notary public after the expiration of his term of office shall be valid, is not retroactive. Hence, an unauthorized acknowledgment of a deed taken before the act was passed, is not cured by it.</p>

<p>Error to the District Court of Cuyahoga County.</p> <p>The Roberts Manufacturing Company was a corporation engaged at the city of Cleveland, in the manufacture of wooden ware. The manufactory was situated on lots Nos. 122 and 124 Elm street. The corporation had a written lease on the premises, dated January 1, 1875, and expiring December 31, 1876, and had the right, at the expiration of the term, or before, to remove from the building all machinery and fixtures, but had no right to remove the building. The Globe Iron Works, a partnership, under a contract with the corporation, furnished for and attached to such building, in proper condition for use in said business, a boiler, smoke-stack, and certain machinery, and on August, 5,1875, made an attested account of the things so furnished and attached, and filed it with the county recorder, for the purpose of perfecting a mechanics’ lien.</p> <p>On August 4, 1875, the day preceding that on which such account was filed, the Roberts Manufacturing Company, being in failing circumstances, made a general assignment of all its property for the benefit of its creditors, to Arlington M. Hart, who, on August 17, 1875, filed a petition in the court of common pleas of Cuyahoga county to obtain a judgment declaring that such mechanics’ lien was invalid. Issue was joined, trial had, and judgment rendered; and thereupon the cause wTas appealed to the district court. In the district court judgment was rendered in favor of the Globe Iron Works for the amount of its account, with interest, $1,114. This sum Hart, the assignee, was ordered to pay out of the moneys in his hands.</p> <p>While the cause was pending, it was agreed by the parties that the assignee should sell the machinery and fixtures in the manufactory, and that whatever lien the Globe Iron Works had on the property should be transferred to the fund arising from such sale. Such sale was accordingly made, and the proceeds thereof amounted to $2,700. The rentable value of the leased premises was no greater than the rent payable under the lease, and the lease was not sold by the assignee, nor was it considered of any value.</p> <p>On application of Hart, the assignee, leave was granted to file in this court a petition in error.</p>

Exceptions to an order of tbe Court of Common Pleas of Clermont County, dismissing a peace proceeding for want of jurisdiction.

Appeal. Reserved in the District Court of Noble County. This case and John T. Clark et al. v. Alfred Skinner et al., reserved on appeal by the district court of Guernsey county, involving similar questions, have been argued and considered together.

Quo Warranto. The object of this proceeding is to determine which of two bodies is the lawful board of police commissioners of the city of Toledo. The prayer of tbe petition is, that the defendants be ousted from acting as such board. The defendants, whom we shall call the old board, claim title, under sections 1984 to 1997 of the Revised Statutes, under the provisions of which they were elected and are holding office.

Tbis was an action in the court below by the defendant in error, Baily, to recover damages in the sum of $10,000 for an alleged injury in the small of his back, hips, &c., on the 26th day of February, 1876, which he claims was caused by the said turnpike company unlawfully, &c., permitting a certain bridge on its road in Montgomery county, Ohio, to get, and continue out of repair, and to become and remain an unlawful bridge, &c.; and he further avers that on said day, while…

<p>Upon the trial of an indictment for burglary, the evidence tended to show that the accused, in the night, broke and entered a warehouse with intent to steal money supposed to be in a safe therein, belonging to the owner of the building, which safe, however, was not used as a place for the deposit of money. The court charged the jury, that if the accused broke and entered the building with the intent to break into the safe and steal money supposed to be therein, and the safe was not used as a place for the deposit of money, and there was none therein at the time, he was not guilty.</p> <p>Held, that the instruction was erroneous.</p>

<p>Error to the District Court of Gallia County.</p> <p>. The only error assigned for a reversal of the judgment is, that the district court erred in dismissing an appeal by plaintiffs in error, from a judgment rendered against them in the court of common picas.</p> <p>It is essential to a clear understanding of this question, that a full statement should be made of the issues joined, and of the matters heard and determined befoi’e the master and in the court of common pleas, from'which an appeal was sought.</p> <p>The petition of defendant in error, plaintiff below, states as a cause of action, that at the May term, 1869, of the same court, one Isaac Carter recovered a judgment against said Hiram Rankin for $1,719.05, and costs, and also'a judgment and order of sale against said Rankin and wife to sell certain real estate, to satisfy the same; that subsequently, said Carter sold and assigned said judgment and order of sale to said Guthrie, who died in 1877 intestate; that said Hannan has been duly appointed and qualified as his administrator, and that no» part of said judgment has been paid.</p> <p>The prayer is, that said judgment and order of sale be revived, “ and for all other proper relief.”</p> <p>The defendant .answers: 1st. That said judgment has been fully paid. 2d. That on December 11, 1869, there was an account stated, including this Carter judgment, showing a balance due from defendant to said Guthrie for all indebtedness whatever of $2,639.18, and that in such statement sundry credits were omitted, which should be allowed in addition to those included in the account stated. 3d. That since said account stated sundry payments were made; the dates and amounts of which are set out, amounting in the aggregate to $2,900.90, which more than pays all that was owing to Guthrie, including the Carter judgment.</p> <p>The prayer is, that so much of said payments as are necessary be applied to satisfy said judgment and order of sale, and that defendants have judgment for the excess. To this, the plaintiff replies: 1st. Denying generally the special matter of the answer. 2d. Stating that, at the time the alleged payments were made, Rankin was largely indebted to Guthrie, on other and different matters than said judgment, and to a larger amount than all of said payments, and that all such payments have been rightfully applied thereon, leaving said judgment wholly unsatisfied.</p> <p>By the agreement of parties, the issues thus joined were referred to a special master to take the testimony and report specifically on the following points :</p> <p>1st. The amount due from Rankin to Guthrie before he purchased the Carter judgment.</p> <p>2d. The amount due at the time he purchased the same.</p> <p>3d. The amount of indebtedness accruing to Guthrie from Rankin upon other matters subsequent to such purchase.</p> <p>4th. All payments made on any of such indebtedness, upon what claims such payments were applied, and on what claims they were legally applicable.</p> <p>5th. What real estate embraced in the order has been sold, how has the purchase-money been applied, and what remains unsold.</p> <p>6th. And generally said master was ordered “ to hear all evidence and make findings on all points and facts, that said parties or either of them may request, in any way connected with a full and just understanding and adjustment of the matters in dispute between the parties in the action.”</p> <p>The master, after hearing the evidence, submitted a very elaborate report showing:</p> <p>1st. The amount due from Rankin to Guthrie, May 25,1869, the date of said judgment in favoi: of Carter.</p> <p>2d. The amount due June 24, 1869, the date of the purchase and transfer of the Carter judgment, including the same, after deducting sundry credits.</p> <p>3d. The balance due December 8, 1869, the date of said account stated, including the Carter judgment, after allowing sundry credits shown to have been made.</p> <p>4th. The amount of other indebtedness, incurred after said account was stated, and during the time said payments were being made, and the payments made thereon.</p> <p>5th. The master finds that sundry payments were made from time to time, and that by agreement between Guthrie and Ranlnn, all such payments were to be and were applied to the satisfaction of the various claims due Guthrie, other than the Carter judgment. lie states an account between tbe parties, and shows that, properly applying all the credits to the satisfaction of the other claims, there is still a balance applicable to the redaction of the Carter judgment, which being so applied, leaves a balance due thereon of $1,201.08.</p> <p>The master makes some further findings not necessary to be noticed in this connection. To this report, the defendant excepted, and upon a hearing the exceptions were overruled and the report was confirmed. It was therefore adjudged and oi’dered that that said judgment and decree referred to in the petition stand revived for the use and benefit of said plaintiff for the sum of $1,201.08, with interest and costs. The court then specially finds that certain lands covered by the original decree have been sold by consent of parties, and are exempt from the order of sale, and that certain other lands are subject to said order.</p> <p>From this judgment the defendant appealed, and the district court, on motion of defendant, dismissed1 the appeal on the ground that the case was not appealable.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of tlie District Court of Shelby County.</p>

<p>The refusal to allow an alternative writ of mandamus is not reviewable on error. The remedy of the relator is by application to this court, after its refusal by the district court.</p>

<p>Appeal. Reserved in the District Court of Cuyahoga County.</p> <p>Henry B. Payne, of the city of Cleveland, county of Cuyahoga, in listing his property for taxation, in the year 1880, deducted his indebtedness, amounting to $30,939, from the amount and value of certain bonds of certain corporations, then held and owned by him, and returned for taxation, in the statement of personal property required by law, only the excess of the value of the bonds over and above the amount of his indebtedness. Subsequently, the city board of equalization directed the auditor of the county to add said sum of $30,939, to said statement, and to place tlie same on the general duplicate for taxation, which was done accordingly, and the sum of- $813.69, for city, county and state taxes, was assessed upon said added sum and the duplicate placed in the hands of Moses G-. Watterson, treasurer of said county, defendant, for collection.</p> <p>This action was commenced in the court of common' pleas of said county, to restrain the collection of said sum of $813.69 ; and, upon overruling a demurrer to the petition, final judgment was rendered in favor of the plaintiff, as prayed for.</p> <p>On appeal to the district court, by the defendant, the cause was reserved for decision in this court.</p>

<p>Error to the District Court of Yan Wert County.</p> <p>In 1875, Adam R. Merrick, executor of and a devisee under the will of Adam Merrick, brought suit in the court of common pleas of Yan Wert county, against J. J. Merrick and others. In the petition it is shown that Adam Merrick, oh 'January 13, 1872, executed his will of that date in due form, which will is as follows : “ I do give and bequeath to my beloved wife, Mary Merrick, all the personal and real estate that I may die seized of, to have and to hold during her natural life, and all the personal estate of whatsoever kind I may die seized of, she my said wife is to have to dispose of as she may think best at her death, should she outlive me.</p> <p>“ Item 2. I give and bequeath, after the death of my wife, to my soh, Robert Merrick, the west half of the north-west quarter of section number twenty-seven (27),’ township one (1), south range three (3) east, he paying' Frank Merrick, son of J. J. Merrick, two hundred dollars, at the time, he, Frank Merrick arrives at his majority; and he is to pay Isia O. Merrick, daughter of J. J. Merrick, at the time she arrives at her majority, one hundred and fifty dollars. Elmer Merrick, the oldest son of Isaac Merrick, two hundred dollars at the time he arrives at his majority.</p> <p>“ Item 3. I give and bequeath to my son Adam R. Merrick, after the death of my wife, the east half of the south-east quarter of section number twenty-eight (28), township one (1), south range three (3), east, containing eighty acres of land more or less. And he, the said Adam R. Merrick, has to pay Mary Elsie Merrick, his daughter, three hundred dollars, when she arrives at her majority, and his son, Charles H. Merrick, two hundred dollars, at the time he arrives at his majority, and he is to pay Adam W. Smith, one hundred and fifty dollars, at the time he arrives at his full age or his majority.</p> <p>“ Item 4. I give and bequeath to Alice Eteline Stewart, daughter of John Stewart, deceased, three hundred dollars at my death, if she outlives me, to be paid out of my personal estate, at the time she arrives at her majority.</p> <p>“ Item 5. I do appoint my son, Adam R. Merrick, executor of this my last will and testament. I do hereby revoke all former wills by me made,”</p> <p>That on November 18, 1872, tbe will was admitted to probate in the probate court of Yan Wert county, and said Adam R. Merrick accepted the trust as executor under the will, and received letters testamentary as such executor:</p> <p>That neither at tbe time the will was made, nor subsequently, did Adam Merrick own any other lands than the following : tbe west half of the north-west quarter of section 27, and tbe east half of the north-east quarter of section 28, both tracts in Hoaglin township, Yan Wert county :</p> <p>. That by the third item in his will, above set forth, Adam Merrick intended to devise to Adam R. Merrick tbe east half of the north-east quarter of section 28, above mentioned, but by mistake of tbe draftsman, tbe land was described in the will as the east half of the southsast quarter of said section 28, in which tract Adam Merrick had no interest at or after the tune the will was made:</p> <p>That by a proper construction of the will, the word south, in said third item, should be read north :</p> <p>That Adam W. Smith, and other legatees, whose legacies are charged upon the real estate, as appears by the will, have arrived at majority, and their legacies are payable:</p> <p>And that doubts are entertained by the executor, and others interested in the will, as to tbe proper construction and meaning of the third item of the will, with respect to tbe land devised.</p> <p>The prayer is that the court will declara the proper construction and meaning of the will, in the particular aforesaid, to the end that the rights of the legatees and devisees, and tbe duty of the executor, may be known, and the legacies may be paid.</p> <p>The defendants, heirs of Adam Merrick, denied the allegations of the petition as to the mistake and the intention of tbe testator.</p> <p>Tbe widow of Adam Merrick is still living.</p> <p>Tbe district court, to which tbe cause was appealed, by its judgment construed the will as the plaintiff below claimed it should be construed, and the defendant below, on leave, filed in this court a petition in error to revérse tbe judgment.</p>

<p>Wliere a grantor in a deed delivers the same to a third person as Ms deed, to he delivered to the grantee at the death of the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death the title passes to the grantee as of the date of the first delivery.</p>

<p>Application for a mandamus to compel the Auditor of State to issue a warrant on the state treasurer for $3,000, in favor of the institution for feeble-minded youth, on an order drawn by said Doren as its superintendent and financial officer, and approved by a majority of its trustees.</p>

Reserved in tbe District Court. This case was decided at tbe last term, and tbe decision is reported in 36 Ohio St. 102. The judgment in tbe case not having been entered, it now comes before the court for tbe entry of sucb judgment. On the oral argument of tbe case, tbe death of tbe defendant in error was suggested by counsel who bad represented tbe defendant in error, and it was agreed that tbe argument of tbe casé should not be delayed on account of sucb death.

<p>1. Where a bill of exceptions was allowed and signed during the term at which the exception was taken, the omission to set forth the fact in the journal of that term may be supplied in that court by an order nunc pro tunc made at a subsequent term; and the bill of exceptions, trial docket, and entry of judgment are proper, and may be sufficient evidence to warrant such order.</p> <p>3. In an action to recover possession of real estate, an answer denying that the plaintiff has a legal estate in or is entitled to the possession of the premises, or that the defendant unlawfully keeps him out of possession, is to be regarded, under the civil code of 1853, section 559 (Rev. Stats. § 5783), as merely a denial of legal title in the plaintiff.</p> <p>3. Where a judgment affecting the title to property is reversed on a petition in error filed in his own name by one holding a conveyance of such property from one of the parties, the judgment of reversal is not void, although such grantee was not a party to the action in which the judgment so reversed was rendered. •</p> <p>4. Where a railroad company enters upon land under color of a proceeding in the probate court to appropriate the same, without first making compensation in money or first securing it by a deposit of money, and constructs thereon a railroad track and commences to run its cars along the same, after which the owner obtains a reversal of the proceeding and commences an action to recover possession of the land, the mere fact of delay, without proof of knowledge of or acquiescence in the acts of the company, will not estop the owner from maintaining such action.</p> <p>5. Where, in an action to recover the possession of real property, it appears that both parties claim under the same person, the fact that each party claims under such person by a different Christian name is immaterial.</p>

<p>Section 550 of the Revised Statutes does not require the clerk of the court of common pleas of a county to certify a cause pending in said court to an adjoining county of another subdivision for trial, because of the fact that the only judge residing in the judicial subdivision composed in part by such county, was formerly of counsel in the cause. The interest which requires the removal of a cause, is a pecuniary interest of the judge in the event or result of the trial. Bcmsonr. BomgMon, 5 Ohio, 328,—distinguished.</p>

<p>The board of public works of the state, is not authorized by law to grant to a railroad corporation the right to lay its track and to maintain and operate a railroad, on and along the bermé bank of a navigable canal belonging to the state.</p>

The plaintiff in error was indicted for murder in tbe first degree, and was convicted and sentenced for murder in tbe second degree. Two points are relied on for reversal. 1.

<p>A general verdict that the defendant “is guilty in manner and form as he stands charged in the indictment,” where the indictment contains two counts charging distinct misdemeanors, will authorize a sentence upon 'each count.</p>

<p>1. A creditor of an alleged fraudulent vendor cannot prove the acts or declarations of such vendor, made after the sale and delivery of the property, against the purchaser for the purpose of impeaching his title.</p> <p>2. It is incompetent for a witness to state his opinion upon a question of law ; but, where the intent with which an act done by him is drawn in question, he may testify as to such intent.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>This was a proceeding in the court below, by defendant in error, to obtain the custody of his three minor children. In ■ his petition for a writ of habeas corpus he avers that he is the father of these children, all of whom are under the age of six years; that their mother is dead, and that he has always provided for them in a suitable manner and is still willing so to do; that they were forcibly taken from his home, on the 16th of November, 1880, and carried to the Children’s Home, and from thence, upon the commitment of Henry Harmyer, a justice of the peace, of Hamilton county, committed to the house of refuge; that he had ho notice of the taking of these children, or of these proceedings. He therefore claims, that the custody of said children by plaintiff in error is without legal authority. The answer of the directors of the house of refuge justifies the custody and detention under the warrant of commitment of said justice of the peace.</p> <p>It appears that these children were found by one Joseph L. Smith, an officer of the society for the prevention of cruelty to children, and brought before the justice for hearing upon his affidavit that they were without a home and homeless.</p> <p>On the hearing, which took place the same day, and without notice to the father, the justice found from the testimony of said officer, that they were infants under the age of sixteen, without a home and homeless, and were suitable persons to be committed to the discipline and instruction of the Cincinnati house of refuge. He thereupon committed them to said house of refuge, until discharged by due course of law, or until they attain their respective majorities.</p> <p>On the hearing upon habeas corpus, evidence was adduced pro and con, touching the fitness of the father to have the custody of these children, and as to the truth of the warrant of commitment.</p> <p>In rendering its decision the court held, that the proceed ings before the justice, being without notice to the father, were void, and for that reason alone, the children were discharged from the house of refuge, and restored to the father. It is conceded by the court and by counsel for defendant in error that it did not appear that the father was a proper person to have the guardianship and control of these children. It is further conceded that the proceedings and commitment by the justice were in all respects regular and valid, unless want of notice to the father invalidates them. It is for want of such notice alone that the children were discharged.</p>

The original action was brought by the Board of Commissioners of Athens County against the Baltimore Short Line Railroad Company, upon an agreement entered into between the parties.

The parties above named are corporations organized under the national banking acts, and engaged in the business of banking at the city of Dayton.

Petition in error to the Probate Court of Hamilton County, and cross-petition in error by defendants in error. On April 2, 1874, Jacobi & Scboeule executed and delivered to Ingbam & Brothers a mortgage upon certain goods and chattels to secure the payment of four promissory notes, for §1,019.89 each, payable with interest at the rate of 8 per cent, per annum, in two, four and eight months respectively, which mortgage was duly filed.

<p>1. Where, in an action brought by a creditor for the purpose, a conveyance is adjudged to come within the operation of section 17, of the act regulating assignments in trust for the benefit of creditors, the correctness of the adjudication is not the subject of inquiry, 'in a collateral proceeding. Shorten v. Woodrow (31 Ohio St. 615) distinguished.</p> <p>2. In a subsequent proceeding, by the assignee, in the probate court, to administer the trust, the probate court is bound by the distribution ordered by the court in the action in which the. conveyance was adjudged fraudulent.</p>

<p>Quo Warranto. Reserved in the District Court of Muskingum County.</p> <p>The object of this proceeding is to obtain the judgment of the court as to whether the relator is the duly elected clerk of the city of Zanesville.</p> <p>The defendant denies the relator’s title to the office, and sets up his own title to the same.</p> <p>Zanesville is a city of the second class, consisting of nine wards and eighteen councilmen.</p> <p>At the first regular meeting after the April election, to wit, April 25, 1881, the nine members holding over and the nine members elect, met in the council chamber. The latter were duly sworn by the mayor, who then called the body to order and stated that the first thing in order was the organization of the new council. Such proceedings were had that the mayor declared,, against the protest of nine members, that A. P. Stults was elected president.</p> <p>Afterwards, at an adjourned meeting, John A. Fortune was declared elected president pro tem by like proceedings and against a like protest. The mayor then stated the next thing in order was the election of a clerk. It was moved that the relator be elected. Objection was made, - that the motion was illegal, as no president or president p7'o tem had been elected, and also, on the ground that it was not legal to elect by motion. The chair overruled the objection and ordered the roll called on the motion.</p> <p>No other person was nominated, and no motion was made to amend by inserting the name of any other candidate. Nine members voted a/ye and none voted against. The nine not voting were present but refused to vote, because of the attempt to elect by motion.</p> <p>The attention of the chair was called to the fact, that a quorum had not voted, and therefore, it was claimed the motion was lost. The non-voting members being present, their names were again called, but they declined to vote. The mayor then decided that the relator was duly elected ; the nine not voting entered a protest against these proceedings, but did not offer to vote for any other person. It appears from the special findings, that during these proceedings all the members were present, nine of whom were protesting against the mode of electing by motion and declining to vote for or against such motion. Also that the nine members not voting, objected to the validity of the election on the ground that no quorum voted, and that less than a majority voted for the relator. The same proceedings, with like objections, were had as to the election of president and president pro tempore, but as the present litigation relates only to the election of a clerk it is unnecessary to state them in detail.</p> <p>Some objection was made on the hearing as to the sufficiency of the bond given by the relator. As the bond is regarded as sufficient, and no point for report was saved by the court, a statement of this objection'is not made.</p>

<p>1. If a vendee refuse to accept personal property tendered in accordance with the terms of the contract of sale, he is liable in damages for the difference between the contract price and its market value; and the fact that the vendor, against the objection of the vendee, made an invalid sale of the property to himself, and thereafter treated it as his own, does not change the rule, nor defeat the action, where the same Is brought to recover damages for non-acceptance of the property by the vendee.</p> <p>2. In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by the terms of the contract of sale was to be merchantable, the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, “fit for the ordinary uses to which ice is put,” and such as would ‘ ‘ fairly pass in market—Held, that m refusing to charge that all, that is, every part of the ice, should be merchantable, the court did not err.</p> <p>3. In such action, the defense being that the ice was not merchantable, a letter of the seller was offered in evidence to show a request to the purchaser to examine the ice. The letter contained a statement that the ice was not merchantable, which statement was corrected in a subsequent letter of the seller, also properly in evidence:—Held, that the reception of evidence offered by the seller to show on what information the first letter was written, afforded no ground for a reversal of (he judgment.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>On September 17, 1873, Dewey, Vance & Co. brought suit in the superior court of Cincinnati, against Swift’s Iron and Steel Works, a corporation, on the following instrument:</p> <p>“ Alex. Swift, Pres. Office of Swift’s Iron and Steel</p> <p>Geo. E. Clymer, Vice Pres. Works, Ño. 26 W. Third St.,</p> <p>Edwin Swift, Treas. Masonic Temple.</p> <p>“ Cincinnati, October 1, 1872.</p> <p>“ A. Swift, Esq., Cin&mnati, Ohio:</p> <p>“ Dear Sir :—We propose to deliver to you on the landing at Carondelet 1,000 to 1,200 tons Iron Mountain ore, near St. Louis, you to take it away during 1872, paying for the same $5.50 per ton, cash—it being understood that you are to deliver to us next spring at the same place the same quantity of ore at the same price.</p> <p>“ Yours truly,</p> <p>(Signed,) “ Dewey, Vance & Co.</p> <p>“ Accepted:</p> <p>(Signed,) “ Alex. Swift, Pres’t.”</p> <p>The plaintiffs sought in the action to recover damages from the corporation for its refusal to deliver to them ore in the spring of 1873.</p> <p>The corporation admits the non-delivery of the ore in the spring of 1873, and its failure to draw an order for ore on the Iron Mountain Company, but denies the plaintiffs are entitled to recover, because the contract is entire, and they failed to deliver to the corporation ore in the fall of 1872, in pursuance of the contract; and for the further reasons that the plaintiffs did not demand the ore to be delivered in 1873 at the proper time or place, did not have any boat at Carondelet landing to receive it, and were not ready and willing to pay for such ore; and, by way of counter-claim, the corporation asked damages for such failure to deliver ore in 1872. To this counter-claim there was a reply.</p> <p>A verdict was rendered in favor of Dewey, Vance & Co., for $3,090; and the cause having been reserved to the general term on a motion for anew trial, the motion was overruled, and judgment was rendered on the verdict. On leave, this petition in error was filed to reverse the judgment.</p> <p>The material facts, either admitted or shown by the evidence, are as follows: During the year 1873, and during many preceding years, Dewey, Vance & Co. was a firm engaged in the manufacture of iron at Wheeling; Swift’s Iron and Steel Works was a corporation engaged in the manufacture of iron and steel at Cincinnati and Newport; and the Iron Mountain Company was a corporation-at St. Louis, having a monopoly of the kind of iron ore mentioned in the above agreement.</p> <p>The Carondelet landing inferred to in the contract is owned by the Iron Mountain Company, is situated on the Mississippi river within the corporate limits of St. Louis, and the company owns all the ore placed thereon. The ore is kept in a pile, from which the boats of the company’s customers are loaded. No particular part of the ore is set apart to any customer*, biit the loading is done from that part of the pile nearest the boats. The ore is not weighed at the landing, but the weight is estimated by the displacement of the boats when loaded, a memorandum of the weight thus approximated is made, and that governs in the settlement and payment, if the ore or any part of it is lost in transit; but if none of it is thus lost, the actual weight is ascertained when the ore arrives at its destination, and payment is then made.</p> <p>The Iron Mountain Company, during the fall or early part of winter in each year, sends a circular letter to each of its customers, fixing the price of ore for the ensuing year. The price so fixed remains unchanged during such year. In the fall of 1871, the company fixed the price of ore for 1872, “ on the landing at Carondelet,” at $5.50 per ton. Ore ordered in pursuance of such circular must be taken away during such succeeding year, as the contract is canceled at the end of such year, as to any ore not removed. The company never permits ore to be taken from the landing in any other manner or upon any other terms than as above stated; but where a customer who has agreed to take ore gives orders to others for part or all the ore he contracted for, the company fills such orders, but still looks to the customer for payment.</p> <p>This mode of dealing with respect to Iron Mountain ore at Carondelet landing, has been for many years uniform, invariable and well known, and the parties to this suit were familiar with the usage, when the agreement was made, and contracted with reference to such usage.</p> <p>As early as May, 1872, Swift’s Iron and Steel Works had exhausted all the ore due to it for that year, under its contract with the Iron Mountain Company made the preceding autumn. In that month and again in August, Mr. Swift applied to the company for more ore, but the company refused, as it had contracted with others for all it could deliver during 1872. In that condition of things, Mr. Swift applied to Dewey, Yanee & Co. That firm had contracted with the Iron Mountain Company for more ore than it could use during 1872, and knowing that the contract would be canceled on January 1, 1873, as to any ore not taken away in 1872, it was willing to let Swift’s Iron and Steel Works have ore, provided it could obtain, in the spring of 1873, an equal quantity of ore at the price prevailing in 1872, that is, at $5.50 per ton, for it was then manifest that the price for 1873 would be much higher ; and in fact, in the fall of 1872 the Iron Mountain Company fixed the price of ore for 1873 at $10 per ton. Under these circumstances, the contract of October 1, 1872, was made at Cincinnati, and for the reasons stated, it was advantageous to both parties.</p> <p>An order was at the same time delivered to Mr. Swift in the following form:</p> <p>“ Alex. Swift, Pres. Office of Swift’s Iron and Steel</p> <p>Geo. E. Clymer, Yiee Pres. Works, No. 26 W. Third St., Edwin Swift, Treas. Masonic Temple. •</p> <p>“ Cincinnati, October 1, 1872.</p> <p>“ Iron Moumta/m Oo., St. Louis, Mo.:</p> <p>“ Gents : Please deliver to the order of A. Swift, Esq., one thousand to twelve hundred tons of iron ore out of the quantity contracted for by us, and oblige, yours truly,</p> <p>“ Dewet, Yanoe & Co.”</p> <p>The Iron Mountain Company was immediately informed of such order, and the amount of ore therein specified was placed on its books to the credit of Swift’s Iron and Steel Works.</p> <p>The water in the Ohio and Mississippi rivers was low in October and the early part of November, 1872, and no boats were sent for the ore. Later in November and during December, the rivers became so full of ice that it was impossible to remove the ore by boat during that year. Swift’s Iron and Steel Works applied to the Iron Mountain Company, while the river was thus filled with ice, for leave to remove the ore in some other manner than by boats, but the Iron Mountain Company declined to grant the request, and the ore was never obtained. In fact, there ‘is no other practicable way by which to remove ore from the landing than by boat.</p> <p>As already stated, no ore was delivered to Dewey, Yance & Oo. under the agreement, nor did they receive any order on the Iron Mountain Company for ore. They demanded of Swift’s Iron and Steel Works repeatedly, at Cincinnati, during May, 1873, compliance with the agreement as to the delivery of ore in the spring of 1873, insisting on an order on the Iron Mountain Company for such ore. The only reason given for non-compliance with the demands was the alleged noncompliance by Dewey, Yance & Co., with their agreement to deliver ore in 1872. Dewey, Yance & Co. were ready and willing to pay for the ore according to the custom already stated, that is, according to weight as ascertained on arrival of the ore at its destination, or in case of the loss of the ore or any part of it while in transit, according to its weight as ascertained by displacement, in the way stated.</p> <p>The objections of Swift’s Iron and Steel Works to a recovery on the part of Dewey, Yance & Co., and the grounds of recovery on the part of the former on their counter-claim, are presented in exceptions to the refusal of the court below to give certain instructions to the jury, and in exceptions to certain portions of the charge given. So far as it is necessary to state these exceptions, they will be found in the opinion of the court.</p>

Quo- WAREANTO. This is an information in the nature of quo warranto, brought by the attorney-general against John W. Merchant and others, defendants, to oust them from the office of directors of The Columbus, Washington and Cincinnati Railway Company, a corporation organized under the laws of this state. The petition sets forth the names of Thomas Smith and-others, who claim to be entitled to the office of directors of said corporation, and avers their right thereto.

<p>Error to the Court of Common Pleas of Clinton County. Reserved in the District Court.</p> <p>In 1876, Elias Thorne brought suit in the Court of Common Pleas of Clinton county, against the First National Bank of Wilmington. The cause was submitted to a jury, on the petition, answer and evidence, and a verdict was found in favor of the defendant, and, after a motion for a new trial had been overruled, judgment was rendered on the verdict. All the evidence is set forth in a bill of exceptions, which is made part of the record. The material facts are as follows: In 1871, S. M. Thorne, I. C. McMillan and J. H. McMillan formed a partnership and engaged in the business of slaughtering hogs and packing pork, under the firm name of Thorne, McMillan & Co. The business was carried on at Wilmington, Clinton county, and the partnership continued until the spring of 1874.</p> <p>On November 6, 1873, Elias Thorne loaned to the firm $2,600, on December 3, 1873, $2,600, and on December 22, 1873, $8,000, to be used generally in their business. The first two loans were at sixty days, and at the expiration of that time they were extended, and the last loan was at ninety days. It was understood when these loans were made, that security for their repayment was to be given, and at the time the last sum was advanced, H. T. Davis became surety for that sum. As further security for the repayment of that sum, the firm executed and delivered to Elias Thorne, at the time the money was advanced, a certain instrument in writing, and on December 25, 1873, the firm executed and delivered to him another instrument as security for the payment of the sums first men- ' tioned, which instruments are in the following form:</p> <p>“Wilmington, Dec. 22d, 1873.</p> <p>“We have received from Elias Thorne, of Skaneateles, New York, on storage, six thousand hams in process of curing, which we hold subject to his order, and to be delivered to him free of expense of curing, on presentation of this warehouse receipt, on which we have received an advance of ($8,000) eight thousand dollars; said hams stored in our porkhouse, Wilmington, Clinton county, Ohio, in casks marked E. Thome.</p> <p>“ Thorne, McMillan & Co.</p> <p>“ Attest: H. T. Davis.”</p> <p>“Wilmington, O., Dec. 25th, 1873.</p> <p>“ Received of Elias Thorne five thousand dollars ($5,000), as an advance on fifty thousand pounds of hams, now in process of curing in our porkhouse, for which he holds two notes twenty-six hundred dollars ($2,600) each.</p> <p>• “ Thorne, McMillan & Co.”</p> <p>S. M. Thorne,, after testifying that the sum of $8,000 was advanced to the firm by Elias Thorne, on December 22, 1873, at a bank in Wilmington, says: “We came out of the ban! and Elias Thorne and myself went directly to the porbhouse, and I delivered the hams to him.” [Witness was told to state what was said and done, and he proceeded as follows :] “ 1 pointed out the hams to him; they were on the first floor, and mostly in hogsheads, some in the front room, but most in the back room—100 hogsteads—something over 100,000 pounds; I pointed to the hams, and said to him, £ I make you a delivery of the hams ;’ I also said, ‘ I will mark them for youhe replied, £ That is all right;’ I marked some that afternoon and some more the next day, by marking on the hogsteads, in chalk, plainly, iE. Thorne. ’ When I said I would mark them, and he replied £ All right,’ he added that I could do so at some other time, as he was in a hurry. In the afternoon of that day I marked some of them by writing the name ‘ E. Thorne’ with chalk, and the next day I marked some more the same way, in all a half dozen or a dozen of the outside casks. The casks or hogsheads were all in the main part of the building. All the hams embraced or mentioned in the warehouse receipt were separate and apart from all other hams and meats in the house. A few days afterward, and while he was still here in Wilmington, we gave him another receipt to cover what we called the five-thousand-dollar loan; it was the receipt which has been offered in evidence, bearing date December 25th, 1873.”</p> <p>In February and March, 1874:, without the knowledge or consent of Elias Thorne, the hams were shipped by the firm to Pittsburgh, where they were sold, and the proceeds of the sale, $7,025,32, were applied by the firm in satisfaction of money due from the firm to the bank. This debt to the bank existed at the time the warehouse receipts were given. The suit was brought to recover the money so received by the bank.</p> <p>The firm was never engaged in the business of ware-housemen.</p> <p>The court charged the jury, among other things, that if it appeared that the papers called warehouse receipts were in fact given by the firm to Elias Thorne “ simply by way of security for a loan of money made by him to them, and not otherwise,” then that the bank, which was a creditor of the firm at the time, was not liable.</p>

<p>Error to the Court of Common Pleas of Mahoning County-reserved in the District Court. The facts are sufficiently stated in the opinion of the court.</p>

<p>1. The act of April 20,1874 (71 Ohio L. 146), giving a penalty of $150 to the party aggrieved by a railroad corporation for overcharging for the transportation of passengers or property, is not in contravention of the constitution.</p> <p>2. A petition under said act against a corporation, for demanding and receiving excessive fare in the sale of a passenger ticket to a person desirous of traveling on its road between the points named on the ticket, is not bad, on demurrer, for want of an averment that the purchaser of the ticket was, in fact, transported on the ticket for which excessive fare was exacted.</p> <p>3. A petition under said act is not bad for want of an averment that the excessive fare was paid by the plaintiff in the due course of business, although judgment was not rendered thereon until after said act was repealed by the act of March 30, 1875 (72 Ohio L. 143), saving only pending actions and causes of action under the repealed statute, where the excessive fare was paid in the due course of business and not for the purpose of obtaining the penalty.</p> <p>4. Several causes of action for penalties under said act may be united' in the same petition.</p> <p>5. Where such action stands for judgment on the petition, it is not error to refuse to impanel a jury to assess damages.</p>

<p>1. A statute declaratory of a former one has the same effect upon such former act, in the absence of intervening rights, as if the declaratory act had been embodied in the original act at the time of its passage.</p> <p>2. The legislative approval in the act of April 19, 1881 (78 Ohio L. 309), of the construction given by the defendants to the act of April 13, 1880 (77 Ohio L. 187), requires the $10,000 appropriated by the last named act, to be distributed according to such construction, where no contracts had been previously entered into by the defendants for a different distribution of the fund.</p>

The action was originally brought by the defendant in error, against the plaintiff in error Bacon, S. N. Hazen, ¥m. A. Braman, Edward F. Webster, Chas. W. Horr and Sidney S. Warner. Of these, Bacon and Hazen were the only defendants served with summons.

<p>1. A petition by a guardian alleged that his wards were owners in fee simple of a certain woodland, that the timber thereon was cut down and removed by a person unknown and without any authority whatever, and that the same was taken, used and possessed for its own use, and without any authority whatever, by a certain railroad company, which company was afterwards consolidated with another railroad company, &c. Held, that on demurrer, the petition stated sufficient facts to constitute a cause of action for the conversion of personal property.</p> <p>2. Where a discretionary power to sell lands is given by a will to the executor, such discretion cannot be delegated. But where an attorney in fact of such executor assumes to make such sale, the subsequent receipt of the purchase-money, by the executor, is an adoption and ratification of the sale, and is equivalent to the exercise of the discretion by the executor himself.</p> <p>3. A. judgment determines the rights of the parties according to the facts stated in the pleadings; and if, after issue joined, a change takes place in the rights of the parties, it must be shown bysupplemental pleading, otherwise it should be disregarded.</p> <p>4. In an action for the conversion of chattels, against an innocent purchaser, from a person who had previously converted the property to his own use, and had afterward, added to its value by his own labor, the measure of the damages is the value of the chattels when first taken from the owner, whether the first taker was a willful or an involuntary trespasser. L. 8. & M. 8. E. E. Oo. v. Hutchim, 32 Ohio St. 571, approved</p>

<p>Error to the Court of Common Pleas of Cuyahoga County, reserved in the District Court.</p> <p>The defendants in error, Griswold & Dunham, dealers in flaxseed, and manufacturers of linseed oil, at Cleveland, brought an action against the plaintiff in error. The Western Union Telegraph Company, in November, 1872, to recover damages for the negligent transmission of a dispatch from Buffalo to Cleveland, sent by the .defendants’ agent, S. W.' Cowpland, from Woodstock, Ontario, upon which the defendants acted, and by reason of which negligence they suffered damages to the alleged amount of $1,163.70, for which sum, with interest thereon from December 23,1871 they prayed judgment. The dispatch sent was as follows:</p> <p>“ Woodstock, Ontario, December 23d, 1871.</p> <p>“ Messrs. Grisioold c§ Dunham,,</p> <p>“Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night.</p> <p>“ S. W. Cqwpland.”</p> <p>The dispatch as intended by Cowpland and understood by Griswold & Dunham, meant to inquire, whether the latter would pay one dollar and fifty cents in gold for twenty-five hundred bushels of flaxseed, at London, Ontario, the parties having had a prior correspondence in reference to the purchase of flaxseed in Canada. The dispatch was sent from Woodstock to Buffalo, over the lines of the Montreal Telegraph Company, and thence to Cleveland over the lines of the plaintiff in error.</p> <p>The dispatch delivered to Griswold & Dunham at Cleveland was as follows:</p> <p>"Woodstock, Ontario, December 23d, 1871.</p> <p>“ To Griswold & Dunham,</p> <p>“"Will you give one five for twenty-five hundred at Don-don. Answer at once, as I have only till night.</p> <p>“ S. M. Cowpland.”</p> <p>To this dispatch they made the following reply:</p> <p>“ Cleveland, Ohio, December 23d, 1871.</p> <p>“ S. M. Qowplcmd Wooclstoch, Ontario,</p> <p>“Yes, if seed is prime, and we can hold at London until spring. “ Griswold & Dunham.”</p> <p>Upon the receipt of this message Cowpland purchased for the defendant 2,407 bushels of flaxseed at $1.45 per bushel, and on January 22, 1872, shipped the same to Cleveland via Detroit. The answer of the plaintiffs in error denied the allegation of negligence charged, and set up the fact, that the dispatch was sent from Woodstock under a special agreement with the Montreal Telegraph Company which was as follows :</p> <p>“ MONTREAL TELEGRAPH COMPANY, FORM NO. 2.</p> <p>“ (Terms and conditions on which this and all other messages are received by this Company.)</p> <p>“ In order to guard against, and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which the message is received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delays, in the transmission or delivery, nor the non-delivery of repeated messages beyond two hundred times the sum paid for sending the messages, unless special agreement for insurance be made in writing, and the amount of risk specified on this agreement and paid at the time of sending the message, nor will the company be responsible for any error or delay in the transmission or delivery, or for the nondelivery of any unrepeated message, beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated therein, and paid for at the time. No liability is assumed for errors in cipher or obscure messages, nor is any liability assumed by this company for any error or neglect by any other company over whose lines this message may be sent to reach its destination, and this company is hereby made the agent of the sender of this message to forward it oyer the lines extending beyond those of this company. No agent or employee is allowed to vary these terms, or make any other verbal agreement, nor any promise at the time of performance, and ho one but a superintendent is authorized to make a special agreement for insurance. These terms apply through the whole course of this message on all lines by which it may be transmitted. “ (Signed,) James Dakers,</p> <p>Secretary.</p> <p>“ (Signed,) Hugh: Allen, President.</p> <p>“‘Send the following message without repeating it, subject to the above conditions. Time received, December 23d, 1871:’ • .</p> <p>“ ‘ To Messrs. Griswold <£¡ Dunham, Olevela/nd, O.:</p> <p>‘“Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night.</p> <p>(Signed,) “‘S. W. Oowpland.’” '</p> <p>It appeared from an answer to an interrogatory annexed to the plaintiff’s reply, made by the superintendent of the telegraph company, that he had caused inquiry and search to be made for the original message received by the company at Buffalo, and that the same could not be found.</p> <p>The court, among other things, charged the jury, in substance, as follows:</p> <p>That if the message delivered to the defendant below by the Montreal company, was the same as the one delivered to it at Woodstock, and the mistake occurred in transmitting the same over the line of the defendant below, from Buffalo to Cleveland, and such mistake occurred through the carelessness and negligence of the defendant, the special agreement set up in the answer did not relieve the company from liability otherwise resulting from such negligence.</p> <p>The court also charged the jury, that the delivery of the message to the plaintiffs differing from that received by the company was evidence of negligence, and left it to them to determine whether such evidence was sufficient to establish the fact of negligence.</p> <p>The court further charged, that while the clause in the special agreement set up in the answer exonerating the company from liability “ for errors in cipher or obscure messages,” was valid, the message was not obscure nor in cipher, within the meaning of that stipulation.</p> <p>To these several points of the charge, and for refusing to give their converse to the jury, the defendant below excepted. Yerdict and judgment for the plaintiffs below for $1,290.61. On error to the district court the cause was reserved for decision by this court.</p>

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

<p>Error. Reserved in the District Court of Cuyahoga County.</p> <p>The action below was brought by the ITimrod Furnace Co., to recover damages for the breach, by the Cleveland & Mahoning Railroad Co., of an alleged contract, to receive and dock at Cleveland, and to transport from thence over its road, to plaintiffs’ furnaces at Youngstown, all the Lake Superior iron ore which the plaintiff should require in the manufacture of pig iron at its furnaces.</p> <p>As alleged in the petition, and as proved to the satisfaction of the jury on issue joined, which required such proof, the railroad was bound for ten years from February 15, 1860, to receive, dock, and transport said ore, at the rate not exceeding $1 per ton, for five years, and for a further term of five years, at a rate not exceeding $1.20 per ton, and not exceeding the lowest freight charged to others, during the whole period of ten years.</p> <p>The breach alleged was, that although the railroad company had fully performed said contract, by carrying plaintiff’s ores at the agreed rate, down to 1864, yet on the 1st of November, of that year, it refused longer to recognize or be bound by said contract, and thereafter refused to carry, unless at a much greater rate, which the plaintiff was compelled to pay, and did pay under protest, there being no other mode of supplying said furnaces. ■</p> <p>The action was commenced April 11, 1868. The existence, as well as the validity of said contract, was put in issue. The trial resulted in a verdict in favor of plaintiff, including, by way of damages, all overcharges exacted and paid the railroad company for receiving, docking, handling and transporting ores, from the time when the company refused longer to observe the contract, to the commencement of the action, and also including expenses paid to others than the railroad company for docks at., Cleveland, and for handling the ore at that point.</p> <p>On á motion for a new trial, as well as in the petition in error, numerous reasons are assigned, why this judgment should be reversed. Noné of these have been sustained, except as to the amount paid other parties at Cleveland for dockage, &c. As to that item a remittitur has been entered, and the judgment, less that amount, has been affirmed. Only one of these questions has been reserved for report, and the facts specially relating to it will be stated in the opinion.</p>

<p>1. The power of a railroad company to make and enforce a regulation that one or more designated passenger trains on its road shall not stop at specified stations or places, is subject to legislative control; and by the act of 1852, § 26, as amended in 1867 (S. & S. 114; Rev. Stats. § 3320), such power is taken away as to municipal corporations containing three thousand inhabitants.</p> <p>2. Where one traveling on a passenger train of a railroad company, presents to the conductor a ticket issued by such company, authorizing him to ride from one to another designated station, “only on such trains as stop regularly at both stations,”'and is ejected from the cars by such conductor between such stations, it will be no defense to the passenger’s action against the company for damages, that by the regulations of the company, the train on which he was traveling did not stop at the latter station, if the ticket was issued since the passage of the act of 1867, and such station was in a municipal corporation which, at the time the ticket was issued, had a population of three thousand inhabitants, and the passenger believed when he took passage on the train that it stopped at both stations.</p>

<p>1. To entitle a person to become a member of a corporation, which is being organized under “An act to regulate insurance companies” (S. & S. 205), his contract to take shares therein must be in writing, and be mutually binding on both parties.</p> <p>2. A verbal promise to take shares, while the stock is being subscribed which is necessary to authorize an organization, does not constitute the promisor a stockholder or member of such corporation, and a promise to pay for such shares is without a sufficient etnsideration to support it. A recovery on such promise to pay cannot he had, in the absence of facts showing that the promisor is estopped from setting up such want of consideration.</p>

This case was taken out of its order to he heard with Mary Fanning v. Hibernia Insurance Co., j ust reported. That action was to recover on a note and mortgage given for stock in said company, while its promoters were engaged in placing the amount of stock required by its charter, as preliminary to its organization.

The original action was brought by T. IT. B. Clutter, defendant in error, against David Wert, plaintiff in error, to recover for services rendered by the plaintiff as a physician and surgeon, at the request of the defendant.

<p>1: A devise by a testator of all of his property, of every description, whether real, personal or mixed, after paying all his just debts, is a devise' of the fee, without the aid of a statute declaring such to be the eifect of the devise.</p> <p>2. Where there is a devise in fee, with a provision in the will that in -case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Mies v. Gray (12 Ohio St. 320), followed.</p>

<p>H., title owner of chattels, relying on the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H., in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., as he well knew,—Reid, that the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own use, without knowledge of the fraud, was liable to H. for their value; and the fact that R., at the time the chattels were delivered to him, paid II. part of the priee agreed on, will make no i difference, except as to the amount of recovery against L.</p>

<p>A justice of the peace has no jurisdiction of an action on the bond of a constable.</p>

<p>Error to the District Court of Butler County.</p> <p>. Carnahan brought his action in the court of common pleas against Weaver to recover $111.50, with interest, which he claimed to be due him upon an account for medical services, a copy of which account he attached to his petition. The answer of defendant was as follows :—</p> <p>“ The defendant for answer denies that there is due to the plaintiff on said account $117.50 as alleged in the petition. He admits the items in said account:</p> <p>22 April, 1875,........$4 50</p> <p>27 April, 1875, . . ...... 4 50</p> <p>3 May, 1875,........ 4 50</p> <p>2 July, 1875,........ 4 50</p> <p>15 July, 1875, . '.......4 50</p> <p>1 August, 1875,' . ......4 50</p> <p>8 October, 1875, . . . . . . . • 4 50</p> <p>13 October, 1875, . . . . . 4 50</p> <p>17 October, 1875,....... 4 50</p> <p>$40 50</p> <p>“ lie says plaintiff expressly agreed to make no charges for medicine and medical aid rendered defendant’s family, besides his wife. He denies that the value of the residue of said services and medicines and prescriptions were worth as much as stated in the petition. He says said entire amount should not be more than ninety dollars.”</p> <p>The plaintiff replied denying each and every allegation of the answer.</p> <p>Thereupon, on motion of plaintiff the court rendered judgment against defendant for the sum of $90, and continued the cause for further disposition. The amount thus found due, the defendant paid.</p> <p>At the following term the court proceeded to hear the case and found that there was still due to the plaintiff upon the account, aforesaid $26.75, for which sum judgment was rendered against defendant. A motion for a new trial was overruled and the cause coming into the district court for review the judgment of the court below was affirmed.</p>

<p>1. A policy of marine insurance, which contained a stipulation that in case of loss or misfortune the insurer would contribute ratably to expenses incurred by the assured or their agents in and about the recovery of the insured cargo, was issued by a corporation of the state of Connecticut, also doing business in the state of Ohio. The cargo was sunk in waters of the state of Michigan, and labor was expended in efforts to recover it. Held, that the breach of such stipulation on the part of the insurer constitutes a cause of action' against the company, cognizable by the courts of this state.</p> <p>2. After the filing of a petition on such cause of action and the issuing of a summons, which was returned served on the defendant by delivering a true and attested copy on an agent of the defendant, the defendant filed a motion to dismiss the action “for the reason that this court has no jurisdiction of the case, it appearing from the petition on file that said defendant is a foreign insurance company, and that no part of the alleged cause of action arose in this state.” Held, that the filing of such motion was a voluntary appearance in the action and a waiver of any defect in the service of the summons.</p>

<p>The right to commence an action for wrongfully causing death, under “ An act requiring compensation for causing death by wrongful act, neglect or default," passed March 25, 1851 (2 8. & C. 1189), abates by the death of the wrong-doer.</p>

<p>1. Where an indemnity mortgage is conditioned to save the mortgagee harmless, and to pay the note on which the mortgagee is surety, the protection of the mortgage extends to a liability incurred by the mortgagee jointly with the mortgagor, for money borrowed to pay the first note, and with which such note was paid.</p> <p>2. The affidavit on an indemnity mortgage, under section 2 of the act relating to chattel mortgages, as amended May-7, 1869 (66 O. L. 345), must show that the mortgage was taken in good faith, to make it valid against creditors. A statement that the claim on which the mortgagee is surety is just and unpaid, is not sufficient.</p>

<p>In an action by the mortgagee against the mortgagor, under the statute (Civil Code, §558; Rev. Stats. §5781), to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony is not available as a defense.</p>

On December 23, 1873, Manasseh Click, as administrator of Jacob W. Alspach, brought suit in the court of common picas of Fairfield county, against Samuel Crist. The action was upon a joint and several promissory note for $153.61, dated December 10, 1853, due one day after date, payable to the order of said Jacob W. Alspach, and executed by Peter Brown as principal debtor, and Charles Brown and said Samuel Crist as Ms sureties.

The action was originally brought December 23, 1873, in the court of common pleas, by the defendant in error, Emeretta Tennery, against her father, Joseph Simmerson, now deceased. He having died during the pendency of the action, it was revived against his administrator, Alonzo Simmerson, the present plaintiff in error.

<p>L. recovered a judgment in the common pleas court against R. for $247.48, in an action for money only. R. obtained a second trial under tbe statute. R. then gave a mortgage to a building association. Afterward, upon second trial, L. recovered a judgment against R. for $251.80, damages, and $185.98, costs, and levied execution upon the mortgaged premises. In an action by the building association to foreclose the mortgage, marshall liens, and distribute proceeds:</p> <p>Held: 1. That the lien of L., to the extent of the original judgment, with interest from the first day of the term at which it was rendered, was the first in order of priority.</p> <p>2. That the mortgage was’second in order of priority.</p> <p>3. That the lien of the second judgment, to the-extent that it exceeded in amount the first judgment with interest, was the last in order of priority.</p>

<p>Error to the District Court of Mahoning County.</p> <p>The original action was brought by Arthur B. McConnell, a real, estate broker, to recover certain commissions claimed to have been earned in making an exchange for the defendants, William Bell and others, now plaintiffs in error, of certain real estate, to wit, certain city lots, with one Augustus Neal, for certain other real estate, upon terms satisfactory to the defendants, upon an express agreement for commissions at the rate of three per cent, of the value of the property exchanged.</p> <p>The defendants, by answer, among other things, alleged that, before the alleged employment by the defendants, the plaintiff had been employed by said Neal to sell or exchange a certain farm of said Neal, to wit, the same property given in exchange to defendants, upon such terms as- might be approved, for an agreed compensation at the rate of four per cent, of the value thereof; and that, at the time said exchange was effected, said Neal had no knowledge or information of the alleged employment of the plaintiff by defendants.</p> <p>The plaintiff, by reply, alleged, in effect, that said Neal, at the time said exchange was negotiated, had knowledge of his employment by the defendants.</p> <p>On the trial testimony was offered by each party tending to prove the issue in accordance with the respective allegations ; and thereupon the plaintiff requested the court to charge the jury as follows:</p> <p>“That if the jury find from the evidence that said defendants employed said plaintiff to act as their agent in the exchange of the property mentioned and described in the petition for the farm of Mr. Neal, located in said township of Boardman, or employed him to aid and assist in such exchange, and agreed to pay him three per cent, commission on said property, and at the same ■ time knew that said plaintiff was the agent of said Neal for the sale or exchange of said farm, and that he was acting as his agent, and that said defendant assented thereto and agreed to pay said commission, and that said Neal knew that said plaintiff was acting agent of said defendant in said exchange, and assented thereto, and agreed to pay said plaintiff the commission stipulated in the written contract of agency, said plaintiff would be entitled to recover in this case,” but the court refused to charge the jury as above requested, and did charge as, follows:</p> <p>“ That if you find that Neal employed plaintiff to sell or exchange his farm in Boardman for cash or property, and agreed to pay him for such services, and if, while so employed, defendant Bell and others, employed plaintiff to find a purchaser for their (defendants’) city property, or one who would exchange country property for it, and if plaintiff’s duty was simply to bring the buyer and seller together, and for that service defendants agreed to pay plaintiff a fixed amount, and if plaintiff performed that service the defendants are bound in law tó pay said amount so fixed, even though plaintiff was acting as agent for the party—in this case Neal—so introduced.</p> <p>“ But I say to you, if the contract between plaintiff and defendants was, that plaintiff should sell for, or assist the defendants in selling or exchanging their property, and did so sell or exchange defendants’ property, or assist them in selling it to, or exchanging it with said Neal, while he was also acting for Neal, or assisting him in the same sale or exchange, under a contract with said Neal for pay on the part of said Neal for such service so rendered him, then plaintiff is not entitled to your verdict in this case, even though both Bells and Neal were aware of, and assented to said plaintiff’s employment and acts in the premises.”</p> <p>Exceptions were taken to the refusal to charge as requested and to the charge given.</p> <p>Yerdict and judgment were rendered for the plaintiff. On petition in error the judgment of the court of common pleas was reversed, and this proceeding is prosecuted to reverse the judgment of reversal.</p>

<p>Error to the District Court of Clermont County.</p> <p>The original action was brought in the court of common pleas by the defendant in error, Alexander II. Brower, against the plaintiff in error, Vm. Howard, as administrator of John Kugler, deceased. The substance of the cause of action, as stated in the petition, is as follows:</p> <p>“ The plaintiff further says, that after he came of age, the said John Kugler stated to the plaintiff, that he could not do without his services in his large business; and, that if the plaintiff would continue with him in his business, he would pay plaintiff a reasonable salary from year to year, and would also provide for plaintiff liberally out of his estate, by his last will and testament, at least to the amount of ten thousand dollars, either in real estate or money. That in consideration of the said promise and agreement of the said Kugler, so made to the plaintiff after he became of age, he continued in the service and employ of the said Kugler, in and about his manifold business of milling, distilling, dry goods, farming and stock-raising for many years, and up to his death in the year A. D 1868. That said Kugler died intestate and without providing for plaintiff, <fcc., ■.....”</p> <p>“ That he did not in his lifetime provide for him said sum of ten thousand dollars in money or real estate, or any part thereof, or any other sum in lieu thereof, nor has his administrator since his death, wherefore plaintiff asks a judgment for the sum of $10,000 with interest from January 4th, 1868, and for costs.”</p> <p>The petition was demurred to, and the demurrer overruled.</p> <p>The answer joined issue, and among other defenses set up the following:</p> <p>“ 3d. This defendant further answering says, as administrator as aforesaid, that each and every one of the supposed said promises made by the said John Kugler in his lifetime, as set forth in the said amended petition of plaintiff, are within the statute of frauds and perjuries of the State of Ohio, not being evidenced by any writing.”</p> <p>The following is the plaintiff’s reply to this defense:</p> <p>“ 2d. He denies that the promises mentioned in the third clause of said amended answer are within the statute of frauds and perjuries of Ohio.”</p> <p>On the trial, among other exceptions, exception was taken to the ruling of the court admitting the wife of the plaintiff to be a witness in his behalf.</p> <p>The court charged the jury, among other things, as follows :</p> <p>“ 6th. The plaintiff is required in this case to entitle him to a verdict in his favor, to prove by a preponderance of testimony that the agreement set forth in his petition was made between himself and the said John Kugler, and he may prove this by any testimony that will show or tend to show such agreement, and the testimony bearing on this question of contract between Kugler and Brower that has been submitted to you is for your consideration and you will apply it to the case and determine whether or not a contract such as is set forth in the petition has been established before you substantially.</p> <p>“ If, however, you find from the proofs that Brower entered into the service of Kugler on the distinct agreement and in consideration that Kugler would pay Brower a stated salary per year and in addition thereto, that for his services he would provide for him in his will the sum of $10,000 in real estate or money, and that Brower did in fact render the service to Kugler and received from Kugler his stated annual salary, but Kugler died without providing any sum to pay such additional compensation to Brower, then the agreement to be valid need not be in writing, for part performance takes the agreement out of the statute of frauds.</p> <p>“ The issue now before you grows out of an alleged contract between plaintiff and John Kugler touching the services of plaintiff to John Kugler in his lifetime. It is that plaintiff. alleges that he entered into and continued in the service of John Kugler, under an agreement on the part of Kugler, assented to by plaintiff, that as a compensation for such services of plaintiff he would pay him a fixed salary from year to year, and would at his death give him in his will ten thousand dollars in real estate or money, that he did render the services from year to year and received the stated compensation from year to year, but that Kugler did not provide any compensation for him in his will and that he is entitled to the sum of $10,000 in part consideration for his services, and for this suit is brought with interest.”</p> <p>The trial resulted in a verdict for the plaintiff in the sum of $11,530. A motion for a new trial was made on the ground, among others, that the verdict was against the law and evidence ; and the motion' being overruled a bill of exceptions was taken, embodying all the evidence and the charge of the court. Motion was also made in arrest of judgment, which was likewise overruled; and judgment rendered on the verdict. This judgment was affirmed by the district court. The object of the present proceeding is to reverse both judgments.</p>

<p>Error to District Court of Athens County.</p> <p>The plaintiff brought his action against Thomas Lovell, Sr., Thomas Lovell, Jr., and Lorenzo Lovell, to recover damages for assault and battery.</p> <p>The defendants filed separate answers, justifying the alleged trespass; the first named, on the ground that he acted in defense of his son, the said Lorenzo; the second that he acted in defense of his master, the said Lorenzo, who alleged that he acted in necessary self-defense.</p> <p>The reply denied each and every allegation of each of said answers.</p> <p>The trial resulted in a separate verdict for each of the defendants. A motion for a new trial was overruled, judgment was rendered on the verdict and a bill of exceptions taken by plaintiff.</p> <p>This judgment was affirmed by the district court.</p> <p>Among the grounds for a new trial, and the only one saved by the bill of exceptions, is, that the court, on the trial and against the objection of the plaintiff, allowed the defendants to open and close, both in the introduction of testimony and in the argument.</p> <p>It appears that this objection was made before any testimony was offered, and again after all the testimony was closed on both sides.</p> <p>None of the testimony is set out, and it does not appear that there were not special reasons why this order was adopted by the court, nor is there anything tending to show that plaintiff was prejudiced by the order of the court.</p>

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

<p>Ebbor to the Superior Court of Cincinnati.</p> <p>Silas H. Bascom brought suit in the superior court of Cincinnati against John Shillito & Co., upon an alleged contract of employment of the plaintiff, as a clerk, for one year, and his discharge without cause before the end of the year. The defendants admitted in their answer the employment and discharge, but insisted that the hiring was by the month and not by the year, and that the plaintiff was paid, in semi-monthly installments, in full for five months, at the expiration of which time he was discharged. The jury found for the defendants, judgment was rendered on the verdict, and the court in general term rendered a judgment of affirmance. The record contains the pleadings, testimony, charge requested and refused, and charge given. This petition in error was filed to reverse the judgments.</p>

<p>On error to reverse a judgment in damages, for a breach, of contract, where a motion for a new trial, based on the ground of an erroneous charge, and because the verdict is unsupported by the law and the evidence, is overruled, and the evidence is made part of the record, and where it appears that the verdict is too large, by reason of error of the court in its rulings, or of the jury, and there is nothing necessarily implying passion or prejudice in the jury, the court may, where it can be done, ascertain from the evidence the amount of such excess, and may, on a remittitur of the same being entered, affirm the judgment as modified.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The action in the court below was brought by William P. Hulbert, trustee of Julia Harberon, against Herman Nolte and others, to foreclose a mortgage securing certain notes held by him against Nolte. The mortgaged property had been conveyed by Nolte to Seasongood, and by him to Dallas. These latter were both made parties defendant to the suit.</p> <p>The facts of the case, as disclosed by the record, were as follows:</p> <p>On January 18, 1812, Nolte delivered to Hulbert his note for $2,500, to secure a loan of that amount, together with certain interest notes, the whole secured by mortgage upon city property ; the principal note was payable in two years afterdate.</p> <p>In August, 1873, one Steineke, a judgment creditor of Nolte, brought suit against Nolte to obtain a sale of the mortgaged land to satisfy his judgment lien and for other relief. To this suit Hulbert was made a party defendant. On receipt of summons, he sent for Charles Cist, his regular attorney in such matters, and handed to him the summons, together with the notes indorsed in blank, and the mortgage, and took his receipt therefor for collection. A cross-petition was filed on behalf of Hulbert, asking that if the land should be sold to satisfy Steineke’s lien, his rights might be protected and his claim satisfied from the proceeds of the sale.</p> <p>While the suit was still pending, the principal note became due, and Hulbert then agreed with Nolte to extend it for another year. There is no evidence' to show whether or no Cist had knowledge of this agreement.</p> <p>In March, 1814, the ease was heard and decided, and the land was ordered to be sold. No entry, however, was made upon the minutes.</p> <p>Nolte, thereupon, fearing that the land would be sacrificed, engaged a broker to find a purchaser at private sale. This broker applied to Cist, who went to Seasongood, a capitalist with whom he had had many dealings of a like character, and between whom and himself existed relations of perfect confidence.</p> <p>Cist offered the land to Seasongood for $3,500, and told him of the incumbrances upon it. These he agreed to pay ofE out of the purchase-money, and to furnish a certificate that the title was clear. He said that he had in his possession all the papers necessary to make a clear title.</p> <p>Thereupon, Seasongood gave to Cist his check for $3,500, the latter agreeing to pay off all the liens upon the property and to obtain from Hulbert a cancellation of the mortgage when he should return to the city.</p> <p>The land was then conveyed by Nolte and wife to Season-good.</p> <p>Cist paid the costs and the Stein eke claim, but embezzled the remainder of the money and fled the city.</p> <p>At the trial below, in general term, the case having been reserved, the court found that the facts did not show a payment of Hulbert’s claim, and that the loss caused by Cist’s dishonesty ought to fall upon Seasongood rather than Hulbert, and overruled a motion for a new trial.</p> <p>The proceeding in error is to review this judgment.</p>

<p>1. A certificate of incorporation which, under the statute, specifies the place' where the principal office of the company is to be located, is conclusive as to the location of such office.</p> <p>2. Such office is to be regarded as the residence of the corporation within the meaning of section 4 of the tax law of April 5, 1S59, as amended April 8, 1865 (S. & S. 756), which provides that certain personal property “shall be entered for taxation in the township or town in which the person to be charged with taxes thereon resides at the time- of listing the same by the assessor.”</p> <p>3. A corporation whose principal office is located in a specified township and without the limits of a city, may, if the city limits be so extended as to include the site of the office, remove ihe same to some other part of the township and thus avoid municipal taxation.</p> <p>4. .Steamboats and articles of furniture are not enumerated in the seventh section of the -tax law of April 5, 1859 (S. & 0. 1442), within the meaning of section 4 of said act, as amended April 8, 1865.</p> <p>5. Personal property other than merchants’ and manufacturers’ stock, or articles enumerated in the seventh section of said act of April 5, 1859, or personal property upon farms and real property not in towns, subject to taxation in the county where the owner or person chargeable with taxes thereon resides, must be returned and taxed in the town or township where the owner resides.</p> <p>6. Steamboats, whose home port is in the county where the owner resides, • are subject to taxation in the township where the owner resides, whether such owner be a natural person or a corporation.</p>

<p>A testator, after directing that liis debts and funeral expenses be paid, gave all the residue of his estate, both real and personal, to his wife during her life, she to have full possession, management and control of the same, with the privilege of disposing of all or any of the personal property for her use, together with the proceeds of the real estate.</p> <p>The estate consisted of lands, fanning utensils, household goods, live stock and money. The residuary clause is as follows: “The residue of my estate is to be distributed to the heirs on my side of the house in such proportions as she may direct by will or otherwise.”</p> <p>No personal representative was appointed until after the death of the widow. She took possession of the personal property, paid the debts and funeral expenses, and deposited the balance of the money in bank in her own name, and died within five months after her husband’s death, without making her election as required by statute to take under the will, and without having disposed of any of the personal property or money, and without distributing any of said estate by will or otherwise.</p> <p>Neither the testator nor his wife left any children or their legal representatives. Bach left brothers and sisters of the whole blood, and their legal representatives.</p> <p>Held: 1. The right of a widow to elect to take the provision made for her in the will of her husband, is a right to be exercised by her in person. If she dies without having made her election, those who claim under her can only claim so muck, of her husband’s personal estate as she was entitled to under the law.</p> <p>2. In order to bar a widow of her right to dower and to such share of the personal estate of her husband as if he had died intestate leaving children, her election must be made either by matter of record in the proper court as required by statute, or actually and in fact under such circumstances as -would create against her an e'sloppel of her right to claim under the law.</p> <p>3. Where it does not appear that a widow has acted with a full knowledge of the condition of her husband’s estate and of her rights under the will and under the law, her acts in paying the debts of the husband out of his money, receiving and holding the balance, and having possession and control of the real and personal estate for five months after her husband’s death, do not constitute such an election, in fact, to take under the will, as estops her from claiming, under the law, within the time allowed.</p> <p>4. If the husband devise his real estate to his wife for life, with remainder to his heirs, and the wife elects to take her dower, or fails to make her election, the remainder vests in fee in the heirs, subject to the dower estate of the wife.</p> <p>5. Where the residue of an estate is, by will, directed to be distributed among testator’s heirs, in such portions as his wife may direct by will or otherwise, and she dies without having exercised the power conferred upon her, each of the heirs of the testator, or his legal represenative, takes an equal share under the will.</p>

<p>1. It is orror to reverse or modify a judgment without having the parties before the court, affected by such reversal or modification.</p> <p>3. Where several defendants are sought to be charged upon the same demand, and the defense sot up by one operates for the benefit of all, it is error to reverse the judgment as to the answering defendant and leave it standing in full force against the others.</p> <p>8. The lessee in a coal lease, by its terms, purchased all the coal on the demised premises, and agreed, with all reasonable dispatch, to mine and remove the coal, and on the first days of January and July of every year to pay a specified sum per ton for all the coal that may have been mined and removed; also, that if coal was found sufficient to render the same practicable, to mine not less than thirteen thousand tons annually, or on default thereof to pay for said quantity. It was further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the “ surplus payments ” were to apply on any future year’s mining that might be in excess of said quantity. Reid: 1. That thej quantity of coal was to be ascertained and paid for in the mode prescribed by the lease. 3. That in an action to recover an annual payment for thirteen thousand tons, an averment in the answer that the “ surplus payments ” made in pursuance of the lease were more than sufficient to pay for the unmined coal remaining on the premises, constitutes no defense.</p>

<p>Eeeob to the District Court of Monroe County.</p>

Lee brought suit in the Court of Common Pleas of Erie county, against the Cincinnati, Sandusky and Cleveland Railroad Company, to recover for services rendered as an attorney at law, for and at the request of the company. The services, it is alleged, rendered in February, 1874, were the prosecution of suits, drawing and copying papers, and giving advice to the company’s agents in its business.

The petition recites that the defendant, the Portsmouth and Columbus Turnpike Railroad Company, is a corporation under the laws of this state, owning and operating a turnpike road running from Chillicothe through Ross, Pike and Scioto counties to the village of Portsmouth. It further alleges that, for more than four years, it has misused its franchise to collect tolls by charging a higher rate than is allowed by law.

<p>Error to the District Court of Morrow County.</p> <p>The defendant in error, Simington, brought an action in the Court of Common Pleas of Morrow county, against McLain, plaintiff in error, for the recovery of money only, and obtained an order of attachment, which was levied upon certain property belonging to McLain. The undertaking given was as follows:</p> <p>“ "Whereas, B. W. Simington has commenced a civil action against I. T. McLain, in tbc court of common pleas, within and for tlie county of Morrow, state of Ohio, to recover the sum of eighteen hundred dollars, with interest thereon, from the 6th day of July, a. d. 1876.</p> <p>“And, whereas, the said B. W. Simington has applied to the clerk of said court, by filing the necessary affidavit, for an order of attachment to be issued in said action against the said I. T. McLain.</p> <p>“Now, therefore, "We, B. W. Simington and--hereby undertake to the said I. T. McLain, in the penal sum of twenty-two hundred dollars, that the said B. W. Simington shall pay to the said I. T. McLain all damages which the said I. T. McLain may sustain by reason of said attachment, if the order should have been wrongfuly obtained.</p> <p>“ Dated this — day of August, a. d. 1877.</p> <p>“ B. W. Simington.</p> <p>“ L. Maxwell.”</p> <p>McLain moved the court to vacate the attachment for the reasons:—</p> <p>1st. That no sufficient undertaking had been given, and</p> <p>2d. That the affidavit, upon which the attachment was obtained, was untrue.</p> <p>The court overruled the motion; and error to this ruling was prosecuted in the district court. The latter court affirmed the order of the common pleas. This judgment of affirmance is now before us for review.</p>

<p>Error to tlie District Court of Coshocton County.</p>

<p>1. The act to revise and consolidate the general statutes of the state, embodied in the Revised Statutes, is not void as being in conflict with section 16, article 2, of the constitution.</p> <p>2. The offense defined in section 6942 of the Revised Statutes, consists in the Iceeping of a place, where the business of the unlawful sale of liquor is carried on; and the section is not unconstitutional in not requiring such place to be one of public resort.</p> <p>3. In an indictment under said section, it is a sufficient description of the unlawful sales to aver that they were made “ in violation of section sixty-nine hundred and forty-one, of the Revised Statutes of Ohio;” and the reference to the section must be understood as referring to the section then in force.</p>

The plaintiff in error, Mary L. Gifford, filed the original petition against the defendant in error, David Morrison, in the Court of Common Pleas of Cuyahoga county, to quiet her title to certain real estate in her possession, against a certain judgment lien thereon, which the defendant claimed to own and hold. The real estate in question was purchased by the plaintiff from one Allaire, on February 14, 1876.

<p>Error to the District Court of Putnam County.</p> <p>The object of this proceeding in error is, to reverse the judgment of the district court, dismissing plaintiff’s petition. This petition was to enjoin the commissioners of Putnam and Paulding counties and others, from constructing a certain ditch, and from'assessing against plaintiff’s lands the cost of constructing six hundred feet thereof, that being the distance allotted to him for construction. This proposed difchwas partly within Putnam, and partly within Paulding counties, and was located and established by a joint session of the commissioners of the two counties. It is alleged as the grounds for an injunction, that said proceedings of the boards in joint session are without authority of law, and void, for reasons which will be stated in the opinion. The answer admits the location and establishment of the ditch, claims the proceedings valid, and takes issue on all the other allegations of the petition. On the trial, a bill of exceptions was taken, setting out all the evidence. To support the issues on plaintiff’s side, he offered a copy of the records “ Prom the .ditch records of Putnam county, ” and rested. No other evidence was offered on either side.</p>

<p>1. The general rules of law, which govern the rights and obligations of the owners of dominant and servient estates, apply as well to subterranean rights of way as to those upon the surface.</p> <p>2. The owner of coal lands, through which another has a right of way, by-subterranean entry, to reach coal mines in an adjoining tract, may lawfully construct an entry crossing- such right of way, provided, it ■ be done without destroying or substantially interfering with the use thereof.</p>

Mandamus. This proceeding is prosecuted by the state on the relation of Uriah Horseman’s administrators, to compel the board of commissioners of Fayette county to levy a tax to pay a balance due upon certain bonds issued by them, and known as “the state road bonds.” The class of bonds so known, amounting to $35,000, was issued by the commissioners to Grove & Coffman, contractors, to pay for a certain road improvement, under the act of March 29, 1867 (64 Ohio L. 80),…

<p>Error to the District Court of Greene County.</p> <p>The following is a statement of facts, so far as is necessary, to present the points decided.</p> <p>James E. Hawes, as administrator of Daniel Sidener, filed a petition in the court of common pleas of Greene county, to sell lands to pay debts of his intestate. Mary Sidener, who was sole heir, and Clements & Wetherholts and William Law, her vendees, were the defendants. He alleges that Daniel Sidener died in 1864, leaving neither widow nor children, nor any personal assets, but seized in fee of the land sought to be sold, lying in Greene county, to pay about $800, debts of the intestate.</p> <p>It is averredj that said Mary Sidener, sister and sole heir of deceased, sold said land in 1865, to defendants, Clements & Wetherholts, and that she, with one Jane Sidener, her mother, conveyed the same, by deed of general warranty, and that Clements and Wetherholts sold and conveyed the same to defendant, William Law, who is in possession under the title so derived.</p> <p>The prayer is “that the several rights, liens, &c., of the above defendants be adjusted, &c.; and that your petitioner may be ordered to sell said real estate, and for such other relief as the facts proven may at the hearing of this cause warrant and justify.”</p> <p>The defendants answered separately. Mary Sidener admits that she is sole heir, and states that Daniel Sidener, at the time of his death, resided in Fayette county, Kentucky, but died in Greene county, while there on a visit. That letters of administration on his estate were granted by the county court of Fayette county to one Huffman, who discharged his duties and made full settlement of said estate, in said court. That in 1865, he with this defendant, came to Ohio, contracted to sell said land to Clements & Wetherholts for $1,800, which was paid as follows: $1,185, to satisfy a purchase-money mortgage, made by Daniel Sidener, and the balance was used to defray certain debts, which by law are preferred. She also sets up the fact, that Daniel Sidener was indebted to her some $1,200, the purchase-money of land she sold to him in Kentucky. Her prayer is. that the petition be dismissed. A demurrer to this answer was sustained.</p> <p>Clements.& Wetherholts filed an answer and cross-petition, claiming to be Iona fide purchasers of said land, and averring that they applied the purchase-money to the discharge of said mortgage, the payment of taxes, funeral expenses and other preferred debts. They insist on the validity of their title, and admit the sale to Law, who is in possession.</p> <p>Their prayer is, that plaintiff be denied the relief he asks; that the title derived from Mary Sidener be declared valid, and that they have such other relief as in equity they are entitled to.</p> <p>William Law sets up his title and possession in good faith, and that he has made permanent and valuable improvements worth $650, and prays for proper relief.</p> <p>At the November term, 1869, the cause came on for hearing on the petition and said answers and-cross-petitions, and the court found that none of them constituted a defense to the action, and proceeded to order a sale of the real estate. At the same time, all questions concerning distribution'of the proceeds of sale, and all issues that may be raised on the cross-petitions, were reserved for further consideration, with leave to plaintiff to reply thereto.</p> <p>Replies were filed, putting in issue the claims of Clements & Wetherholts, William Law, and of Mary Sidener.</p> <p>Such proceedings were had under the order of sale, that the land was sold to said Law for $2,132.52.</p> <p>The sale was confirmed January 4, 1871, and the administrator was ordered to make him a deed, but no order was made respecting the disposition of the purchase-money.</p> <p>February 4, 1871, Mary Sidener, by leave, filed an amended answer and cross-petition. She states that Daniel Sidener died November 13, 1864, while on a visit to a family of his manumitted slaves, whom he had settled in Greene county. This family consisted of the mother and two minor children, John cmd Mary Sidener, Jr.</p> <p>She restates the settlement of the estate of Daniel Sidener, in Fayette county, Kentucky, with full knowledge of said children, and alleges that neither of these minor children had any claims against the same, and yet they are the only parties who are making claims against the estate, and that it was at their instance that plaintiff was appointed administrator in Greene county. She charges that these children have fraudulently conspired with others unknown, to cheat and defraud said estate, and have presented false and fraudulent claims against the same for services to said Daniel Sidener, and that plaintiff, well knowing their fraudulent character, by carelessness and negligence has suffered them to be referred to arbitrators, and to be determined on false and ex jpa/rte evidence, all for the purpose of defrauding said estate, by means of which neglect and carelessness the claim of John Sidener for $750 has become a judgment of the court, which he has assigned to John Little, without consideration.</p> <p>A second defense is, in substance, the same as the original answer and cross-petition as to the full settlement of the estate, under the Kentucky administration.</p> <p>The prayer is, that said John Sidener and his assignee John Little, and Mary Sidener, Jr., be made defendants; that the judgment against said estate, in favor of John and Mary, be set aside, and for all other proper relief.</p> <p>On February 20, 1871, said John Sidener, John Little and Mary Sidener, Jr., filed a joint demurrer to said answer and cross-petition, on the ground that it did not state facts sufficient to entitle said Mary Sidener to the relief prayed for, nor to constitute a cause of action against them, and on the further ground that there was a misjoinder of causes of action.</p> <p>The plaintiff neither demurred nor replied, and as to him, this answer and cross-petition stands as upon default.</p> <p>On the day this demurrer was filed, it was submitted to court and sustained, and thereupon judgment was rendered against Mary Sidener and in favor of plaintiff, for all the costs made by her under said answer and cross-petition; also a judgment against said Mary Sidener and Clements & Wetherholts, and in favor of plaintiff, for all the costs made by them subsequent to the service of summons and prior to filing said amended answer and cross-petition.</p> <p>No further proceedings seem to have been had in the court of common pleas as to the distribution of the purchase-money.</p> <p>February 12,1873, Mary Sidener filed her petition in error, in the district court, to reverse said judgment rendered February 20, 1871, sustaining said demurrer and for costs. The defendants to this petition were Hawes, administrator, Clements & Wetherholts, William Law, John Sidener, John Little and Mary Sidener, Jr., being all the parties to the record except plaintiff in error. John Sidener, John Little and Mary Sidener were not brought before the district court by service or otherwise.</p> <p>At the April term, 1875, the district court, without these parties before it, reversed the judgment of the common pleas as to parties served, for error in sustaining tlie demurrer, and remanded the cause for further proceedings. To reverse this judgment of reversal, Hawes, administrator, prosecuted error to this court, and at the December term, 1876, this court reversed the district court, on the ground that that court erred in proceeding in said cause before all the necessary parties were before the court, the reason being that John Sidener, John Little and Mary Sidener, Jr., were necessary parties in error to reverse a judgment rendered on their demurrer. The cause was remanded to the district court for further proceedings, and at its April term, 1877, the proper parties being before the court, separate demurrers were filed to said petition in error by C. L. Maxwell, administrator of John Sidener, J. McStewart, administrator of Mary Sidener, Jr., and by John Little, claiming that, as to each of them, the proceedings in error were not commenced within three years from the rendition of the final judgment sought to be reversed.</p> <p>At the April term, 1878, of the district court, said demurrers were sustained, as appears by the following entry: “ And the court being advised in the premises, is of opinion, that as to final judgment of said court of common pleas, rendered -. . . upon said demurrer, filed February 20, 1871, this court is without jurisdiction, all the parties to such judg-' rnent not having been brought before the court as required by law. It is therefore ordered that this cause as to such judgment, and said answer and cross-petition filed . . . February 1, 1871, and the proceedings thereunder be, and the same are hereby dismissed.”</p> <p>The court then proceeds to affirm the judgment, ordering and confirming the sale, and as to all matters reserved by the common pleas for further consideration, and not adjudicated, the cause is remanded. To reverse this judgment is the object of the present proceedings.</p>

<p>Mandamus.</p> <p>This proceeding is instituted by the attorney-general on the relation of E. J. Blount, the steward of the Columbus asylum for the insane, one of the benevolent institutions of the state, located in Franklin county, against Emil Kiesewetter, the auditor of said county, to compel him to' pay certain accounts presented to him by the said steward, under section 632 of the Revised Statutes. These accounts consist of the expenses incurred by said steward in furnishing the necessary clothing to persons admitted into the institution from said county, and paid for out of the appropriation for the current expenses of said institution. The accounts run from January 27, 1880, to Decernber 29, 1881, and were duly authenticated and presented to the defendant for payment, which payment he refused to mate.</p>

<p>1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact, to be determined by the jury under proper instructions.</p> <p>2. Where an action is brought against a railroad company by one of its employees to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company, as to the management of a particular train, which order was unreasonable, and the enforcement of the same was dangerous to such employee, the fact that the negligence of a fellow-servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.</p>

John McMillan plaintiff below, brought an action against the Pittsburgh, Cincinnati & St. Louis Railway Company, defendant below, to recover damages for the negligent killing of a mare. The evidence showed that the mare escaped from her pasture on the night of July 6, 1872, and wandered upon the railway track.

Appeal. Reserved in the District Court of Cuyahoga County. The Brooklyn Street Railroad Company was incorporated August 25, 1869, under the act of April 10, 1861 (58 O. L. 66), and the amendatory and supplementary acts. The authorized capital stock was $30,000. It was organized October 5, 1869, with a board of five directors.

<p>Error to tbe District Court of Seneca County.</p> <p>This case and Geyer v. Wagoner, reserved in the district court of Seneca county, were argued, submitted and considered together.</p> <p>In the principal case, the plaintiffs below, Loomis et al., were stockholders in the National Exchange Bank of Tiffin, Ohio, organized under the act of congress of June 3, 1864, entitled “ An act to provide a national currency,” &c., while Geyer et al., who were also plaintiffs below, were stockholders in Commercial Bank of Tiffin, Ohio, organized under an act of the general assembly of the state of Ohio, passed February 26, 1873, entitled “ An act to incorporate savings and loan associations.” But as all the questions raised in the latter case are also involved in the former, Geyer’s case will not be further noticed in this report.</p> <p>The original action was brought by Loomis and his co-stockholders in the National Exchange Bank, against Wagoner, as treasurer of Seneca county, to restrain the collection of certain taxes assessed against them, upon their shares of stock in said bank, in the year 1877. The moiety of the taxes so assessed in said year, which became due in December, was paid under protest, and this suit was brought to restrain that moiety of said levy, wMch became payable in June, 1878.</p> <p>The capital stock of said bank is divided into twelve hundred and fifty shares, of the par value of $100 each. These shares were listed upon the duplicate of said county for taxation, and were taxed at their par value. Their actual cash value at the time, however, was from $120 to $125 -each. All other property within said county, both real and personal (save bank stocks), was placed upon the duplicate for taxation, and taxed upon a valuation not exceeding forty per cent, of its real cash value. The rate of taxation for state, county,, and municipal purposes, upon the valuation of all property, for that year, was 30 6-10 mills on the dollar.</p> <p>In the original petition, it was alleged that the stock of said bank was placed upon the duplicate for taxation, at its par value, by order of the state board of equalization, organized under the statute of Ohio, for the equalization of bank stocks in the state of Ohio, and “ That by reason of the said statute of the said state of Ohio, requiring the value of said shares of stock in said bank and others, to be fixed by a state board of equalization, and not as is required by and for other personal property and real estate subject to taxation, an unjust, wrongful and illegal discrimination has been, and is made against said bank stock, and its value for taxation assessed largely in excess of what it should be, to be uniform with other species of taxable property in said Seneca county, Ohio, and the value of said bank stock lias not been compared or equalized, and is not taxed at a uniform value with other taxable property in said Seneca county, Ohio,” and “ That said tax by reason of the premises, was and is unjust, and illegal, was not uniform; that said stock was by the authority aforesaid taxed greatly in excess of any other class of property in said Seneca county, Ohio ; was not taxed in proportion to its actual value as compared with other taxable property listed for taxation in said Seneca county, Ohio.”</p> <p>In the court of common pleas, the plaintiff’s petition was dismissed, but on appeal to the district court, the defendant was “perpetually enjoined from collecting, or attempting to collect, any further sum, or part of said tax for the year 1877.”</p> <p>To reverse this decree, the present proceeding is prosecuted.</p>

<p>The defendant, the lessee of a coal mine, worked over onto the land of an adjoining proprietor, and after taking out all the coal from the demised premises, surrendered his lease. The plaintiff having subsequently purchased the adjoining lands, in mining thereon, in ignorance of the overworking of the defendant, struck such working, whereby the water from the abandoned mine flooded the plaintiff’s mine. In an action by the plaintiff against the lessee to recover the damages caused by the flooding—Held:</p> <p>1. That the cause of action against the defendant is for the trespass in working over his line, and that he is not chargeable with creating and maintaining a nuisance.</p> <p>2. In the application of the statute of limitations there is no distinction between trespasses under ground and upon the surface; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute.</p> <p>3. The bar to a recovery in an action for a trespass includes all the consequences resulting from such trespass.</p>

Quo Warranto. The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the Cincinnati, Hamilton and Dayton Railroad Company became consolidated into one corporation, it is claimed, in 1881, under the name of the Ohio Railway Company, by authority conferred in Revised Statutes, § 3319.

<p>Error to tbe Court of Common Pleas of Franklin County.</p> <p>The original petition was filed in the court of common pleas of Franklin county, on October 19, 1881, by Hugh J. Jewett and R. Suydam Grant, who sue in their own behalf as stockholders in the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and in behalf of other stockholders who might come in and contribute to the expenses of the action. The defendants are the said railway company, the Cincinnati, Hamilton and Dayton Railroad Company, J. H. Devereux, George H. Russellj F. H. Short and Stevenson Burke.</p> <p>The petition is founded upon the attempted consolidation of the two companies named, and sets out the steps taken to effect such consolidation. The material facts are found stated in the case of State ex rel. Attorney-General v. Vanderbilt, decided at this term, ante.</p> <p>The case last named was instituted after the bringing of this action, and it was therein adjudged that the attempted consolidations of said corporations was unauthorized and invalid.</p> <p>The object of the petition in this case was to prevent the election of a board of directors of the consolidated company, known as the Ohio Railway Company, at a meeting of the stockholders to be held at Cleveland on October 20, 1881. The petition avers that Devereux is a stockholder, director and the president of both companies, and that, said Burke is vice-president of the first-named company, that said Russell is the secretary of the first named company, and said Short is secretary of the last named company.</p> <p>The petition also contains the following averment: “ That not only is the said pretended consolidation illegal by reason of the matters and things hereinbefore set forth, but also the interests of these plaintiffs, as stockholders aforesaid in the said defendant, the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, will be greatly prejudiced and irreparably injured by reason of the furthering and completing of said pretended consolidation. That under the said agree ment of consolidation, it is intended to consolidate or unite the two corporations defendant into one pretended corporation, with a single management of the said corporations, to keep but one set of books of the earnings of the two lines of railway and thereby to confuse the earnings and expenses, respectively, of the said corporations defendant, and to make the property and earnings of each of the said corporations liable for tin?' debts and obligations of the other’. That the debts and obligations of the defendant, the Cincinnati, Hamilton, and Dayton Railroad Company, are actually much greater than those of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and that it will be greatly to the damage of these plaintiffs to have the stock of the two corporations consolidated, and the earnings of the properties of the respective corporations amalgamated and confused.” And asks that the said corporations defendant, and their respective directors, stockholders and officers, be forever enjoined and restrained from doing any act toward the completion of the said pretended consolidation, or any consolidation of tlie said corporations defendant, or for the election of any board of directors of the said pretended Ohio Railway Company, and from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Railway Company, or to any board of directors or officers pretending or claiming to represent the same.</p> <p>And the defendants, J. II. Devereux, Stevenson Burke, George II. Russell and F. H. Short be, and each of the same be forever enjoined and restrained from in any way furthering, aiding, promoting or participating in the said meetings, called as aforesaid. An exporte temporary injunction was allowed, as prayed'for, at the time of filing the petition. And on the same day service was made on Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, at Franklin county, and on the other defendants on the morning of the 20th of October in Cuyahoga county, before the meeting for the election of directors.</p> <p>On October 22, 1881, the plaintiffs, by leave of the court, filed a supplemental petition, in which it was stated in substance that notwithstanding the injunction and service thereof, the meeting for the election of directors of the Ohio Railway Company was held at tlie time and place appointed for that purpose in which the said Devereux, Burke, Russell and Shori participated. Tjiat all the stockholders assembled at said meeting were notified of the filing of said petition and the allowance of said injunction before proceeding to such election. That directors were elected at such meeting for the Ohio Railway Company whose names are set forth and who are asked to be made defendants.</p> <p>It is also averred: “ that said pretended directors and officers of said pretended new corporation intend to, and unless stopped by the effective intervention of this court, will take control and management of the property, franchises, and assets of every kind, of the two railroad companies, defendants in this case, in the name of said pretended new corporation, and will abandon and cause to be dissolved the two railway companies, defendants in this case. Plaintiffs say that by reason of facts stated in the original petition, the said two railroad companies, defendants, have not been consolidated, nor can they be ; that the meeting stated in the original petition, wherein their stockholders voted to ratify the agreement for consolidation, and the votes there given, as well as the votes cast at the meeting on October 20, 1881, at Cleveland, hereinbefore described, were without legal validity or effect, either to dissolve the old companies or to create a new one.” ,</p> <p>The appointment of a receiver was prayed for, to take possession and control of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company’s road, and of all Other roads leased or held by it, and of all of its property of every kind and nature whatsoever, and to hold and operate said roads under the direction of the court until further ordered; and for such orders of injunction as would enable the receiver to fulfill the duties of his appointment.</p> <p>At the time of the filing of the supplemental petition an appointment ex parte of a receiver was made as prayed for, and such orders entered as would enable him to take control of all the property and rights of the said company, and to fully perform the duties of his appointment.</p> <p>The receiver gave bond and Avas duly qualified as required by the court.</p> <p>On application to this court leave was granted to the plaintiffs in error to file the present petition i£ error to reverse the order appointing the receiver, and all orders founded upon and in execution of said appointment; and the execution of the duties of said appointment, and of said orders, were stayed until the petition in error could be heard.</p>

The questions in this case arise on exceptions to the report, of the assignee, filed in' the probate court. In July, 1877, Isaac T. McLain assigned all his property to plaintiff in error for the benefit of creditors, to be administered under the statute in such case made and provided.

<p>Error to the Court of Common Pleas of Paulding County.</p> <p>At the October term, 1881, of the court of common pleas of Paulding county, the plaintiff in error was tried upon an indictment for shooting at one Lewis Talbot with intent to kill.</p> <p>The state having rested its case, evidence was introduced by the accused tending to show that, at the time charged, Talbot attacked him and knocked him down with a club, and was-about to strike him again. That he, the accused, fearing death or great bodily harm at the hands of his assailant, shot at him, with the sole purpose of self-defense and without malicious intent. At this stage of the case the accused proposed to prove, by a competent witness, that the general reputation of Talbot for peace and quietness was bad, and that his character was that of a dangerous and violent man, and that this was known to the accused at the time. To the introduction of this testimony objection was made and sustained by the court, and exception was noted. By the present proceeding in error this ruling of the court is now before us for review.</p>

<p>Error to the District Court of Eranklin County.</p> <p>The original action was brought by defendant in error against the Pittsburgh, Cincinnati & St. Louis Railway Company, plaintiff in error, to recover damages for personal injuries resulting from the carelessness of defendant’s engineer, under the following circumstances:</p> <p>On August 2, 1871, the plaintiff below was employed as a brakeman on a train of freight cars of the defendant, running from Columbus, Ohio, to Dennison, Ohio, under the management of a conductor, an engineer, a fireman and two brakemen. On approaching Pataskala station, the train was moving at the speed of about fifteen miles per hour when a flag signal from the station was given to slow the train for orders, whereupon the engineer, by a single blast of the locomotive whistle, signalized the application of brakes by the brakemen, and thereby the speed of the train was reduced to six or eight miles per hour when opposite the station-house. While moving at this rate the engineer received dispatches 'from the station agent, and also orders to proceed without stopping at the station, whereupon, by two blasts of the whistle the engineer signaled the removal of the brakes by the brakemen. While the plaintiff, in obedience to the signal, was engaged in removing brakes, and before a reasonable time for the removal had elapsed, the engineer applied steam to the engine so violently as to break and separate the train at the coupling of the cars where the plaintiff was engaged in removing brakes, whereby the plaintiff was thrown from his feet and fell between the cars, and was thereby very seriously injured, so that it became necessary to amputate his left leg above the knee and three toes from the right foot.</p> <p>In stating his cause of action, the plaintiff alleged in the petition, among other things, the following:</p> <p>“This plaintiff states that it then and there became the duty of this plaintiff, when on said train of cars as brakeman as aforesaid, to obey and carry out in a prompt and reasonable manner all orders or commands given to him in any manner by the engineer, then and there handling, operating and controlling the locomotive attached to said train of cars, and hauling the saíne from Columbus to Dennison, as aforesaid, in reference to putting on or letting off the brakes attached to the cars, making up and forming said train of cars so hauled and moved by said locomotive, and that in said employment of brakeman on said train he was under the command and order of said engineer, and therefore compelled to obey the orders and commands given by said engineer to him in reference to using said brakes in the starting or stopping said train of cars, and as above stated in said operating, hauling, and moving said locomotive and train of cars attached thereto, said engineer was in all respects the superior of the plaintiff, and it was his duty to give orders and commands to plaintiff when on said train of cars, in reference to the time and place, and under what circumstances said brakes should be applied to the stopping or impeding the speed of said train, and when the same should be leftff o or loosened in order that the train might be enabled to move at a greater rate of speed.”</p> <p>The plaintiff further says that said injuries were so inflicted iipon him without any fault, neglect, or carelessness upon his part, and whilst he was in the proper discharge of his duties as a brakeman on said train of cars aforesaid, in an ordinary, careful and prudent manner, and plaintiff avers that said injuries were so inflicted upon him, as hereinbefore stated, by reason of the negligence, default, and want of proper care and caution, and by reason of the rashness, negligence and carelessness of the said engineer, who had charge of the said locomotive, its movements, management and control as aforesaid, and who gave said order and commands to plaintiff; and the said injuries were caused by the said engineer aforesaid, by his sudden and rapid starting of said locomotive and cars in motion, without signal or warning to plaintiff or other employees, and without the said engineer waiting sufficient or reasonable time to .enable plaintiff to obey and carry out his said order or command to let off or loosen brakes as aforesaid ; in all which, said engineer was guilty of the most grossly negligent, improper, rash and careless conduct, which, .as aforesaid, was the sole cause of the infliction of said injuries upon plaintiff, hereinbefore stated.</p> <p>The defendant, by its answer, denied that the engineer was guilty of carelessness or negligence, as chai'ged in the petition, and also, “ that in virtue of said employment he (plaintiff) thereby became, and was, in fact, subject to the orders and control and direction of the engineer of said freight train, or that said engineer thereby became, and was in fact, in all respects his superior upon said train, whose orders and commands he was in all respects bound to obey. On the contrary thereof, the defendant avers that said train was on said day under the charge and control of a conductor, who was, as such conductor, the superior of both said engineer and brakeman, and whose orders and commands both said engineer and brakeman were alike bound to obey in said common service and in subordination to said superior servant of said defendant.”</p> <p>To this answer the plaintiff replied as follows:—“ That this plaintiff admits that there was'on and connected with said train of ears mentioned in plaintiff’s petition, a conductor who was the superior of plaintiff, and in reference to the time of starting said train at stations where it stopped, was the superior of said engineer, but plaintiff says that in all respects as to the starting, stopping, controlling and movements of said engine and the cars attached thereto, both said engineer and conductor were, in all respects, the superiors of plaintiff, and both were the responsible parties in charge of said train as to said plaintiff and said railway company.”</p> <p>On the trial in the common pleas, a verdict and judgment were rendered for the plaintiff. A bill of exceptions containing all the testimony and the charge of the court was made part of the record. The judgment of the common pleas was affirmed in the district court, and this proceeding is prosecuted by the railroad company to reverse both judgments.</p>

<p>One, not induced by fraud, wbo indorses a negotiable promissory note owned by another, for his accommodation, without restriction as to its use, is Hable to an indorsee who receives it in good faith from the owner, before due, as collateral security for an antecedent debt of such owner, although there be no other consideration for giving such collateral. Roxborough v. Messiah, 6 Ohio St. 448, distinguished.</p>

<p>1. No recovery can be had on a bond given to obtain the discharge of a water-craft, seized under the Watercraft Law of Ohio, in an action against such craft, on a cause of a maritime nature, which is within the exclusive admiralty jurisdiction of the United States courts.</p> <p>2. The fact that the owner of such craft, after the bond was given, defended the action against it, on the merits, without objecting to the jurisdiction of the court, does not estop him and his sureties .from pleading such want of jurisdiction in an action against them on the bond.</p> <p>The General Buell v. Bong, 18 Ohio St. 521,—followed and approved.</p>