Volume 38 — Ohio State Reports, New Series

The original action was brought by the state of Ohio against Jacob B. Koch, principal, and Archibald Dawson and others, the plaintiffs in… Held: but the county treasurer shall, in such cases, act as city treasurer,” &c. Hence, it is contended by plaintiffs in error, that as sureties for Koch as treasurer of the county as aforesaid, they are not liable on their bond, for any failure on the part of their principal “ to pay over according to law ” moneys which .came into his…

Mandamus. This is a proceeding in mandamus by Archibald Dawson and others, sureties of Jacob B. Koch, treasurer of Wayne county, to compel the board of education of Wooster, in that county, to release from liability to said board Archibald Dawson and others, sureties as aforesaid, as to the amount found to be due to said board and unpaid, which sum forms part of the judgment in favor of the county commissioners of said county and against Dawson and the other sureties; which…

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

Mandamus. This is ah application by the state on the relation of the Fidelity Mutual Aid Association, a corporation organized under the laws of the state of Pennsylvania, for a mandamus against Charles H. Moore, the superintendent of insurance of this state, to require him to issue a certificate to the relator, to the effect that it has complied with the laws of this state “ regulating corporations, companies or associations organized for the mutual protection of its members…

Ebror to the District Court of Cuyahoga County. The petition alleged, that on the 10th of May, 1871, the plaintiff, the Commercial Mutual Insurance Company, issued its policy of insurance, causing $20,000 to be insured upon the body, tackle, apparel, and other furniture, of the schooner called the “John Burt,” from noon of: May 6, 1871, to noon of December 5, 1871; that on the same day, the defendant, the Detroit Fire and Marine Insurance Company, on account of the…

Defendant in error filed his petition in the court of common pleas of Jefferson county against the city of Steuben-ville, on appeal from the judgment of a justice of the peace, to recover $128, which he claimed to be due him for wages as a policeman between tbe 30th of April, 1877, and the 4th of July, 1877.

<p>1. A railroad company, having a line of telegraph poles and wire, granted to a telegraph company, the privilege of placing another wire on the poles “for general telegraphic correspondence,” and of establishing telegraph stations at points along the line as it might think proper, but reserving to the grantor all local telegraph business, “ it being understood and agreed between the parties,” that the telegraph company ••should be entitled only to the business of sending such messages as might be received at any of its stations destined for stations on other ■telegraph lines connected at points where it had stations, or such mes.sages as might be received from other lines connected at points where it had stations destined for its stations, or other lines connected at points where it had stations, with a further agreement for prorating as to business re-telographed between the parties :</p> <p>lMd,í. The right acquired by the telegraph company in the business of .the line, '.other than local business, was not exclusive. 2. The railroad company was not precluded from placing another wire upon its poles either forits.own use or the use of another party.</p> <p>2. Equity will not compel specific performance, where the benefits of the contract cannot .be realized in accordance with its terms. Hence, where a .railroad .company, having a line of telegraph, grants the use of its poles to a.telegraph company on certain conditions and stipulations in favor .of the .grantor, which are ultra vires, an injunction will not be granted whereby tbe grantor will be required to perform other stipulations made in 'consideration of such void stipulations.</p>

<p>1. In proceedings by a corporation to appropriate private property, there must be a judgment confirming the verdict of the jury, before the corporation is entitled by a deposit of the amount of such verdict, to possession of the property appropriated.</p> <p>2. It is within the appellate jurisdiction of the supreme court to allow a temporary injunction where it appears that defendant is doing or threatens to do acts respecting the subject of an action pending, tending to render the judgment ineffectual. Yeoman v. Lasley, 36 Ohio St. 415, followed and approved.</p> <p>3. So where the relief sought in the court below was an injunction which was refused, and on error to this court the judgment is reversed for such refusal, this court may, in the exercise of its appellate jurisdiction, proceed to render the judgment which the court below should have rendered.</p>

<p>1. Where the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.</p> <p>2: In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses. Railway Co. v. Cumminsville (14 Ohio St. 524), approved and followed.</p>

<p>1. The provision in the Code of Civil Procedure as revised in 1878, by which the period within which a proceeding in error may be commenced is reduced - from three to two years (Code of 1853, § 523 ; 75 Ohio L. 808, § 20 ; Rev. Stats. § 6723), does not apply to judgments which had been rendered whén the act of 1878 took effect, but by force of the act of 1866 (S. & S. 1) the pei'iod of three years, prescribed in section 523, governs as to those judgments.</p> <p>2. Where a demurrer to an answer is sustained, but no judgment is rendered or order made which is definitive in its character until a subsequent term, the time within which a proceeding in error may be commenced by the defendant must be computed from the dale of the final judgment or order.</p> <p>3. Where an action is brought under the Code of Civil Procedure for the partition of real estate, and the administrator of the ancestor from whom the estate descended to the persons asking for partition is made a defendant, and files an answer and cross-petition setting forth that it is necessary to sell such property for the purpose of paying the debts of such ancestor, and asking for an order of sale, such administrator is, upon proper showing, entitled to such order of sale, and statutes of limitations have no application in favor of such heirs. Taylor v. Thorn, 29 Ohio St. 569, followed.</p>

<p>Where the .trastees of water-works in a city, authorized and directed the digging of trenches in the streets for the purpose of laying water mains, in pursuance of a previous ordinance of council, and it is made the duty of the superintendent to cause such trenches to he dug and mains laid, the city is responsible for his negligent acts in doing the work causing injury, while such authority and direction remain an-.revoked; notwithstanding the trustees, individually, while said work was being done, notified the superintendent that they would have nothing further to do with the work.</p>

<p>1. Common school districts and hoards of education are not corporations within the meaning of section 1 of article 13 of the constitution.</p> <p>2. Under section 26, article 2, and section 2, article 6 of the constitution, laws regulating the organization and management of common schools must have a uniform operation throughout the state.</p>

<p>A., by an agreement in writing, “leased ” to B., “ all tbe clay that is good No. 1 fire clay, on bis land ” described, for a term of three years, subject to tbe conditions that B. “ shall mine, or cause to be mined, or pwy for, not less than 2,000 tons of clay every year, and shall pay therefor, twenty-five cents per ton for every ton of clay monthly, as it is taken away.” Held:</p> <p>1. That this was a contract, which gave B. the exclusive right to mine and remove all the good No. 1 fire clay that was on the land, and not a lease of the land itself.</p> <p>2. If clay of that quality, and in quantity sufficient to justify its being mined, existed, B., on failure to mine at least 2,000 tons per year-, each year while the contract was in force, was bound to pay for that amount, at the agreed price per ton.</p> <p>3. But if, in fact, clay of that quality, and in quantity sufficient to justify its being mined could not, by the use of due diligence, be found on the land, then there was no obligation to pay the amount agreed on, in case of failure to mine. Goolc v. Andreios, 36 Ohio St. 178, followed and approved.</p> <p>4. Where it is an open question whether such clay was to be found on the land, and the exclusive possession of the clay lands was vested in the lessee or purchaser of the clay, for the purpose of ascertaining the fact, the burden is upon him, in order to defeat a recovery for the annual sums to be paid in case of a failure to mine and remove the same, to prove that such clay as is contemplated in the contract did not exisj in minable quantity. Cook v. Andrews, supra.</p>

<p>Error to the District Court of Hamilton County.</p> <p>This case was before this court at a former term, and is reported in 34 Ohio St. 645, under the name of Shorten v. Woodrow. In that case the judgment below was reversed and the cause remanded for the ascertainment of the priorities of liens upon the premises in controversy in the case, and for distribution of the proceeds of the sale of such premises. Upon the trial of the case for that purpose, in the superior court, upon the answer and cross-petition, and supplemental answer and cross-petition of Samuel Shorten, and his amended answer and cross-petition, the answer of Alexander McMillan, and Eleanor, his wife, and the amendment to their amended answer and cross-petition, and the answer of said Shorten thereto, the answer and cross-petition of William S. Grant, administrator of Samuel Grant, deceased, and the proof and exhibits submitted by the parties, in addition to the findings of fact reported in 34 Ohio St. 645, that court found: that said Sargent and wife continued to occupy said premises until the sale in this suit; that the judgment in favor of Samuel Grant was based on an indebtedness of said Sargent occurring prior to the said conveyance to Drake, and that at the time of the making of the mortgage hereinafter mentioned, by said Sargent and wife to Shorten, the said Shorten had actual notice of the levying of said execution on said premises as the property of said Sargent; that the order of attachment in the suit of McMillan and wife against said Sargent, was grounded on the statement, verified by-affidavit, that Samuel A. Sargent had property and rights which he concealed for the purpose of defrauding his creditors, and that the indebtedness in said action sued upon arose and was a subsisting cause of action in 1861. At the time of the making of the mortgage by Sargent and wife to Shorten, hereinafter mentioned, the said Shorten had actual notice of the levying of said attachment on said premises, as the property of said Sargent. ></p> <p>And as to the Sargent mortgage that court found as follows :</p> <p>That on January 1, 1872, the said Sargent and wife executed, in due form of law, a mortgage deed to Samuel Shorten of the premises in controversy, to secure the payment of a debt therein mentioned, which said mortgage was recorded on the day last mentioned; that at the time of the giving of said mortgage the said Shorten was the owner of certain promissory notes given to him by the said Sargent, for money loaned to him by the said Shorten; that on giving of said mortgage the said Shorten surrendered said notes to said Sargent and received in lieu thereof, from said Sargent, the notes described in said mortgage; that at the time of the making of said mortgage the notes, first held by said Shorten, were due; and the amount due thereon was the full amount mentioned in said mortgage, and that by the giving of said mortgage to said Shorten the time for the payment of the amount due from the said Sargent to the said Shorten, was extended by the said Shorten; and that at the time of receiving the mortgage said Shorten did not, in fact, have notice, that said conveyance from Clark to Drake (see first and second findings 31 Ohio St. 615) was made or received in the manner and with the purpose and intent therein set forth, but that the said Shorten, at the time of the taking of said mortgage deed, believed Mrs. Sargent to be the bona fide owner of said premises described in said mortgage deed.</p> <p>As conclusion of law from the facts, the superior court found, that MeMillan and wife, by reason of said attachment, acquired a lien on the premises in controversy prior to the claims of all the other defendants except Steele, who was a prior lien bolder; and ordered that tbe unpaid balance of the proceeds of tbe sale of the premises be distributed as follows : 1st. To tbe payment of tbe unpaid costs. 2d.'To Steele, tbe sum of $1,500, with interest from October 27, 1873. 3d. Tbe remainder to McMillan and wife.</p> <p>On error to tbe district court, that court affirmed tbe judgment of tbe superior court as to Shorten, and reversed it as to "William Grant, and ordered that out of tbe proceeds of the property there be paid: 1st. All unpaid costs except those adjudged against Samuel Shorten. 2d. To tbe payment of tbe judgment in favor of George W. Steele. 3d. To "William Grant, tbe amount of bis judgment. 4th. Tbe balance to Alexander McMillan and wife.</p> <p>This proceeding is on tbe petition in error of Samuel Shorten and tbe cross-petition of Alexander McMillan and wife, prosecuted to obtain tbe reversal of tbe judgment of tlie district court.</p>

<p>1. Where a party requests that the court state separately the conclusions of law and fact under the civil code, § 280 (Rev. Stats. § 5205), and the request is not complied with, a judgment against such party should be reversed, unless it appear from the record that he was not prejudiced by the refusal.</p> <p>2. Trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action prosecuted by them to recover possession of the premises.</p>

Motion to reinstate, &c. At the last term of this court, a final judgment was rendered in this case, reversing the judgment of the district court and remanding the cause for a new trial. It is now made to appear that John D. Williams, plaintiff in error, died during the pendency of the proceedings in error.

<p>Error to the District Court of Scioto County.</p> <p>Defendants in error brought suit in the court of common pleas of Scioto county against plaintiff in error upon four promissory notes executed by him, payable to the order of Hess & Burke, and. by them indorsed and delivered to defendants in error. Lloyd claimed that there had been, as between himself and the indorsees, a total failure of consideration, and that although the notes had been transferred before due they were not taken in the usual course of trade, nor was any value given for them by plaintiffs.</p> <p>The bill of exceptions does not contain all the evidence offered in the court below, and we are not advised what the facts of the transaction may have been. There was, however, evidence tending to show that Hess & Burke were largely indebted to Moore & Welch for purchase-money for the sale of tracts of land which had been conveyed to them, and which indebtedness they had secured by a deposit of certain collateral securities.</p> <p>There was also evidence tending to prove that on the 18th of November, 1873, Hess had in his possession notes on parties in Sandusky, Ohio, amounting on their face to $23,735.50, which he proposed to get discounted and apply to the payment of what he owed plaintiffs on the land purchased from them, if they (the plaintiffs) would stand the discount. But plaintiffs declined, and proposed to take the notes as money, to be credited on what Hess owed, if he would submit to the discount on the notes, leaving the net amount to be credited for the notes $22,063.80. That this was agreed to by Hess, and the San-dusky notes were accordingly indorsed and transferred to plaintiffs, and the $29,000 in collaterals, except about $2,000 or $3,000 in the notes, were returned to Hess.</p> <p>Also evidence tending to prove that in December, 1873, at the request of plaintiffs, Hess conveyed to them six hundred and forty acres of land in Kansas ; also one hundred and sixty in Indiana, and his residence in Columbus, the latter subject to a mortgage for $6,000. These deeds were all absolute on tlieir face, but were intended as mortgages to secure plaintiffs for what Hess owed them for the land sold.</p> <p>There was evidence also in the form of letters from plaintiffs and the depositions of Hess, offered in behalf of defendant, tending to prove that the plaintiffs refused to give Hess credit for the amount of the Sandusky notes, and has never in fact done so, and that subsequently, in March, 1874, it was agreed between plaintiffs and Hess that plaiu tiffs could hold said San-dusky notes, or those that they still had, as collateral only.</p> <p>Also evidence in behalf of plaintiffs tending to prove that in February, 1874, Hess desired to get back a part of the San-dusky notes, but plaintiffs refused to return any part of them unless Hess would give other notes in lieu thereof. Thereupon, TIess, on February 20, 1874, transferred to plaintiffs the Lloyd notes now sued on, and some notes against one Thos. T. Yeager, the whole amounting to about $2,400 ; and the plaintiffs returned to Hess about $5,000 of the Sandusky notes for the same, Hess agreeing to transfer other notes to make up the amount of the Sandusky notes.</p> <p>The court charged the jury correctly upon the law of the case, and in addition to the general charge gave to them a special charge asked by plaintiff in error. Some time after the jury had retired, they came into court and requested the judge to repeat his charge to them.</p> <p>The court thereupon read over to the jury the instructions hereinbefore stated, as they were given originally, but omitting the said special charge given at the request of the defendant. And, at the request of one of the jury, read a second time the said instruction in respect to the sufficiency of proof as to the knowledge of plaintiffs to defeat a recovery. The defendant, Lloyd, being present after the court had concluded reading said instructions, inquired of the court if it was not proper to read also the said instruction given at the request of his attorney, and requested that the same should be read; to which the court replied that it was not necessary to read it again, and the same was not read.</p> <p>The special charge was as follows :</p> <p>“ If the jury shall find from the evidence that Hess voluntarily delivered to plaintiffs certain notes, to be credited on a debt not yet due, but the same were not so credited, and plaintiffs refused to so credit them, and subsequently said notes so delivered were exchanged for the notes in controversy, the plaintiffs cannot be said to be the holders of the notes in suit for value.”</p> <p>The jury found for the plaintiffs and judgment was entered upon the verdict. This judgment was subsequently affirmed in the district court.</p> <p>It is now claimed, that there was such - an abuse of discretion on the part of the judge as would warrant a re-trial of the case.</p>

<p>Quo Warranto.</p> <p>The case is stated in the opinion.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The action was brought by Otis B. Little to recover under a policy of insurance, made in the name of Little, Carson & Bro., for a loss by fire — “ loss, if any, payable to the Charter Oak Life Insurance Company, of Hartford,” to whose rights the plaintiff claimed to be subrogated.</p> <p>The conclusion reached by the court upon one of tlie many questions presented, is fatal to a recovery; therefore, such only of the facts as present this question will be stated:</p> <p>May IT, 1869, the defendant, the Eureka Fire and Marine misurance Company, in consideration of a premium of $112.50, insured certain property, for Little, Carson & Bro., for one year, loss if any, payable to the Charter Oak Life Insurance Co.</p> <p>The premium not being paid at the time, a note was taken on the 26th of May following by defendant for the amount, payable in sixty days from date.</p> <p>This note was not paid at maturity, and remained unpaid in the hands of the defendant at the commencement of the action, and was treated as worthless. The makers were shortly after it fell due adjudged bankrupts, and were at the time of its maturity insolvent. No offer to pay this note was ever made.</p> <p>Among the conditions of the policy are these: — “5. No insurance, whether original or continued, shall be considered binding until the actual payment of the premium.”</p> <p>(The words 1 actual payment ’ are italicised in the policy.)</p> <p>“ 6. The insurance may be terminated at any time' at the request of the insured, in which ease the company shall retain only the customary short rates, for the time this policy has been in force, and the same may at any time be terminated at the option of the company on giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term thereof.”</p> <p>The note became due July 28, 1869, and on the 9th of September following, the defendant, in a letter to Little, Carson & Bro., called their attention to the 5th condition above, and notified them that it was in force, and on the same day canceled the policy and credited $75.00 on the note, as the pro rata share of the unearned premium for the remainder of the year. This credit is some two or three dollars less than the pro rata proportion of the unearned premium, if the fractions o£ the months of May and September be not counted as a month.</p> <p>Yerbal notice of this cancellation was also given to all the parties interested in this policy, and in the property insured, in a short time thereafter, and some two months before the loss.</p> <p>Upon this state of facts, the court charged the jury : “ That, if, after the said insurance was effected, the said William and Robert Carson, instead of paying the premium due therefor, gave their promissory note, payable in sixty days, which was received by the said defendants for and on account of said premium, and was held by them until after it became due, and is now held by them, and was never in any way used by them, and is now brought here into court, and if, after the said note became due, the said William and Robert Carson, and the other parties interested in the said insurance, had notice that the said note had not been paid, and neglected to pay the same, and thereupon, and within a reasonable time before the fire, the defendants elected to cancel the same, and gave the said parties reasonable notice before the fire, that the policy was canceled, then the plaintiff cannot recover.”</p> <p>Also, that “ in case of non-payment of said note, or for any other reason, defendant elected to end the risk and did so, nothing more was required of them, than to notify the insured within a reasonable time before the fire.”</p> <p>To reverse a judgment for defendant on the foregoing facts and instructions, is the object of the present petition in error.</p> <p>It is assumed, for the purposes of this case, that the plaintiff is entitled to be subrogated to the Charter Oak Insurance Company and to recover on this policy, if the same was not legally terminated before the loss.</p>

<p>Error to the District Court of Geauga County.</p> <p>Chester Tanner and Lucius Bartlett signed and sealed the following instrument: “ This indenture made at Chester, Geauga county, Ohio, this 1st day of February, 1861, by and between Chester Tanner of the first part, and Lucius Bartlett of the second part, witnesseth, that said Chester Tanner hath this day leased to said Lucius Bartlett'the following described premises.” Here follows the description, the premises containing two acres of land. “ And said Tanner also leases to said Bartlett the privileges of conducting the springs, and the use of the same, in pipes or otherwise, on the brook that crosses said premises, commencing at the spring at the roots of the chestnut tree, standing northerly of. the premises aforesaid, and all available springs, to a cheese house to be errected on said premises, said Tanner reserving enough water to accommodate the stock kept on the farms of said Tanner. And said Bartlett is to build a cheese house on said premises, and agrees to pay said Chester Tanner, for the use of said premises and the privileges aforesaid, the sum of thirty dollars per annum, to be paid on the first day of October, in each year, while said premises shall be used as and for manufacturing cheese; and when said premises shall no longer be used for such purpose, the premises, together with the privilege aforesaid, shall again revert to said Tanner, said Bartlett having the privilege of removing all buildings and fixtures put upon said premises by him.”</p> <p>The instrument was also subscribed by two witnesses, acknowledged by Tanner before a justice of the peace, and was delivered by Bartlett to the county recorder, who recorded it.</p> <p>Bartlett immediately entered into possession of the premises in pursuance of the instrument, erected thereon a cheese house, dwelling house and stable, and occupied the premises, conducted the business of manufacturing cheese thereon, and paid the rents regularly, from that time until his death, which occurred on December 27, 1874. The amount which he paid to Tanner on October 26, 1874, was in full of the rent to February 1, 1875.</p> <p>On January 22, 1875, Chester Tanner requested Warner, administrator of Bartlett, to remove the buildings and fixtures from the premises, and informed him that the lease was terminated from and after the expiration of the time for which rent had been paid.</p> <p>In February, 1875, Chester Tanner, with Brighton Tanner acting under his. authority, entered into possession of the premises, against the protest of Warner, administrator of Bartlett; and on February 17, 1875, Warner, as such administrator, brought suit against them in the court of common pleas of Geauga county.</p> <p>A verdict was rendered in favor of the administrator, on the issue joined, for $3,500, from which sum the administrator, on suggestion of the court, remitted $1,000, and judgment was rendered for $2,500.</p> <p>All the evidence is set forth in a bill of exceptions. There was no evidence tending to show that the value of the buildings, fixtures and personal property on the premises exceeded $1,000. It appears that the verdict was found principally on¡ the value of the lease, which the administrator claims the Tamners converted to their own use.</p> <p>The district court reversed the judgment, and this petition in error was filed by the administrator to reverse the judgment of reversal.</p>

<p>Error to tbe District Court of Ross County.</p> <p>The defendant in error commenced an action against the plaintiff in error, before a justice 'of the peace, on July 24, 1876. In his bill of particulars he states his cause of action in the following language:</p> <p>“ The said plaintiff, Dennis Cronin, says, that the firm of Spotts, Frank & Co., contractors for building a part of the Scioto Yalley Railway, was indebted to him, said Dennis Cronin, in the sum of $15.43, for work and labor bestowed by said plaintiff in grade-making upon the line of said railway. That said amount is yet due to said plaintiff, and is wholly unpaid. That on January 30, 1876, plaintiff filed with defendant, the Scioto Yalley Railway Company, a notice of said claim, in writing, in all respects complying with the requirements of the statute in such case made and provided: thereby m airing said claim a lien upon said railway, and said indebtedness payable from defendant to plaintiff. That said railway company has not paid said claim, or any part thereof, to said plaintiff ; wherefore plaintiff prays judgment against said railway company for said amount of $15.43 and interest thereon, from said 30th day of January, 1876.</p> <p>“ By Wm. E. Gilmore, Ms Atfy.”</p> <p>On the day set for the trial of the cause, the plaintiff in error, by its attorney, filed a motion to dismiss the action for reasons therein assigned, among which is the following, viz.:—</p> <p>“ Because there is no cause of action against the defendant alleged in the bill of particulars.”</p> <p>The motion was overruled by the justice, to which the plaintiff in error excepted.</p> <p>At a subsequent day the cause was tried to a jury, and after the evidence for the defendant in error, all of which is embodied in the bill of exceptions, was closed, the plaintiff in error moved the justice “ to withdraw said cause from the jury, and to dismiss said action, because there was no evidence offered on behalf of the plaintiff to make out a cause of action against the defendant, and because the testimony of the plaintiff showed that more than thirty days had elapsed between the alleged service of notice upon the company and the bringing of the action.” This motion was also overruled and exception noted.</p> <p>Plaintiff in error also asked the justice to charge the jury that they must find for defendant in case it should appear that the suit was not commenced within thirty days from the time the notice of the claim was served upon the company. This charge the justice refused to give.</p> <p>At the trial, after proof of service of the notice upon the company, parol evidence of its contents was given, against defendants’ objection, without showing that the written notice had been lost or destroyed, or that any demand had been made upon defendant for its production.</p> <p>The verdict and judgment were for plaintiff, and upon error the judgment was affirmed in the court of common pleas, and the action of the latter court was in turn affirmed by the district court.</p>

<p>A policy of insurance for $800 on 4 certain dwelling house, — which sum does not exceed two-thirds of the value of the house as appears from the application that was made a part of the policy, which also contains a stipulation that the company will pay to the assured “ all loss or damage,” not exceeding the sum assured, within ninety days after due notice and “proofs” of such loss or damage, — is an open and not a valued policy</p>

<p>1. A surety on a judgment is discharged from liability thereon, by a valid contract for an extension of time for the payment thereof, made by the judgment creditor without the knowledge or consent of the surety.</p> <p>2. An undertaking for stay of execution of a judgment on the docket of a justice of the peace, executed after the time allowed by law, in pursuance . of an agreement of the parties, is valid as a common law contract, if supported by a sufficient consideration, though it may not be effective as a statutory undertaking.</p> <p>3. One who executes such an undertaking at the instance of the principal judgment debtor, without the knowledge or consent of the sureties thereon, knowing that they are such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby released from liability.</p> <p>4. Where, after stay of execution has expired on such a judgment, a surety, who has been thus released, is compelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them on execution issued on said judgment, he may recover back from the judgment creditor the amount so paid. Such compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, after recovery back against him, maintain an action on the undertaking if the principal makes default.</p>

The original action was brought by Edward Keating, to recover the damages he sustained to his premises by the construction of Gilbert avenue in said city. The plaintiff’s lot fronts on the west side of Sixth street twenty-five feet, extending back towards Gilbert avenue ninety feet, more or less.

<p>A railroad company exercising its powers subject to the provisions of the present constitution, and required by the act of 1874 (71 Ohio L. 85), passed since its incorporation, to construct and maintain cattle-guards at places on its road where public highways are or may be constructed across its track, is not' entitled to compensation for making or maintaining such cattle-guards.</p>

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

The original action was brought by William J. Flagg, defendant in error, against John A. Coan, plaintiff in error, to quiet his title to certain real estate within the Virginia military district, and known as survey 15,882, containing 1,682 acres, and also known as lot No. 99 in the allotment of lands granted by the United States to the state of Ohio by act of Congress passed April 18, 1871, and afterwards by the state of Ohio to the Ohio Agricultural and Mechanical College.

<p>In a suit in chancery pending in a Kentucky court, wherein the trustees of an insolvent railroad corporation sought to enforce their rights under certain mortgages of the road and its equipment, the conditions of which had been broken, an application was made for the appointment of a receiver to take charge of and operate the road. Pending this application, certain roiling stock covered by the mortgages was temporarily in Ohio, and while here was seized in attachment by an unsecured Kentucky creditor. The entire property was insufficient to pay the debts secured by the mortgages, or to earn income to pay the interest. The order of the court appointing the receiver, made subsequent to the seizure in attachment, ordered him to take possession of all the property, including that seized, and authorized him to sue in his own name as such receiver, whenever necessary to perform his duties. Held, that the' mortgages covered the rolling stock, though temporarily in this state, and the receiver might, under the comity between states, by an action brought in this state in his own name, assert his right to the possession thereof, where such right is not in conflict with the rights of our own citizens, nor against the policy of our laws.</p>

The original action was brought by James P. Kilbreth, assignee of the Ohio Life Insurance and Trust Company, in the Superior Court of Cincinnati, against Isaac Bates ás acceptor, and Eden B. Keeder as indorser, of two bills of exchange.

Mandamus. Daniel Rotli filed in this court a petition setting forth that he is engaged in the traffic in intoxicating liquors in Galion, Crawford county, Ohio; Galion being a city with a. population of less than ten thousand inhabitants; and that for the purpose of complying with the act of April 5, 1882, “ more effectually to provide against the evils resulting from the traffic in intoxicating liquors” (79 Ohio L. 66), he presented for acceptance to Hon. Frederick Hipp,…

<p>By his will, R. devised his whole estate, consisting principally of personal property, to trustees with directions to pay certain annuities out of the income of the estate, and after the “ final cessation ” of said annuities, to distribute the estate among certain children and grandchildren of the testatox-, then living, and the heirs of the body of those deceased, and, in default of such heirs, their brothers and sisters. Held: 1st. That no estate vests in the beneficiaries under the will, until the time for distribution as fixed by the terms of the will. 2nd. The “final cessation ” of annuities mentioned in the will takes place either upon the death of all the annuitants, or upon the surrender or release of their annuities. 3rd. The trustees have no power under the will to purchase in the annuities, and the mere fact that the annuitants declare that they are willing to x-elease their annuities (but not having done so), upon payment to them of a sum in gross, will not authorize the court to order a distribution of the estate, and to decree the payment of such gross sums out of the funds of the estate.</p>

<p>Mandamus.</p> <p>The relator, Joseph Turney, state treasurer, in his petition, represents that on October 25, 1881, the auditor of state examined the certificate and abstract of the semi-annual settlement between the auditor and Luke A. Staley, treasurer of Hamilton county, made on September 23, 1881, which certificate and abstract were returned by said auditor of Hamilton county to said state auditor on October 3, 1881, as required by law.</p> <p>That upon such examination, the auditor of state ascertained the exact sum of money payable by the treasurer of Hamilton county to the state treasurer to be $291,698.19, and also ascertained that the amount of Hamilton county’s proportion of the state common school fund was $73,183.60; whereupon the auditor of state certified his findings to the treasurer of -state as required by law, and issued his draft upon the treasurer of Hamilton county in favor of the relator for $218,511.59, the same being the difference between the amount so found due to the state treasury from the treasurer of Hamilton county and the amount of school funds due to said Hamilton county from the state treasury. That prior to said October 28, 1881, the treasurer of Hamilton county had paid into the state treasury on account of the amount so found due from the treasurer of Hamilton county to said state treasury, the sum of $206,979.99, at the last semi-annual settlement in the year 1881, leaving a balance due of $11,531.60. That said draft had been duly presented for payment by the relator to the defendant, the treasurer of Hamilton county, and payment of said balance of $11,531,60 demanded, which was, and ever since has been refused.</p> <p>Wherefore said relator prays for a writ of mandamus to compel the defendant, the treasurer of Hamilton county, to pay and deliver to the state treasury the said sum of $1-1,531.60, and other relief.</p> <p>Upon this petition an alternative writ of mandamus was issued as prayed for, and thereupon the defendant filed an answer containing several alleged defenses, to the first and fourth of which the relator demurs,</p> <p>The first defense is as follows: “ That the plaintiff ought not to have its writ of mandamus herein for the reason that plaintiff has a plain, adequate and specific remedy at law for the grievance of which he complains.”</p> <p>The fourth defense is as follows : “ This defendant, in further answer to said petition and writ issued herein says, that the auditor of Hamilton county, Ohio, on September 23,1881, at his office, made settlement with defendant and ascertained the amount of taxes with which he, as treasurer, was to be charged, and, after making the deductions to which he was entitled, distributed in just and ratable proportion upon the several taxes charged on the duplicate, ascertained the balance for which said treasurer was to be held liable, aud to whom, in their several amounts, he was liable for such balance, and also ascertained the amount remaining in the treasurer’s hands belonging to each fund; and. thereupon the said auditor on said day did issue to the treasurer, this defendant, a certificate and abstract of such settlement, and of the balance of the amount of taxes received and charged to him as due to the state, the balance thereof due to the county, the balance due for road purposes, and the balance due to the townships and the other bodies and purposes to which said aggregate in his hands was found to belong, a copy of which certificate and abstract of settlement, and account with the state, is hereto attached, and made a part of this answer.</p> <p>“ In pursuance of this settlement, and of the provisions of law in that. behalf, the said treasurer forthwith proceeded to transfer, and did transfer and enter into their several accounts, the sums with which he was charged in said settlement, in favor of the state, the county, the townships, corporations, and the said several funds as shown in said certificate of settlement ; and said several amounts became theréafter subject to draft upon said treasurer in favor of the several persons or corporations authorized to receive the same. And the said treasurer further says that he fortliwitji upon said transfers of said several sums to their respective funds, proceeded to pay them out upon the proper drafts or warrants of the county auditor to the corporations or uses to which they became payable upon said settlement, and thereafter continued to pay them, up to the service of the writ herein, and has ever since continued to pay them as by law and his obligation he is bound to do.</p> <p>“ This defendant further says, that by said settlement he became charged in favor of the state of Ohio with the sum of $280,163.59, ascertained and certified by said auditor as aforesaid to be the amount and balance of taxes due the state of the moneys collected by said treasurer, which said balance so certified to be due the state he caused to be remitted to the treasurer of state as alleged in petition of plaintiff. All the balance .of moneys in his hands as treasurer of said county he held — and in part holds, on accounts and subject to the claims of others than the state of Ohio, ascertained and determined by the said county auditor in the settlement and certificate aforesaid, and credited and transferred to them, and he is not authorized or permitted to apply said funds to other uses, and is liable to the corporations and uses to which such funds have been transferred for the amount thereof remaining in his hands. Defendant holds no funds in his possession for the use of the state of Ohio or to its credit.”</p> <p>The contents of the certificate and abstract of settlement referred to and made part of the answer, are sufficiently stated in the opinion. The grounds of demurer to these defenses are that the facts stated are not sufficient to constitute a defense to the action.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The facts are stated in the opinion.</p>

<p>1. An indictment for shooting with intent to maim is not defective for want of averment as to what member or members of the body the accused intended to injure or disable. If in the words of the statute it is sufficient.</p> <p>3. Where one shot another in the trunk of the body, and the result was to produce paralysis of a leg, causing a permanent disabling of that member, a verdict of guilty of shooting with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act.</p> <p>3. An indictment contained three counts; the first and second did not charge the ojíense to have been committed “against the peace and dignity of the state of Ohio,” but the third did so charge. The accused was acquitted under the first two counts and convicted under the third.</p> <p>Held: That, where it did not appear from the record that evidence had been introduced against the prisoner under the first two counts which would have been incompetent under the third, and prejudicial, there was no error in refusing to grant a motion for a new trial.</p>

<p>Error to the District Court of Hamilton County.</p> <p>The original action was brought by William Coppin, plain-in error, against The Greenlees & Ransom Company, defendant in error, in the court of common pleas'of Hamilton county, and the cause of action was thus stated in the petition:</p> <p>„ “ The plaintiff states that the defendant is and for several years past has been a corporation, duly incorporated under the laws of the state of Ohio, for manufacturing purposes.</p> <p>“ That it has been'the custom of said corporation that its officers and others, actively engaged in its service, should be holders of shares of its stock, and upon ceasing to be connected with said company, such persons have been accustomed to sell,, and said company to buy their said stock.</p> <p>“That the plaintiff was formerly in the employ of said company as a workman, and that while so engaged he became the holder of shares of the capital stock of said company to the amount, at its par value, of $3300.</p> <p>“ That having eeased to work for said company, he sought a purchaser for said stock, and offered to sell the same to the defendant for two lots of land, hereinafter described, valued respectively at $1100 and $700, and the balance of $1500 in manufactured work to be made by the defendant, at ten per cent, off their bill of prices, to which the defendant assented and agreed, and to carry the same into effect the plaintiff on May 28, 1875, caused to be prepared a written contract, which the defendant then duly executed and delivered to the plaintiff, of which the following is a copy:</p> <p>“ ‘ Cincinnati, May 28 1875.</p> <p>“ ‘ Eor and in consideration of thirty-three shares of the capital stock in the Greenlees & Ransom Company, the receipt whereof is hereby acknowledged, said Greenlees & Ransom Company promise to pay, or cause to be paid, to William Coppin the sum of three thousand three hundred dollars, payable, viz: said Coppen to take a lot of ground, No. 16 on the plat of the Wyoming Land and Building Co.’s subdivision of the Burn’s farm, Wyoming, Ohio, in part payment, amounting to $1100.00; also a lot of ground on the north side of Wyoming avenue owned by--Oaruthers, and next to Mr. Beeson’s house, fifty feet front by two hundred and fortyrfive feet deep, more or less, for the sum of $700.00; leaving a balance of $1500.00 to be paid in manufactured work, joist, scantling, etc., the manufactured work at ten per cent, off their bill of prices; the other'material at the usual rates; the work and material to be delivered from time to time to him as said Coppin may order it.</p> <p>“ ‘ Greenlees & Ransom Company.</p> <p>“ ‘ By E. P. Ransom, President.’</p> <p>“ And the plaintiff says that afterwards, in the month of June, 1875, he tendered said shares of stock to the defendant, and offered to transfer the same to it, and demanded performance of said contract; but the defendant refused to accept the same, and refused to convey said lots, or either of them, or to deliver said manufactured goods, although the plaintiff then demanded the same.</p> <p>“ Wherefore he now brings said stock into court, and offers to transfer the same to the defendant, and prays that the defendant may be compelled to convey said lots by a perfect title, and to deliver said goods, and for such other and further relief as in equity and good conscience he may prove to be entitled to.”</p> <p>To this petition an amendment was afterwards allowed and filed as follows:</p> <p>“And now comes the plaintiff, William Coppin, and by leave of court files this amendment to his petition herein, and for such amendment says that the value of said land, and of said building material, was thirty-three hundred dollars.</p> <p>“ That said lots were worth respectively $1100 and $700, and re-affirming all the allegations of his petition except such as may be inconsistent herewith, prays a judgment for said value of said land and building material, to wit: the sum of $3300, with interest from the 28th day of May, A.D. 1875, against the said defendant, and withdraws his prayer for specific performance.”</p> <p>After an issue of fact joined by answer the cause was tried, and verdict and judgment rendered in favor of the plaintiff for $3,817.00.</p> <p>On petition in error, the district court reversed the judgment of the common pleas, and caused it to be certified on the record, “ that the judgment of the court of common pleas was reversed by this court on the ground that the petition and amendment to the petition failed to show a sufficient cause of action, and on the ground that the verdict was contrary to law,” and not on the ground that the verdict was contrary to the evidence.</p> <p>This proceeding is now prosecuted to reverse the judgment of the district court.</p>

<p>1. Corporations organized under the laws of Ohio, are of two classes : 1st. Those organized for profit, which must have a capital stock owned by stockholders. 2d. Those organized for purposes other than for profit, consisting of members associated together for a lawful purpose. To the second class belong corporations formed under the provisions of section 3630 of the Revised Statutes for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the family or heirs of deceased members.</p> <p>2. Corporations formed for this purpose, though not subject to the provisions of chapter 10, title II. of the Revised Statutes, relating to life insurance companies, on the mutual or stock plan, are subject to all the general provisions of chapter 1 title II., which apply to corporations . formed for purposes other than profit.</p> <p>8. After such a company or association has been organized and incorporated, the members thereof are those mutually engaged in promoting the purposes of the organization, and who, by virtue of their relation to the corporation are entitled to the mutual protection and relief provided, or whose family or heirs are, in case of death, entitled to the specific relief provided for them.</p> <p>4. The members of such a corporation are the elective and controlling body, authorized to elect trustees and prescribe regulations for the government of the same, not inconsistent with the laws of the state. Heither the incorporators nor the trustees first elected are authorized to adopt a by-law or regulation providing that they shall hold office during life, and in case of vacancy, to fill the same by appointment.</p> <p>5. Trustees are charged with the duty of faithfully executing the trust which the law and regulations impose on them. They are entitled to a reasonable compensation for the service rendered; but any plan or scheme by which money is collected from members by assessment or otherwise, with a view to their individual profit, and beyond what is necessary to defray the reasonable expenses of executing the trust, is a breach of trust.</p> <p>6. A certificate of membership in such a corporation by which the member in consideration of his payment of a membership fee, annual dues and a pro rata assessment with his fellow members to pay a sum of money to the family or heirs of a deceased member, in consideration of which the association at his death stipulates to pay to his family or heirs a sum of money, graduated by the number of members in his class, is a contract of life insurance.</p> <p>7. Such a contract of insurance to pay in case of a member’s death “ to himself or assignees,” “ to his estate,” “to his executors or administrators,” or to any person, whether a relation or not, who is not of his family or heirs, is against public policy, and void.</p>

<p>A stockholder in a manufacturing corporation indorsed notes of the company in consideration that the payment of the notes should he secured and the indorser protected by mortgage on the property of the company. Through mistake the mortgage was made by the stockholders in their own names instead of in the name of the corporation. A subsequent mortgage was made in the name of the corporation to its creditors, and recorded, which, by its terms, was subject to the first. Held:</p> <p>1. That the mortgage by the stockholders was a good, equitable mortgage against the corporation, which, independently of our statute, could be enforced against subsequent judgment creditors.</p> <p>2. That the second mortgage operated to give priority to the first both as against parties claiming under the second mortgage and those claiming liens under judgments subsequently rendered.</p> <p>3. An express acceptance of the second mortgage by the mortgagees is not required. The acceptance may he implied from circumstances. Nor is it necessary that all the mortgagees should accept the mortgage ; part may accept though others refuse to do so.</p>

<p>Error to the District Court of Summit county.</p> <p>On December 20, 1881, Nelson B. Stone commenced an action in the court of common pleas of Summit county, against Henry C. Yiele, treasurer of that county. The cause was appealed to the district court, where a demurrer to the petition was sustained on the ground that sufficient facts were not set forth to constitute a cause of action, and the action was dismissed by the court. The question arising on the petition in error filed by Stone in this court is, therefore, whether the petition of Stone filed in the court below contains facts sufficient to constitute a cause of action against Yiele.</p> <p>The action was brought by the plaintiff in his own behalf and in behalf of other designated persons, and it is stated in substance in' tlie petition that the following are the facts: The plaintiff and the persons so named are owners of lots abutting on East Market street, between the original west line of the corporation of Middlebury -and the east line of High street, in Akron, which is a city of the third grade of the second class. On June 27, 1881, the city council having determined to pave, gutter and curb with stone the part of East Market street above mentioned, to the width of thirty feet, and having taken the proper preliminary steps, assessed in due form upon the abutting lots three dollars and sixty-two and one-half cents on each front foot thereof, being the estimated cost of the work and materials, payable in five annual installments, and, under appropriate resolutions, the council authorized the city to, and it did issue its bonds, and the proceeds thereof,. $40,854.56, were placed in the hands of the defendant, as treasurer, for the purpose of paying for the improvement. Notice having been given, the bid of the Austin Elag-stone Company was accepted, and on August 16th 188Í, a contract was entered into in due form, between the city and the company, by which the company agreed to furnish the material and do the work according to the plans and specifications, and to the acceptance of the street committee and the civil engineer, at specified prices.</p> <p>The contract contained, among others, the following stipulation: “ The party of the second part further covenants and agrees that all of said material shall be of the best of their several kinds and qualities, and that all of said work shall be performed in a thorough and workmanlike manner, and that all of said work, labor and materials shall be subjected to the inspection and approval of the city civil engineer; and in case any of such material and work shall be rejected by the said engineer, as defective or unsuitable, then the said material shall be removed and replaced with other materials, and the said work shall be taken down and done anew, to the satisfaction and approval of the said city engineer, at the cost and expense of the said party of the second part.”</p> <p>The terms of the contract as to work and material were not complied with, and the repeated protest of the civil engineer, and his orders that portions of the pavement should be taken up and relaid, were disregarded. The agents of the company, after laying one hundred feet of the pavement, informed the civil engineer and city council that the company did not intend to construct the pavement in accordance with the terms, conditions or specifications of the contract; and, with respect to that part of the work, it is' alleged that the pavement was ‘ ‘ comparatively worthless.” It is also alleged that at this point the committee on streets- entered into a parol contract with the company for the construction, by the company, of a pavement of an entirely different character, and of greatly inferior quality to the one contracted for originally; and that, under this agreement, two thousand feet of pavement have been constructed, the same being “greatly inferior to and in no wise corresponding with the one contracted for by the said city council.” Against all this action, the plaintiff and those for whom he sues have repeatedly protested to the company and the city council. No part of the remaining portion of the work has been completed.</p> <p>The plaintiff further avers that the clerk of the city has certified the assessment to the county auditor, who has placed the same on the tax duplicate for collection by the defendant in the usual mode. The plaintiff and those in interest with him are ready to pay, and have tendered all taxes due on their lots, but they are unwilling to pay this assessment or any part of it. They, therefore, pray that the defendant, as treasurer, may be restrained from proceeding to collect the assessment.</p>

Reserved in the District Court. Daniel Catoir, being engaged and desiring to continue in the traffic in intoxicating liquors in Cleveland, a city of the first class, executed a bond and paid to Moses G. Watterson, Esq., treasurer of Cuyahoga county, $300, in accordance with the requirements of the act of April 5,1882, ■“ more effectually to provide against the evils resulting from the traffic in intoxicating liquors” (19 Ohio L. 66), which act is set forth at large, amis,…

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

The original action was brought in the court of common pleas, by Murray, Moore & Co. to recover against the Portsmouth Iron Company a judgment for $1,695.44 and interest for a balance due on an account, and to enforce a mechanic’s lien which was alleged to have been secured under the'statute.

<p>The heirs apparent of a testator consisted of several children and three grandchildren, by a deceased daughter. He gave to each by name a specific legacy, and by a residuary clause directed that the proceeds of certain personal property should be “ divided equally share and share alike between all my aforesaid heirs.” Held: That each of the grandchildren took an equal share with the children of the testator.</p>

<p>1. On a verbal agreement for the conveyance of land, the payment of the purchase money, whether made in money or services, will not take the agreement out of the operation of the statute of frauds.</p> <p>2. In an action to recover compensation in lieu of the specific performance of an agreement for the conveyance of land, on the ground tiiat specific performance has become impracticable, the real representatives of the deceased selling party are necessary parties ; and if they have disabled themselves from performing the agreement, they are the parties chargeable with making compensation.</p>

<p>Error to the District Court of Huron county.</p> <p>In 186,3, or early in 1864, George W. Clary, Seymour B. Martin and Daniel Packard agreed to enter into a partnership, under the firm name of Clary & Co., to carry on distilling grain at Monroeville, Huron county. At the time the partnership was actually formed (February 12, 1864), they purchased and received a conveyance of certain real estate at Monroeville, upon which there was a distillery. The conveyance was made to them individually, and not as a firm, and on the face of the instrument they were simply tenants in common. In fact, however, they purchased as partners, the consideration named was paid by them out of the partnership moneys, and the property was from that time occupied and used by them in the prosecution of the partnership business.</p> <p>In August, 1864, Packard sold and conveyed his interest in the partnership and its property to Clary and Martin, and withdrew from the firm, and the remaining members carried on the business in the same property, in the same firm name, until the spring of 1874, when they failed. Recently both Clary and Martin died.</p> <p>In June, 1873, Clary & Martin, desiring to increase their capital stock, agreed that each should put into the firm, to be used in the business, the additional sum of $5,000. On June 7, 1873, Clary obtained his $5,000, on his promissory note to II. P. Stentz, on which note James Sawyer became his surety, and the money was used by the firm in its business, as was also the sum advanced by Martin. In order to secure Sawyer as such indorser, Clary, at the time the money was obtained, conveyed to him his undivided half of the property hereinbefore mentioned, and, also, for the same purpose, conveyed to him, by another instrument, other lots of which he was sole owner. Although those instruments were in the form of absolute deeds, they were, in equity, by the agreement of the parties made at the time they were executed, only mortgages to save Sawyer harmless from the payment of the $5,000 for which he became surety. Sawyer, at the time, knew that the distillery property was occupied and used by the firm in its business, and he testified as follows: “ Two deeds were made, because the lots were individual and the distillery was company property, and it was so distinguished in the deeds.” A question is made as to the sufficiency of the delivery of those instruments, but it may be assumed, for the purposes of this report, that they were properly delivered.</p> <p>On,February 6, 1874, under the erroneous belief of the parties that the instruments had become void, for the reason that they had not been recorded within six months after their execution, the parties destroyed both instruments, and Clary executed and delivered to Sawyer like' deeds of that date, under the same agreement, that the instruments should become void if Clary paid said sum of $5,000 and interest. In the instrument containing a description of the distillery property, it is stated that the premises are “ known as Clary & Co.’s distillery property, being about three acres of land, on which is sitting the still-house, hog-pens and cattle-barns. The above described premises are now occupied by Clary & Co., and were deeded to Clary & Co., by Orlando Quirnby, on the 12th day of February, 1864, and recorded in Huron County Records of Deeds, vol. 16, pages 58 and 59.” These instruments were deposited with the county recorder for record on April 9, 1874.</p> <p>The proceeds of the lots belonging to Clary in his own right being insufficient to pay the debt of $5,000, Sawyer was compelled to satisfy the indebtedness, and the amount remaining due to him is more than $3,000.</p> <p>On October 15, 1873, the First National Bank of New London obtained in the court of common pleas of Ashland county, a judgment against Clary & Co., composed of George W. Clary and Seymour B. Martin, for $1,025.10 and costs, and on December 12, 1873, an execution issued on the judgment was levied on the distillery property.</p> <p>. On March 6, 1874, the Norwalk National Bank obtained a judgment in the court of common pleas of Huron county, against Clary & Martin, partners as aforesaid, for $3.,503 and costs, and on the same day they caused an execution issued on the judgment to be duly levied on the same distillery property.</p> <p>Subsequently the distillery property was sold on a venditioni exponas issued on said judgment in favor of the First National Bank. After satisfying that writ, there remained in the hands of the sheriff $955.76; and the Norwalk Bank, having, on October 24, 1874, obtained another execution on its judgment, demanded that tire sheriff should apply such balance in his hands in satisfaction of such writ; but the sheriff refused to so apply such balance, on the ground that it was claimed by Sawyer as due to him on his mortgage; and thereupon, the Norwalk National Bank commenced an action in the court of common pleas of Huron county, against the sheriff and Sawyer, to compel such payment. In that court it was adjudged that the money should be paid to the bank, and Sawyer appealed to the district court. In the latter court it was adjudged that the money should be j)aid to Sawyer, and thereupon the bank filed a petition in error in this court to reverse the judgment of the district court.</p>

<p>Mandamus. Reserved in tlie District Court of Clermont county.</p>

QUO WARRANTO. The defendant claims to be a corporation organized under the laws of this state, for the purpose, as shown by the certificate of its organization, of promoting and encouraging the importation, breeding and raising of fine horses and cattle, and to protect tire owners of the same against the loss thereof by death or theft. The capital stock of the condpany is $5,000, divided into one hundred shares of $50 each.

By consent of parties, two actions, Nos. 2604 and 2606, pending in the court of common pleas of Highland county, were consolidated. In both actions the defendant in error was plaintiff. In No. 2604 plaintiff in error James P. Simpson and Isaac Simpson, E. Davies and Joseph P. Simpson were defendants, and in 2606 said James P. Simpson and Isaac Simpson and Mary Ann Simpson were defendants.

The plaintiff below, defendant here, brought suit for a settlement of accounts of the firm of Phillips & Jordan, and for a judgment against the defendants below for moneys claimed to have been collected by them from the assets of that firm. Thomas Phillips.and Richard Jordan had for many years prior to 1858 carried on business as partners. This consisted of an extensive iron business, conducting a rolling-mill, several furnaces, an iron-store and other enterprises.

The plaintiff in error, Joseph J. Dresback, in April, 1881, was indicted for the murder of his wife, Emily Dresback, in September, 1874, by the administration of poison. The evidence given in support of the chárge was circumstantial, and tended to show that the death of the wife was caused by strychnine. It appeared from the evidence that the day before her death the accused obtained from Doctor Turney three powders and some pills for his wife.

On June 28, 1870, Charles King and Julia Singer were married. She was twenty years of age, and he thirty years her senior. They lived together until 1877, when they finally separated. Three children were the issue of the marriage, the youngest born in 1875. On July 17, 1878, she obtained from him a divorce, by the. decree of the court of common pleas of Huron county, Ohio, on the ground of extreme cruelty.

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

This action was originally br'ought in the court of common pleas of Licking county, by Edward L. Jones against David H. Ralston, George W. Ralston and Mary Partridge, administratrix of Ebenezer Partridge, deceased, to recover $2,097.16 for the breach of a certain undertaking for a second trial in an action wherein Jones had recovered a judgment against David Ralston, which undertaking was signed by Partridge, and was as follows: “ Know all men by these presents: That David…

<p>Appeal. Eeserved in the District Court of Highland county.</p> <p>In January, 1875, the plaintiffs purchased, at delinquent tax sale by the treasurer of Highland county, three parcels of land, which had been returned delinquent in the name of defendant Samuel Sollars. The delinquent taxes consisted of assessments made by the commissioners of said county for the payment of two road improvements under the act of March 29,1867, and its amendements, commonly known as the Two Mile Eoad Improvement Acts. After the expiration of two years, a tax deed was executed by the auditor of the county to the plaintiffs for the lands so alleged to have been sold for delinquent taxes, whereupon the plaintiffs brought an action against Sollars to recover the possession of the lands, in which action it was found and adjudged that said tax sale was invalid by reason of irregularity in the proceedings. The only irregularity shown to have existed consisted in defective and insufficient descriptions upon the tax duplicate of the lands assessed and sold.</p> <p>Thereupon this action was commenced under favor of section 32 of the act of April 4, 1859, relating to auditors of counties (S. & C. 96), which provides, “ Upon the sale of any land or town lot for delinquent taxes the lien which the state has thereon for taxes then due shall be transferred to the purchaser at said sale; and if such sale should prove to be invalid on account of any irregularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest and penalty, legally due thereon at the time of such sale, with interest; thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such -sale, and such land or lot shall be bound for the payment thereof and section 106 of the tax law of April 5,1859 (S. & O. 1473), which provides that “ the amount of taxes and penalties charged on the land at the time it was sold, together with all legal taxes afterward paid thereon by such purchaser, his heirs or assignees, shall operate as a lien on said lands and may be enforced as any other lien.”</p> <p>The plaintiffs seek to enforce a lien against the lands of defendant Sollars, for the amount of the assessments, interest and penalties charged against them at the time of sale, interest accruing since that date, and taxes paid by them since the date of sale, and also fifty per centum of penalty in addition thereto.</p> <p>Defendant Sollars denies the plaintiffs right to recover. The other defendants are mortgage lienholders subsequent to date of the tax sale.</p> <p>The cause was appealed from the judgment of the common pleas, in favor of plaintiffs, except as to fifty per cent, penalty, and a small tract of 8K acres, which it found was never owned by Sollars, to the district court. The district court refused to hear parol testimony in aid of the duplicate description for the purpose of identifying the lands assessed, and having stated the case as found upon other testimony, reserved it for decision in this court.</p>

<p>1. By tlie proviso to section 55 of the School Law (70 Ohio L. 310, 211), township boards of education are required, when the cost of building a school-house, or other improvement, exceeds $500, to advertise and let the same to the lowest responsible bidder, unless in case of- urgent necessity, or for the security and protection of school property. This is a duty imposed upon the board, in its corporate capacity, and cannot be delegated to the local directors of the sub-district in which the school-house or other improvement is to be made.</p> <p>2. In an action by a contractor against a township board of education, to recover damages for its refusal to allow him to perform a contract made in its behalf by the local directors, for the building of a schoolhouse, the cost of which exceeds $500, where the validity of such contract is in issue, it must appear that the township board advertised and let the work in accordance with said proviso, unless it affirmatively appears that it was a case of urgent necessity, or was for the security or protection of school property.</p> <p>3. Upon such an issue the record and proceedings of the local directors, showing that it duly complied with said proviso, is incompetent, as the local board is not authorized 'to advertise, open bids and award the contract.</p> <p>4 Where incompetent evidence, which is material to the issue, is allowed to go to the jury in favor of a prevailing party against the objection of the other party, error, to his prejudice, will be presumed. In such case it is not necessary, in order to reverse the judgment, to show that the jury was, in fact, influenced thereby.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The plaintiff, Rosina Dick, as administratrix of Martin Dick, brought an action against the I. C. & L. R. R. Co. to recover damages for causing his death.</p> <p>The petition alleges, that Martin Dick was a section hand and boss on the railroad, engaged daily in making repairs thereon, on a section thereof, extending from Mill creek, in Cincinnati, three miles westerly to a culvert in the village of Riverside; that the railroad has a sharp double curve, somewhat like the letter S, reaching from a point east of Riverside station to the limits of the city of Cincinnati, an extent of about 600 yards; that it had been the custom of the company to cause the approach of its trains" to this double curve to be announced by a whistle and ringing the bell; that, by law, the company was bound, while operating its trains, to limit their speed within the city to a speed not exceeding six miles per hour; and that, on the occasion of his death, Martin Dick and other section hands were engaged in repairing the track within the city limits, on this double curve, about 9 o’clock a. m., September 9, 1874, when the company, disregarding its duty, and reckless of the safety and lives of its employees engaged on this section, and of the public accustomed to cross this double curve, caused and permitted a certain passenger train, coming into the city, to approach and enter upon said curve, withgut sounding the customary signals of its approach, or without reducing its rate of speed; on the contrary, in did not exercise ordinary care, but caused said train to be driven over said curve and into the city limits at a frightful and dangerous rate of speed, being- engaged in a race with a train on the O. & M. track, parallel and near its track, while both trains were behind their schedule time, by reason of which default 'and negligence of the company, and its engineer add conductor in charge of the train, Martin Dick, without his fault, Avas killed.</p> <p>It is alleged in tlie answer, that Martin Dick was the section boss of this section, and engaged, as such, in the common enterprise of maintaining and operating said road, with the employees on the train, who were fellow servants and co-employees of Dick, at the time he was killed; but denied that he came to his death by the fault or negligence of the defendant ; that it caused or permitted the train to approach or enter this curve without the proper signals ; that it did so approach this curve ; and denies that it caused or permitted the train to be driven at an unlawful and improper speed on said curve or within the city limits ; on the contrary, it is averred that the company took every precaution to guard against injury to its passengers, employees, and the public, by rules and regulations and other means. It also denies that' the train was behind time, and says, Dick had a time card by which he could have known of the approach of its train ; and denies that this was a dangerous curve; that they were, at the time, racing with an O. & M. train ; or, that it was reckless of the lives of its passengers, or employees, or the public; or, that Dick was killed by any negligence or default of the defendant, but claims, that he came to his death by his own fault.</p> <p>On the trial to a jury, after the plaintiff had -adduced testimony on her part, and rested, the court, on motion of defendant, arrested the testimony from the jury, and entered judgment in its favor, to which plaintiff excepted and tendered a bill of exceptions which was made part of the record.</p> <p>The district court affirmed the judgment, and this proceed:ing is to review this judgment of affirmance.</p>

<p>Error to the District Court of Róss county.</p> <p>Charles E. Harness, defendant in error, brought an action in the court of common picas of Ross county against George Davis, Stephen Morrow and S. Morris, partners as George Davis & Co., plaintiffs in error to recover damages for the breach of a contract. The petition was as follows :</p> <p>“ The plaintiff says: On the fourth day of September, A. d. 1875, he made a verbal contract with the defendants, acting through their agent, S. N. Iligby, whereby plaintiff bound himself to deliver to defendants the corn crops of the year 1874, then belonging to plaintiff and his tenants, being then on hand, and to deliver said corn to defendants, on board their boats on the Ohio canal, at a point where plaintiff was accustomed to deliver corn from his farm, about half a mile above the mouth of Stony creek, at such reasonable time thereafter as the defendants should furnish boats for the purpose of receiving said corn; and defendants bound themselves, by said contract, to receive said corn at said point within a reasonable time after the making of said contract, and to furnish boats sufficient for the purpose, and to pay the plaintiff for said corn, at the time of delivery, at the price of seventy cents per bushel of sixty-eight pounds. At the time said contract \yas made, the number of bushels of corn thereby bought and sold was not ascertained, but the quantity has since been ascertained, and that the number of bushels was eight thousand nine hundred and fifty-seven and fifty-one pounds.</p> <p>“ Plaintiff says he duly performed all the conditions of sayl contract on his part; that he was ready and willing to deliver said corn during the whole of said reasonable time; that he tendered to the defendants performance of said contract and offered to deliver said corn ; but defendants failed and refused to furnish boats to receive said corn or any part thereof, within such reasonable time and at all times, and failed and refused to pay the price, or any part of the price, agreed to be paid for the same. After the making of said contract and before the expiration of said reasonable time, the market price of corn fell, and plaintiff was damaged by. the aforesaid failure and refusal of defendants in the sum of nineteen hundred dollars. Wherefore plaintiff asks judgment against defendants for said sum of nineteen hundred dollars.”</p> <p>To this petition the following answer was filed:</p> <p>“Now come the said defendants, and as a first defense to said petition say : They deny that the said S. N. Higby was, at the time mentioned in said petition, or at any other time, the agent of the defendants, authorized to purchase the quantity of corn averred by said plaintiff to have been contracted to these defendants, through the agency of said Higby. They say that the said S. N. Higby was, at the time, authorized to purchase for them a limited quantity of corn, such quantity not to exceed four thousand bushels; and the said Higby, in contractingjvitli the plaintiff on behalf of the defendants for sixteen thousand bushels of corn, exceeded his authority as such agent of the defendants.</p> <p>■ “ And as a second defense to said petition they say: They deny that said plaintiff duly performed all the conditions of said contract on his part; they deny that the plaintiff was ready and willing to deliver said corn during the whole of said reasonable time. They aver that the plaintiff was not the owner of said 8,957 51 68 bushels of corn at the making of said contract, and that at no period within said reasonable time was he the owner of 8,957 51-68 bushels of corn, and ready to be delivered to the defendants. They deny that the plaintiff, within a reasonable time, offered to deliver the whole or any part of said corn. They deny that after making of said alleged contract and before the expiration of a reasonable time for the delivery, the market price of corn fell. -And they deny that the plaintiff has suffered any damage whatever.”</p> <p>On the trial, the plaintiff, to maintain the issue on his part, introduced as a witness S.N. Higby, who testified, that George Davis, one of the defendants, being at his house on August 31, 1875, told him, “if he did not hear from him by letter the first mail, directing him not to purchase, to pitch in, and buy corn for the said Davis & Co., at seventy cents per bushel.” That, not hearing from said Davis by first mail, he bought the plaintiffs’ corn, at seventy cents per bushel.</p> <p>The defendants then introduced George Davis as a witness in their behalf, who denied that he had authorized Higby, to purchase corn, but testified, that he did say to Higby, “ that they had purchased about all the corn they wanted, but they might want a little more, and that, upon reaching home, he would write him by the first mail, and let him know, should they want any more.”</p> <p>The bill of exceptions also shows, that “ it was proved, that the plaintiff, at the time of making said contract, had in his cribs, belonging to himself and tenants, on his farm and under his control, for the purposes of sale, the number of bushels alleged in the petition, raised on said farm.”</p> <p>The defendants asked the court to charge the jury, among other things, as follows: — “ 4th. Plaintiff in this action, if entitled to recover at all, is not entitled to recover for corn that, at the time of the making of the contract, did not belong to him, but didjoelong to tenants living on his farm. 6th. If, at the making of the alleged contract, nothing was said about including any com belonging to other parties, but it was the agreement, that the plaintiff sold his crop of corn, or his corn in his cribs, the same to be afterwards weighed and the quantity ascertained, then the plaintiff cannot recover for any other corn than his own,” which the court refused, but did charge, among other things, as follows:</p> <p>“That it did not matter, whether the plaintiff was the owner of all the corn for which he sues at the time the contract was made or not. If part of it belonged to him and part to tenants living on his farm, the plaintiff had a right to recover damages for the whole amount, if plaintiff had such right to sell the corn as would enable him to confer upon the purchaser a good title to the corn by delivering it to him.”</p> <p>An exception was taken to the refusal to charge as asked, and to the charge as given.</p> <p>Yerdict for the plaintiff, and judgment on the verdict.</p> <p>On error the district court affirmed the judgment.</p>

A. C. Flanagan, engaged in a small retail business, formed a partnership with E. S. Flanagan, under the firm name of A. C. Flanagan & Bro. E. S. Flanagan was without capital, and executed to A. C. Flanagan his note for $400, being equal to one half of the whole stock which A. C. Flanagan then had on hand.

On April 18, 1872, James L. Jones, by written contract, signed and sealed by the parties, sold to James Booth, and; agreed to convey to him, September 1, 1872, a tract of land in; Guernsey county, on payment of $6,000, $3,000 being payable.' June 1, 1872, and the balance September 1, 1872.

<p>Error to the District Court of Greene county.</p> <p>William Smith brought an action in the common pleas court of Greene county, against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover damages for the negligent killing of his horse. He alleged that defendant was by law bound to construct and maintain a good and sufficient fence on both sides of its railroad upcm and across the lands of plaintiff and to keep the same in good repair, sufficient to prevent horses or cattle from endangering themselves by getting on the track; but that instead of so doing, defendant allowed the fence to become dilapidated, by reason of which the horse was enabled to stray upon the railroad track and was killed, without fault on plaintiff’s part. Defendant denied that the fence was in bad condition, and that the horse was killed through any negligence on its part. At the trial the court was asked to charge the jury:</p> <p>“ 1. If you find that defendant was bound to maintain a good and sufficient fence along the line of its road at the point where the horse got out of plaintiff’s enclosure, and to keep said fence in repair, then if you also find that with the knowledge of the plaintiff the fence was out of repair and he gave no notice to the agent of the defendant for receiving and shipping freight at the station on the line of its road nearest the place where said fence was out of repair, that said fence or a portion thereof, on the line of its said road was ont of repair, stating where, how, and the probable cost of repairing the same, twenty-four hours before the alleged injury, and did not repair the fence himself, and by reason of the defective condition of the fence the horse of the plaintiff got upon the track and was killed without carelessness or negligence of the agents of the defendant in operating the train, the plaintiff cannot recover.”</p> <p>Which was refused.</p> <p>“ 2. If you find that the horse was discovered as soon as he reasonably could have been, and the whistle was blown, and the brakes applied, and the train could not probably have been checked, before striking the horse, the plaintiff cannot recover, though the train was not checked.”</p> <p>Which was refused.</p> <p>“ 3. If you find that the horse, though seen by the engineer, was running upon the track, if he left it and continued to run, not near enough to have been in danger, and the whistle was blown and the horse returning to the track, the brakes were applied and the train was checked, but could not probably then have been chocked before the horse was struck by the train, the plaintiff cannot recover.”</p> <p>Which was refused as asked, but was given with the addition, “ on the ground of the negligence or carelessness of the defendant in running the train.”</p> <p>4. If the horse, though seen by the engineer, was running at the side of the track, not near enough to have been in danger, and the whistle was blown, but the train could not probably have been checked after he got upon the track before he jumped into the bridge, or was struck by the train, the defendant is not liable.”</p> <p>Which was refused as asked, but was given with the addition, “on the ground of the negligence or carelessness of , the defendant in running the train.”</p> <p>The court thereupon charged the jury in substance that, the company being bound to maintain a sufficient fence, the plaintiff had a right to rely on this, and to turn his horse into the inclosure ; and if he escaped therefrom by reason of the insufficiency of the fence and went upon the track and was killed, the company would be liable.</p> <p>The jury found for the plaintiff and judgment was rendered upon the verdict. This judgment was affirmed in the district court.</p>

<p>Error to the District Court of Pickaway county.</p> <p>On March 17, 1869, the will of Robert A. Foresman was admitted to probate in the probate court of Pickaway countjq and on the same day letters testamentary were issued to Charles S. and Elizabeth C. Foresman, no bond being required of them. Within three months thereafter due notice of their appointment was published as required by law. These executors entered upon the discharge of their duties and continued the execution of the trust until July 9, 1876, when the will was set aside in a proceeding in the common pleas court to contest its validity. Thereupon the Probate court, in September of the same year, appointed Jacob D. Delaplane, the plaintiff in error, administrator of the estate, who took possession of the assets of the estate unadministered up to that time. On October 26, following, the defendant in error duly presented for allowance to the administrator his claim against the estate, upon which the action below was founded, and the same was rejected. Within six months suit was brought.</p> <p>The defense made by the answer was that, more than four years having elapsed since this appointment of the executors before the claim was presented for allowance, the action was barred.</p> <p>A demurrer to this defense was sustained, and, defendant not pleading further, judgment was rendered for plaintiff for the amount of his claim. Upon proceedings in error the case was reserved in the district court.</p>

The original action was brought by defendant in error against John Wehe, B. C. Carpenter and Jethro Denton, on the official bond of Wehe as justice of the peace. Said bond was conditioned that said Wehe should -well and truly perform every ministerial act enjoined upon him by law, by virtue of said office.

<p>Error to the District Court of Highland county.</p> <p>The original action was commenced by the plaintiff in error against the defendant in error under the first section of the act relating to fences and enclosures (S. & O. 548), to recover one-half the value, as awarded by the township trustees, of a fence erected by' him, and which constituted, as he alleged, a partition fence between his and the defendant’s inclosures.</p> <p>In his amended petition, the plaintiff states his cause of action as follows: That he had theretofore erected, on one of the lines of his land, in Dodson township. Highland county, a fence, in all respects such as a good husbandman ought to keep ; that the defendant is the owner of the land adjoining thereto, and has an enclosure on the opposite side of said fence, so that said fence answers the purpose of enclosing the defendant’s field; that the defendant has not, at any time, paid to the plaintiff one-half the cost and value of said fence, as he' is required to do by the statute in such case made; that for the-purpose of ascertaining one half the value thereof, the plaintiff duly notified the defendant, in writing, seven days previous-to September 9, 1865, that on said day he would require the township trustees of said township of Dodson, to determine and fix such value on actual view; that on said day, the- said trustees, on actual view of said fence, and, in the presence- and by consent of the agent of the -defendant, did determine and fix one-lialf the value of said fence to be $118.63, and. did, by-writing under their hands (a copy whereof is attached), adjudge the defendant to pay the plaintiff said sum; whereby the defendant became indebted to him in said sum> of money, and which the plaintiff avers was then due and. payable ; yet the defendant, though often requested, has not paid the same nor any part thereof.</p> <p>Issue was taken on the petition by answer. The trial resulted in a judgment for the defendant.</p> <p>On error, this court reversed the judgment and remanded the case for re-trial. The case is reported in 24 Ohio St. 3. On further proceedings in the common pleas, the defendant, on leave, filed an additional answer, setting forth the following facts: That said award was made by two only of said township trustees — to wit, Eli Roush and 13. A. Selph; that the award was irregular and invalid for the reason that said Selph was, at the time of viewing said fence and making said award, the husband of one of the plaintiff’s daughters. Wherefore, the defendant alleged said Selph was incompetent to act as trustee in viewing said fence and making said award; that there was no legal quorum present at the view of said fence and making of said award; and that the award is invalid and of no force or effect in law.</p> <p>The court, having overruled a demurrer to this answer, gave the plaintiff leave to file a reply, which -was filed accordingly.</p> <p>The reply avers that said Selph’s alleged relationship to the plaintiff was known to the defendant at the time of making said award, and that no objection was then, or afterward, made to said Selph acting as such viewer. It also avers that both the defendant and his attorneys well knew of said alleged relationship when the original answer was filed, but did not allege the same as an objection to the plaintiff’s recovery.</p> <p>A. general demurrer'to this reply was interposed and sustained; whereupon, the plaintiff not asking leave to plead further, the defendant moved for final judgment in his favor against the plaintiff; and judgment was rendered accordingly.</p> <p>The judgment was affirmed-by the district court; and the object of the present petition in error- is to obtain the reversal of these judgments. .</p>

<p>Error to the District Court of Washington county.</p> <p>Charles Bowen died, owning a large estate, principally personal property. He made a will whereby, after several bequests to relatives and friends named, he provided as follows :</p> <p>“ After my decease and all debts and expenses are paid, and all of the above bequests are paid off, I empower my executors to dispose of any remainder at their discretion; and as I owe no debts save those of love and gratitude to my friends I authorize my executors to settle and compound with my debtors as in their judgment shall seem for the best of all concerned. I hereby appoint and constitute George Bowen, Hiram F. Devol, and Charles L. Bowen, executors of my last will and testament; and having full confidence that all trusts will be fully carried out and all bequests paid, it is my will that they proceed to settle the same without being required to make a schedule of my assets; and as I wish no auctioneer over my property, I wish them to dispose of the same by private sale or as to them may seem best; and if there should be a residue, I wish to have the same divided amongst my relatives and friends or given to charitable purposes or given to the poor as they see fit.”</p> <p>This suit was brought by the children and representatives of his brother, Ebenezer Bowen, who assert that they are entitled to a distributive share of the estate after payment of the debts and legacies. Ebenezer, had he lived, would have been entitled to a one-sixth share in a final distribution of the estate if no will had been made. Plaintiffs filed, a petition in the court of common pleas of Washington county, wherein they alleged that the disposition attempted to be made of the estate, after payment of debts and legacies, was ineffectual, and that the residuary clause of the will, above quoted, was void for uncertainty. They prayed that the legal effect and operation of the will as respects said residuary estate, the rights of plaintiffs and the duties of the executors, should be judicially settled and expounded; that such of its provisions as are void should be so declared; that the rights of plaintiffs, as heirs at law, or next of kin, should be established, and especially that the rules governing the executors in the final distribution of the estate should be determined and settled by decree. They also prayed for general relief.</p> <p>The executors answered denying that, as to any part of his estate, Charles Bowen died intestate, and they denied that any questions had arisen under said will, as to its construction or as to the powers and duties of the executors thereunder, except such as might have arisen in the minds of the plaintiffs. A demurrer to this answer was overruled, in the district court, the cause being in that court on appeal, and the judgment was that defendants go thence without delay.</p> <p>A proceeding in error in this court Was dismissed on the ground that the summons in error was issued and served more than three years after the rendition of the judgment below (36 Ohio St. 312); but, upon application, leave was given to amend, and it now appears that one of the plaintiffs in error is within the saving clause of the statute of limitations applicable to the proceeding ; and the question made is whether the saving of the statute as to this one plaintiff in error will inure to the benefit of all. If it does, this court is asked to construe this will and determine the rights of the parties under it.</p>

<p>Error to tbe District Court of Summit county.</p> <p>On November 12, 1861, William C. Weld was appointed, by the probate court of Summit county, guardian of Karl J. Hammond, and gave bond conditioned for tlie faithful discharge of the duties devolving upon him as such guardian, with James W. Weld and Marcus Newton as sureties.</p> <p>James W. Weld afterward died testate, and on March 31, 1863, his last will and testament was duly probated, and on. December 24, 1864, his estate was finally settled and distribution made to the legatees and devisees.</p> <p>Marcus Newton died in January, 1874, intestate, and on October 27, 1876, his estate was finally settled and distributed among his heirs.</p> <p>On July 2,1876, the ward, Karl J. Hammond, arrived at full age.</p> <p>On January 17, 1878, the guardian, William O. Weld, filed in the probate court, his final account, and on March 15, 1878, the account was duly examined and a balance found in his hands belonging to said ward, of $668.82, which was ordered by said court to be paid by the guardian to the ward according to law.</p> <p>On May 28, 1878, the original action was commenced by Karl J. Hammond, on said bond, against the legal representatives, heirs and legatees of the sureties, to recover the amount due and unpaid as found by the probate court on such final settlement, less certain payments admitted to have been made.</p> <p>The defendants, namely, the heirs of Marcus Newton and the devisees and legatees of James W. Weld (now plaintiffs in error) defended on the ground that the plaintiff’s cause of action was barred as against them by the statute, in one year, and that the time of the statute commenced running at the date of the plaintiff’s majority, and not at the date of the final settlement of the guardian’s account.</p> <p>This defense, on demurrer was held insufficient, and judgment was rendered in favor of the plaintiff, by the court of common pleas.</p> <p>This judgment, on error to the district court, was affirmed.</p>

<p>Where an administrator in his own behalf testifies to a certain conversation and an agreement between his intestate and the opposite party, which was material to the issue, the other party may testify as to the same transaction and conversation, under the third exception to section 5242 of the Revised Statutes.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>The action was brought in the court of common pleas by the plaintiff, upon three several bills of exchange, substantially alike except as to date, amount, and acceptors. The following is a copy of the first described :</p> <p>“ $723.25. Cleveland, Ohio, Aug. 31st, 1876. « 'á “ Forty-five days after date, pay to the order of 3 ^ o W. P. Cook, Treas., seven hundred and twenty- | 43 three 25-100 dollars. Yalue received, and charge á § the same to account of “ g § “ W. P. Cook, Treas. | 8 3 “ , H. C.” f o « f “ To A. S. Mair & Co., | o “ Austin, Texas.”</p> <p>Indorsed as follows:</p> <p>“ Horace Wilkins. W. P. Cook, Treas. :</p> <p>“ Pay Poster, Ludlow & Co., or order, for collection, on account of The Ohio National Bank, Cleveland, Ohio.</p> <p>“John McClymonds, Cashier.”</p> <p>The action was brought against W. P. Cook as drawer, and Horace Wilkins as indorser.</p> <p>It is averred in the petition, and not denied, that each of the bills was presented for payment when due, and, payment being refused, each was protested for non-payment, of which the defendants were duly notified.</p> <p>Horace Wilkins answered, averring that said bills' of exchange were given by W. P. Cook as principal, and him as indorser. “ That said Cook was in fact the only person interested in obtaining the proceeds on said bills of exchange, and that this defendant was accommodation indorser and surety for said Cook, and indorser and surety for him alone.” There is no reply to the averments of this answer.</p> <p>W. P. Cook filed his separate answer, averring therein that he was the treasurer of the Missouri, Kansas and Texas Tank Line Company, a corporation duly organized under the laws of the state of Missouri, and as such was authorized to draw drafts and bills of exchange, and that the several drafts described in the petition, were by him drawn as such treasurer, for and on behalf of said company, as the plaintiff knew, and that the plaintiff had full knowledge that said drafts were by the defendant so drawn, solely on behalf of said company, as its said treasurer, etc.</p> <p>A demurrer was filed to this answer, which was sustained by the court. Thereupon the court rendered judgment against Cook and Wilkins.</p> <p>The defendant Cook, thereafter filed his petition in error in the district court to reverse said judgment, and the same was reversed by said district court; and to reverse said judgment of reversal, this petition is filed.</p>

<p>Error to the District Court of Hamilton county.</p> <p>An ordinance adopted by the board of eouncilmen and board of aldermen of the city of Cincinnati, and approved by the mayor of the city, in January, 1880, purported to authorize Samuel Silsbee, his associates, etc., to lay pipes in the streets of Cincinnati, for the purpose of supplying the public with steam heat and power, in accordance with the method known as “The Holly System of Steam Heating in Cities,” and to provide in detail as to the manner and conditions of such use.</p> <p>Before any step had been taken by Silsbee, or any other person, in pursuance of the ordinance, it was provided by the act of March 25, 1880 (77 Ohio L. 83), as follows: § 2. “Ia all municipal corporations which may have heretofore, by ordinance, authorized the use, by any person or corporation, of the streets, avenues, alleys, lanes and public places of such municipal corporation, for the purpose of laying pipes and drains below the surface thereof to convey to and supply its inhabitants heat and power, — such ordinance shall be held as valid and binding as if the power in all such municipal corporations to so grant such use of its streets, avenues, alleys, and public places had been expressly enumerated in the general municipal corporation act now in force.”</p> <p>At the request of a taxpayer, P. H. Kumler, Esq., city solicitor, in pursuance of Rev. Stats. §§ 1777, 1778, filed a petition for an injunction in the court of common pleas of Hamilton county, against Silsbee, who was about to proceed under the ordinance and statute to lay such pipes. The court of common pleas held the ordinance and statute to be valid, and dismissed the action, the district court on appeal rendered the same judgment, and this petition in error was filed by the city solicitor to reverse the latter judgment.</p> <p>It is conceded by counsel that the authority of the city to pass such ordinance did not exist prior to the passage of the act of March 25, 1880.</p>

The original action was brought in the court of common pleas of Butler County by defendant in error against the plaintiff in error to recover damages for injuries to his crops from an overflow of the Great Miami river on or about the 1st of August, 18'75, caused, as alleged, by the wrongful act of the defendant. The following description of the locality is necessary to an understanding of the exact nature of the controversy.

<p>By joint resolution of the general assembly (79 Ohio L. 246) the attorney general was directed to institute an action in quo warranto, against the police commissioners of the city of Xenia, who were appointed and acting under a special act entitled “ An act to establish a police force in the city of Xenia ” (77 Ohio L. 350), passed March 25, 1880 ; to inquire by what authority they held their offices or trusts, and also to procure if practicable a decision of the supreme court on several constitutional questions suggested in said resolution.</p> <p>Held: 1. That this court is limited in its powers to the decision of such questions as properly arise in the due course of law, in a judicial proceeding within its jurisdiction. Hence, in a proceeding in quo warranto to try the title of persons to an office, held under the provisions of an act of the general assembly, when its validity is questioned, it is only such provisions of said act as affect the title to the office, that are properly before the court for its judicial settlement.</p> <p>2. The provisions of said special act (77 Ohio L. 350), which authorize the court of common pleas of Greene county to appoint three police commissioners for the city of Xenia, and vest in them the police powers of said city, are not in conflict with the constitution of the state. The State ex rel. Attorney-General v. Covington, 29 Ohio St. 102, approved and followed.</p> <p>3. The validity of the provisions of the seventh section of said act relative to the duty of the city council to levy a tax, and to the temporary use of the general fund to defray the expenses of the police force created by said act, is not drawn in question in a proceeding in quo warranto, against the police commissioners, to inquire by what authority they hold their offices.</p>

<p>1. A passenger, by train of a railroad company, traveling in the coach of a sleeping-car company, may properly assume, in the absence of notice to the contrary, that the whole train is under one management ; and in such case, where he sustains injury by the negligence of one in the employ of the sleeping-car company, he may maintain an action against the railroad company. What the effect of such notice would be is not determined,</p> <p>2. On proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping-car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable. Railroad Co. v. Mowery, 36 Ohio St. 418, followed.</p>

<p>An appeal will lie from the court of common pleas to the district court in an action by one co-tenant against another for rents and profits, under the act of May 18, 1868 (S. & S. 578), involving an account of profits received and also of expenses incurred in the improvement and betterment of the common property.</p>

<p>One who purchases land, receiving a deed of general warranty, without knowledge of a mortgage theretofore made by his grantor, but which mortgage was duly recorded, acquires no greater estate than an equity of redemption, notwithstanding the fact that the mortgagee, from time to time, for a valuable consideration, after the purchase, extended the time of payment of the debt secured until the mortgagor became insolvent.</p>

<p>A testator, having executed his -will giving, in trust for the benefit of his sole and only child, property consisting of non-ancestral real estate and personal property, and directing that “in case my said child should die without issue her surviving, then all and singular the property so devised shall pass to and vest in my heirs-at-law,” died leaving surviving him his said child, and also his wife, a brother and two sisters who survived the child. Held: That upon the death of the child without issue, the widow of the testator succeeded to the property, under the will, as heir-at-law of the testator.</p>

<p>A testator devised to his wife, who was also appointed executrix, one-half his real estate in fee, and after giving to his children certain legacies in kind, and providing that his sons who remained at home and labored for the good of the family until they were of age, should be paid a sum of money, upon final settlement; gave “all the rest of his real estate” and “ all the rest and residue of his personal estate” to his wife, to be used by her for the payment of his debts and the good of the family as she might think best, until the youngest child became of age ; then all that was left on hand, except the household furniture, which is given to her absolutely, to be divided equally among all his children. The widow elected to take under the will, and qualified and acted as executrix. Meld: 1. That the widow, under this residuary clause, took said real and personal estate in trust, to be used for the payment of debts, and for the good of the family as she might think best, until the youngest child became of age, and the saméis thereby primarily charged with these burdens before resort can be had to other property disposed of by the will, or to the residuary estate, that should be left on hand when the estate for years terminated.</p> <p>3. That a discretion is vested in her as to the manner in which she should use this property for the purposes named, and she is not accountable to the estate for the rents and profits of the real estate, which she has used for the good of the family, but is only chargeable with rents and profits applied as assets to the payment of debts, charges and legacies, or which she has diverted to other purposes than the good of the family.</p> <p>3. The year’s allowance to the widow and minor children is a debt of the estate, which, on payment by the executrix, is a proper item of credit in her account. If paid, in whole or in part, out of assets of the estate, whether derived from personal estate or rents and profits received from this portion of the real estate, the amount so paid should be charged to her as assets.</p> <p>4. If the personal property and the rents and profits of this real estate are used by the widow for the good of the family during the minority of the youngest child, she is not accountable therefor, even though, by the exercise of greater skill, prudence, and economy, she might have saved a fund out of which to pay the debts.</p> <p>5. By accepting under the will, the widow did not become personally liable for the debts, beyond the assets which came to her hands applicable, in the exercise of the discretion vested in her, to their payment.</p> <p>6. Upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, except as to matters in dispute between two parties which had been previously heard and determined by the court, which shall not again be brought in 'question without leave of the court. This includes the power to correct all errors or mistakes of the court, as well as of the executor or administrator, found in former settlements, whether as to items embraced in or omitted from such former accounts.</p>

The original action was brought by the firm of Swope & Hughes, against William W. Bissell, individually, and Charles H. Church, Joshua B. Bissell and William W. Bissell, composing the firm of Church, Bissell & Co., to recover money paid by the plaintiffs as drawees of a bill of exchange, at the request of the defendants. The following is a copy of the bill of' exchange: “ $350.00. No. 1092.

<p>Where the superintendent of an insane asylum, acting in good faith, with the assent of the trustees of the institution, and solely with reference to the welfare of the patient, permits her to be removed to and remain temporarily at the residence of a near relative, the husband of the patient cannot, by mandamus, compel her restoration to the asylum; and the fact that such residence is beyond the limits of the state will make no difference.</p>

The original action was brought in the common pleas court of Knox county, by Phrebe S. Bodle, against William A. Bebout and Solomon Bebout, to recover a judgment upon a promissory note, signed by them jointly.

<p>An indictment charging that the accused burglariously broke and entered into ‘ ‘ a certain dwelling-house, to wit, the infirmary of Morgan county,” is not insufficient as failing to aver the fact of ownership, or as charging the offense to have been committed in a place other than those enumerated in section -6835, of the Revised Statutes.</p>

The plaintiff in error, and one John T. Morris, were jointly indicted in Jefferson county.

<p>Error to the District Court of Mercer county.</p> <p>Jacob Counterman and Jacob S. Keetb, for themselves and others alike interested, brought suit in the court of common pleas of Mercer county, against the board of trustees of Dublin township, Mercer county, and the auditor and treasurer of the county, to enjoin the collection of a tax levied on the taxable property in that township, under the act of April 10, 1880, to authorize certain townships to build railroads, and to lease and operate the same” (77 Ohio L. 165), for the payment of bonds amounting to $20,000, issued under the act, to defray the expense of building a railroad in the township. The ground of action was that the plaintiffs were tax-payers of the township, and that the act under which the tax was levied was unconstitutional.</p> <p>The defendants answered as follows: “ The defendants aver that in pursuance of the law in the petition averred, such proceedings were duly had in compliance with the provisions of said law, that the election provided for in said law was duly had, resulting in an affirmative vote in favor of providing said line of railway; that afterward the result of said vote was duly declared; that afterward bonds were duly issued to the extent of twenty thousand dollars, and were duly and regularly sold, in pursuance of the provisions of said law, to persons who are unknown to these defendants, and the money realized therefor; that afterward, the railroad trastees, who had been duly appointed, expended said funds in the construction of the railroad as contemplated by said act; that all of said several acts and things done, were well known to the said Jacob Counterman and Jacob Keeth and all persons for whom they bring suit, as they transpired; that the building of said railroad has largely enhanced the property of the citizens of Dublin township, and is otherwise of great value to the plaintiffs and to the persons for whom they sue; that the plaintiffs, and each of them, and each and all of the persons for whom they sue, stood by, with full knowledge of each and every step being taken, which is provided to be taken by said law, and well knew that the railroad trustees were about to issue and sell the bonds of said township, and apply the money to the building of said railroad ; and that afterward they, and each of them, well knew that said work was progressing, and that they took no steps to enjoin the building of said road or the issuing of said bonds, until the said fund had been expended, and the road was fully built. Wherefore, the plaintiffs and each of the persons for whom they sue, are estopped.</p> <p>On appeal to the district court, a demurrer to the answer was overruled and the petition was dismissed, and this petition in error was filed to reverse the judgment.</p>

<p>A mill-owner constructed a dam and dug a mill-race, in such manner that the waters of the stream were diverted from their ancient channel and flowed through the race. He maintained, however, at all times, a flood-gate for the purpose of returning the waters to their natural channel whenever repairs upon his mill should make it necessary. He and his grantees continued to flow the water through the race for a period of more than twenty-one years, during which time the water was occasionally and temporarily restored to the ancient channel. This channel had, by long disuse, become obstructed and partially filled, so that it was not sufficient to carry off all the water which originally passed through it. Plaintiff purchased from grantees of the mill-owner a tract of land, through which ran the ancient channel of the stream. For the purpose of repairing the mill, its owners opened the gate and restored the water to the ancient channel, which flooded the land of the plaintiff and injured her crops. Held: 1st. That nothing in the condition of things, or in the acts of the parlies, at the time of the plaintiff’s purchase, showed that the use of the ancient channel had been permanently abandoned. 2d. The mill-owners still retained the right to restore the water to its old channel whenever the repair of their mill rendered such course necessary or advisable.</p>

<p>Where a claim against a county, which must be allowed by the commissioners before it can be paid, is founded exclusively on a statute, the remedy by appeal provided by section 18 of • ‘ an act establishing boards of county commissioners and prescribing their powers and duties ” (1 S, & O. 247) is exclusive ; but where such a claim is founded upon a contract, which the commissioners are authorized to make, and they refuse to perform such contract, or disallow the claim, the remedy by appeal and the summary proceedings provided for by said section, is cumulative merely, and the claimant is entitled to have his action thereon against the county by due course of law, in any court of competent jurisdiction.</p>

<p>Error to the District Court of Huron county.</p> <p>The only important question arising in this cause is under the third section of the act of March 23,1850, as amended February 27, 1873, as to the right of a person, “ the head of a family and not the owner of a homestead,” to hold personal property to an amount not exceeding five hundred dollars, free from levy and sale.</p> <p>The defendant, Sinclair, was the head of a family, resident in Ohio, and' not the owner of a homestead.</p> <p>Two actions were commenced in Huron county common pleas against Sinclair, under which his property was seized in attachment, viz: the first by Eichelburger, November 12,1873, in which an attachment was levied on 320 bushels of wheat; and the second suit, begun February 10, 1874, by J. IT. Close, in which an attachment was levied on a Marvin safe.</p> <p>On February 17, 1874, Sinclair made an assignment to A. B. Smith, of all his property, reserving his exemption rights in the words: “excepting from this assignment, only such property as 1 ma/y lawfully hold exempt from execution.”</p> <p>At the June term, 1874, of Huron common pleas, judgment was taken for the plaintiff in each of said cases, against Sinclair, with an order of sale of said attached property.</p> <p>• On August 4, 1874, Sinclair served notice upon the sheriff of Huron county, that he (S.) was the head of a family, resident of Ohio, and not the owner of a homestead; and claiming to be entitled, under the exemption laws, to hold exempt from levy and sale such property as he might select, to the amount of five hundred dollars, and demanded that the same' be set off to him as provided by law; and on Angust 8, 1874, the sheriff did, pursuant to the statute, and under Sinclair’s selection, set off to him said “ safe,” appraised at $300, and said wheat, appraised at $200.</p> <p>But, notwithstanding said appraisal and setting off of said property, the sheriff refused to, and did not deliver it to Sinclair, but retained the same in his own possession, and on August 10, 1874, was proceeding to sell said property under said orders of sale. Thereupon, at said last date, and before the property was offered for sale, Sinclair, by a proceeding instituted before a justice of the peace, replevied said wheat and “ safe ” from the sheriff. The value of the property replevied, as shown by the appraisal, exceeding the jurisdiction of a justice of the peace, the cause was certified to Huron county common pleas. Eichelburger and Close, on their own motion, were made parties defendant in said action of replevin; and on trial of the cause, the court rendered judgment for Sinclair.</p> <p>The district court, on error, affirmed the judgment; and it. is now sought in this court to reverse both judgments.</p>

<p>1. Where, at the time a general charge is given, a party states his objections to separate specified parts of it, and the court fails to modify the charge, it is sufiicient to set forth in the bill of exceptions the parts complained of, followed by the statement that the party excepts to each and all the parts so specified; and this is not inconsistent with Adams v. The State, 25 Ohio St. 584</p> <p>2. In an action against a stranger who indorsed in blank an overdue promissory note, it was alleged that, on April 7, 1873, he guaranteed the payment of the note, in consideration that the payee would extend the time of payment “until next spring.” Evidence was received without objection, tending to show that the agreement was for an extension of time for one year. After the cause had been argued and submitted, the court, in the general charge, said to the jury that they must disregard such evidence. Held, that the case "was not one of failure of proof, but of variance, which did not appear to have prejudiced the defendant, and hence the case was within section 131 and not section 133 of the Civil Code. Bev. Stats. §§ 5294-5296.</p>

<p>In one clause of a will testator bequeathed to M. L., a married woman, living with her husband, a specified sum of money. In a subsequent clause he provided that if M. L. should die, leaving no child of her own, then the money should be equally divided among the testator’s living children, the issue of his own body. Upon final settlement of the estate the executor had sufficient funds to pay all the legacies. In an action brought by the children of testator to enjoin the payment by the executor to M. L. of the amount of her legacy, for which she had recovered judgment against him, unless she should give security for the re-payment thereof to the then living children of testator in the event that she should die leaving no children of her own, — Held: 1. That, under the will, M. L. is entitled to the' possession of the legacy, without giving security for the re-payment thereof, in the absence of facts showing that she is about to waste or squander the legacy. 2. Such inference will not arise from the mere fact that she and her husband are residents of another state, and are pecuniarily irresponsible. (Lapham v. Martin, 33 Ohio St. 99, followed and approved.)</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>January 27,1872, George Braundel executed and delivered to Martin Maurer, sixteen promissory notes of $100 each, the first becoming due in six months, and the others at intervals of three months thereafter, the last being due April 27, 1876 ; and at the same time, secured the same by a mortgage on real estate. Subsequently, he paid one of these notes.</p> <p>May 2, 1875, by a deed of general warranty, he sold and conveyed said real estate to Mary Braundel, a married woman, for the sum of $500 in cash, and her assumption of his mortgage debt aforesaid, as part of the consideration. This assumption to pay, is contained in the deed to her, and is in the following words: “ Said grantee assumes a certain mortgage given by grantor to Martin Maurer, January 27, 1872, and interest thereon, as part of the purchase money.”</p> <p>Mary Braundel entered into possession of the land, having no other separate estate, and on October 13,1875, by warranty deed, her husband joining, sold and conveyed the same to one L. B. French, he assuming as part of the consideration, to pay said mortgage debt, by excepting said deed with the following clause inserted: “ This deed is made subject to a certain mortgage for $1,500, made by George Bi’aundel to M. Maurer, and which the grantee hereby assumes and covenants to pay.”</p> <p>On December 24,1875, French, by a like conveyance, sold this real estate to W. G. Brewer and S. Truseott, plaintiffs in error herein, under a like agreement as to the mortgage debt. In French’s deed to Brewer and Truseott, is this agreement: “ The above is made subject to a certain mortgage for $1,500, made by George Braundel to M. Maurer, and which the said grantees hereby assume and agree to pay, together with the interest thereon.”</p> <p>Two of said notes were not yet due. Whether the condition of the mortgage was broken by non-payment of prior notes, does not clearly appear.</p> <p>After these notes all became due, Maurer foreclosed the mortgage, and sold the premises at judicial sale, realizing therefrom only $650.61, leaving abalance due to him July 17, 1878, of $1,093.78.</p> <p>The object of the action in this case was, to recover this balance from Brewer and Truscott on their agreement with French.</p> <p>In addition to the foregoing averments found in the petition and answer, the defendants, by way of defense, pleaded, 1st, that Mary Braundel, at the time she assumed to pay this mortgage debt, was a married woman, and, 2d, “that since said 24th day of December, A. n. 1875, when said deed containing said covenant was executed and delivered, the said L. B. French, the grantor of these defendants, and in whose deed said covenant is contained, for a good and valuable consideration, has released and discharged these defendants of and from any and all liability to him, the said French, on account of the aforesaid covenant, and that thereby the defendants are wholly discharged and released therefrom, and that plaintiff, by reason thereof, cannot have and maintain his aforesaid action against these defendants.”</p> <p>Upon a demurrer to defendants’ answer, the court of common pleas held the defendants liable, and rendered á judgment against them. This judgment was affirmed in the district court.</p>

<p>Error to tbe District Court of Hamilton county.</p> <p>The original action was in quo warranto in the district court of Hamilton county. The petition contains two causes of action, the first alleging that defendant in error, Casey, on January 1, 1882, and thereafter continuously, intruded into, and unlawfully held and exercised the office of inspector of leaf tobacco, in the city of Cincinnati; the second, charging that said Casey, on January 1, 1882, and continuously thereafter, did intrude into and unlawfully usurp, hold and exercise an office in a corporation incorporated by the authority of the state of Ohio, to wit, the office of inspector of “ The Association of the Tobacco Trade of Cincinnati,” not being a citizen or resident of the state of Ohio, and said corporation not having the lawful power or authority to appoint or elect said Casey to said office.</p> <p>Defendant in error filed his answer, admitting that he was not a citizen of the state of Ohio, denying that he intruded himself into the office of inspector of leaf tobacco, in the city of Cincinnati, or that he exercised the functions of said office, or that he ever claimed to hold the same; admitting that he was the duly appointed inspector of leaf tobacco of the Association of the Tobacco Trade of Cincinnati, a private corporation, and averring that said association had full and complete power and authority to appoint him as such.</p> <p>The evidence introduced upon the trial of the cause, upon the issues thus made up, proved that there were six tobacco commission warehouses in the city of Cincinnati, connected with each of which was an inspector of leaf tobacco, duly appointed in accordance with' the provisions of the statute (78 Ohio L. 2Í2), but that' all the tobacco sold at auction at such warehouses was inspected at the request of the proprietors thereof, by said defendant, as inspector of the Association of the Tobacco Trade of Cincinnati, and in accordance with the rules of said association.</p> <p>It was further shown that defendant in error never claimed, nor held himself out to be, an inspector of leaf tobacco, save as an appointee of said association.</p> <p>On this state of facts, the judgment of the district court was for the defendant in error, and the present petition in error is prosecuted to reverse that judgment. ■</p>

In 1870, a divorce with custody of children was awarded to the defendant in error, in the court of common pleas of Franklin county, and in 1879 the plaintiff in error filed in that court a petition for a modification of the decree so far as it relates to the children. An answer, a reply thereto, and a demurrer to the reply were filed, and the court, finding the petition and reply to be insufficient, sustained the demurrer to the reply and dismissed the petition.

In tlie years 1878, 1879, 1880, 1881 and 1882, the plaintiff in error, a fire insurance company incorporated under the laws of this state, upon the stock plan, with its principal office in Hamilton county, made return of its property for taxation to the auditor of Hamilton county, upon a printed blank form furnished to it for that purpose by the auditor as required by law.

The plaintiff in error, on February 1, 1859, issued and sold one hundred bonds of $500 each, secured by mortgage on its property. Each of these bonds was in the terms following: “ Stockholders individually liable. “ $500.

The plaintiff in error, who seeks leave to file his petition in error in this court, was convicted in the common pleas court of Cuyahoga CQjmty upon an indictment charging that he, jointly with Henry Jackson, Thomas Allen and Charles Smith, by making certain false and fraudulent statements concerning the speed, pedigree, breeding, performance and ownership of two horses, which they were attempting to sell to one Xenophon C. Scott, feloniously obtained from him his “ certain…

The questions for decision in this case are precisely the same as those in the preceding case of Tarbox, with whom these plaintiffs were jointly indicted, except that in this case the court below allowed evidence to go to the jury tending to show that the accused had, shortly after the commission of the offense charged, been jointly engaged in a conspiracy to commit crimes of a similar character in Pittsburg.

<p>When the accused is properly convicted, it is the duty of the court to “ pronounce the judgment provided by law,” and a judgment imposing a greater or less fine or imprisonment than the statute prescribes, may be reversed ; but where a statute provides for both fine and imprisonment, and one of the penalties is omitted, the error will not afford ground of reversal, if the punishment imposed is authorized by the act.</p>

So far as necessary to present the point reserved for decision, the following is a statement of the facts: The action below was brought by The Baldwin Quarry Co., the present plaintiff, against Robert J. Clements, defendant, to recover a balance due for stone furnished for and used in the construction of a bridge by defendant for Cuyahoga county.

The petition in the original action was filed by Greenleaf & Co. against John Dickey, and contained two causes of action : 1. Upon an account current between the parties during the year 1876, wherein a balance of $293.61 was claimed to be due to plaintiffs. 2. Upon an account alleged to have been stated between the parties on tbe 1st day of January, 1876, for the sxxm of $1,486.50.

The relator, in his petition, claims that the vote for representative to Congress from the seventh Ohio district, at the election held on the second Tuesday of October, a.d. 1882, has been returned by the'various county canvassing boards to the state canvassing board (consisting of the defendants), as shown by the following table : He further recites that the defendants threaten to count the 3,517 votes above shown for H. L. Morey, as and with the 10,931 votes above shown…

On the hearing before a j’ustice of the peace of a complaint in bastardy against Jedlicka, he was required to and did, on August 18,1876, enter into a recognizance in the sum of $500, with Kutchta and Proseck as sureties, conditioned that he should “ personally appear before the court of common pleas, to be holden in and for the county aforesaid, on the first day of the term thereof, and continue from day to day, and then and there answer unto a complaint of bastardy made by…

<p>1. Mo entry by the sheriff upon real estate is necessary to constitute a valid levy thereon.</p> <p>2. The levy of an execution from another county, when indorsed on the execution, and before entry thereof, as required by the act of 1860 (2 S. & C, 1402), is complete.</p> <p>8. Under a deed of general assignment for the benefit of creditors, the assignee takes the real estate subject to all valid liens existing thereon against the assignor.</p>

<p>A. railroad corporation, having purchased from another railroad company an undivided interest in the latter’s railroad, under the act of April 7, 1863, in relation to insolvent railroad companies, &c.. — which authorizes such sale under certain conditions, if the same can he made without impairing the usefulness of the road to the vendor company, — whereby a tenancy in common was created between the parties, can not compel partition of the common property either under the statute in relation to partition or in equity.</p>

<p>Error to the District Court of Belmont county.</p> <p>This was an action to recover damages for causing the death of George W. Meek. The allegations . of the petition, which were in issue, were, that the defendant by wrongful act, neglect and default, and without his fault, caused the death of Meek, while he was walking on the railroad track in the city of Bellaire. The injury was caused by two gondola ears, which were detached from the train, and were moving south on a side track, in charge of a brakeman. These cars had been part of a train that was coming down the main track from the-north, but, some distance above, had been detached, and turned on the side track at a switch, while the locomotive and other cars continued on the main track. These two cars were moving by their own momentum.</p> <p>The plaintiffs evidence tended to show that when deceased entered upon the side track no train was visible, though the view of the track was unobstructed for half a mile ; that these detached cars were moving at a dangerous rate of speed, exceeding eight miles per hour; that deceased was north of and near a public crossing which people were in the habit of using; and that these detached cars moved at this dangerous rate of speed against deceased, and so continued beyond the public crossing, before the brakeman could get them under control.</p> <p>On the trial the plaintiff offered in evidence an ordinance of the city of Bellaire, which forbids trains moving at a higher rate of speed than eight miles per hour, and also forbids trains of cars and sections of trains, from crossing any street or crossing within the limits of the city, without sufficient motive power attached to start and stop the same without delay. The court rejected this evidence, and plaintiff excepted.</p> <p>■ The parties having offered evidence tending to support the issue on their respective parts, the case was submitted to the jury under the charge of the court.</p> <p>Exceptions were • taken by plaintiff to the charge, and to the refusal to charge.</p> <p>The judgment in favor of defendant was affirmed in the district court.</p> <p>The charge of the court touching the degree of care the defendant should use under the circumstances of the case, and the liability of the deceased for contributory negligence, to which the plaintiff excepted, is as follows:</p> <p>“ The court will say to you as the law that will govern you in your deliberations in this case, that if you find that the agents and servants of said railroad company were guilty of any wrongful act, neglect or default, or in other words, were guilty of gross negligence which occasioned the injury, then the plaintiff would be entitled to recover in this action; but if the undisputed facts satisfy you that by the exercise of ordinary care on the part of the decedent, he might have avoided the accident, then in such case the plaintiff cannot recover in this action.</p> <p>“ If you find that the decedent, when the accident occurred, was on the track of the defendant’s road, that his being there, away from a public or a private crossing, required of him the due exercise of care on his part, and in such case the jury, in determining the question of contributory negligence, will pass upon all the testimony that has been given before them.</p> <p>“ It was the duty of decedent, in the place he was walking, on the track of the company, to make use of his senses to ascertain if there was a train in the vicinity, and if, when in full possession of his faculties, he failed to see or hear the approaching train when a prudent man exercising his senses and using his eyes and ears with ordinary care would have discovered a train in close proximity, and he was thereby injured, he is guilty of such negligence as will prevent a recovery in this action. The omission to ring the bell or sound the whistle at the time would not have been sufficient to authorize a recovery, if decedent, notwithstanding such omission, might by the exercise of ordinary care, have avoided the accident.”</p> <p>At the same time, the court refused to give the following request, among others, except so far as this proposition was included in the charge, to wit:</p> <p>“If the jury shall find from the testimony that the plaintiffs intestate was guilty of negligence in going upon the track, yet that the defendant, by the use of ordinary care, under the circumstances, could have avoided the injury, the negligence of plaintiff’s intestate in going upon the track will not prevent a recovery.”</p>

<p>The levying of taxes by the county commissioners, under the statute, for the purchase of toll roads in order to make them free to the public, is a constitutional exercise of the taxing power. So, also, is the levying of a tax to refund assessments as provided for in section 3501 of the Kevised Statutes.</p>

<p>Error to the District Court of Hamilton county.</p> <p>On June 11,1881, Nathaniel Caldwell filed with the board of public works of Cincinnati, and with the city clerk for the common council, an application to construct and operate a line of street railroad in that city, to be known as “ Route 20,’ ’ under the provisions of sections 1 and 2 of the general ordinance for the operation and government of street railroads then in force. The board of public works thereupon transmitted to council an ordinance designating the route so applied for, and requiring the city clerk to advertise for sealed proposals to construct and operate said railroad, and with a recommendation that it be passed. On the 24th of February following, this ordinance was finally passed. The ordinance, however, was not approved by the mayor, and, coming up again in council for reconsideration, failed to pass by the requisite majority. The city clerk, being of opinion that the ordinance was of no force, by reason of the mayor’s failure to approve it, refused to advertise for proposals to construct and operate the road. To compel him to do so a proceeding in mandamus was instituted in the district court of Hamilton county, upon the relation of John R. Meyer, a citizen of Cincinnati, and the owner of land abutting upon Dalton avenue, one of the streets upon which it was proposed to locate and construct this line.</p> <p>Upon trial, that court rendered judgment for defendant, to review which judgment the present proceeding in error is prosecuted before us.</p>

<p>Erxíor to the District Court of Cuyahoga county.</p> <p>The original action was brought in the year 1875 by the plaintiff, a legatee under the will of Robert Dawson, deceased, against the defendants, on the bond of the executors, wherein James W. and Martin B. Dawson were principals, and Brands and Robert Tryon were sureties.</p> <p>The plaintiff in her amended petition alleged in substance the following facts, viz.: The execution of the will by Robert Dawson, his death in May, 1870, the pi’obate of the will, the issuing of letters testamentaiy to James W. and Martin B. Dawson, the execution of the bond by defendants, the allowance by the pi’obate eoui’t of leave to bi’ing the suit, breaches of the bond in not returning a true inventory and in the conversion of certain specified assets by the executoi’S to their own use, and pi’ayed for a judgment in the name of the state of Ohio against the defendants for the full amount of the bond, to wit, $4,000.</p> <p>After a general demurrer to the petition was overruled, the defendants, by answer, denied all the allegations of the petition, after the execution of the bond. And for second and third defenses to the action the defendants alleged as follows:</p> <p>“ 2. Bor further answer defendants say that on December 4, 1875, said J. ~W. and M. B. Dawson, as executors of the estate of said Robert Dawson, deceased, filed in the probate Court of Cuyahoga county their final account of their doings with the assets of said estate; that notice of the filing thereof was duly given to the plaintiff and all others interested ; that no exceptions were filed thei’eto, and that afterwards, on January 17, 1876, the same was duly examined by said court and approved and ordered to be recox’ded; that by law said executors were thereby discharged from all further liability to plaintiff and all others interested beyond what assets and accounts showed to be in their hands, and thal the same shows no assets applicable to the payment of plaintiff’s legacy.”</p> <p>“ 3. The defendants, for further answer to said petition, say that at no time before the bringing of said action did the probate court, which by law has exclusive control of the settlement of the estates of deceased persons, fix, determine or find any amount due to the plaintiff as legatee under the will of said Robert Dawson, nor order any distribution of any part of the assets of said estate to the plaintiff; wherefore defendants say that the plaintiff ought not to have or maintain said action.”</p> <p>In charging the jury, the court of common pleas, among other things, said:</p> <p>“ But I must call your attention to the fact that in addition to the denial by the defendants of all the matters set up in the petition except those admitted, that they set up in their answer several other matters by way of several defenses, on which I will now specially instruct you.</p> <p>“ The defendants for their second defense say, that the said executors, on December 4, 1875, filed a final account of their doings with the assets of the said estate in the probate court, the plaintiff and others interested had notice thereof; that no1 exceptions were filed, and that on January 17,1876, the same was duly executed and approved by said court, and that by law they are discharged from all liability beyond that for assets shown in said account.</p> <p>“ On this defense I will simply say to you that if all the evidence that has been offered by the defendants in support of it is taken as true, that neither it nor any part of it constituted a defense to this action if the allegations of the petition aro true.</p> <p>“ The defendant’s third defense alleges that the probate court at no time before the commencement of this action fixed or determined any amount due to the plaintiff as legatee under said will, nor did it order any distribution of any of the assets to the said plaintiff.</p> <p>“I say also on this defense, that if it is all true that it constitutes no defense to this action if the allegations of plaintiff’s petition are true. ”</p> <p>In the court of common pleas, a verdict and judgment were rendered for plaintiff in the form following: “ And thereupon, after verdict and before judgment, came the defendants and filed their motion for a new trial of this cause, which is heard by the court and overruled, to which ruling the defendant excepts. It is, therefore, considered that the state of Ohio do recover of the said defendants the sum of four thousand dollars damages and the costs of this suit to be taxed, for the benefit of the plaintiff, Amelia A. Mighton, and all others interested in the estate of Robert Dawson, deceased, late of the county of Cuyahoga, and that execution issue to collect the same. And it is further ordered that execution issue against the defendants, James W. Dawson and Martin B. Dawson as principals, and against Francis Tryon and Robert Tryon as sureties.”</p> <p>On petition in error to the district court, by defendants, the foregoing judgment was reversed ; and this proceeding is prosecuted to reverse the judgment of the district court.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>The several grounds assigned for a reversal of this judgment have been considered, but only one of them is reserved for report.</p> <p>As to that, the facts are these : Harriet E. Hill filed her petition for the recovery of specific personal property, and for damages for its detention. Instead of a verification to the petition, and a separate affidavit to obtain the order of delivery, there was but one affidavit. In it there is a statement that the facts stated in the petition are true and an additional statement of facts which is required by the statute to obtain an order of delivery. It was duly sworn to and attested.</p> <p>On this a summons and order of delivery was issued and served. The property was seized and delivered to the plaintiff on her complying with the statute.</p> <p>The defendants made a motion to set aside the service of process and strike the petition from the files for two reasons:</p> <p>1. There was no petition verified as required by law.</p> <p>2. There was no affidavit for replevin.</p> <p>This motion was overruled and exception was taken. A judgment was rendered for the plaintiff. To reverse the judgment of the district court affirming this judgment is the case now here.</p>

<p>The final judgment of the district court was an order of partition of real estate, and the cause was remanded to the common pleas for execution, where an order of sale was made, the property being incapable of division. The case is pending here on error, to reverse the judgment of the district court.</p> <p>Held: That under subdivision 3 of section 6718 of the Revised Statute's, the court of common pleas, or a judge thereof, may fix the amount of the undertaking for stay of proceedings on the mandate.</p>

By an order of tbe town council of tbe incorporated village of Cambridge, adopted May 6, 1878, and which took effect .on the same day, it was ordained, “ that it shall be unlawful for any person or persons, the owner or owners, agent or agents, occupant or occupants of any house, shop, room, booth, arbor, cellar, or place, where ale, beer, or porter is sold or furnished to be drank, or any place of habitual resort for tippling or intemperance, or where intoxicating liquors…

The plaintiff in error was indicted and convicted in the court of common pleas of the crime of murder in the first degree, and sentenced to suffer death.

<p>An owner of land through which a railroad passed agreed with the railroad company to maintain and keep in repair a line of fence on the south side of the road, and the company agreed to do the like on the north side. Afterwards the company, for its own convenience in rebuilding a bridge over a stream of water there situate, removed a portion of the fence on the south side of the road, and, when the bridge was completed, instead of restoring the portion of fence removed, constructed, as a substitute therefor, wing fences from the abutments of the bridge, over its right of way, to the ends of the old fence, so as to prevent the passage of stock from the adjacent fields to the railroad. The portions of fence thus substituted for the part of the old fence which had been removed were accepted by the land-owner as an inclosing fence to his fields.</p> <p>Held: 1. By accepting the new wing fences as a part of the line of fence inclosing his adjacent fields, it became the duty of the land-owner to keep the same in repair.</p> <p>2. Occasional repairs of the new wing fences by the company did not release the land owner from his duty to keep the same in repair.</p> <p>,3. Such land-owner is without remedy where his stock passes, by neglect to make such repairs, to the track of the railroad and is killed by a passing train, unless it be shown that the killing was caused by negligence in running the train.</p> <p>4 The burden of proving such negligence rests on the plaintiff. It cannot be inferred from the fact of killing. Railroad Co. v. McMillen, 37 Ohio St. 554</p>

<p>1. Wliere an order confirming a sale, made under a decree of foreclosure, to a mortgagee wlio is a party, is at the same term vacated and the sale set aside for want of notice as required by statute, the insurable interest of the mortgagor in possession is the same in the property as if such sale and confirmation had not been made.</p> <p>2. Where a loss of property covered by insurance in favor of the mortgagor, occurs after such confirmation and before the order was vacated and the sale was set aside, the insurable interest, which the mortgagor in possession had, was not divested by such unauthorized sale and confirmation.</p>