Volume 39 — Ohio State Reports, New Series

<p>1. Work was performed in building a house, which, under the contract, was subject to the approval of an architect, who was in the employ of the owner of the property. Held:</p> <p>(1.) Such approval may be presumed from the presence of the architect at the time the work was done, and his failing to make objection.</p> <p>(2.) If such architect, acting in good faith, fails and refuses to approve the work in any form, the general rule is that the contractor cannot recover.</p> <p>(3.) Where the owner approves the work, such approval by the architect is dispensed with.</p> <p>2. A contractor for building a house, who has fairly endeavored to perform his contract, and has in fact substantially performed it, may, in an action on the contract, recover the agreed price for the work, less any damages the owner may have sustained by reason of the failure to strictly comply with the agreement.</p>

<p>On the 27th of April, 1872, the plaintiff loaned to defendant the sum of $2,500 on an agreeement for interest at the rate of ten per centum per annum, payable annually, and, in pursuance of the agreement, took from defendant two promissory notes for $1,250 each, payable in one and two years, with stipulations therein for interest at the rate of eight per centum per annum, payable annually, secured by mortgage; and at the same time took from defendant two side notes for the additional two per cent, interest agreed upon, which side notes, amounting to $209, were paid. Held: on proceedings to enforce the mortgage, the plaintiff, under the statute of May 4, 1869, commonly called the eight per cent, interest statute, was entitled to a decree for $2,500 with interest at the rate of six per cent, per annum, less the $209 so paid, and no more.</p>

<p>A., B. and O. agreed to engage in the shipment and sale of cattle as either might from time to time purchase on his own account, and offer to the others at cost for the purpose of shipment and sale on joint account, but it was provided that when the party purchasing delivered a lot of cattle at the place of shipment, the other parties had the option to take an interest in the same or to decline; if they accepted the lot so offered it became partnership property, and was shipped and sold on joint account ; but if they did not it remained the property of the buyer and was shipped and sold on his account.</p> <p>H., to whom this arrangement was unknown, sold a lot of cattle to A. on his individual credit, to be paid for on his receiving return of sales ; but he failed to pay as agreed.</p> <p>Held: 1. That the lot of cattle did not become partnership property until it was delivered at the place of shipment, and was accepted to he shipped and sold on joint account.</p> <p>2. That at the time the cattle were sold and delivered to A. on his credit, B. and C. did not acquire an interest therein, independent of their consent, and they were not liable by operation of law for the debt thus contracted.</p> <p>3. The fact that they or either of them subsequently elected to take an interest in this lot of cattle under said agreement did not create a liability against them as partners on such purchase.</p>

<p>1. A residuary clause in a will in these words : “At the decease of my wife Esther I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin in Brie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman executors of this item of my last will and testament, and I request them to do the business without remuneration,” — creates a valid trust which will be enforced in a court of equity.</p> <p>2. Whether the legal title to the real estate devised, is in the trustees, or descended to the heir at law, it is subject to the trust.</p> <p>3. When one of the trustees named in the will died, and another removed to a place unknown, the probate court had power to fill such vacancies, although there was a surviving trustee capable of executing the trust. (S. & C. 1630, §§ 66, 67.)</p>

<p>Error to the Court of Common Pleas of Jackson county.</p>

Ou September 28, 1867, one Adam McClurg, being then the owner in fee simple of the lands hereinafter described, entered into a written contract with Jacob Stambaugh and associates, as follows: “ This agreement made and concluded this 28th day of September, a. d. 1867, by and between A. McClurg, of Yienna township, Trumbull county, State of Ohio, the party of the first part, and Jacob Stambaugh and Evan Morris, of Liberty, J. II.

<p>The payee of two promissory notes, given in part execution of a single contract, brought separate actions thereon against the maker, who in each action interposed the same counter-claim for damages caused by payee’s alleged fraud in making the contract.</p> <p>In one of these actions, a demurrer to this counter-claim was sustained, and after final judgment on the note, and after error was pending in this court to reverse the judgment on the ground that the court erred in disallowing the counter-claim, the defendant prosecuted his suit for damages thereon in the other action and accepted an agreed amount as his damages arising on such counter-claim, which was credited on the note sued on in that action, and judgment was rendered for the plaintiff for the balance due on that note.</p> <p>These facts were by leave of this court, brought into the record in this case by answer, to which the plaintiff in error demurred. Held: 1. That facts of this nature occurring since the final judgment sought to be. reversed, which in law, operate as a release, waiver or bar of the errors assigned, may be pleaded in this court, as a defense to a proceeding in error. 2. That the foregoing facts are in legal effect, a withdrawal of the counter claim in this action and the plaintiff in error having received in the other action, the damages arising on the same, waives Ms right to reverse this judgment for error in disallowing the same claim for damages in this action.</p>

<p>Where a promissory note is given and received in payment of a mechanic’s claim for materials furnished and work done in erecting a house under a contract with the owner, the lien of the mechanic is waived.</p>

<p>By statute, passed April 20, 1881 (78 Ohio L. 403), the commissioners of Hamilton county are authorized to lay out, open, grade and macadamize a road between certain points named, and to pay the cost thereof out of any unexpended balance in the road fund of the county ; provided that no part of the money appropriated shall be applied in the purchase of the right of way. The act further provides that when a petition, signed by a majority of the property holders, shall be presented to the commissioners praying for its opening, they shall cause a survey and estimate of the cost of the road to be made, and the work shall be let to the lowest bidder. Held :</p> <p>1. Before the commissioners can expend the fund appropriated, for opening, grading or macadamizing any part of the road, the entire right of way must be secured without cost to the county.</p> <p>2. Where the road, as located, passes through land owned by minors, the right of way is not secured therein by a deed executed by the guard- • ian of such minors without authority from the probate court. A guardian has no power to make such conveyance, and as against the minors the same is void.</p> <p>3 The commissioners will be enjoined, in an action properly brought for that purpose, from expending the money so appropriated, in the construction of said road, until the right of way is legally obtained.</p>

<p>Error to the District Court of Hamilton county.</p> <p>John Perlee sued the plaintiffs upon the promissory note of which the following is a copy :</p> <p>“ $1,000. Fairbury, 111., Jan. 1st 1871.</p> <p>“ One year after date we promise to pay to the order of John Perlee one thousand dollars at ten per cent, from date.</p> <p>“Andrew J. Scott,</p> <p>“ Henderson W. Scott,</p> <p>“Due Jan. 1st, 1872. “Security.”</p> <p>The interest was paid for five years at the stipulated rate and $700 paid on the principal.</p> <p>The petition claims there is a balance due-of $300, with ten per cent, interest from January 1, 1876, and interest at six per cent, on two installments of interest past due.</p> <p>The defendants answered that the note was executed and delivered, and the contract upon which said note was given was made and finally completed in' Hamilton county, Ohio ; that $335 of said interest is usurious, and that said usury should be credited (so far as it is in excess of six per cent.) from the date thereof upon the principal. There is a denial that the note bears ten per cent, interest; and a denial that the two installments of interest bear six per cent, after due.</p> <p>The plaintiff replied, denying that the note was executed, or the contract made, in Hamilton county, Ohio, and avers that the note was executed and the contract to loan the money made in Fairbury, Illinois, and that by the law of Illinois parties may legally contract for ten per cent, interest.</p> <p>The court of common pleas gave judgment in favor of Perlee, the case being tried to the court without a jury.</p> <p>The defendant, Scott, filed a motion for a new trial which was overruled, and bill of exceptions was taken. The judgment was against Andrew J. Scott as principal and Henderson W. Scott as his surety.</p> <p>The motion for a new trial was upon the ground that the findings and decision were contrary to law and not sustained by sufficient evidence. The entire evidence is set forth in the bill of exceptions. The plaintiff offered the note and the statute of Illinois on the subject of interest, showing that ten per cent, per annum was a legal rate of interest in that state, at the date of said note and since, and rested. Thereupon the defendant, Andrew J. Scott, offered himself as a witness and testified as follows: “ I obtained the loan from the plaintiff through my brother, my security, residing in Ohio ; he and Perlee lived in Ohio ; I lived in Illinois; I sent the note to my brother, my security on it; my brother then signed the note here in Ohio, and handed it to the plaintiff; I made the payments of interest myself; I sent the interest to plaintiff in Ohio; I paid him twice by draft; the loan was procured by Henderson W. Scott in Ohio.”</p> <p>Upon cross examination, witness said: “The payments were all made here to plaintiff; I moved here in January, 1872 ; .....the contract for the loan was not made in lilinois; I wrote to my brother hereto procure the loan; the matter was not talked over in 1870 in Illinois about the loan ; Per-lee and I are brothers-in-law ; . . . I did not obligate my surety to sign this note when plaintiff was in Illinois, or arrange for him to become security.” Which was all the testimony offered by the defendant.</p> <p>Perlee in his own behalf testified : “ I and my wife were in Illinois in 1870 to see defendant, A. J. Scott; he was building and wanted money ; I said I did not have any; I said I had bonds; he offered me ten per cent, interest in summer of 1870, I said I had my money in bonds; I agreed to loan him the money at ten per cent.; Henderson W. Scott to go on note; I was willing to let him have it on the terms named; this took place at Fairbury, Illinois, while I was visiting A. J. Scott, in the summer of 1870, and this note was sent without any other or further conversation or arrangement between us; I got the note from Henderson W. Scott in Ohio, and gave him the money to send to Andrew J. Scott; the interest was paid by A. J. Scott, when due, by draft on New York; I credited $100 on interest and $700 on the principal.</p> <p>The judgment of the court of common pleas being affirmed by the district court, this proceeding is prosecuted for the purpose of reversing such judgment of affirmance.</p>

<p>1. Where the owner of land granted to a railroad company, the right to select a strip thereof for its right of way, and from the terms of the grant, and the circumstances under which it was made, it is clear that both parties understood that the right granted was to be exercised at the time of the final location and construction of the railroad, and not afterwards, a court of equity will, by injunction, restrain such railroad company from taking possession of any additional part of said land, after its railroad has been located and completed.</p> <p>2. Where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described by the terms of the grant.</p>

<p>Error to the Court of Common Pleas of Hamilton county.</p> <p>William Dickson was indicted for murder in the second degree. The charge was that he killed Walter Greaves purposely and maliciously, and the indictment embraced the crime of manslaughter. On the first trial the defendant was convicted of manslaughter, but the verdict was set aside on the ground of newly discovered evidence. On the second trial he was again convicted of manslaughter, and he was sentenced to the penitentiary.</p> <p>The homicide occurred in a saloon in Cincinnati between 7 and 8 o’clock, on the evening of Sunday, September 26, 188Í. Death resulted from a blow in the temple with some sharp instrument, and there was conflict in the testimony whether the blow was given by the defendant or his brother George. The questions to be determined relate to the separation of witnesses, the admissibility of declarations of the injured party as part of the res gestee, and the practice as to the impeachment of witnesses by proof of inconsistent statements.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The original action was brought by Milton II. Miller, in his lifetime, against J. L. Sullivan & Co., in the superior court of Cincinnati, to recover the value of 11 hogsheads of leaf tobacco, alleged by the plaintiff to have been his property, which defendants had sold and converted to their own use.</p> <p>The facts as found by the trial court are too voluminous to be transcribed here, but the following will be sufficient to an understanding of the opinion of this court.</p> <p>For a long time previous to September, 1868, one Robbins, who was a manufacturer of leaf tobacco, had been a heavy customer of J. L. Sullivan & Co., who were tobacco warehousemen and dealers in and auctioneers of leaf tobacco, at Covington, Kentucky. The mode of dealing was thus : All the.tobacco</p> <p>bid off by Robbins at the auction sales, was knocked down to him, by the auctioneer, as bought by Robbins, but by request of Robbins, made by him to the book-keeper of defendants, who kept the account of sales in the auction room, the tobacco was not all so entered in the books, some of it being entered in the name of Robbins, some in the name of Selfridge & May, some in the name of Saunders, and some in the name of Henry Queen, who was the book-keeper.</p> <p>In the summer of 1868, Robbins became embarrassed and got to be slow pay, and becoming .largely indebted to defendants, they refused to sell him any more tobacco unless satisfactory arrangements were made for payment. Thereupon it was agreed between Robbins and the defendants, that Robbins should continue to buy, and give his acceptances for his purchases, and that the defendants should retain the tobacco .in their possession, in their warehouse, as security for payment, until payment was made.</p> <p>This arrangement was made about the month of August, 1868, and, at the time it was made, Robbins was indebted to the defendants to the extent of six or seven thousand dollars for purchases previously made, and the defendants still had, of those purchases, a large amount of tobacco in their warehouse, which, under the agreement, was to remain in their possession, as well as subsequent purchases, as security for payment by Robbins, of his indebtedness then existing and thereafter to arise.</p> <p>It was the practice, both before and after the agreement last above mentioned, to enter tlie sales made to Eobbins upon the books of defendant in the name suggested by Eobbins to the book-keeper, for the reason, as stated by Eobbins, that lie did not want other deal el’s to know how much tobacco he was buying ■</p> <p>This request of Eobbins to have his purchases so entered in the sales-book, and the compliance therewith by their bookkeeper, were unknown to the defendants until after the tobacco here in controversy had been purchased, when it was discovered by the defendants, and immediately stopped, as will be hereinafter shown.</p> <p>The bills and tickets for the tobacco, bought by Eobbins, were made out from and according to the entries made in the auction sales-book, and therefore in the different names shown by that book to have been purchasers, but all these tickets and bills were given to Eobbins.</p> <p>About September 1, 1868, while this state of affairs was existing, and this course of dealing was going on, between Eobbins and the defendants, the plaintiff in this case, being acquainted with Eobbins, asked his advice as to the investment he desired to make, and Eobbins advised him to invest his money in leaf tobacco. Miller had no knowledge of or experience.in the tobacco business, but, having confidence in Eobbins, accepted his advice, and, thereupon they agreed that Eobbins should buy leaf tobacco for Miller, on speculation, Miller furnishing the money and keeping control of the tobacco. The tobacco was to be held until they should think it profitable to sell. Eobbins was to have no right to sell without Miller’s consent, and Miller was to rely on Bobbins’ judgment and experience in buying and selling. The profits were to be equally divided. Nothing was said about losses, but it was agreed that in case they should not be able to sell for what they paid, Eobbins was to work up the tobacco in his factory, and allow Miller the cost, so that he should not suffer any loss.</p> <p>Miller bad no knowledge of the condition of affairs existing between Eobbins and the defendants, and knew nothing about the entry of names, other than Eobbins, as purchasers of tobacco bought by him in the books of defendants, and the making out in pursuance thereof of tickets and bills in accordance therewith.</p> <p>Subsequent to this agreement with Miller, Robbins bid off at defendant’s auction sales at different times, forty-three hogsheads of tobacco in the aggregate, and had them entered in defendants’ books in the name of Miller, took bills of sale and unsigned tickets for delivery in Miller’s name, gave his own acceptances for the purchase money and had the bills marked “paid,” left the tobacco in defendant’s warehouse as security for his indebtedness to defendants as per agreement, and delivered the bills and tickets to Miller.</p> <p>The bills and tickets for all the tobacco, except seventeen hogsheads, were afterwards returned by Miller to Robbins, who, upon payment of all his acceptances given on account of the forty-three hogsheads, removed from the warehouse all the tobacco except the seventeen bogheads, which were left in defendants’ possession as security for other indebtedness, in accordance with the previous agreement.</p> <p>Miller, upon receipt of the bills and tickets from Robbins, paid the amount thereof to him, and upon the return of the bills and tickets charged Robbins with the amount of the same. No part, however, of the money paid by Miller to Robbins was used in payment of Robbins’ indebtedness to defendants.</p> <p>After Robbins’ purchases had been entered in the name of Miller, it first came to the actual knowledge of the defendants, that Robbins had procured any purchase made by him to be entered upon their books in any other name than his own. Thereupon, J. L. Sullivan, a member of the firm, called upon Robbins for an explanation, and was informed by him that the names so entered as purchasers were merely “ men of straw ” and that his only purpose in having such names entered on the books as purchasers, was to mislead other dealers as to the amount of his purchases. The defendants, thereupon, immediately stopped the practice and caused the entries upon the books to be changed so as to show the purchaser to have been Robbins, in accordance with the understanding of the book-keeper at the time the entries were made.</p> <p>Neither, any member of the firm of J. L. Sullivan & Co., nor any of their clerks ever knew, or heard of M. H. Miller,' outside of these transactions, until subsequently, when the defendants notified Robbins, that in default of payment, they would sell the tobacco ; he then told them, who M. II. Miller was, and that he held the bills and tickets for part of the tobacco.</p> <p>Defendants sold the seventeen hogsheads of tobacco, but the proceeds were insufficient to satisfy their claim against Robbins, who then was, and ever since has remained, insolvent.</p> <p>The foregoing facts control the case. The superior court rendered judgment for defendants and the judgment of that court was affirmed by the district court.</p>

<p>Error to tbe District Court of Hamilton county.</p> <p>Tlie plaintiffs, Newhall, Gale & Co., brought an action against defendants, Langdon & Son, to recover for fifty barrels of flour sold and delivered, based upon t e following account:</p> <p>Cincinnati, August 28, 1876.</p> <p>Sol. Langkdon & Son,</p> <p>' Bought of Newhall, Gale & Co.,</p> <p>Flour and Grain Commission Merchants, and Healers in Mill Feed,</p> <p>Terms Cash. No. 86 West Front Street.</p> <p>50 Bbls. “Our Pet” Flour, 5.15, . . . $257.50</p> <p>By Cash, Nov. 1,......87.25</p> <p>Bal. . . . $170.25</p> <p>The answer admits the purchase of seventeen barrels at the price stated, avers payment therefor $87.25, and denies a sale and delivery of the balance. In the common pleas the case was heard and determined upon the following special finding of facts:</p> <p>“ First. On August 28,1876, during the forenoon, the plaintiffs, who were at that date commission merchants, in Cincinnati, Ohio, contracted to sell the defendants fifty barrels of flour of a particular quality and brand, the price fixed by the contract was $5.15 per barrel, on the afternoon of the same day the defendants received from the plaintiffs an order upon the Dayton Short Line Railroad Company, for the delivery to the defendants of fifty barrels of flour, of the brand and character called for by the terms of the contract.</p> <p>“ Second. The plaintiffs were the owners, at the time of giving the order, of one hundred barrels of the brand and character called for by the contract; said one hundred barrels of flour had arrived at the depot of said railroad company in Cincinnati, and was stored in the depot in a ¡particular location or compartment; on said 28th day of August, plaintiffs sold twenty-five barrels of said one hundred barrels, to one Smith, and gave him an order upon the Railroad Company therefor; on the 29th of August, they sold to one Sweeney twenty-five barrels, and gave him an order therefor; on the 29th, between four and five o’clock, p. m., the defendants sent their drayman to the depot, with the order for the fifty barrels for the purpose of obtaining some of the flour; he delivered the order to the railroad clerk, took seventeen barrels of the flonr, left the order with the railroad clerk, who noted the delivery of the seventeen barrels on the back of it, and hauled the seventeen barrels to defendants’ store, pursuant to his instructions; later in the afternoon of the 29th, Smith and Sweeney received and hauled 'away the remainder of flour, due them upon their respective orders, thus leaving thirty-three barrels of the one hundred, before referred to. During the next succeeding night, to wit: at 12|- o’clock, a. m., August the 80th, the depot was burned and the thirty-three barrels of flour left of the one hundred as above stated, were totally destroyed. Subsequently the defendants paid plaintiffs for the seventeen barrels which had been hauled, such payment being without prejudice to the rights of either,party touching the remaining thirty-three barrels.</p> <p>“Third. Neither the plaintiffs or the railroad company set apart at any time any specific barrels to the defendants, and there was no such setting off, unless the fact that Sweeney and Smith hauled away all of the flour save the thirty-three barrels which were left, and the hauling of the seventeen barrels hauled by defendants amounted to such separation and appropriation. Neither defendants or any of their agents saw any of the flour which remained after the drayman took away the seventeen barrels, nor had they seen any part of the one hundred at any time prior to the hauling of the seventeen barrels, nor did they know of the sales to Smith and Sweeney, or the removal of any flour by them until after the fire.</p> <p>“Fourth. The usage of business in Cincinnati, between buyers and sellers of flour, at and before the dates named, was this: Flour arrives at the depots consigned to commission merchants. The railroad company notifies the merchant of its arrival, who pays the freight and signs a full receipt acknowledging the delivery of the flour to him. The railroad company then stores the flour in a particular location or compartment in its depot, of which the merchant is advised; he then makes sales, and upon the conclusion of an agreement of sale, he hands to the buyers an order upon the railroad company, for the number of barrels called for by the contract. The purchaser sends liis dray or wagon with the order. The driver delivers the order to the railroad clerk, who points out the location or compartment in which the flour, against which the order is drawn, is contained, and the driver proceeds to load his vehicle. If the order calls for a certain number of barrels, and the compartment contains a larger number, the driver makes the selection and removal of the number to which he is entitled, and receipts for them. The order is left with the railroad company, when the first load is hauled, and separate receipt given by the hauler for the amount of each load. The parties to this suit understood and pursued this, the usual mode of transacting this business. The order from the seller to the buyer upon the railroad company, specifies the number of barrels, the number of the car upon which the flour was transported to the depot, and the number of the location or compartment in which it is stored, also the brand and quality of the flour.</p> <p>“ Fifth.. The one hundred barrels of flour before referred to, was all that was in the location in which it was stored on the 28th, 29th and 80th of August, and it was all alike, and answered the terms of the contract between plaintiffs and defendants in all respects.”</p> <p>The conclusions of law were:</p> <p>“ First. That upon the facts as found by the court, the title to the thirty-three barrels of flour destroyed in the depot, remained in the plaintiffs until the destruction thereof by fire, and did not pass to defendants.</p> <p>“ Second. That the plaintiffs are not entitled upon said facts, to maintain an action against the defendants as to said thirty- three barrels as for goods bargained and sold, or goods sold and delivered.</p> <p>“ Third. It is therefore adjudged that defendants go hence without day and recover their costs in this behalf expended and taxed at $ . To all of which said plaintiffs, by their counsel, except.</p> <p>“ Judgment and findings of court for defendants. Plaintiffs except. Motion for new trial overruled, to which plaintiffs except.”</p> <p>This judgment was affirmed by the district court.</p>

In October, I860, William Jones and Mary Ann Jones filed, in the court of common pleas of Morrow county, their petition against Lavina Kelly and others, for the partition of certain real estate described in the petition, and the assignment of dower therein. The court on hearing the petition made an order that partition be made, and dower assigned, and in pursuance of this order a writ of partition was issued to the sheriff of the county.

<p>A broker, who was not intrusted with tbe possession of the property, contracted in bis own name to sell the same to a vendee, who had no knowledge that the broker was not the real owner, but dealt with him as such. The broker notified his principals that he had sold for them, and directed where to ship the property to the purchaser. The owners, without any knowledge that the broker had contracted in his own name, and without any conduct on their part clothing the broker with authority to receive payment for them, or any possession, actual or constructive, of the property, delivered the same to the vendee. Held : .Payment by the purchaser to the broker, under such circumstances, is not a bar to the right of recovery by the owner.</p>

The original action was brought in the court of common pleas of Richland county, to recover the value of certain United States bonds alleged to have bean deposited with the First National Bank of Mansfild, and by said bank wrongfully appopriated to its own use. The First National Bank of Mansfield is an association organized under the act of Congress entitled “ An Act to provide a National Currency,” &c., approved June 3, 1864.

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

The original action was brought by plaintiff in error Smith Thomas as executor of Sophia Snider, against defendant in error, C. IT. Chamberlain, administrator do bonis non of Benjamin P. Truex, in the court of common pleas of Morrow county on November 11, 1873.

<p>1. An indictment,' under sec. 6900, Revised Statutes, which charges that defendant corruptly offered and promised to B. a member of the House of Representatives of the General Assembly of the state, with the intent to corruptly and feloniously influence his vote upon a certain bill then pending in such house, “a valuable thing, to wit: stock of the Cincinnati Union Railway Co., of the amount and value of $20,000, and a large amount of money, of great value,” is not bad for uncertainty. It is not necessary, in addition to such allegation, to recite the facts which give the thing offered a value, nor to charge that a definite sum of money was offered.</p> <p>2. A single count in such indictment, which charged that B. was a member of the house, and also a member of a standing committee of such house to which the bill was referred, and that the offer or promise was made to influence his vote therefor in the house, and his vote for a favorable report thereon in the committee, is not bad for duplicity. The charge thus made constitutes but one offense under the statute.</p> <p>3. To charge the jury, in a trial upon such indictment, that the thing offered or promised must have a value at the very time it is offered or promised, and while the bill is pending, is error, but not to the prejudice of the defendant. It is a crime, under section 6900, to offer or promise a thing valuable at that time, or which will be valuable when, according to the promise, it is to be given or delivered.</p> <p>4. Under the act of April 18, 1883, entitled “An act to amend sections 455, 6710, 6711 and 7356 of the Revised Statutes,” this court cannot examine the bill of exceptions, for the purpose of determining whether the verdict is against the weight of the evidence.</p>

<p>1. Perjury may be assigned on falsely swearing to the fact in. issue in au action ; to any circumstance which tends to prove or disprove such fact; to any circumstance or matter which tends to corroborate or strengthen the testimony upon such issue, or which legitimately affects the credit of the winesses giving such testimony.</p> <p>2. In an indictment for perjury, it is sufficient to charge generally, that the false testimony was iu respect to a matter material in the action in which it was given.</p> <p>3. Where the testimony of a witness goes directly to the matter in issue,— as in a dower case that plaintiff’s husband is alive, —and, to strengthen that testimony, the witness gives the place, date and number of times he has recently seen him, that they conversed together and had mutual recognition, an indictment for perjury will be good, which sufficiently negatives the truth of the particular circumstances thus given.</p> <p>4. Where the foundation is laid for contradicting a witness, by conduct or statement out of court inconsistent with his testimony upon a material matter, and such conduct oi statement is susceptible of different meanings, one of which would be inconsistent with the truth of such testimony, it is admissible in evidence, leaving the jury to determine which is the true meaning, and to exclude such evidence is error.</p>

In the year 1875, C. A. Brigham was doing business in Cleveland, under the name of Cleveland Furniture Company, and íd August and September of that year, the plaintiffs doing business under the name of Sherwin, Williams & Co., for the accommodation of C. A. Brigham, indorsed his two promissory notes, for $500, due November 16, and $1,500 due November 17, respectively, which were discounted at the Merchant’s National Bank.

<p>Error to the District Court of Lorain county.</p> <p>In an action prosecuted by Philip Lockwood against Otto Witte, in the court of common pleas of Lorain county, to recover possession of a parcel of real estate, containing about 3,800 square feet, in that county, the only issue was with respect to the legal title, which issue was framed under the Civil Code, § 559, Rev. Stats. § 5782. No allusion was made in the pleadings or evidence to any mistake in any of the deeds in the chain of title of either of the parties. Judgment was rendered in 1876, on the issue joined, in favor of Lockwood for the recovery of such possession. That parcel of real estate is the property in controversy in this case.</p> <p>Lockwood being about to enforce the judgment, Witte, in 1877, commenced an action in the court of common pleas of Lorain county, against Lockwood and others, and obtained an injunction against such enforcement. In the petition he states that in 1849, Elam Fairchild was the owner of a certain tract of land, including the parcel above mentioned, and that through a series of purchasers of the whole tract, ho (Witte), became the owner thereof in 1870; that the purchaser from Fairchild paid him for the whole tract, and Fairchild put him in possession of the same, and executed and delivered to him a deed, intending thereby to convey to him the whole tract, but by mutual mistake of the parties, the parcel here in dispute was omitted; that the successive purchasers in like manner, bought, paid for, and were placed in possession of the whole tract, and received deeds which by like mutual mistakes omitted the parcel in dispute ; that he (Witte), is the owner in equity of the parcel in dispute, and entitled to have the legal title to the same ; and that the legal title to the parcel in dispute has passed from Elam Fairchild to Philip Lockwood, through successive purchasers, with notice of such adverse possession and consequently of his (Witte’s) rights; and that Lockwood had obtained, and was about to enforce a judgment for the recovery of possession of such parcel as already stated. Elam Fairchild was made a party, and also all the persons who claimed through him as aforesaid, and the prayer was that the several deeds should be corrected in the particular named, and that the judgment for the recovery of possession should be perpetually enjoined.</p> <p>Lockwood, in his answer, set up and relied on the judgment in his favor as a bar to the action. There was neither demurrer nor reply to the answer, but the district court at the trial on appeal to that court, excluded evidence offered by Witte in proof of the allegations of his petition, and Witte excepted ; and thereupon the court dissolved the injunction and rendered judgment in favor of Lockwood and against Witte on the ¡headings, and Witte prosecutes this petition in error to reverse the judgment.</p>

<p>While courts will not enforce an illegal contract betwen the parties, yet, if an agent of one of the parties has, in the prosecution of the illegal enterprise for his principal, received money or other property belonging to his principal, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.</p>

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

<p>A brother-in-law and sister-in-law are, within the meafting of the statute prescribing the punishment of incest, nearer of kin, by affinity, than cousins.</p>

<p>1. Property was devised to the trustees of M. township, and their successors perpetually, for the exclusive benefit of the poor of the township, with authority to the trustees to manage the trust “ as they think best for the benefit of said poor.”</p> <p>Held : The trustees were thereby authorized to invest the moneys belonging to the trust, in notes or other securities, and such power was not limited, by the act of April 19, 1865, S. & S. 910, to loans upon realestate security.</p> <p>2. In an action by such trustees, to recover upon a promissory note, purchased with moneys of and belonging to said trust,- it is no defense, that the township records do not contain the evidence of such purchase or ownership.</p>

<p>1. The third clause of section 639 of the Revised Statutes of the United States is not repealed by the Act of Congress of March 3, 1875, entitled, “An act to determine the' jurisdiction of circuit courts'of the United States, and to regulate the removal of causes from state courts, and for other purposes.”</p> <p>2. A petition, in accordance with that clause of section 639, for the removal of a suit to the circuit court, on the ground of prejudice and local influence, may be filed at any time before the trial or final hearing in the state court.</p> <p>8. The objection that no evidence is given that the sureties on the bond filed with the petition are good and sufficient, is waived if not made at the time of the application for removal.</p> <p>4. Where the condition of the bond which is offered does not provide for the payment of all costs that may be awarded by the circuit court, if said court shall hold that the suit was wrongfully or improperly removed thereto, the bond is insufficient, and the petition for removal is properly refused. ,</p>

Motion fo'r leave to file petition in error to the district court of Hamilton county. In 1873 Joseph C. Butler died, testate, in Hamilton county. Executors were appointed, qualified and continued in office until 1879, when plaintiff was appointed administrator de lonis non with the will annexed.

<p>Where an order of the probate court appropriating land for the road-bed of a railroad company is reversed in the court of common pleas, under Rev. Stat. §§ 0437, 0438, the court retaining “ the cause for trial and final judgment as in other cases,” error will not lie to such judgment of reversal.</p>

Daniel Y. Dingman, Sr., died, leaving a certain' tract of land in Shelby county, which he, by bis will, .devised to bis four sons, Daniel Y., George TV., Francis A., and James TV., husband of defendant in error. Francis A. died before the' testator, without heirs of his body, and under said will said lands went to the. other three sons named.

Jennette Stewart, a resident of Butler county, Ohio, died intestate, on the first day of January, 1883, leaving three sons, Hugh Stewart, Andrew Stewart, and Alexander Stewart, and also four grandchildren, to wit, Kate Skillman, Isabel Barnett, Jennie Heffner, and John Blair, children of a deceased daughter, surviving her, all of whom were of full age, and all residents of Butler county except Andrew Stewart and Alexander Stewart who resided in the county of Hamilton.

On April 1,1880, L. C. Barber, husband of Sarah R. Barber, being the owner of a certain track of land situate in Wyandot county was bound to convey the same to one Harriet J. Wilson, free from the inchoate right of dower of his wife Sarah. His wife refused to relinquish her right to the purchaser unless one-third of the purchase money should be transferred to her as her sole and separate property.

Mandamus. The commissioners of Marion county, being authorized and. having determined to erect a courthouse in that county, procured the necessary pians, drawings and specifications to be made and filed therefor; the estimated cost thereof to be $100,000.

<p>1. The office of clerk, in cities of the second class, is held by election, and not by appointment, within the meaning of section 1709 of the Revised Statutes.</p> <p>2. The term of office of such clerk is two years.</p>

<p>On the trial of oue charged with crime, a person, jointly indicted with him was called by the state and gave evidence tending to prove the guilt of the defendant on trial, which evidence was in conflict with former statements of the witness : Held, that the defendant may show, by cross-examination of such witness, that he had been offered money and property and immunity from punishment, if he would testify as ho finally testified on behalf of the state; the fact that the offer was made by one having no authority to make it going to the weight and not the competency of the evidence.</p>

On June 21, 1880, John Foster recovered a judgment against Martin Loudenback fpr $311, and costs of suit, in the court of common pleas of Champaign county. Pending the action, on May 31, 1880, Martin conveyed to liis brother, David Loudenback, a tract of land containing eighty acres, situate in said county.

Mandamus. The relator, John P. Ogelvee, state auditor, in his petition, represents that prior to October 28, 1881, he as auditor of the state, acting under the laws thereof, examined the certificates and abstract of the semi-annual settlement between the auditor and treasurer of Hamilton county, made on September 23, 1881, which certificates and abstract were returned to said auditor of state October 3, 1881.

<p>Where the evidence tends to prove the commission, by the defendant, of the crime charged in the indictment, at a particular time and place, and the defendant offers evidence tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tending to show such alibi was not to be considered, unless it established the fact by a preponderance of evidence. The burden of proof was not changed when the defendant undertook to prove an alibi, and if by reason of the evidence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant’s guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved.</p>

<p>Error. Reserved in the District Court of Lucas county.</p> <p>January 27, 1877, plaintiffs in error commenced an action against defendants in error, under the following caption:</p> <p>“ Peter F. Berdan, Maro Wheeler, John Berdan, and James Secor, late copartners as Secor; Berdan & Co., plaintiffs, v. Elbridge Gr. Wetmore and Samuel B. Witter, John Wood, and David Robison Jr., copartners doing business in firm name of Witter, Robison & Wood; Chauneey E. Smith, J. C. Bruning’ and-'Bruning, copartners, doing business as Bruning Bros. defendants.”</p> <p>Witter, Robinson and Wood demurred on the ground that as to them the petition did not state facts sufficient to constitute a cause of action. Smith and Bruning Bros, answered; Wetmore made default.</p> <p>A temporary injunction was allowed, but on final hearing upon the demurrer in February, 1878, the petition was dismissed as to all the defendants, on the ground that said demur, rer was well taken.</p> <p>February 15, 1878, said plaintiffs, except Peter F. Berdan, with one Forman Waite, styling themselves late copartners as Secor, Berdan & Go., filed a petition in error to reverse said judgment. Tlio omission of Peter F. Berdan’s name and the insertion of Norman Waite’s, now appears to have been by mistake in copying the petition in error, the intention being that all of said partners should join as co-plaintiffs in error. This mistake was not discovered' until since the case was reserved.</p> <p>This petition correctly describes the judgment which it seeks to reverse.</p> <p>The original papers and copies of journal entries in the case properly authenticated, are attached and made part of the petition. In them is found the name of Peter F. Berdan as one of said firm of Secor, Berdan & Co., and that of Norman Waite is a stranger to the record. On the hearing in the district court, no objection was made by defendants on account of the omission of Peter F. Berdan’s name as a plaintiff; but upon motion of said defendants, as well as plaintiffs, the case was reserved for decision in this court upon the questions raised by the demurrer below. When reached for oral argument here, the plaintiffs, with said Berdan, filed a motion, supported by affidavit, to be allowed to make said Peter F. Berdan a co-plaintiff in error, showing that the discrepancy between the names of said partners in the court below, and on error, occurred by mistake. This is not controverted, but defendants insist that as the time allowed by law for filing a petition in error has now elapsed, therefore the amendment cannot be made.</p> <p>This is the first question for decision.</p> <p>A statement of the substances of the petition is required to determine the points raised by the demurrer.</p> <p>December 11,1876, plaintiffs commenced an action and sued out an attachment before a justice of the peace of Ottawa county against defendant Wetmore, with garnishee process against Smith and Bruning Bros., all of which were duly served</p> <p>On appearance day, the garnishees appeared and answered; each admitting an indebtedness to Wetmore, which was evidenced by negotiable notes not yet due, the aggregate of which was less than the plaintiffs’ judgment that day rendered against Wetmore. He, so far as appears, made no defense, but moved to discharge the attachment; but on what grounds is not stated.</p> <p>On December 23, 1876, this motion was overruled, and an order was made that the garnishees pay into court, when due, the amounts which they owed the defendants as payees of said notes, to be applied in satisfaction of plaintiffs’ judgment.</p> <p>After said attachment took effect by service, Witter, Robinson & Wood, who had actual notice of these proceedings, procured from the defendant Wetmore by indorsement these notes, to apply on a pre-existing debt from him to them.</p> <p>The petition claims that by these proceedings the plaintiffs acquired, as against Witter, Robinson & Wood, the legal right co the proceeds of these notes, and that, as against plaintiffs, their possession is a fraud upon the court and upon plaintiffs. They aver this, right is in danger of being lost by a transfer of the notes to bona fide holders for value before due. Wherefore they ask that Witter, Robinson & Wood be restrained from transferring them, and that on final hearing they have a judgment enforcing the order of the justice, and for general relief.</p> <p>This petition was filed some sixty days before maturity of these notes, garnished.</p> <p>The garnishees, as defendants in this action, each answered touching their indebtedness as above stated, and asking the protection of the court, by whose order they are willing to abide.</p> <p>Final judgment on the demurrer was rendered after the notes became due.</p> <p>The only error assigned is, that the demurrer should have been overruled.</p> <p>The defendants resist on three grounds.</p> <p>1. There is a defect of plaintiffs, that cannot now be remedied, more than three years having elapsed.</p> <p>2. Negotiable instruments, before due, are not the subject of garnishment.</p> <p>3. No sufficient ground is stated for equitable relief.</p>

<p>Motion for leave to file a petition in error to the District Court of Cuyahoga county.</p> <p>The case is stated in the opinion of the court.</p>

<p>1. Where an insurance company refuses to receive from the assured a premium on a life policy, on the ground that the policy has lapsed by reason of the non-payment of such premium on the day stipulated for its payment, and the assured claims that the company has -waived the right to assert such forfeiture, equity has jurisdiction to determine, on the petition of the assured, the rights of the parties under such policy, and, if the policy is found to be in force, to compel the company to receive the premiums thereon, and issue renewal receipts.</p> <p>2. Although a life policy and the renewal receipts may contain a stipulation or notice that agents of the company shall not have authority to waive forfeitures where premiums have not been paid on or before the ¡ day designated for their payment, yet the course of business between the agent, the assured, and the company, in giving effect to payments made when overdue, may be such that the company will be precluded from objecting to a payment tendered when overdue, where no notice had been given the assured that in the future such overdue payments would not be received.</p>

<p>Error to District Court of Cuyahoga county.</p> <p>Charles Alber (the plaintiff in error) recovered a judgment against Ludwig Strowbeck and Fred. Haag for $262.50 in an action pending before a justice of the peace in Cuyahoga county. Strowbeck and Haag, desiring to appeal the cause to the court of common pleas, John Froehlich and George Gabelee (the defendants in error) entered into the following undertaking, to wit:</p> <p>Charles Alber j v. >• Ludwig- Strowbeck and Fred. Haag, j</p> <p>Appeal .Bond.</p> <p>Whereas, on the 5th day of February, 1876, the said Charles Alber obtained a judgment against the said Ludwig Strowbeck and Fred. Haag, on the docket of O. P. McMillan, Justice of the Peace, for $262.50 damages, and for’ $44.10, cost of suit, and the said Ludwig Strowbeck and Fred. Haag intend to appeal therefrom to the court of common pleas of Cuyahoga county.</p> <p>Now, therefore, I, of Independence township, of Cuyahoga county, Ohio, do hereby, pursuant to the statute in such case made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding the sum of $614.40 and I do also undertake in said last mentioned sum that the said appellants will prosecute their appeal to effect, and without unnecessary delay.</p> <p>yy ., j. y Bail for appeal.</p> <p>George Gabelee.</p> <p>John Froehlich.</p> <p>Executed and acknowledged before me, and surety approved this 12th day of February, 1876.</p> <p>O. P. McMillan,</p> <p>Justice of the Peace, Independence Township.</p> <p>Afterwards proceedings were had in the common pleas court which resulted in a judgment, in favor of Alber, against Strowbeck alone, upon the same cause of action, for the sum of $295.29 and costs.</p> <p>Execution having issued on said judgment and returned “ no goods or chattels, lands or tenements found whereon to levy,” an action was brought upon the undertaking above set' forth. To a petition fully setting forth the above facts, a demurrer was filed and sustained by the court of common pleas, and such petition dismissed. The district court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to obtain a reversal of such judgments.</p>

<p>1. The only mode in which jurisdiction, m inmium, can be obtained over the defendant company in suits authorized by the act of February 37, 1846 (S. & C. 1188), was prescribed by section two of the act: by service of process at their usual place of business within the county wherein the suit was brought.</p> <p>3. In actions against unincorporated companies by name, as authorized by that act, constructive service on defendants by publication, as authorized by section thirty-five of the justices’ code of March 14,1853 (S. & C. 769), when service of summons cannot be made and property has been seized in attachment, cannot be resorted to in lieu of actual service, at the usual place of business of the company within the county.</p> <p>3. The appearance of a defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action or a waiver of any defect in the mode or manner by which such jurisdiction is obtained.</p>

<p>1. Where a husband purchased lands with money received by him from his wife, in pursuance of an agreement made between them before marriage that he would invest the same for her benefit, and took the title thereto in his own name, a trust in such lands resulted in favor of the wife, although the money was thus received before the taking effect of the act of April 3,1861, ‘‘concerning the rights and liabilities of married women.”</p> <p>3. Husband and wife are competent to testify concerning any communication made by one to the other, or an act done by one in the presence of the other, during coverture, if the communication was made, or the act done, in the known presence, or hearing, of a third person competent to be a witness, although such third person is not living at the time of the trial.</p>

<p>Motion for leave to file a petition in error to tlie District Court of Darke county.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga county.</p> <p>In 1881 an alternative writ of mandamus was issued from the court of common pleas of Cuyahoga county, on the relation of Rice and others, constituting the board of directors of the house of refuge and corrections, Cleveland, against Schlatterbeck and others, constituting the board of county commissioners of Cuyahoga county, and Bauder, auditor of the county. By the writ the commissioners were commanded to direct the county auditor to issue a warrant or warrants upon the treasurer of the county, in favor of the relators, for the sum, named in the petition for the mandamus, that is, $1,571.80 and $1,548. 20, and the auditor was commanded to draw such warrant or warrants accordingly, or that the commissioners and auditors show cause why they refuse to do so. The sums mentioned were the amounts claimed to be due from the county to the re- ] a tors “for boarding prisoners committed to the house of refuge and correction, state cases from police and probate courts, for the quarters ending December 31, 1880, and March 31, 1881.” The house of refuge and correction was established and organized under the municipal code of 1869, §§ 219-270, Rev. Stats. §§ 2031-2082. Fully one-half of the persons so committed, and for whose maintenance compensation is thus sought, were infants committed for “incorrigible conduct” alone; and this is true of both accounts. On issue joined it appeared that the commissioners offered to allow and pay the accounts if the directors would strike therefrom the amounts claimed for maintenance of infants committed for “ incorrigible conduct ” alone ; but the directors refused to strike out such portion of the accounts.</p> <p>The Revised Statutes provide as follows:</p> <p>“Sec. 2050. The Board may, at its discretion, receive into such institution infants under the age of sixteen years committed to their custody in either of the following modes, to wit.</p> <p>“ 1. Infants committed by the mayor of the corporation, or any judge or justice of the peace of the county, on complaint and due proof by the parent, guardian or next friend of such infant, that by reason of incorrigible or vicious conduct such infant has rendered his control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that from regard to the future welfare of such infant and for the protection of society he should be placed under the guardianship of the board of directors of such house of correction.</p> <p>“ 2. Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the directors of such institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity of the parent, guardian or next friend, in whose custody such infant may be, or other cause, such parent, guardian or next friend is incapable or unwilling to exercise the proper care and discipline over such incorigible or vicious infant.”</p> <p>“ Sec. 2071. The expense of maintaining infants committed to a house of refuge and correction by a court or magistrate of the county in which such institution is situated, or by the police, or other court of the corporation, for offenses against a law of the state, or for trial, or as a witness, shall be paid by the county; and the expense of infants committed by township trustees shall be paid by the township, and of those committed by parents and guardians shall be paid by them, except in cases when the board otherwise determine; all which expense shall be ascertained and fixed by the board.”</p> <p>“ Sec. 2072. The expense of maintaining and administering the affairs of houses of refuge and correction, above the receipts thereof, shall bo audited and paid, from time to time, by the council of the corporation; and a tax for such expense shall be levied and collected as a part of the ordinary expenses of the corporation.”</p> <p>The court of common pleas refused to award a peremptory writ and dismissed the petition, the district court affirmed the judgment, and this motion is filed for leave to file a petition in error to reverse as well such order of dismissal as also the judgment of affirmance.</p>

■ The city of. Cleveland has a work-house, constructed, organized and maintained under the municipal code of 1869, §§ 271-282, Rev. Stats. §§ 2095-2107. During the years 1879, 1880, and 1881, divers persons were convicted, in the courts of Cuyahoga county, for misdemeanors punishable by statute, prosecuted in the name of the state, and committed to the work-house for non-payment of fines and costs.

<p>Motion for leave to file a bill of exceptions to the judgment of the Court of Common Pleas of Belmont county.</p> <p>The defendants, Gilbert Yanderpool and Edward E. Jones, were indicted in the court of common pleas of Belmont county for forgery committed in 1880. Upon being arraigned they pleaded specially, that prior to the finding of the indictment they were residents and citizens of Canada, and had been extradited therefrom to the state of Ohio, on an extradition warrant specifying that they were charged in Butler county with the within offense, within the provisions of the treaty of 1812, between the United States and Great Britain; that they had been tried in Butler county for that offense, convicted and sentenced to the penitentiary, and that the term of their imprisonment has not yet expired.</p> <p>They claim that until a reasonable time after the expiration of that sentence they cannot be tried for another offense.</p> <p>On demurrer to this plea the court of common pleas so held, and remanded the prisoners to the authorities of the penitentiary, and stayed the proceedings until a reasonable time after the termination of their imprisonment, to enable them to return to Canada.</p> <p>The State' excepted to this decision, and now asks leave under the provisions of section 7306 of the Revised Statutes to file a bill of exceptions to review the same</p>

Error. Reserved in the District Court of Franklin county. The plaintiffs filed in the court of common pleas of Frank- • lin county a petition, the material parts of which are as follows: “ The plaintiffs say that they are the duly appointed and qualified executrix and executor of the last will and testament of Minor P. Tone, deceased.

<p>An indictment which was claimed to be under Rev. Stats. § 7050, for illegal voting, alleged that the accused, on April 2, 1883, at the Township of U. in the County of F., did unlawfully, willfully and knowingly vote more than once, to wit, twice, at a certain corporation election then and there being holden and authorized to he holden by the laws of the state. Held, that the indictment is fatally defective in failing to designate the election at which the defendant voted, notwithstanding Rev. Stats. §§ 7215, 7325.</p>

<p>A defendant is a competent witness to transactions with, a deceased agent of plaintiff, though not occurring in his presence, if within the scope of such agent’s authority.</p>

<p>In 1865 Bryan and others being in actual possession under claim of title, conveyed Gallipolis Island to E. B. by deed, with covenants of warranty and seizin, and placed him in peaceable possession thereof. E. B. continued in such possession of the whole island until February, 1S74, when he conveyed the same to B. B. by deed with covenants of general warranty and seizin and placed her in full possession thereof. In 1873 0., in an action of ejectment against E. B. obtained a judgment for the recovery by metes and bounds of part of the island, but there yás no actual eviction of E. B. thereunder. In the summer of 1874 B. B. was evicted under such j udgment from the part of the island covered thereby.</p> <p>Held: The covenants of seizin in the deed from Bryan and others were real covenants, and passed by the conveyance to B. B., hence no action can be maintained thereon by E. B.</p>

<p>1. The rule that the language of a promise is to be construed most strongly against the promisor, can not properly be applied to the construction of a guaranty.</p> <p>2. A guarantor, like a surety, is bound only by the express terms of his contract.</p> <p>S. The language used is to be understood in its plain and ordinary sense, as read in the light of the surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly confoims to the intention, of the parties.</p> <p>4. If the language is equally capable of each construction, the one will be adopted which construes it to be limited, and not the one which construes it to be continuing.</p> <p>5. A guaranty in the following words: — “Messrs. Morgan, Boot & Oo. The bearer, Mr. H. A. Bowlus, is visiting your city, buying a few goods in your line, and anything you may be able to sell him will be paid promptly as agreed on, which I herewith guarantee. H. A. Boyer,” — is not a continuing guaranty.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the District Court of Mahoning county.</p> <p>A. Cunnington & Son, peddlers of queensware and glassware, were traveling on the public highway, in 1880, from Lowellville to Y oungstown. Their wares were contained in a two-horse wagon and a one-horse wagon. Night coming on and the road being rough, danger to their wares prevented them from proceeding further, and they determined to stop for the night, removing the wagons from the traveled portion of the road. They claim that they fastened the three horses: to the tail of the larger wagon by a strong strap. The road on which they were traveling ran parallel with and near to the railroad track of the Pittsburgh and Lake Erie Railroad Company. There was a private road twenty feet and upward in width, belonging to one Quiesner, leading from the public highway across the railroad track and right of way, to Quiesner’s residence on a farm near the railroad. The crossing for the private road was made at the time the railroad was completed. There was no fence or gate across the private road on either side of the railroad, nor was there any cattle-guard, at the private way crossing, across the railroad track. Late in the night, it is claimed, the horses became frightened at the approach of a freight train, broke their fastenings, ran along the highway a short distance to the private road, passed out that to the railroad track, and ran along the railroad track several rods until they were overtaken by the train and killed.</p> <p>In an action in the court of common pleas of Mahoning county to recover the value of the horses, the plaintiffs relied on the fact that no fence or gate or cattle-guard had been erected. The company denied that there was any obligation upon it to place such structures there, and requested the court so to instruct the jury, but the instruction was refused, and on the contrary the court charged the jury, that if they should find that, without fault of the plaintiffs, the injury was caused by-the absence of such structure, the plaintiffs were entitled to recover the value of the horses. To this ruling the company excepted.</p> <p>The company also claimed on the trial that the plaintiffs were precluded from recovering by contributory negligence, in camping so near the railroad track. The claim was also made that several trains had passed after the encampment, and before the arrival of the train by which the horses were killed; that the horses had not broken loose; that they had not been fastened, but had been suffered to wander along the highway, the private road and the railroad track. As tending to show such defense, the company called Jones, its master of transportation and superintendent of telegraph, as a witness, who produced the company’s register of trains, to show the number of trains which passed along that part of the road, after the encampment and before the arrival of such freight train. The witness did not speak as to any of the entries from personal knowledge of the fact recorded, but said the book was made at Pittsburgh from telegrams and that the trains were moved on .the information thus received. The court excluded the book and the testimony of the witness as to its contents, no claim being made that his memory was refreshed by anything in the book. To the decision excluding the evidence the company excepted.</p> <p>Yerdict and judgment for $300. Affirmed in the District Court. This is a motion for leave to file a petition in error to •reverse the judgments, and presents only questions of law. 80 Ohio L. 169.</p>

<p>The act of April 7,1876, “ relative to changing of proposed lines and termini of railroads,” authorizes a railroad company, in certain cases, by a majority of its directors, with the written consent of three-fourths in interest of the stockholders, to change the location of its proposed line of road, or a part thereof, provided “ that any subscription of stock made upon the faith of the location of such railroad, or a part thereof, upon any line abandoned by such change, shall be canceled al the written request of the subscriber not having assented as aforesaid, filed with the secretary or other chief officer of the company.” Held: A subscriber, who expressly stipulates against any change in the line of road, though after the passage of the statute, is not concluded by its provisions. The failure of such subscriber, after a change in the location has been made, to request in writing the cancellation of his subscription, is not a waiver of the conditions of his contract.</p>

<p>Under authority of an ordinance of the city of Cincinnati, B., and others, who were the owners and drivers of Hackney coaches, used and occupied the side of the public street on which the plaintiff’s store rooms fronted, as a hackney coach stand, in such manner and so constantly, as to constitute an unlawful interference with the use and enjoyment of plaintiff’s premises, and so as to render access to the store rooms of the plaintiff impossible. Held: That such grant was without authority of law, and constitutes no justification for obstructing the plaintiff’s right of access to the street.</p>

May 6, 1878, William E. Russell obtained a judgment in the court of common pleas of Summit county, against Jane Allen, for $424.17' debt and $15.63 costs. Levy was made upon the defendant’s house and lot in Akron, in that county, on which she resided, being her homestead owned by her in her own right, and the only real estate which she possessed. She demanded that the property be set off to her as a homestead. Its value did not exceed $1,000.

. Reserved in District Court. The original action was brought by plaintiff in error, as treasurer of Washington county, against defendant in error, before a justice of the peace, to recover four dollars and forty cents, per capita taxes and penalty, assessed on four dogs, in the year 1881, under sections 2754, 2833, and 2855 of Revised Statutes.

' • In the common pleas, Gregory sued Small, Baldwin, and ■Iioge, who were the local directors of a school district, for wilfully and oppressively dismissing him as a teacher, while he was fulfilling a contract to teach a four-months school, before the expiration of his first month. The petition alleges a contract to teach, the commencement of his term, his teaching some three weeks, his discharge, and his readiness to perform, and asks damages for breach of this contract.

<p>Error to tbe District Court of Muskingum county.</p> <p>In 1870 John Forsythe died, leaving the following last will and testament, which was duly probated, and under which the widow elected to take:</p> <p>“I, John Forsythe, of Eich Hill township, Muskingum county and state of Ohio, of the age of seventy-four years, and being of sound mind and memory, do make, publish, and declare this my last will and testament in manner following, that is to say :</p> <p>“ Item 1. — I. give and bequeath to my beloved wife Susanna, her lawful dower in my farm, and whatever else the law allows her.</p> <p>“Item 2. — I give and bequeath to my son William, the [6183-100] sixty-one eighty-three-hundredths acres of land for which I have given him a deed already.</p> <p>“ Item 3. — I give and bequeath to my son Noah’s children one hundred dollars to each of them, and to his widow one hundred dollars.</p> <p>“ Item 4. — I give and bequeath to -my son John five hundred dollars.</p> <p>“ Item 5. — I give and bequeath to my son David four hundred dollars.</p> <p>“ Item 6. — -I give and bequeath to my son Elijah’s widow one hundred dollars.</p> <p>“ Item 7. — I give and bequeath to my son Charles Eiley’s child one hundred dollars, and to Charles Eiley’s widow fifty dollars.</p> <p>“ Item 8. — I give and bequeath to my daughter Susanna Wilson four hundred dollars.</p> <p>“Item 9. — I give and bequeath to my daughter Eebecca Mintier four hundred dollars.</p> <p>“ Item 10. — I give and bequeath to my daughter Elizabeth Given four hundred dollars.</p> <p>“ If my estate, after paying all my just debts, should not amount to the above bequests, the deficiency shall come off each in proportion to their bequests, except William, Noah’s children and widow, Elijah’s widow, and Charles Eiley’s child and widow.</p> <p>u And if my estate amount to more than above bequests, surplus shall be divided and given to each in proportion to their bequest, except Noah’s widow and children, Elijah’s widow and Charles Riley’s child and widow, whose bequests shall not be altered. Lastly, I do nominate and appoint my son William Eorsythe, and Thomas Haney, to be executors of this my last will and testament, with power and authority to settle all claims against my estate, and to collect all debts due to me, and to sell my real estate to the best advantage within the space of three years after my decease.</p> <p>“ The above instrument, consisting of one sheet, was at the date thereof signed, sealed, published and declared by the said John Eorsythe, as and for his last will and testament, in pre. sence of us, who at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.</p> <p>■ “ Thomas P. Wilson,</p> <p>David P. Wilson.</p> <p>“In witness whereof, I, John Eorsythe, do set to my hand and seal this first day of June, in the year of our Lord one thousand eight hundred and sixty-nine.</p> <p>John Eorsythe.”</p> <p>The executor filed his petition to obtain a construction of this will, alleging that there is a surplus, and ashing whether William is entitled to share therein, or whether it is to be divided among the legatees named, excepting the children and widows of his deceased sons.</p> <p>The courts below held that he was excluded, and gave this surplus as follows : To John, five parts ; to David, four parts; to Susanna, four parts; tó Rebecca, four parts ; and to Elizabeth, four parts.</p> <p>There was no evidence offered or fac s admitted to aid the court in the construction of the will.</p>

<p>Motion for leavé to file a petition in error to the District Court of Hamilton county.</p> <p>Plaintiff in error commenced an action in the superior court of Cincinnati, against the defendant, to recover back the sum of $121.81, paid to the defendant as treasurer of Hamilton county, upon an illegal demand, and under a mistake of fact. The petition alleges the facts substantially as they are hereafter recited. The defendant filed the following answer :</p> <p>“ Defendant says that in December, 1880, there was due and unpaid on said premises, taxes to the ¿mount of $121.81. That plaintiff came to the auditor of Hamilton county, and admitted to him an indebtedness in said sum as taxes on said premises, and asked the said auditor for a bill of the same, and an order upon which he, the plaintiff, could pay the said taxes to the treasurer of said county, and that upon said order from the auditor, duly presented to the treasurer at his office, said taxes were received by the defendant from the plaintiff as such taxes on said premises.</p> <p>“ Defendant says that said payment was made by the plaintiff voluntarily, and with full knowledge of all the facts; that no demand was made for the same by any one legally authorized to make or enforce such demand.”</p> <p>“ And he denies all other allegations of the petition not herein specifically admitted.”</p> <p>It was admitted upon the trial, that in 1871, one Lucien Ford was the owner of lot seven, in Kemper’s subdivision, in the city of Cincinnati, that the decennial appraisement of real estate was made that year, and this lot returned by the assessor at $5,000. The Decennial Board of Equalization increased the amount to $6,250; which amount was subsequently equalized and reduced by the county and state boards of equalization to $1,180, at which valuation it was placed on the tax duplicate. In 1871 Ford sold a part of the lot to the plaintiff, and the remaining part to one Evans. The auditor divided the total valuation between the two parcels, by placing the part bought by plaintiff on the duplicate at $2,480, and the part bought by Evans at $2,000. Afterwards, during the same year, Evans sold his part to plaintiff, who thereupon became the owner of the whole lot. The separation made on the tax duplicate, however, was continued; the lot appeared upon the duplicates from 1871 to 1880, inclusive, as follows:</p> <p> </p> <p>The taxes charged thereon for each of said years were duly paid. In 1880 the commissioners of the county entered into a contract with one C. F. Hornberger, by which said Hornberger was employed to ascertain and furnish to the county auditor such facts and evidence as were necessary to authorize him to subject to taxation any property improperly omitted therefrom, etc.; agreeing to pay him as compensation therefor twenty-five per cent, of all sums collected and actually paid into the county treasury as taxes on such omitted real property.</p> <p>That plaintiff owned the said lot seven, and had regularly paid all taxes thereon, and that there was no charge for back taxes upon the duplicate against said property.</p> <p>That plaintiff received a written notice from C. F. Horn, berger, notifying him that he was employed by the county commissioners to hunt up property omitted from the tax duplicate — that some of plaintiff’s property had been omitted, and that he was indebted for back taxes on said property, and requested',him to call on him.</p> <p>That plaintiff, in company with C. F. Hornberger, went to the auditor’s office; that a wrangle over this matter took place there ; that the auditor asked plaintiff if the tax was all right; plaintiff said: “Lf I have to pay the tax, I presume it must be all rightthat the auditor gave plaintiff an order on the treasurer, in terms authorizing the treasurer to receive “ $424.84 tax from 1872 to 1880, on $1,800 value, on part of lot seven aforesaid omitted from duplicate,” and signed the same as auditor. Plaintiff thereupon paid the same to the treasurer, taking his receipt therefor as for taxes from 1872 to 1880 on part of lot seven, valuation $1,800 omitted from tax duplicate.</p> <p>All the above recited facts were admitted on the trial.</p> <p>The plaintiff then offered by his own testimony to prove, and was prepared to testify, and would testify, “ that in obedience to said notice, he called on C. F. Hornberger; that said Hornberger represented to him that he was regularly employed by the county commissioners to hunt up property omitted from the tax duplicate; that a part of lot number seven had never been returned by the decennial assessor of 1870, and had been omitted from the tax duplicates of 1871 to 1880, inclusive ; that there were taxes due on the omitted part of said lot, amounting to over $400 ; that the same, were charged on the duplicate against him; that if he did not pay them, penalties would be added, and the lot placed on the delinquent list and sold.</p> <p>The defendant objected to said evidence, the objection was sustained by the court, to which the plaintiff at the time by his counsel excepted.</p> <p>The plaintiff then testified as follows: “ At the time I paid said taxes, I believed that said taxes were charged up against my property on the tax duplicate, and that the auditor had so certified the said taxes upon the -tax duplicate to the treasurer for collection, and that these charges of back taxes existed against my property, in the auditor’s and treasurer’s offices. I did not find out that these taxes- were not charged against me on the duplicate, until some time after I had paid them.”</p> <p>The defendant then called E. W. Pettitt, who testified as follows: “ I am the deputy auditor. I drew the order on the treasurer to receive this. This tax was for part of lot seven, owned by plaintiff, and claimed by us to be omitted from the duplicate. This tax was never charged upon the duplicate. 1 generally attend to the business of making out orders; sometimes the auditor does it. These back taxes on this omitted land was unpaid.”</p> <p>The defendant also called W. S. Cappellar, who testified as follows : “ I am the county auditor. These taxes are for an omitted part of the land in lot No. 7, Kemper’s estate, belonging to plaintiff, not returned by the decennial assessor of 1870.”</p> <p>And this was all the testimony offered in the ease.</p> <p>Judgment was rendered for the defendant. The district court affirmed that judgment, and leave is now asked to file a petition in error in this court to obtain a reversal of such judgment.</p>

Mary A. McCurdy was the owner of certain real estate, situate in Warren county, which she agreed to sell to Jesse Gustin, on the 26th day of February, 1876. She had previously given a mortgage of the property to the Warren County Building and Loan Association to secure the payment of certain promissory notes, made by her,, to the association, and which had now become duo.

<p>A homestead having been assigned by metes and bounds, under the act of 1850 (2 S. & 0.1145, Rev. Stats. § 5485 et seq.), to the widow and unmarried minor children of a decedent, in a proceeding in the probate court by an executor to sell lands to pay debts, orders of such court in the proceeding, directing and confirming a sale of the real estate so assigned, subject to the homestead, and while the same is occupied as such homestead, are not merely voidable but void.</p>

John H. Piatt died intestate in the year 1822 without surviving issue, but left surviving him the plaintiffs intestate, Martha Ann (who afterward intermarried with David Gwinne) his widow, and defendants, his brothers and sisters and descendants of brothers and sisters. Martha Ann Gwinne died in the year 1843, and the plaintiff, Longworth Armstrong, was appointed administrator of her estate in the year 1875.

August 17,1882, plaintiff bought of defendant, a common carrier of passengers, a ticket from Newark to Junction City. While being carried as per contract he desired, to stop over at Somerset, an intermediate station, at which the train was to stop and on surrendering his ticket demanded a stop-over check, or some evidence of his right to resume his journey, on the train next to follow.

Habeas Corpus. Isaac Knapp, at tbe October term, 1877, of tbe court of common pleas of Sandusky county, was convicted of murder in tbe second degree and sentenced to the penitentiary for life.

<p>1. The statute of April 17,1883, entitled, “ an act further to provide against evils resulting from the traffic m intoxicating liquors,” authorizing annual assessments upon the business of trafficking in intoxicating liquors, is a valid and constitutional enactment.</p> <p>2. The provisions of the second section of the statute do not operate where the real property, on and in which the business is conducted by a tenant, is held by such tenant under a lease for a term executed before the passage of the(statute.</p>

<p>Error to the District Court of Logan county.</p> <p>Martin N. Skillman brought suit in the court of common pleas of Logan county, against the Cincinnati, Sandusky & Cleveland Railroad Company, to recover damages which he claimed that he had sustained by being wrongfully removed from the cars of the defendant.</p> <p>On the trial of the case, evidence was given to the jury tending to prove that on June 8, 1875, the plaintiff entered a passenger car of the defendant, at Huntsville, in Logan county, to be conveyed as a passenger to Bellefontaine, in the same county, ,on that day; that after going upon The train, lie presented to the conductor, in the smoking car, a paper purporting to be a blank drover’s pass, issued by the Cincinnati, Hamilton & Dayton Railroad Company, and demanded to be carried thereon to Springfield, free of charge, which paper the conductor refused to accept; that afterwards, in the passenger car, the conductor demanded of the plaintiff a ticket or his fare, when the plaintiff again presented the same paper, and demanded that the conductor indorse and fill it up, and carry him over defendant’s road, thereon free of charge; which the conductor refused to do, stating to the plaintiff that he could not accept the paper, but that plaintiff could pay his fare to Bellefontaine, and then procure a ticket for the residue of his journey ; that plaintiff asked the conductor what the fare to Bellefontaine was, who replied that it was twenty-five cents ; that plaintiff responded that he was not entitled to twenty-five cents' but only twenty cents, which he was willing and ready to pay, and would go to Bellefontaine and see if he could not find some agent there gentlemanly enough to accept, indorse and fill up said paper authorizing him to ride over defendant’s road free of charge; that the conductor replied that the ticket rate of fare from Huntsville to Bellefontaine was twenty cents when the ticket was pre-purchased, but that twenty-five cents was the fare when a ticket was not pre-purchased; that the plaintiff then said to.the conductor that he would not pay twenty-five cents, but only twenty cents, to which the conductor replied that he would have to pay twenty-five cents or leave the cars; that the plaintiff responded to the conductor, “You will have to put me off thenthat the conductor said, “ If I stop the train I will not accept your fare,” and the plaintiff still refusing to pay the twenty-five cents, the conductor caused the train to be stopped, after which the plaintiff offered to pay the conductor the twenty-five cents, which he refused to accept, and caused the plaintiff to leave the train. Evidence was also given tending to prove that the plaintiff tendered the twenty-five cents before the train was stopped or materially checked. Evidence was given tending to prove that from January, 1875, to January, 1877, the defendant charged at its railroad office at Huntsville, twenty cents for tickets from that place to Bellefontaine, and that the fare on the cars was twenty-five cents, and that printed notices were posted in the railroad office giving notice that the ticket rate was twenty cents, and the car fare twenty-five cents, and that the plaintiff knew that the tickets were sold at twenty cents. The evidence tended to prove that the plaintiff was required to leave the train at a point about three miles from Huntsville, where there was no depot, or usual stopping place, and that there was no such-depot or usual stopping place between Huntsville and Bellefontaine.</p> <p>It was admitted on the trial that the conductor demanded of the plaintiff twenty-five cents for his fare from Huntsville to Bellefontaine, and that the distance between those places is less than eight miles, and more than six miles.</p> <p>The verdict of the jury was in favor of the defendant, and the court overruled a motion for a new trial, and rendered a judgment upon the verdict. A bill of exceptions was taken, containing the charge of the court, as w7ell as the instructions requested by the plaintiff and refused by the conrt.</p>

Mandamus. Reserved in tire District Court of Hamilton county.

<p>Error to the Superior Court of Cincinnati.</p> <p>Mrs. Hughes, her husband joining, brought the original action against The Cincinnati & Springfield Railway Company, for that, in constructing its railroad through her lands, the defendant had wrongfully piled large quantities of waste dirt upon her arable lands, not embraced within the right of way, whereby the lands so covered with the waste dirt became untillable and wholly worthless, to her great damage, &c.</p> <p>An issue of fact having been joined, a jury was empanel-led and the plaintiff offered testimony. After the plaintiff closed her testimony, the court, on motion of defendant, directed the jury to return a verdict for defendant, which was done accordingly. After verdict, a motion for a new trial was made by plaintiff, which the court overruled and rendered judgment for defendant. A bill of exceptions, containing all the testimony, was filed. This judgment at special term was affirmed at general term of the superior court of Cincinnati.</p>

<p>1. In an action by one as surviving husband, against the heir of a deceased wife, to recover an estate by the curtesy where the marriage is put in issue, a marriage, in fact, may be established by showing that they lived together and cohabited as husband and wife for a series of years, that they always recognized and treated each other as such, and that they were so treated and reputed in the community and circle in which they moved, although no record evidence was offered, nor the evidence of any witness who saw them married, was given. Such evidence is competent, and its sufficiency to establish the fact of marriage is for the court or jury trying the issue to determine.</p> <p>3. That the proviso of section seventeen of an “Act regulating descents and distributions,” as amended (60 Ohio L. 31), is a limitation on the right of a surviving husband to curtesy in his deceased wife’s real es. tate made in favor of her issue or legal representative of such issue by a former marriage. The right to curtesy secured by the general clause of said section, can not be affected or defeated, by showing that the deceased wife left illegitimate issue, who, under section fifteen of said act as amended (64 Ohio L. 105), inherited her estate.</p> <p>3. By the terms of said section seventeen as amended, the provision of section fifteen as amended, which provides that, “bastards shall be capable of inheriting or transmitting inheritance from and to the mother .. . in like manner as if born in lawful wedlock.” can not be so construed as to affect the surviving husband’s curtesy in the real estate of his deceased wife in all cases provided for in section seventeen.</p>

<p>Mandamus.</p> <p>The relator, The Mutual Reserve Fund Life Association of New Tork, is a corporation organized under the laws of the state of New Tork. By its certificate of organization it is shown “that the particular business and object of such society is the mutual benefit of ourselves, and all others who may become members of the society, by providing benefits for families, and others dependent upon such members, by means of voluntary contributions to meet exigencies occurring from time to time, and to provide a fund for the common and exclusive benefit of all the members.”</p> <p>Its constitution provides: “ Sec. 10. Upon the decease of any member the association shall, within ninety days after receiving satisfactory notice and proof of the same, pay to the beneficiary named on the books of the association, or to his or her assigns or legal representatives as the case may be, the amount to which the same are entitled, according to the terms of the certificate of membership held.”</p> <p>By a by-law, it has recited, in substance, the provisions of section 3630 of the Revised Statutes of this state, and declared that in Ohio its business shall be limited to that contemplated by that section. This provision is limited to the state of Ohio, and has reference only to its contemplated business in this state.</p> <p>The relator claims the right to do business in this state under the provisions of section 3630, Revised Statutes, and the sections supplementary thereto, and exempt from the requirements contained in section 3604, Revised Statutes. It demanded of the defendant, who is the insurance commissioner of the state, a certificate that it has complied with all the legal requirements and was entitled to transact such business. The defendant refused to issue the same and this proceeding was commenced to compel him to do so by mandamus.</p>

<p>Error to the District Court of Portage county.</p> <p>Ira S. King brought suit against Michael Mulvey and James Reynolds to recover the amount duo upon a promissory note for three hundred and sixty-six dollars, made by them, dated May 10, 1870, and payable to Ira S. King, three years after date. In their amended answer, Mulvey and Reynolds admitted the execution of the note, but averred that Reynolds was in fact only a surety thereon.</p> <p>They further alleged that the note was given in part payment for a tract of land sold, at the date of the note, by King to Mulvey ; that as part of the contract of sale King represented to Mulvey that he owned the land which extended south to a certain fence (which he pointed out, and represented to be the line fence), between his land and that adjoining, and as being the southern boundary of his land, and that the tract of land within the boundaries pointed out included five acres and sixteen hundredths of an acre, on which there was a barn, and also valuable trees; that this piece of land would have made the tract sold to Mulvey more valuable by the sum of four hundred and fifty dollars, than the land which was in fact conveyed to him, and which did not include that piece; that King was then in possession of the five acres and sixteen hundredths, and put Mulvey in possession thereof; but that in fact he had no legal nor equitable title thereto, and the real owner obtained judgment for the possession thereof, against Mulvey, who was obliged to pay a. large sum for that part of the land, to avoid losing it; that King, being notified of the proceedings, and requested by Mulvey to defend his title and possession, but neglected and refused to do so; that when the deed of the land was made by King to Mulvey, the description, by mistake, did not include the five acres and sixteen hundredths, and made the south line so far north as to exclude that part thereof, which King, when the contract of sale was made, and as a part thereof, contracted and agreed to sell to Mulvey, who at the time of the execution and delivery of the deed, and for a long time thereafter, was ignorant of the mistake, and believed that the deed included the entire tract; that Mulvey had paid all of the purchase money, except that part for which the note described in the petition was given, and was willing to pay that if King would perform his contract ; that by reason of the premises Mulvey had sustained damages to the amount of four hundred and fifty dollars, for which he asked judgment, with interest from May 10, 1871, less the balance due on Ihe note.</p> <p>To the amended answer no rely was filed, and the cause was submitted- to the court, upon the petition, amended answer, and testimony. The plaintiff was not present at the trial, and no testimony was given in his behalf, but all of the material allegations of the amended answer were proved by the testimony of Mulvey and witnesses called by him, the alleged representations having been made by an agent who was authorized by King to make them ; and it was also proved that Mulvey bought the land on the faith of those representations, and would not otherwise have bought it; that the most valuable part of the tract was the five acres and sixteen hundredths; that King believed the representations to he true, at'the time the contract was made, and the land conveyed, the mistake having been made in a previous survey of the land, which all parties supposed to be correct; and also that the description in the deed included as large a quantity of land as Mulvey supposed he was buying, but the title to a part of it was in dispute. All of the evidence is. contained in the bill of exceptions, which is made a part of the record. The court of, common pleas decided in favor of King, overruled Mulvey’s motion for a new trial, and rendered judgment against him, which was on error, affirmed by the district court. This proceeding is prosecuted to reverse the judgment' of the district court.</p>

Staight was indicted in the court of common pleas of Logan county for perjury. It was proved that he made application for a marriage license, in Logan county, on December 2, 1882, and testified as to the ages of the parties to the contemplated marriage, and residence of the female, and the alleged perjury was in the testimony so given. The oath was administered by L. E. Pettit, to whom the application was made.

<p>1. Whether an equitable interest in an instrument for the payment of money passes by delivery — whether such instrument be negotiable or not, or be indorsed or not — depends solely on the intention of the parties. But a secret intention inconsistent with the positive acts of the party, is of no avail.</p> <p>3. R., the owner of a county order, on presenting it to the treasury for payment, was requested by M., the treasurer, to take it to his bank, which he did, and delivered it to the bank without indorsement, and took credit for the amount thereof as a deposit in his account,subject to his check in two or three days thereafter. On the next day the bank presented the order to the treasurer for redemption, and the same was satisfied by giving credit to the bank upon its checks then held by the treasurer. On the second day thereafter, and before R. had checked on any portion of the order deposit, the bank failed.</p> <p>Held : Without showing bad faith on the part of M., an action against him by R. for the wrongful conversion of the order, cannot be maintained.</p>

<p>Error to the District Court of Butler county.</p> <p>The defendant in error, as treasurer of Butler county, Ohio, brought suit against Patrick Grant, to recover $2,236.37, being for taxes assessed against him, in Lemon township, Butler county, Ohio, for the years 1874, 1875, 1876, 1877, 1878.</p> <p>The answer of the defendant contained a general denial of his liability to pay the taxes, or that the same were legally charged against him; says he is a native of Ireland ; is a subject of Great Britain ; never was a citizen of the state of Ohio, or a resident therein, and that he never resided in Lemon township.</p> <p>That he has no family and has no residence anywhere. That for the last fifteen or twenty years his business has been that of a peddler, and during a.ll said time he has been engaged peddling in Pennsylvania, Virginia, Ohio, Indiana, Michigan, Illinois, Iowa, and in Canada West. That he has no personal property except some notes and mortgages, and. the goods lie peddles, all of which he carried with him, wherever he went.</p> <p>lie denies that any assessor of Lemon township, during all of said years, served him with notice to list any personal property of any kind, and he denies that any assessor of said township made any return to the auditor of Butler county, Ohio, of any personal property against him.</p> <p>The court of common pleas of Butler county, Ohio, gave judgment against Grant for $1,273.70, and finding that his residence, for the purpose of taxation, from second Monday of April, 1874, until second Monday of April, 1878, was in Lemon township.</p> <p>Patrick Grant filed a petition in error in the district court .of Butler county, Ohio, to reverse said judgment, but said court affirmed the judgment of the court of common pleas.</p> <p>This petition in error is filed 'in- this court for the purpose of reversing the judgment .of the district court and court of common pleas.</p> <p>The bill of exceptions, which was taken before the law was passed relieving this court from a review of .the evidence, shows that the tax was levied on notes and • mortgages, owned by Grant. It is conceded that Grant had no real estate or chattel property, within the county, so that the only question is, was he subject to be taxed on these credits-? If lie was a resident of Lemon township he was properly taxed, otherwise not.</p> <p>In behalf of plaintiff below, S. B. Berry testified, that- he had known Grant for six years or longer; that he had frequently been in Middletown (in Lemon township) and was known as a peddler and money-lender ; was there once a year or sometimes oftener, and that he having refused to list his credits, he made up the amount against him from an examination of the records.</p> <p>William Cunningham, the assessor for Lemon township in 18.79, testifies to serving a tax notice on him in 1879, which lie refused to receive, and said that bis home was in New London, Canada West, and that what tax he paid was -paid there, and that he afterward .examined and found that his name was not on the duplicate there.</p> <p>William Stout and John Weidenborrer, Jr., testified Jo the same conversation.</p> <p>William Weikel, the assessor in 1875, says that he .knew G-rant. •“I savLhim. in Middletown, which is in Lemon township, in.the^spring,of 1875 ; I at that time presented-him with a blank tax notice; he would notaccept.it; .s.aid he was not a resident; said lie had no property subject to taxation here; this was in spring of 1875 ; I have seen him there at Middle-town tvvo or three times á year since I saw him carrying a pack; he was a peddler; I have seen him in Middletown sometimes á month or more in the spring of the year.”</p> <p>L. G. Doty", being sworn as a witness, testified as follows: “I am an attorney atdaw at Middletown, in Lemon township, Butler county, Ohio ; I have known Patrick Grant (defendant) intimately from 1851-5 to this time ; his business was that of a peddler by carrying pack on his back; he never had, to my knowledge, any residence in Lemon township, Butler county, Ohio ; he never to m'y knowledge voted there; had no home there that I know of; had no family ; he is unmarried-; had no place to do business there, except that he sometimes did some business in our law office ; he owiled no real estate during all that time in Butler county ; he had no personal property during all that time in this county, except his pack, which he carried on his back, and was filled with linen goods and promissory notes and mortgages; wdien he first stopped iii Middletown he stopped with Paddy McCiie (a brother Irishman) but during the last four or live years he stopped at Patrick Elymi’s ; his business at Middletown was to look after notes and collect the interest and loan the same; he usually came once a year; sometimes twice a year; he always came in- the spring of the year to get his interest and re-loan it, and then he would go away with his pack and be gone for months ; I usually calculated for him the interest on lifs notes and mortgages; ho had notes and mortgages in Butler county to the amount of about $16,000; he never left liis notes or mortgages with me or with any one elsé, but carried them with him; he w?as never long in Middletown at a time ;• in 18711 first consulted him about his business; he had a note against Paddy McCiie; 1 sued him on it and got judgment; I drew up notes and mortgages for him to amount in all to about $16,000 during this entire period; lie has a note and mortgage on myself for about $5,000 ; note and mortgage on Thomas Hágán for about $2,500 ; note and mortgage on Mark M. Doty for about $2,000; nóte and mortgage on William Davison for about $1,000; note and Mortgage on Paddy Ford, $300; note and mortgage on Peter Newcomb, $200 ; note and mortgage on George Lane, $1,100 ; note and mortgage on Simpson, about $2,000, and some others; Patrick Grant was sometimes sick at Middletown; I know nothing of his coming there with a woman; he always came to Middletown in the spring of the year; the interest was usually due on his notes and mortgages in the spring; he would stay away and perhaps we would not see him till the next spring; for the last two or three years he has been at Middletown perhaps twice a year; I would write to him during the year at different points, Evansville, Indiana; Parkerslhirg, Virginia, and other places ; the mortgages were mostly on real estate outside the village of Middletown.”</p> <p>William II. Todhunter, being sworn as a witness, testified as follows: “ I am a law partner of L. D. Doty at Middle-town, Lemon township, Butler county, Ohio; I have known Patrick Grant eight or nine years past; he had no residence in Middletown at any time to my knowledge; he had no property of any kind to my knowledge, except his notes and mortgages, which he always took with him; he usually returned to Middletown in March, or April of each year to collect his interest, which was usually due about that time; he has been here about twice a year to attend to this business and look after some suits he had brought there for past few year; he had no business room at Middletown that I know of; sometimes he did his business in our law office; I collected money for Grant and gave him check for amount; he never left the notes with us, but always carried them with him.”</p> <p>Charles F. Gunckel, being duly sworn as a witness, testified thus: “I am an attorney, residing at Middletown, Lemon township, Butler county, Ohio; have known Patrick Grant for ten or fifteen, years past; he had no residence in Middletown, or in this county, to my knowledge; he always claimed his home to be in London, Canada "West ; he had no property, except notes and mortgages, and a pack.”</p> <p>Patrick Grant, being sworn as a witness in his own behalf, testified as follows: “ I was born in the county of Down, Ireland; was twenty years old when I came to this county ; I am now and have always remained a British subject; I am a peddler; this is my business ; I have peddled in about fourteen states of this Union ; I never had a house or rented a house in lemon township in this county; I came to Lemon township only to peddle or to collect my interest and to re-loan it; I have never had any home or residence in Middletown or in Lemon township ; I had no property of any kind in Lemon township except my pack (which I carried on my back), and my notes and mortgages, which I always took with me; I bought goods at Cincinnati and other places, and had them shipped to mo at different points where I could mtíet them; I never came to Middletown except on business, and staid usually but a few weeks; sometimes I would be absent from Middletown two years, but I was usually there once a year, sometimes twice; I peddled altogether on foot, but sometimes I would forward my pack for a short distance by railroad.” Cross-examination : “ My first home was in county Down, Ireland; had no home in the United States — never; I went from Ireland first to Canada; was there five years or more ; I never had a wife; I have no lands in Canada ; I was, during the war, arrested in West Yirginia as a spy, and imprisoned at Camp Chase, near Cincinnati; after 1 was discharged I went to Washington City, and put my case in the hands of Lord Lyons, the British minister, who promised to attend to it; from Washington I went to Parkersburg, Yirginia ; staid there six weeks, and ever since 1 have been peddling in the different states of the Union; I had some money loaned in Iowa; in 1874 I had not quite $9,000; in 1875 I had about $10,000; in 1876 about $11,000; I now have about $16,000, all in notes and mortgages, on land and real estate in Lemon township -; I spent about two-thirds of my time in the United States; I never paid any taxes in Canada, or in any other place; when I went to New London, Canada West, I stopped at the cheapest boarding house I could find ; I own no property of any kind in New London, Canada West; I have no home anywhere, it was every plaee, it was where 1stopped; aftei' the war. was over I intended to collect my money in the United States and buy property in New London, Canada West, and make my home there, but there was so much discount on paper money that I could not do it, and now when paper money is about equal to gold I cannot collect my money.”</p> <p>Patrick Norton, being duly sworn, testified as follows: “ I live at Middletown; I have known Patrick Grant fourteen or fifteen years; he has always been a peddler; I never knew him to have a home at Middletown or Lemon township; he never rented or occupied a room there; he came and went with a pack on his back; when at Middletown he boarded usually at McOue’s house.”</p> <p>Peter Newcome, being sworn as a witness, testified as follows : “ I have known Patrick Grant last seventeen or eighteen years ; he has always been a peddler; I never knew him to have a house or place of business in Middletown or Lemon township.”</p> <p>Thomas Johnson being sworn as a witness, testified as follows : “ I live at Middletown; have known Patrick Grant six or seven years past; he is a peddler: I never knew him to have a home in Middletown or Lemon township.”</p> <p>The foregoing was all the evidence in the case bearing on the question of residence.</p>

The action was brought to charge the separate estate of the wife with the payment of' two notes, for $200 and $400, respectively, executed by her with her husband, Dec. 18,1867. The petition alleges: “ 1.

<p>Error to tlie District Court of Fayette county.</p>

<p>The will of T. was duly admitted to probate, and was in the following words:</p> <p>“ In case of any accident with me, I give all my property and money to my wife, Rhoda Ann Taylor, with this proviso: That she, my wife, provide for my adopted daughter, Mary Frances Boyle Taylor, adopted in the month of February following, being the year 1863. Dated this day, November 25, 1873.”</p> <p>The adopted daughter from the death of the testator to the time of her marriage, was supported by the widow, who had elected to take under the will. The adopted daughter was after her marriage supported by her husband, and the testator’s widow refused further to provide for her-.</p> <p>Held, the adopted daughter is not entitled to have set off to her any share of the estate; nor is she, while otherwise provided for, entitled to claim support from the testator’s widow.</p>

<p>Error fo the Superior Court of Cincinnati.</p> <p>In July, 1868, Charles H. Kilgour filed a petition in the superior court of Cincinnati against the Pendleton Street Railroad Company, The Franklin Bank of' Cincinnati, John J. Hooker, Anthony D. Bullock, Henry Lewis and others, alleging that be bad recovered a judgment, which was still in force and unsatisfied, against the street railroad company,0a corporation of wbicli he and the other defendants, except the Franklin Bank, were the stockholders ; that the Franklin Bank had also obtained judgment against the company, and that there were other debts due from the company ; that the entire property of the company had been sold and the proceeds applied to the payment of other debts, and that the company was wholly insolvent; that each of the stockholders was liable to the plaintiff and the other creditors of the company pro rata with the other stockholders to such amounts as were unpaid on their stock, and in a sum of money equal to the amount of his stock, or to such proportion thereof as might be required to pay all the debts of the company ; but that controversies had arisen among said stockholders as to the number of shares of stock held by them respectively, and the amounts for which they were liable. The petition prayed that an account might be taken of the debts of the company, and to whom owing; and also of the stockholders of the company, the amount of stock held by each, the amount due on the stock, and also due for the extra liability of one hundred per cent.; that an assessment might be made on the stockholders, in proportion to their liability, of such sums as would be sufficient to pay all the debts of the company; that judgment might be rendered against the stockholders respectively, for the sums so assessed, and for other relief. The case was referred to a master, to take and state the account prayed for, and upon the confirmation of his report judgment was rendered, in June, 1870, against those stockholders who had been served with process. ■</p> <p>It was found by the court that Bullock and Lewis held' stock to the amount of sixteen hundred dollars, and judgment was rendered against them for $652 ; and judgment was also rendered against Hooker, as the holder of stock to the amount of seven thousand nine hundred dollars, for $3,219.</p> <p>The court appointed a receiver to collect the sums for which judgment was rendered, and also, by legal proceedings or otherwise, the sums found due from those defendants not served with process, and from the money thus collected to pay the costs of the suit, and to distribute the balance pro rata among all the creditors of the company.</p> <p>In March, 1882, Kilgour filed a supplemental petition against Bullock and Lewis, alleging that an execution had been issued against Hooker and returned unsatisfied, and that he was insolvent: that Hooker acquired his stock by transfer from Bullock' and Lewis August 17, 1867, at which time all the debts of the company had been contracted, and that prior to that day Bullock and Lewis were the owners and holders of that stock; and praying judgment, on behalf of Kilgour and the other creditors of the company, against Bullock and Lewis for the amount of the original judgment against Hooker.</p> <p>Bullock and Lewis moved to strike the supplemental petition from the files, but their motion was overruled. They then demurred, but the court overruled their demurrer, and rendered judgment against them in accordance with the prayer of the supplemental petition. This proceeding is prosecuted to reverse that judgment.</p>

<p>Error to the District Court of Columbiana county.</p> <p>The Salem Manufacturing Company being insolvent, the plaintiff in error, a creditor thereof, filed a petition against the corporation, and its stockholders to enforce the individual liability of such stockholders. The petition alleged that the Eirst National Bank of Salem was a stockholder at the time the debt due plaintiff and the other indebtedness of the company were contracted. It is not alleged, nor is it claimed, that the bank was a stockholder, at the time the action was commenced. The answer of the bank denies that it was ever a stockholder in the corporation. The action was tried upon the issue thus presented, in the district court, and a judgment rendered for the defendant. The court stated its conclusions of fact and law separately. A bill of exceptions was taken, embodying all the evidence offered in the case, and made a part of the record.</p> <p>This proceeding is prosecuted by the plaintiff in error to obtain a reversal of that judgment.</p> <p>The findings and judgment of the district court are as follows:</p> <p>“ This cause coming on for hearing upon the appeal of said defendant, the Eirst National Bank of Salem, Ohio, and issues joined between said William D. Henkle, plaintiff, and said Eirst National Bank of Salem, Ohio, defendant, the same was submitted to the court upon the pleadings and evidence without the intervention of a jury, and the court being fully advised in the premises, as its conclusions of fact, finds that the First National Bank of Salem, defendant, was never the owner of stock or a stockholder in the said Salem Manufacturing Company. That on November 8, a. d., 1870, certificates for 115 shares of the stock of said Salem Manufacturing Company of the par value of eleven thousand five hundred dollars were delivered by the firm of Taber & Co. to Robert Pow. Said Taber & Co. before said delivery, executing warrants of attorney which were attached to said certificates conferring power on the said Robert Pow to assign and transfer said stock to said defendant bank or to any person or persons or corporation to whom said stock might thereafter be sold.</p> <p>“ The court finds that said certificates of stock were so delivered to said Robert Pow in trust for the use and benefit of said defendant, the First National Bank of Salem, and as collateral security for and to an indebtedness of Taber & Co. owing to said bank.</p> <p>“ That said Robert Pow, by • the direction and in the interest of said Bank did on the 30th day of December, a. d. 1871, transfer and assign to Joseph R. Roller sixty-five shares of said stock of the par value of six thousand five hundred dollars, and that on the 18th day of March, a. d. 1872, said Robert Pow by the direction and in the interest of said First National Bank transferred and assigned to Henry B. Baldwin fifty shares of said stock of the par value of five thousand dollars. That said sales were made for the benefit of said First National Bank and that it received the proceeds of the stock when so sold and transferred to said Roller and said Baldwin upon the respective dates above named. That said Joseph R. Roller and Henry B. Baldwin were defendants in this action on account of said stock so transferred to them, were served with process, and a decree taken against each of them for the full amount of their statutory liability on said stock in the court of common pleas in this action, which decree is still in full force; that said Joseph R. Roller was at ■the date of said transfer and- decree and still is solvent and responsible, and that Henry B. Baldwin was at the date of said transfer and has ever since been insolvent. ,</p> <p>“ That said defendant the Salem Manufacturing Company is an insolvent corporation of the state,of Ohio, and that full contribution is required and necessary to be made from each and every of the stockholders therein, of an amount equal to the par value of the stock owned or held by each, with interest thereon, for the payment of the debts of said company. And as its conclusions of. law upon the above found facts the court finds, that said defendant the First National Bank was not and is not a stockholder nor is it liable as a stockholder or otherwise to contribute to the payment of the debts of said Salem Manufacturing Company. It is therefore considered by the court that the said defendant, the First National Bank of Salem, go hence without day and recover from the plaintiff its costs herein expended, to all of which ruling, judgment and order of the court plaintiff excepts.</p> <p>“ And now comes the said William D. Henkle, plaintiff, and presents to the court here his bill of exceptions to the overruling of his motion for a new trial, and the same is signed sealed and allowed and ordered .to be placed on file and made a part of the record in this case, all of .which is so done as prayed for at the term aforesaid.</p> <p>“ And by consent it is further ordered that no record be made of any of the pleadings in this cause filed except of plaintiff’s petition, and the answer of said defendant, .the First National Bank thereto.”</p> <p>The stock never appeared upon the books of the company in the name of the bank.</p> <p>The testimony, as to the actual contract under which the bank took the stock, consists wholly of that given by two witnesses, M. Frank Taber, for the plaintiff, and Henry C. Jones (who acted for the bank in the transaction), for the defendant.</p> <p>The material part of Taber’s testimony is as follows :</p> <p>I was a member of the firm of Taber & Go. That is my signature in the warrant of attorney in that bopk (being the warrants of attorney, copies of which are hereto attached). We sold stock to the First National Bank of Salem. That is my recollection of it now. We did surrender it to them for a, consideration. By we, I mean Taber & Co. I cannot state positively the amount of the consideration without looking over old papers. I signed this paper. The First National Bank received that stock in part payment of a debt that wé owed them. The amount of the indebtedness of Taber & Com-. pany was about $36,000 owing to the bank. That debt was-discharged by the payment to the bank of a large variety of, property, consisting of machines, accounts, farmers’ notes and ' stock of the Salem Manufacturing Company.' This warrant of attorney was made out and given to them a short time before we made this final settlement, probably three weeks beíoré. The First National Bank held our notes to the full amount of our indebtedness. I do not know what kind of instrument was drawn to transfer these properties to the bank, but we turned them over to the bank or to their attorney, Henry C. Jones, and that transaction was carried on in the private .office of the bank in the bank building.</p> <p>. Upon the same subject, Jones testifies in substance as fob. lows:</p> <p>I was attorney for the First National Bank in 1869, 1870 and 1871 (and am still), at the time Taber & Co. had negotiations with the bank. I remember the arrangement that was, made between Alexander Pow and Oscar and Frank Taber. I managed the details of the affair. In November, 1870, Taber & Co. owed the bank from $34,000 to $35,000. The indebtedness to the bank was evidenced by notes. Some of the notes were' signed by Oscar Taber, Frank Taber and Moses Taber, and some by Taber & Co. Don’t remember all the conversation about the arrangement. It took some weeks to get the thing consummated. Tabers borrowed money largely, but put in farmers’ notes as collateral security. I don’t know how many of those notes were held by the bank at that time. Oscar Taber had agreed to pay $4,000, but instead of paying money down they gave farmers’ notes. A number of these notes were not transferred. When the arrangement was made, Oscar Taber said he could not give a $4,000 or $5,000 note as collateral security; he then agreed to give me some other security but found that he could not do that. I got assignment from Oscar Taber for accounts in hands of ¥m. Penrose, some' $9,000. Taber & Co. could not get.paper to take up this indebtedness fast enough,'so they proposed to give stock in the Salem Manufacturing Company. I objected to this. I wanted land but could not get that. They said we should take the stock as collateral, and apply the proceéds of any sales to the payment of the indebtedness. If after paying the indebtedness, there was any surplus-, it should be paid to Taber & Co. Such was the agreement under which powers of attorney were executed. Mr. Taber’s statement is incorrect. Stock was not applied to payment of debt of Tabers to the bank. The; warrant of attorney was made out at time of agreement. There was no written agreement.</p> <p>There is considerable testimony from these witnesses, and the cashier of the bank, as to the conduct of the parties in reference to the stock and how it was treated by the bank, and as to the sales made to Roller & Baldwin. It does not materially change the condition the case was in upon the testimony above given.</p>

<p>Error to the District Court of Meigs county.</p> <p>In 1817, in Mason county, Virginia, Thomas Williams and Katie, slaves, were, at their request, joined together as husband and wife, in the usual form of a marriage in that state, by their master, Eev. John.- Gv Nelson, a minister of the Baptist church, in the presence of a number of persons. They lived together as husband and wife several years, and during the cohabitation, Edmund Williams, only issue of the marriage was born. Thomas Williams was not the father of any. other child. Some years subsequent to the birth of Edmund, Katie was sold, taken to South Carolina, and died there in slavery in 1857. Thomas, becoming free in 1849, removed to Ohio, and during the same year, purchased a house and lot in Middleport, Meigs county, in which house he resided until his death. In 1851, Thomas was married, in Ohio, to Lavina Ash, who at the time had several children, parties to this suit. In 1856, Thomas died, leaving $50 of the purchase price of the property unpaid, which sum was paid by Lavina Williams,, the widow, and the vendor made to her a deed for.the premises. In 1860 Lavina Williams died, leaving her children in. possession of the property.</p> <p>Edmund Williams, becoming free in 1863, by force of the. emancipation proclamation, came to Ohio, and brought suit in. the court of common pleas of Meigs county, to compel the children and heirs of Lavina to convey to him the premises, account for the rents, and deliver possession.</p> <p>The cause having been appealed to the district court, was. heard therein in 1876, on petition, answer, reply, and testi-. mony, showing the material facts to be as above stated ; and upon such hearing, the court adjudged that Edmund Williams should pay to the children and heirs of Lavina, the. purchase money paid by her, amounting, in principal and interest, to $107.50 ; that on such payment being made, the children and heirs of Lavina should convey the premises to Edmund Williams, and in default of compliance with the order, the decree, should operate as a conveyance ; and that on ten days’ notice, after such payment, such children and heirs should deliver possession to Edmund, and failing to do so, the sheriff should deliver such possession, on an order to be issued for the purpose.</p>

<p>Error to the District Court of .Cuyahoga county..</p> <p>In February, 1856, Peter Dunlap and Rachel Smith, colored persons, were married in Canada, where they were domiciled, which marriage was in all respects regular, and by the laws of Canada in all respects valid. In 185S, they removed to the city of Cleveland, where they resided as husband and wife, and were regarded by all persons as sustaining that relation, until August, 1877, when Mrs. Dunlap died intestate ; and Dunlap continued to reside there until June, 1881, when he died intestate. During the time 'they lived together as husband and wife at Cleveland, they accumulated property, real and personal, the real estate of the value of $5,000, and the personal property of the value of $5,000. The real estate he caused to be conveyed, through one Odell, to Mrs. Dunlap in good faith, so far as appears, and not to defraud creditors or for other unlawful purpose. The issue of the marriage consisted of three daughters, Sarah, Lucy and Lottie, all of whom are living and unmarried, the youngest having been born in 1864.</p> <p>There is no evidence to show that Peter Dunlap or Mrs'. Dunlap doubted, at any time, the legality of the marriage; nor is there any proof that Mrs. Dunlap ever heard that Peter Dunlap had contracted, in any form, any other marriage ; nor is it shown that their daughters ever heard of any other marriage than the one stated, until the petition, hereinafter mentioned, was filed.</p> <p>On December 24,1881, Maria McDowell, a colored woman, commenced a suit in the court of common pleas of Cuyahoga county, against Sapp, administrator of Peter Dunlap, arid Peter's above named children, and from the petition, or by admission, the following additional facts appear. In 1840 Peter Dunlap lived in Columbia, South Carolina, was a slave, and was called Adam McDowell. Maria, the plaintiff, also lived in that city, and was then a slave. In December, 1840, by consent of their masters, Adam and Maria were, at their request, regularly married in that state, by a minister of the gospel, according to the forms observed therein for marriages. They lived together in that state, as husband and wife, from that time until 1856, but there was no issue of' the marriage. In 1856 Adam escaped from slavery, went to Canada, and his subsequent history is as already stated. She never saw him again, and he was never again in South Carolina. lie sent her, in 1866, ten dollars, and the same amount in 1870, and stated to the person to whom he delivered the money, at Cleveland, the fact that lie liad married her. There does not appear to have been any other communication between them. She requested the administrator to file a jietition under Rev. Stat. § 6202, for directions as to his duty, and for the purpose of asserting her rights, and he refusing, she filed the petition' above mentioned, the prayer of which, is as follows : “ That the said court find, decree and adjudge that the plaintiff is the only true and lawful heir and distributee of the said Adam, and as such entitled to have and receive from the said L. W. Sapp, as administrator, the whole of said personal property left by said Adam McDowell; that the deeds to said Rachel Dunlap and said Odell may be set aside, as in fraud of the plaintiff’s right in the premises; that said real estate, and each and every part thereof, may be deemed to belong to this plaintiff; and that if the court find that said deeds wrere not made in fraud of the plaintiff’s right, that plaintiff shall then be decreed to have dower in said premises assigned to her therein; and she aslcs for such other and further relief as she is entitled to in equity.’’</p> <p>In the district court, to which the cause was taken by appeal, the court heard the same on petition,- answer, reply and testimony, and on such hearing the petition was dismissed; and this petition in error is prosecuted by Maria to reverse the judgment.</p>

• Error to the District Court of Franklin county. Motion by Henry T. Chittenden, defendant, to dismiss petition in error as to him. And like motion by Mitchell and Watson to dismiss petition in error as to them. The petition in error prosecuted by John A. Moore et al. seeks to reverse a judgment rendered at the March Term 1881, ■ of the district court, dismissing an action therein pending against said Chittenden, and Mitchell and Watson, and one William Shields.

<p>April 18, 1883, an act was passed (80 Ohio L. 169) amending section 6710, Revised Statutes, which allowed petitions in error to bo filed in this court without leave, so as to require leave to be first granted. It repealed the original section, and enacted that the amended section “ shall taire effect, and be in foreefrom and after its passage, and apply to all cases and proceedings hereafter brought in or into the supreme court.”</p> <p>On the same day, but whether before or after this act was passed, does not appear, a petition in error was filed in this case without leave of this court.</p> <p>On motion to dismiss.</p> <p>Held: 1. This act took effect on the day of its passage, and by presumption of law, from the commencement of that day, and not from its expiration. Koitenbroek v. Gracraft, 36 Ohio St. 584, distinguished.</p> <p>2. This presumption will not prevail where it is in conflict with any right required in actual points of time on that day, before the act took effect. In such case the exact time in the day may be shown.</p> <p>3. In the absence of proof, by the plaintiff in error, showing tliat his case was ponding on that day, before the act was .passed and took effect, the presumption of law will prevail, that the act took effect from the commencement of the day.</p>

<p>B., an administrator of a solvent estate, bought of M. a monument for his intestate’s grave, gave M. his negotiable note, as administrator, and took' M.’s receipts showing payment as administrator. M. sold and transferred this note before duo to P. B. thereafter made settlement in the •probate court, which allowed him credit in his account for the amoünt of the receipts as payment. Of this settlement and allowance of credit P. had no actual notice. P. thereafter recovered a judgment against B., as administrator, upon this note, to be satisfied out of assets in his hands, execution upon which was returned unexecuted for want of such assets. B. refused on demand of P. to pay this judgment. Held :</p> <p>1. The refusal of B. to pay this judgment was not a breach of the conditions of his administration bond, and his sureties therein were not estopped in an action upon it, to deny the validity of such judgment.</p> <p>2. An administrator has no power to bind the estate of his intestate by a negotiable note given by him as administrator.</p>

<p>A soliciting agent, procuring for an insurance company risks and applications on which policies are issued, who fills up the application, is, in so doing, the agent of the company, and not of the insured; and if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the company is bound by and responsible for such mistake.</p>

<p>Appeal. Reserved in the District Court of Highland County</p> <p>Joseph D. Patton executed his will on the 29th of January, 1878, and died on the 24th of March following, seized of a large estate, both real and personal, leaving surviving him,Betsy Ann Patton, his widow, Joseph Frank Patton, his grandson, and only surviving lineal descendant, and James II. Patton, and others, his brothers and sisters. Betsy Ann, the widow, died in July, 1880, and Joseph Frank, the grandson, died intestate in March, 1881, childless, and without brothers or sisters, and his father and mother being then dead, left Augusta A. Curtis and Jennie Hill, sisters of his mother, his next of kin.</p> <p>The following is a copy of Joseph D. Patton’s will:</p> <p>“I, Joseph D. Patton, of the county of Highland, and state of Ohio, do make and publish this my last will and testament:</p> <p>“ 1st. I devise that all my debts and funeral expenses be paid out of any money on hand or owing me, at the time of my death, or if there be no money on hand or owing me, then out of the proceeds of the sale of as much of the personal property belonging to me at the time aforesaid, as may be necessary for such purpose.</p> <p>2d. All the remainder of my personal estate, including moneys, rights in action, household goods and goods of every kind, and all chattels, I give and bequeath to my wife, Betsy Ann Patton, during her natural life, and at her death, to my grandson, Joseph Prank Patton.</p> <p>“ 3d. I give and devise to my wife, Betsy Ann Patton, all my real estate during her natural life, and at her death I give and devise the same to my grandson, Joseph Prank Patton.</p> <p>“4th. After the death of my wife, and during the minority of my said grandson, I give to my executor, hereinafter named, or to his successor in office, the possession and control of my said real estate, and direct that he apply the income from said real estate to the proper support, maintainance and education of my said-grandson, or so much thereof as may be necessary for such purpose, and that the residue (if any) be safely invested for his benefit by said executor, or the lawful guardian of said grandson.</p> <p>“ 5th. If my said grandson, Joseph Prank Patton, die leaving no child or children, then I direct my said executor, or his successor, to sell all my real estate in such manner and upon such terms as he shall deem best, and to execute proper conveyance therefor, and the proceeds of such sale, also moneys and other property devised by me to my said grandson, after payment of costs and expense of administration, I direct to be paid, share and share alike, to the Board of Home Missions of the Presbyterian Church in the United States of America, whoso office is now in New York city, and to the Board of Foreign Missions of the Presbyterian Church in the United States of America, whose office is now in New York city, to aid in carrying on the work of Foreign and Domestic Missions. But if my said grandson die leaving a child or children, then I give and bequeath to said child or children all moneys and property hereinbefore mentioned and devised, such child or children to take said real estate in fee simple.</p> <p>“ 6th. I nominate Richard C. Barrett as executor of this my last will and testament, and I authorize him to sell at pub-lie or private sale so much of my personal property as may be necessary to pay debts and funeral expenses.”</p> <p>This is a civil action brought by James II. Patton, a brother of the testator, Joseph D. Patton, for the partition of the real estate of which the testator died seized, among his brothers and sisters and their legal representatives, all of whom are parties, and who are alleged tobotheowners thereof in fee simple.</p> <p>All persons claiming an interest in the real estate are also made defendants.</p> <p>The Boards of Home and Foreign Missions deny the title of the brothers and sisters of the testator, and claim the entire beneficial interest in the lands under the fifth item of the will.</p> <p>Augusta A. Curtis'and Jennie Hill claim the estate as the heirs and next of kin of Joseph Frank Patton.</p> <p>The executor of Joseph D. Patton, the testator, claims the right to sell the estate under the fifth item in the will, and to pay the proceeds to whomsoever entitled.</p>

<p>. Error to the District Court of Cuyahoga county. ' !</p> <p>November 8th, 1877, Harvey & Sons, of Cleveland, Ohio, drew their negotiable bill or draft on Brookbank & Co., of Pennsylvania, for the sum of $353.20, that being the exact amount due from them to the drawers, in favor of the City National Bank of Cleveland, for the purpose of discount, and on the same or, the next day, the bank discounted the draft,. placed the proceeds to the credit of Harvey & Sons; who soon thereafter checked the same out. The bank forwarded this draft to the’draweés for "acceptance and payment on the 10th, and on the 16th it was returned to them unaccepted and unpaid for the reason that before Brookbank & Co. knew of tills draft, they had remitted the amount by a certified check on, their banker in Pennsylvania to Ilarvey & Sons, who, instead, of depositing it with the City National Bank to be collected and applied in payment of their dishonored draft, converted it. to their own use, by depositing it with the Merchants’ National Bank of Cleveland, with whom they had an ac-, count, and received a credit therefor, on account, on the. 12th of November. On the 13th the Merchants’ Bank forwarded this check through its Philadelphia correspondent to the .bank on which it was drawn, and on the 17th it was presented., ancl paid.</p> <p>Before depositing this check on the 12th, Harvey & Son’s had a balance due them at the Merchants’ National Bank of $367.96. On that day they deposited $472.95, including this olieck, $353.20, and checked out $633.38, leaving a balance at the close of business of $203.88. On the 13th they deposited $1,981.50 and $353.03, and checked out $2,160, leaving a balance of $378.41. On the 14th they deposited $300, and drew out $64.26, leaving a balance of $614.15, and on the 15th they deposited $241.50, and drew out nothing, so that, on that day, there was a balance of $865.65 due them, including the credit for this check.</p> <p>On that day with this balance to their credit, they made a general assignment for the benefit of their creditors.</p> <p>The question presented is, whether the assignees of Harvey & Sons, who claim under the deed .of assignment, or- the City National Bank, who claim by way of equitable assignment of the fund by reakon of the draft, arc entitled to the amount of the balance in the Merchants National Bank.</p> <p>This question arises in an action for equitable relief broughj. by the City National Bank in which the plaintiffs in error as^as. signees, and the Merchants’ National Bank were defendants, in which the relief sought was to compel the latter bank to pay to them the amount of said draft and interest, out of the balance in their hands, on the day of the assignment.</p> <p>On appeal,- the District Court granted the relief prayed for and the assignees now ask a reversal of that judgment on two grounds:</p> <p>1. That the City National Rank as the holders and owners of this draft acquired no right to the fund against which it was drawn, either in the hands of the drawees, Brookbank & Co., nor against the Merchants’ National Bank where it was deposited by the drawers:</p> <p>2. But if such draft did operate as an equitable assignment of that fund, when deposited in the Merchants’ National Bank, yet as only $203.88 was left in bank at the close of business on that day, the judgment could only be had against the Merchants National Bank for this balance, although there was a balance more than equal to the draft when the drawers made their assignment.</p>

<p>1. Where an action is prosecuted, by A., guardian of B., on an instrument payable to “A., guardian of B.,” the fact that the ward becomes of age pending the suit affords no ground to abate it.</p> <p>2. The payment of interest, in advance, upon a promissory note is not of itself conclusive evidence of a contract to extend the time of payment of the note for the time for which interest may have been thus paid.</p>

The original petition, filed in the court of common pleas, alleged that Mary Bruen and her co-defendants in error were tenants in common of a tract of land of which she sought partition, and that such proceedings were had thereon that the court found Mary Bruen the owner of one-seventh, and John McAuley, William McAuley, James McAuley, Margaret Ferris and Jane E. McAuley, one-seventh each; that the plaintiff in error, who was then sheriff of Hamilton county, was ordered, by…

<p>1. If no reply is filed to an answer of new matter constituting a defense but the cause is tried without objection as though such allegations had been denied, a demand for judgment on the pleadings, after each party has introduced his evidence, is too late,</p> <p>2. Where a statement of facts alleged to have occurred a year previously, is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matters so stated, and while the suit is pending the book becoming worn, he copies the statement into another book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection be made, to use such copy while testifying as a witness in the cause.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>The original action was brought by Hudson against Wolcott as maker, and Burt as indorser, of a promissory note executed by Wolcott to one Bennett, on the 28th of March, 1873,'for $291.50, payable nine months after date.</p> <p>The note was indorsed as follows:</p> <p>Pay to A. S. Hudson, E. Bennett, D. A. Burt.</p> <p>The plaintiff, in his petition, averred the transfer and indorsement of the note to him by Burt after maturity, and due demand of payment from the maker, and notice of non-payment to Burt.</p> <p>Burt, by his answer, denied demand and notice, and further set forth:</p> <p>“ That before said note became due and payable, said E. Bennett,, the payee thereof, indorsed said note in blank, and delivered the same to this defendant, and this defendant indorsed ana delivered the same to the Society for Savings for collection only. That he never placed his name on the back of said note with the intention of becoming liable on the same in any manner whatever. That on or about the 28th day of May, 1875, he sold and delivered said note to said plaintiff, and it was then expressly agreed and understood by and between plaintiff and this defendant, that this defendant should not indorse said note or be liable thereon as indorser. That this defendant at that time intended to erase his name from said note, which he neglected to do.”</p> <p>On the trial the plaintiff offered testimony tending to prove that the note was transferred to him by Burt upon the faith and credit of his indorsement; that defendant, during the negotiations, pointed to his signature on the back of the note, saying, “ This is the security I propose to give you.” And further that the note was transferred to him about sixteen months after its maturity in part payment of a pre-existing claim; that the maker at the time was known to bo insolvent, but having been a schoolmate of plaintiff, it was thought the latter could probably induce him to pay it; that plaintiff refused to take the note until he could see the maker, and thereupon plaintiff and defendant went to Ravenna, where the maker was, on the 27th day of May, 1875, and the plaintiff, in the absence of the defendant, spoke to Wolcott about the note, who said the note was all right, but he could not pay it then, but thought he could pay it within thirty days. This conversation was reported by plaintiff to Burt, and thereupon the note was delivered to plaintiff in part payment of his claim against Burt. About the 6th of July following plaintiff demanded payment of the maker who said he could not pay it then, but thought he could pay it in sixty days. The next day plaintiff informed Burt what Wolcott had said, who replied that the time might as well be given him.</p> <p>And the defendant Burt, over the objection of plaintiff, offered testimony fending to prove that the plaintiff agreed at the time of the transfer of the note to him, and so stated after-wards, that he agreed to take it at his own risk and was not to rely on'the defendant Bnrt as indorser. The defendant Burt also gave in evidence, over the objections of the plaintiff, that defendant Burt’s name had been written on the note when it became due for collection only ; that the note was left by Burt with the Society for Savings in Cleveland, with his name indorsed thereon for that purpose only, and when Burt handed over the note to plaintiff, he intended to erase his name from the note, but forgot to do so.</p> <p>Verdict and judgment were rendered for the defendant Burt, which were afterward affirmed by the District Court.</p>

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

<p>1. The rule that when a principal indemnifies one of several sureties, each is entitled to share therein, does not apply where such indemnity is furnished by a stranger for the sole and exclusive benefit of one.</p> <p>2. Where the wife of the princip il mortgages her separate real estate for the exclusive use and benefit of one of her husband’s sureties, such mortgage does not inure to the benefit of his co-sureties.</p> <p>3. By existing statutes a husband has no estate or interest in the separate property of his wife during coverture; hence by uniting with her in such mortgage, he contributes no part of the indemnity; his estate by the curtesy is that of a surviving husband in the real estate of which his wife was the owner at her death.</p>

<p>Application for mandamus.</p> <p>By an act of the General Assembly which took effect February 24th, 1868 (65 O. L. 219), and an act amendatory and supplementary thereto, which took effect April 3d, 1876 (73 O. L. 274), the commissioners of Muskingum county were “authorized and empowered to build a bridge across the Muskingum River and State canal ” at such point, within designated limits, “ as -said commissioners may determine.’ ’</p> <p>Section 2 of the act of 1868 provides that before the construction of a bridge under its provisions, “the said commissioners shall submit the plan of the same to the Board of Public Works of said state and receive their approval thereof.”</p> <p>The streets to be connected by the bridge were public highways.</p> <p>The proposed site of the bridge is within the corporate limits of the city of Zanesville.</p> <p>The Muskingum River, at the point of the proposed location of the bridge, although known to the law and the courts as a navigable river, is not in fact navigable except by means of the canal, which constitutes, in part, the “Muskingum River improvement.” The commissioners duly determined to build a bridge of the kind, and located within the limits, authorized and prescribed by the legislation abw\ referred to, and procured to be made a full and complete plan or model of a bridge, embracing a swing bridge where the same crosses the canal, which, on the 11th day of April, 1883, they submitted to the board of public works, for the purpose of receiving its approval thereof.</p> <p>The board refused to examine for approval or disapproval, such plan or model, but entered on its records, in reference thereto, the following: “The board disapproves said plans, believing that the location of the bridge, as proposed, would be injurious to the state’s interests.” Thereafter, in May, 1883, the board refused, on request, to reconsider its former action, and entered upon its records, in reference thereto, the following: “ Ordered, that this board refuses to reconsider its action concerning the bridge proposed to be built at Zanesville, as expressed in its order of April 11, 1883, for the reason that the building of the bridge at Sixth street would injuriously and unnecessarily interfere with the rights of the public and persons engaged in the navigation of the Muskingum River.”</p> <p>It was a fact conceded at the hearing of the present proceeding, that the board of public works based its action upon its disapproval of the proposed location of the bridge.</p> <p>The object of of this proceeding is to compel the defendant, by writ of mandamus, to exercise its discretion, and either approve or disapprove the plan of the proposed bridge.</p>

<p>On a school district treasurer’s bond, conditioned that the treasurer “ as treasurer of said school district, shall faithfully disburse, according to law, all such funds as shall from time to time come into his hands,’’ the sureties are liable when the treasurer fails to deliver to his successor in office the school funds that had so come into his hands, and in finding the amount of such liability, there should be included the amount of drafts, and certificates of deposit, which, when received, would have been paid on presentation, and which were received as cash by such treasurer.</p>

<p>Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will by uniting in a single instrument, where the bequests are severable and the instrument is not in the nature of a compact, but is, in effect,' the will of each, revokable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such persons. Walker v. Walker, 14 Ohio St. 157, limited.</p>

<p>Error to District Court of Wood county.</p> <p>In the court of common pleas, Elvira Dukes brought her action, alleging that she had the legal title and was in possession of a certain tract of land of about eighty acres, that plaintiffs in error set up and claim an estate therein, and prays that they be compelled to show their title, and that it be declared void as against her. /</p> <p>The amended answer of Nancy Spangler, 1st, Denies that plaintiff has the legal title; 2d, Avers that plaintiff is the widow of one John Dukes, who died February 28th, 1875, intestate, leaving defendant his sole heir, and that at the time of his decease, he was seized, among others, of the tract of land in controversy, and of an equitable estate in certain other lands, all of which descended to defendant, subject to the payment of debts, the widow’s dower and the provisions made for her by statute. She further alleges, that about the 23d of November, 1S72, John Dukes was then seized of other lands, of the value of $20,000, and personal property of the value of $8,000, and owed about $14,000, that he was then old and infirm and subject to be influenced and controlled by plaintiff, by means of which she procured his consent to a disposition of his property to be effectual after his death, so that she could hold her portion free from interference, and free from any claim by the heirs of her husband, and to that end she procured a justice of the peace to draw the necessary papers, among them a release by her of all her claim to her husband’s estate, on his conveying to her the lands in question, that in part performance of that arrangement a deed was executed by John Dukes to convey this land to his wife, but defendant denies that it was properly executed and delivered, so as to pass her the title, that said arrangement was never carried out, nor did she execute any release, and the pretended deed under which plaintiff claims was ineffectual to pass title. Further, that before said arrangement was completed it was by mutual consent abandoned, and the papers already prepared were canceled and destroyed, and that no consideration passed for said deed.</p> <p>It is also averred, that plaintiff, as administratrix of her husband’s estate, procured to be set off to her as her year’s support, notwithstanding said arrangement, the sum of $2,000 in money as well as other allowances made for her by statute for her year’s support, and claims dower in all the lands of her husband. The prayer is that plaintiff’s title be adjudged void, or if that is not done that the consideration named in said deed, $12,000, which is the value of the land, be declared a lien thereon, and be paid in such manner as the court may direct.</p> <p>To this plaintiff replied denying that John Dukes died, seized of this land, or that the same descended to defendant.</p> <p>John Dukes died January 28,1875. This action was commenced March 12th, .1875. Defendant’s answer was filed August 16, 1875.</p> <p>On the first trial in the district court on appeal, the court, . at the conclusion of plaintiff’s testimony, dismissed plaintiff’s petition-, holding on the case made, that she had no cause of -action. This judgment was reversed by this court in Dulces v. Sjpangler, 35 O. St. 119, for reasons therein stated, and the .cause was remanded for further proceedings.</p> <p>On the next trial, the court made a special finding of facts, and, in conclusion of law therefrom, in favor of defendant in .error as follows:</p> <p>, . “ 1st. On the 15th day of November, 1872, the said John -Pukes being aged and infirm, was sick and as he then believed •could not recover. That the plaintiff was his fourth wife, .about 30 years younger than himself and childless. That said John. Dukes had only one child, the defendant, Nancy D. (Spangler, who was his daughter by a former marriage. That -in the year 1850 said, John Dukes gave to his said daughter 240 .acres of land in Hancock county, for which he paid $2,400, and .which was its then value. That he had given to her a small . amount of household goods at her marriage and had never given -her. anything else. That in the year 1850 said John Dukes gave to (George W. Spangler, the husband of his said daughter, 80 £ acres of land, in Hancock county, then of the value of $400, and never gave'him any more. That on said 15th day of No•.vémber, 1872, the said John Dukes held by deed and title bond . twelve hundred acres of land in Wood county, Ohio, includ- . ing the 240 acres in this cáse in controversy, in all of the value of $28,8.00. . That the said 240 acres was then worth $9,600. That there was unpaid on his said lands the sum of.$3,200. ; That lie then owed Richard Dukes $2,000; Lewis Dukes -. $3,500; Laskey, $3,500; and other debts, $662. That his per-j.sonal estate at that time did not exceed his said debts. That on said 15th day of November he sent for one Lewis Dubbs, a justice of the peace of said county, to come to his house, and when there he then informed said justice that he wanted to make a disposition of all his property. That he wanted to-deed one 80 acre lot to one Horn, a young man he had raised, and he wanted to deed the 240 acres in the petition described, to one -Wood, as a trustee, and by said Wood to be conveyed to his wife. That the balance of his estate he wanted to give to one of two objects, either to establish a school for the education of young ministers or the missionary society, and that he wanted to consult said justice about which would be best.</p> <p>“ The said justice said to him lie-had better do it by will; That said Dukes said no; he had consulted a lawyer about it, and it could be done that way. That said justice then wrote, and said Dukes executed and delivered said deeds to Horn. And that said justice then wrote the deed for said 240 acres from said John Dukes to said Wood which was in due form of a warranty deed from said Dukes to said Wood. That the consideration named in said deed was $12,000. That it was then duly signed and acknowledged by said Dukes, witnessed and delivered. That no consideration then or afterwards was paid or intended to be paid. That at the same time the said Wood duly conveyed, by warranty deed, said premises to the plaintiff and the consideration in the deed named, also was $12,000, but no part of it was then paid or intended to be paid. That to sign said deeds said Dukes was held up in bed, and after so executing the same he became so exhausted and sick that he said to said justice that he was not then able to complete the disposition he then desired to make of the balance of his estate, and he requested said justice to remain until morn, ing to finish, but the justice could not do so, and it was then arranged that said justice should be sent for as soon as said Dukes should be able to complete his intended disposition.</p> <p>“That said Dukes afterwards became much better and ■ able to be up and attend to business, and never afterward sent for said justice or made any further disposition of his estate.</p> <p>“ The court also further find that at the time of so execfiting said conveyance to said Wood, and by Wood to the plaintiff, said Dukes intended the same as a settlement and full provision for her out of his estate. That the same was a reasonable provision for her, and said John Dukes then intended and understood that the same should be in full of all rights and claims on her part out of his entire estate as Iris widow. And that the plaintiff so accepted said conveyance with full knowledge of all the matters herein above stated.</p> <p>“ The court further find that afterwards, in July, 1873, the said John Dukes sent for said justice and the witnesses to said deeds to come to his house, and when they had done so he requested the plaintiff to bring out said deeds to Wood and herself, and when she had done so he said he wished them destroyed, and said justice asked the plaintiff if it was her wish and she replied ‘ yes, I suppose so, if it is his wish.’ And thereupon said justice burned said deeds up, the same not having been recorded. That said Dukes afterward gave as a reason for so doing that his relatives complained about the deeds and threatened to sue him. That said John Dukes died intestate, January, 1875, and the plaintiff, Elvira Dukes, administered upon his estate. That she claimed and was allowed for her years support, under the statute, two thousand dollars, which sum she received out of the personal estate. That she also claimed and received property of the value of $100, and the other allowance of household goods.</p> <p>“ That afterward plaintiff married one Newton, who was appointed administrator de bonis non of said estate, and the personal property being insufficient to pay the debts, on the 6th of January, 1879, he filed his petition in the Probate Court of said county of Wood, representing the deficiency to be $7,800, and asking for the sale of 520 acres of said land, and in said action the plaintiff, Elvira, was made a party in said case, and filed her answer, claiming dower therein as the widow of said John Dukes, and asking the value thereof in money, and such proceedings were had in said case that said Probate Court found the allegations in the petition were true.</p> <p>“ That plaintiff was entitled to dower therein and ordered the sale of said lauds, and out of the proceeds ordered said debts to be paid, giving the plaintiff in money the value of her said dower interest.</p> <p>“ That afterwards, to prevent a sale, and to pay said debts, the said administrator and said Nancy Spangler agreed, and at private sale sold 800 acres of the land owned by said Dukes, including said 520 acres so ordered to be sold.</p> <p>“That 600 acres thereof were sold at $16 per acre, and 200 acres at $28 per acre.</p> <p>“That out of the proceeds, as the value of her said dower interest, the said Elvira Dukes, plaintiff, received $1,910. That $8,800 were applied in payment of balance due from said John Dukes on said lands. $3,000 were received by said Nancy Spangler, and the balance was used by said administrator in paying debts of said estate, costs and expenses. That there is still unpaid of said debts of John Dukes, $900. That besides the said 240 acres in this case in controversy, there remains but 80 acres of land unsold as above stated, of the value of $20 per acre.</p> <p>“The court further find that the said plaintiff, Elvira Dukes, after the decease of said John Dukes, claimed and received under the statute, all the provisions for her, as the widow of said John, and did claim and receive dower in all the lands of which John was seized at the date of said deeds, and at his decease.</p> <p>“The court further find that when the plaintiff demanded and received her year’s allowance out of her husband’s estate, she was in doubt as to her rights, and supposed that the burning of the deeds would prevent her holding the lands so conveyed to her ; that she was made a party defendant in actions brought by the administrator of her husband’s estate for the sale of lands to pay debts, and answered asserting her dower interest therein, while this action was pending, and when decisions adverse to her title had been rendered against her in the common pleas and district courts.</p> <p>“That the allowance for her year’s support was made March 10th, 1875. That $563.35 of this allowance was paid her in personal effects, and the balance credited to her on her settlement as administratrix of her husband’s estate after the commencement of this action.</p> <p>“The court, therefore, from the facts so found and as the law of the case are of the opinion and find as the law of the case, that the equity of the case is with the plaintiff, and that the plaintiff is entitled to be quieted in her possession and title in and to said lands, in the petition described.</p> <p>“And- thereupon the said Nancy I). Spangler moved the court to set aside said finding and conclusions of law, and for a new trial — for the reason that said finding and conclusions of law from the facts so found are contrary to the law of the case and not sustained by said facts.”</p> <p>This motion was overruled, and a bill of exceptions was taken.</p> <p>To reverse this judgment error is prosecuted in this court.</p>

<p>Error to District Court of Hocking county.</p>

<p>An ordinance which makes it an offence for the proprietor of a place where malt, vinous or spirituous liquors are sold, to employ females to serve his customers with such liquor, is authorized by the act of 1875, section 199, sub-divisions 5 and 6 (72 Ohio L. 107; Kev. Stats. §1692), conferring power to regulate such places; and such ordinance is not in conflict with any provision of the state or federal constitution.</p>

<p>Mandamus.</p> <p>In 1888, the board of education of Cincinnati fixed the amount to be levied for that year for school purposes, in that school district, at $686,375. The tax commission provided for by the act of 1883 (80 Ohio L. 124), reduced the amount to $477,000, in which reduced form the auditor of Hamilton county placed the estimate on the tax list. In The State v. Cevppeller, 39 Ohio St. 455; s.c. 4 Ohio L. Jour. 464, 10 Law Bal. 360, this court refused the application of a taxpayer, residing in the school district, to compel, by mandamus, William S. Cappeller, as auditor, to place on the tax list an additional sum, so as to make the levy equal to the original estimate. The decision was placed on the ground that, consistently with the facts appearing to the court, the board of education had acquiesced in the action of the auditor,.</p> <p>Since the former decision, on application of Howard Douglass, president of the board of education, a taxpayer residing in the district, an alternative writ of mandamus was issued from this court to Joseph W. Brewster, who, on November 12, 1883, became, and still is, county auditor, commanding him, in like mannex-, to place such additional sum on the tax list, or show cause why he refuses. It is shown that the board of education has not acqxxieseed in such refusals by auditor Cappeller or auditor Brewstei'. To this writ Brewster has answei’ed setting forth the action of the tax commission in reducing the amount, and justifying the action of the foimer auditor as well as his own action; and the State, by the relator, has demurred to the ánswer.</p>

<p>Error to the Court of Common Pleas of Knox county.</p>

<p>1. It is the duty of courts in the interpretation of statutes, unless restrained hy the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can he presumed to have been within the legislative intent.</p> <p>2. Where a statute requires notice of a proceeding, hut is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.</p> <p>3. In a proceeding under “an act to regulate inclosures, and to provide against trespassing animals” (1 S. & 0., 649), as amended May 3, 1873 (70 Ohio L., 246), authorizing township trustees, after notice to all parties who may have any interest in the title or possession of premises affected hy a partition fence (and in the repair or construction of such fence), to proceed to view and assign to each party, for repair, his share of it, notice to a tenant in common in sole possession of such premises, who is alone interested in the possession of them, and in ■ the repair of such fence, is sufficient to invest the trustees with power to act.</p>

<p>1. A municipal corporation is not liable to an action for simply failing to provide drainage for surface water.</p> <p>2. Where a municipal corporation provided a system of drainage which at the time was amply sufficient, but by the improvement of lots by individual owners thereof such drainage becomes insufficient to save vacant lots from overflow in time of severe rain storms, a purchaser of one of such vacant lots, who, with knowledge that the lot is subject to overflow at such times, erects thereon a building, cannot maintain an action against the city for damage caused by such overflow, but must protect his own property from the same.</p>

Frederika W. Hooglund and Carl Andres Lindroth, doing business as N M. Hooglund, manufacturers and shippers of iron at Stockholm, Sweden, brought suit September 29, 1874, in the Superior Court of Cincinnati, against Lewis M. Dayton, of Cincinnati, engaged in the business of manufacturing nuts and bolts in that city, under the name of American Bolt and Nut Works. The action was to recover the price of twenty tons of Swedish iron, “II.