Volume 40 — Ohio State Reports, New Series

On July 16th, 1874, Lyons & Co. gave their note to* Heckman 65 Spencer for $225, falling due October 13th,. 1874. On the same day H. & S. sold and endorsed the' note to the First National Bank of Ravenna. On September 16th, 1874, Lyons & Co. deposited their sight draft on David T. Busby of Baltimore for $292 with the bank for collection, which was paid September 80. On September 26th Lyons & Co. made an assignment under the insolvent laws to Chaffee, plaintiff in error.

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

This case was here before, and certain questions in the pleadings were then disposed of. The state of the issues at that time are shown in the reported case of Ridenour v. Mayo, 29 Ohio St., 138. Plaintiff here was plaintiff below.

<p>1. The Act of April 18, 1874, (71 O. L., 85) imposes upon a railroad company the duty of constructing and maintaining necessary cattle-guards • wherever its road crosses a highway. This statute may be construed as allowing exceptions, required by public necessity and convenience and the proper use of a station yard by the company.</p> <p>2. When the company is relieved from this requirement, for the above reasons, it is its duty to construct and maintain cattle-guards across its roadway and grounds at the first points from the highway which will not interfere with the necessities and convenience of the publie and the company.</p> <p>3. Whether this has been done is a question to be submitted to the jury in an action against the company for damages.</p>

On the 15th day of May, 1869, an instrument was executed of which the following is a copy; “ Articles of agreement, made and entered into' this fifteenth day of May (15), A. D. 1869, by and between Jonas Garrett, of Perry county, Ohio, party of the first part, and; 5.

Joseph P. Long and others, creditors who held liens by judgments and mortgages, filed their petition in the court of common pleas against Andrew Weiant, Jr. and others who held liens on his lands,… Held: that her action to recover the unpaid installments of said legacy was barred after the lapse of six years from the time her cause of action accrued thereon respectively.

The plaintiffs were bankers for some time prior to January 20th, 1871, and for some time afterwards. P. A. Stamats for some time prior to the first Monday of January, 1871, was the sheriff of Clinton county, and kept two accounts with plaintiffs’ bank. One account was in the name of “ Sheriff of Clinton county--Stamats,” and the other in the name of P. A. Stamats.

<p>The action authorized by section 4 of the act entitled “ An act in aid of the law regulating suits by and against companies and partners,” passed Feb. 27, 1846, (S. & C. Stat., 1139) is “an action for relief” described in section 18 of the “ act to establish a code of civil precedure ” (S. & C., 949), and is barred in ten years after the right of action accrued.</p>

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

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

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

Error. Reserved in the District Court of Hamilton County. Martha A. Barnes, the wife of Abraham F. Barnes, brought an action in the court of common pleas of Hamilton county, against John Rantz and Jacob Westerman, on November 24th, 1872.

Plaintiff in error was one of the original defendants. The action was brought in the Coshocton common pleas on a bond and two promissory notes. The bond was executed on the 23d day of October, 1876, to the defendant in error, by Joseph Donley, Hugh Heaton and T. B. Donley, three of the defendants.

The ground of error was the refusal to grant a new trial for the reason that the verdict was against the law and the evidence. The bill of exceptions in this case was taken under the act in Yol. 75, Ohio Laws, page 668, sec. 5. This act is identical with the act of April 12, 1858 (S. & C., 1155) which the court passed upon in determining that it had the legal right to review the charge.

Error. Reserved from the District Court of Lucas County. The defendant in error, John Fitch, was the owner of a large number of lots of land in the city of Toledo, and also of certain tracts of land in Lucas County, Ohio.

The city of Dayton, in 1852, unlawfully took possession of a parcel of land, improved it as a street and has ever since continuously used it, as such street. From 1847 to August 8, 1876, Matilda Pickell, a married woman, held a life estate in said land, and her daughters, Ann E. Shartel and Mary C. Shartel (afterwards Thomason), as co-heirs of their father (Mrs. Pickell’s first husband), owned the fee simple in remainder.

A proceeding to vacate a judgment is not a civil action. Taylor v. Fitch, 12 Ohio St., 169. As to what is an adverse party, see Fitzgerald v. Cross, 30 Ohio St., 204.

<p>A fund was held for the use of C., a married woman, for her life, the principal, at her death, to go to her adopted son, a minor. In a propel case a court of competent jurisdiction ordered the investment of this fund in improved city property. On the premises selected no buildings existed, but K. agreed to complete six houses thereon for a stipulated price, to he paid out of the said fund. Said sum was added to the price agreed upon for the ground alone, and the aggregate sum was placed in the deed as the consideration of the purchase, with the approval of the court. K. completed the houses, but no part of the fund was paid to him, and no part of said consideration, except the price of the ground alone, was paid to any one. Held: The balance of said purchase money, with interest, not exceeding the sum (with interest) due to K. should be paid to him out of the property so purchased; the interest of the tenant for life and the remainder man sharing the burden in proportion to their respective values.</p>

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

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

William Rankin was appointed and qualified by the probate court of Hamilton County, guardian of the estate of Catharine, Anne and Edward Kelly. The estate consisted, in part, of two promissory notes, dated June 27,1877, for the sum of six hundred and twenty-seven and dollars each, made by Michael Hope, and payable in one and two years from date, to the order of William Rankin as guardian, with interest at six per cent, per annum.

Eeeoe to the District Court of Greene County. The Dayton and South Eastern Railroad Company sued Luther Hanes; the petition counting, first, upon a contract made in September, A. d. 1874, for four shares of stock at $200; and, second, upon a contract made in October, A. D. 1874, for ten shares of stock at $500. Hanes answered denying each of said contracts. The company replied pleading by way of estoppel a former recovery for the first two installments of said subscriptions.

<p>Error to the District Court of Wayne County.</p> <p>The action in the common pleas was slander. The defendant was the secretary and agent of an insurance -company. The plaintiff, before the speaking of the slanderous words, had been the agent of the company, and had- been discharged from his employment as such agent for an alleged dishonest transaction in the business of the company.</p> <p>The defendant,- at the time the words were spoken, was in conversation with one Curry, between whom and the insurance company there was a dispute about the payment of the same assessment twice. The defendant was explaining to Curry that the assessment had not been twice paid. Curry then stated that Myers, the plaintiff, had pointed out to him that the assessment had been paid twice. The defendant answered, “ Myers told you that.” “ Myers is a thief, and ought to be in the penitentiary long ago.” Curry in stating what was said at the time, says, “in connection with this talk, in which Brown said Mjrers was a thief, he, Brown, also explained about a transaction of Myers at Smithville, about having an assessment paid after a fire, and reporting it before the fire to hold the company.” Curry further testified that Brown in the conversation spoke of a printed circular about Myers, concerning his action in the Smithville matter, and that he at the time knew of the circular and had heard of the Smithville trans< action. The bill of exceptions contains all the evidence.</p>

<p>Error to the District Court of Greene County.</p> <p>This cause came, on appeal, to the court of common pleas of Greene county, wherein Gregory Weymouth filed his petition against James P. Satterfield and Wesley Iliff, on a promissory note, of which the following is a copy, to wit:</p> <p>“Xenia, April 17,1872.</p> <p>“$178.50.</p> <p>“ Six months after date, we, or either of us, promise to pay to the order of Gregory Weymouth, one hundred and seventy-eight ^ dollars, at the First National Bank of Xenia, for value received.</p> <p>“Jas. P. Satterfield,</p> <p>Wesley Iliee.”</p> <p>iliff signed the note described in the petition, as surety only. Within a month after the note became due, Iliff delivered to Weymouth, who was then the owner of the note, a notice in writing, as follows, to wit:</p> <p>“To Gregory Weymouth: You are hereby required at once to proceed and collect the note you hold dated the 17th of April, 1872, for $178.50, upon which I am surety, and James Satterfield is principal; that I will stand no longer. Wesley Iliee.”</p> <p>Weymouth neglected to commence an action on the note until January, 1879. He did not call upon Iliff to pay the note, from the time said notice was served, until the eominencement of the action; and whenever he spoke to Iliff about the note being unpaid, on every such occasion, Iliff said he was out of it because of said notice.</p> <p>A jury was waived in the court of common pleas, and the parties by agreement submitted to the court the issues of law and fact; and upon all the facts, the court found as a matter of law, that said notice was insufficient, and did not comply with the statute, and for that reason rendered judgment against the defendant Wesley Iliff. The district court affirmed the judgment of the court of common pleas, and the case is here on petition in error to reverse the judgment of the district court.</p>

<p>G. entered into a written contract with S., whereby he agreed to pay S. the sum of $135 if he would paint his house in a proper and workmanlike manner, with the best materials, and one half that sum in case the house should not be painted as aforesaid.</p> <p>Held: That S. cannot recover upon a quantum meruit, G. having paid $67.50 and the work not having been done as first specified in the Contract.</p>

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

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

<p>Error to the Superior Court of Cincinnati.</p>

<p>Eeeoe to District Court of Morrow County.</p>

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

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

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

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

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

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

Upon affidavit that the controversy therein was real, and that the proceedings in the case were in good faith, and to determine the rights of the parties, the following agreed statement of facts and submission of case, was filed June 26, 1879, in .the court of common pleas of Belmont County, to wit.: “Edmund G. Morgan v. James Kelsey. “Now come Edmund G. Morgan and James Kelsey, the parties in this case, and, on the following agreed statement of facts, submit to the court a…

The original action was brought in the court of common pleas of Guernsey county, by Abraham Depew against the Baltimore and Ohio Railroad Company for damages for an injury alleged to have been sustained by reason of the carelessness and negligence of the defendant in moving a train of its cars at a place on the railroad called Gibson’s station.

' As to whether a person extradited from a foreign government can be tried for another and different offense, see Heilbrown’s case, Foreign Relations of U. S., 1876, pp. 213, 214; Clark on Extradition, 101; 4 Canada R, C. P., 228; • 10 Lower Canada Jurist, 11, 212, 352; JRoenbam’s case, Foreign Relations of U. S., 235; Clark on Extradition, 90, 91; 8 Blatchford, 131; 13 Id., 295; 59 N. Y., 110; 17 Albany L. J., 407.

Error. Reserved in the District Court of Lorain County. Martin Matthews made a written application to'the American Insurance Company for insurance on his property for the term of five years from the first day of December, 1873, stipulating “ if any installment upon the premium shall remain due and unpaid thirty days, then the policy issued upon the application, in consideration of such installment, shall be null and void until the same is paid.” A policy making said…

Hannah A. Bangs, the defendant in error, brought suit as payee and holder of two promissory notes against William Jones, the plaintiff in error, and A. W. Thompson, two of the makers thereof to recover the amount due thereon. A copy of one of the notes is set out in the opinion of the court.

Patrick Morrissey, defendant in error, commenced an action in the court of common pleas of Lucas county against the Union Manufacturing Company, plaintiff in error, for damages alleged to have been sustained by him while in the service of the company, through the company’s negligence in furnishing him hazardous and unsafe machinery to use, and placing over him an incompetent foreman.

<p>1. The power of a city or village council “ to open, construct, keep in order and repair sewers, drains and ditches,” conferred by paragraph 21, section 199 of the municipal code (72 O. L., 107), was not, in 1S77, restricted by chapter 50 of said code (66 O. L., 251), unless council, acting under said chapter, in the exercise of its discretion, had previously determined that it was necessary “to provide a system of sewerage and drainage ” for the city or village.</p> <p>2. The manner in which council should have exercised the power conferred by paragraph' 21, section 199, when unrestricted by chapter 50, was contained in chapter 49, municipal code (66 O. L., 245).</p>

<p>Where an undertaking for a second trial, provided by section 691 of the Code of Civil Procedure (2S. <fc C., 1155), recites the amount of the judgment in the first trial, in addition to the parties, the court, the . term and the person who recovered it, such matter is merely descriptive, and an omission, which does not affect the identification of the case, is not material and does not invalidate the undertaking.</p>

<p>Ekiiok to the Superior Court of Cincinnati.</p> <p>By lease dated November 20, 1869, David Sinton rented for three years, beginning January 1, 1870, to Pearce Tolle & Holton, a four story stone front building on Yine street, Cincinnati, together with a defined portion of the yard in its rear, to be used for the purpose of carrying on the wholesale dry goods business. Stairways led from each floor to the one above it, and a hoisting apparatus composed of a platform raised and lowered by a wire rope passing over shears above and a drum below, and operated by steam, was provided for raising and lowering goods. This building was one of a block of three, and the engine, by which the hoisting apparatus in each was worked, was placed in rear of the basement of the building south of said leased premises. A common shaft ran from the engine room through the three stores, through the walls. An engineer employed by Sinton had charge of the engine and boilers, and oiled such parts of the hoisting apparatus in each building as required it. The hoisting apparatus was operated bjr the person upon it who desired to go up or down ; when he pulled down the platform ascended. The lease provided that the lessees should “pay quarter yearly during said term the cost of steam heating and hoisting for said .premises, which shall be one-tliird of the expense for running engine for steam hoisting for the three buildings known as the Sinton Block of which this is one, and keeping the same and the machinery and boilers therewith connected in good order and repair; and one-third of the cost of steam heating for said block; and the total cost of keeping in good order all the parts of said hoistiug and heating apparatus contained in the said premises hereby'’ leased, and all charges for water and gas for same as they may become due and payable.” In the next paragraph of the lease the lessees covenanted '■'■that they and their assigns will with care and diligence keep the same ” (premises) “ in good order and condition during said term, and at the termination thereof will quit and surrender the same to the said Sinton or assigns in like good order and condition, careful wear and fire only excepted</p> <p>And Sinton covenanted that the “ lessees shall have peaceable possession and quiet enjoyment of the premises hereby demised during the term of three years herein above specified.” By writing of October 28, 1872, the lease was extended for a fourth .year, and by writing on September 17, 1873, it was again extended for three years from January 1, 1874, Sinton agreeing to “at his own cost keep the elevator ip said property in repair, providing the lessees hereto use proper and judicious care in the use of the same.”</p> <p>In using the elevator it wa¡^ necessary for some person to go upon it with the goods from floor to floor. In the afternoon of August 11, 1874, W. N. Moore, a salesman of the lessees, was upon the elevator with a truck and goods to be hoisted. As he was about to start upwards the plaintiff, Thomas Butler, and a Mr. Druden, employés of the lessees, stepped upon the platform for the sole purpose of being taken to a floor above. As the platform was ascending the wire rope parted, and they all fell to the basement. The plaintiff was seriously injured infoot, ankle,leg, &c.; was sick for, months; lost wages, incurred expense, suffered pain, &c., &c. He sued Sinton, alleging the covenants of the lease and its extension, that he was clerk to lessees, “ that it became and was necessary in the transaction of his business as salesman to pass from one floor of said building to the other, and that the passage was usually accomplished by the use of the elevator and hoisting apparatus erected'and used in said building and operated and controlled by said defendant, that being the most common, and the usual and customary means used in passing from one floor to another in said building.” He also charged the defendant with negligence and carelessness in building and constructing said hoisting apparatus and in operating the same; “that it became and was out of repair and wholly unfit for the use for which they were constructed and used ; that the defendant well knowing the premises permitted it to become so much out of repair and in siich bad order and condition-that it broke and gave waju without fault or neglect on plaintiff’s part ” and injured him as aforesaid.</p> <p>The defendant by answer as a first defense denied that the “boilers, engine and hoisting apparatus were in the possession of, and under the control of and operated and conducted by the defendant when the accident occurred set out the lease and its extensions, denied, any other contract; admitted that plaintiff was in lessees’ employment and that he used the elevator as their clerk and salesman. The second defense denied all carelessness and negligence, denied that the apparatus was out of repair, denied knowledge, &c., making direct issues with all averments in the petition as to those matters. The answer was silent as to the statements in the petition touching the usual and customary use of the elevator, and the allegation that plaintiff was without fault or neglect was not denied.</p> <p>At the trial the plaintiff offered evidence tending to prove that the sheaves over which the wire rope passed were so small that the wires were liable to break, thereby weakening the rope; that it needed repairs; that the springs, for holding the platform in case the rope should break, were defective and insufficient; that Sinton knew, when he originally ordered it, that it was not so good an elevator as one of another plan then in use in Cincinnati, and that his engineer had opportunities for knowing that the rope was too weak for use.</p> <p>Sinton offered evidence tending to prove that the elevator was good of its kind; that it was of a kind generally used; that he did not know that it was not so good as another one then in use in Cincinnati for such purposes; that the sheaves were of a proper size, and the rope in good condition, and that neither he, nor the engineer, had knowledge or notice that it was out of or needed repair. .There was no controversy but that it had been used from January, 1870, until August 11, 1874, without accident; that the rope had been repaired at least twice, being once turned end for end, and that it did not break at either of the places at which it had been repaired.</p> <p>Evidence was conflicting as to the cause of the break.</p> <p>So much of the charge to the jury as did not relate to the conduct of the plaintiff below was as follows:</p> <p>“ Mr. Sinton had leased to Tolle, Holton & Co. the store on Vine street, and also leased to them, for receiving and discharging merchandise, the use of so much of the yard as was in rear of store, and by the terms of the lease, as extended, the lessees were to pay quarter yearly the cost of steam heating and hoisting for said premises, being one-third of the expense of running the engine for steam hoisting for three buildings known as the Sinton block, and keeping the same and the boilers therewith connected in good order and repair, — Mr. Sinton, at his own cost, to keep the elevator in property so leased in repair, providing the lessees used proper and judicious care in the use of the same.</p> <p>“The lease does not fix and determine the manner of running the hoisting apparatus and machinery, the situation of boiler and engine, or the mode of employment of the engineer. Testimony was offered as to these matters.</p> <p>“ If, upon the testimony in connection with the stipulations of the lease, it appears that Mr. Sinton, for the convenience of the lessees, and on their behalf acting for them, hired the person who ran the apparatus, and advanced the cost of running it, and so ascertained for the lessees what amount each was to pay; then, as it also appears in evidence that Mr. Sinton was not notified of any defect, he is not liable to the plaintiff for damage resulting from defects in the elevator, notwithstanding his agreement to keep the elevator in repair at his own cost.</p> <p>“If, on the other hand, it appears that Mr. Sinton had the control, direction and management of the machinery, so that in connection with his agreement to keep the elevator in repair, he did not merely lease an elevator, but he undertook to supply transportation or carriage, then he is liable for damage happening to the plaintiff by reason of mismanagement on the part of Mr. Sin ton’s employ é in charge of the steam hoisting apparatus, or by reason of any defect in said apparatus known, or that ought to have been known to such employé.”</p> <p>Sinton excepted to the paragraph beginning “ If, on the other hand,” and asked the court to give to the jury each of the following instructions:</p> <p>First. We ask the court to charge the jury that if the plaintiff was in the employ of Tolle, Holton & Co. at the time of the injury, and had been ever since the building in question was erected in 1869, and that said firm had had the entire and exclusive use and occupancy of the building in question, and of the elevator, during all that time, the defendant having no right to use or occupy any of it in any way, then the plaintiff cannot recover in this action.</p> <p>Fourth. That the fact that there were boilers and an engine in an adjoining store, which created the power to run the elevator in question and heat for the store in question, and two other stores just like it; and that the defendant hired the engineer and paid for the running of it and the fuel, upon the agreement contained in the lease that the said Tolle, Holton & Co. should pay for all such services, this did not give the use of any portion of the building or elevator in question to the defendant or deprive said Tolle, Holton & Co. of the exclusive occupancy of it.</p> <p>Fifth. If the elevator was one which had daily run securely for four or five years in the store, and the plaintiff and all others had full opportunity of seeing it and knowing how it worked, and was an elevator in common use with others at the time, and the defendant knew of no defect in it but believed it to be safe and secure, the defendant could not be made liable in this action simply because the jury may think there was a better or more secure elevator that might have been put into the store when put up.</p> <p>Each and all of which charges the court refused to give, and Sinton duly excepted to said refusals.</p> <p>The verdict was against Sinton. His motion for a new trial was overruled — a bill of exceptions containing all the testimony, the charge — the rulings on evidence and- the exceptions were duly made part of the record. The superior court in general term affirmed the judgment, and Sin-ton asks this court to reverse the judgments below.</p> <p>The plaintiff in error was not in possession, nor did he have control or management of the elevator at the time of the accident. Burdick v. Cheadle, 26 Ohio St., 396; Rich v. Basterfield, 4 Mun. Gran. & S., 802, 803; Barrett v. Singer Mfg. Co., 1 Sweeney, 547.</p> <p>No one can take advantage of a .covenant, but the parties 'and privies. BlaeJcmore v. B. B. Railway Co., 8 Ellis & B. , 1047; Winterbottom v. Wright, 10 Mees. & Weis., 114, 115; Barrett v. Singer Mfg. Co., 1 Sweeney, 547, 548; Robbins v. Mount, 4 Robertson, 564; Flynn v. Hatton, 43 How. Pr. R., 348, 357. '</p> <p>Notice must have been brought home to Sinton of the insecure condition of the elevator. Makin v. Watkinson, 6 L. R. Ex., 25.</p> <p>The case in bar differs from the case in the 26th Ohio St., in this, that said Sinton was furnishing transportation to the lessee and their employes and was, to the extent necessary to carry out his portion of the contract,in possession.</p> <p>See Sherman & Redfield on Negligence, sec. 502; Taylor v. New York, 4 E. D. Smith, 559; Canavan v. Conkling, 1 Daly, 509 ; Looney v. McLean, 129 Mass., 33; Reedman v. Comvay, 126 Mass., 374; Stratton v. Staples, 59 Maine, 94; Clapp v. Kemp, 122 Mass., 481; King v. Pedley, 1 Adolphus & Ellis, 122, per Taunton, Justice; Campbell v. Portland Sugar Company, 62 Maine, 552.</p> <p>Stewart v. Harvard College, 12 Allen, 58; McCutrick v. Wasson, 4 Ohio St., 566; 125 Mass., 487; 56 N. Y., 124; Devlin v. Smith, 89 N. Y.,, 470; Wharton on Neg., § 137, et seq.; Id., §§ 445-9, 547; 1 Hilton, 436; 15 Wend., 522; 2 Comstock, 185; Pippin v. Shepperd, 11 Price, 400; Marshall v. Railroad Co., 11 C. B., 65; 16 Ad. & E. (N. S.), 984; 2 Dowling & Ry., 33; Perry v. Smith, Law Reps., 4 C. P. D., 325; Collis v. Selden, Law Reps., 3 C. P., 495. Dalgell y. Tyrer, Ellis, Blackburn & E., 898; 8 111. App., 217 ; 45 111., 444.</p> <p>Sinton was 'certainly bound by anything that he or his servant, the engineer, either knew or ought to have known. See Malone v. Hathaway, 6 Thomp. & Cook, 1; Waldon v. Finch, TO Penn. State, 460; Ryan v. Fowler, 24th N. Y., 410, see foot of page 413; Gray v. Boston Light Company, 114 Mass., 149 ; Losee v. Buchanan, 51 N. Y., 476; Cochran v. Holhroolc, 59 N. Y.,-547.</p>

<p>Error to the District Court of Hardin County.</p> <p>The original action was begun in the court of common pleas by Mary Tiersch against Wesley Pierce, upon a note and mortgage given for the deferred -payment of purchase money fo;' the mortgaged premises. Pierce, for answer and by way of counter-claim to the petition of the plaintiff, alleged, that at the date of said note and mortgage, he pur chased from the plaintiff the premises described in said mortgage, to wit: “In lot No. 44 in the village of North Washington,” Hardin county, Ohio, for the sum of $900, — ■ four hundred cash, and the residue in one and two years thereafter, all which had been paid except the sum claimed by the plaintiff in her petition; that said lot fronts on the west on Main street, and on the south on Washington street; that there was at the time of said purchase a frame dwelling house one and one-half stories high, with a porch or veranda six feet in width, on the west end thereof, extending the full width of said house, which house then appeared to be located on the south-west corner of said lot, and was so represented by the plaintiff, and so understood by the defendant, whereas, in truth and in fact, the said house and veranda, or porch, extended six feet into and upon said Main street; that said lot was at the time of said purchase fenced in on the west side with a picket fence, which appeared to be on the line of said lot, whereas, in truth and in fact, the said picket fence inclosing said lot on the west, was set out six feet into and upon said Main street, thus including within the apparent limits of said lot a strip of land six feet in width along the west end of said lot, which was no part of said lot, but was and is a part of said Main street, and to which the plaintiff had no title whatever — said lot being 66 ft. front on said Main street, and 132 ft. back — all of which was well known to the plaintiff at the time of said sale, and the execution and deliver of said note and mortgage; that at and before the date of said purchase, the defendant was wholly unacquainted in said village of North Washington; that he did not know nor did he have the means of knowing the size or boundaries of said lot, except from the representations of the plaintiff and outside appearances; that the plaintiff fraudulently concealed from him, the defendant, the fact that said porch, or veranda, and said west fence were located and built outside of tbe true bounds of said lot, and on the public street; that he liad sustained damages by reason of -the said false and fraudulent representations and concealments of the plaintiff, to the amount of three hundred dollars; and asked that said sum be allowed to him by way of counterclaim ; and that he might have judgment for any balance that might be found due to him on final hearing.</p> <p>The plaintiff for reply, not knowing whether said porch or veranda, and picket fence extended into Main street or not, denied the same. She denied that at the time of said sale, she represented to the defendant that said house and porch, or veranda, were located on the south-west corner of said lot; that she fraudulently concealed from the defendant the fact that said porch, or veranda, and said west fence of said lot were located outside of the true bounds of said lot, and on the’ public street. She denied all fraud, and each and every allegation of fraud, in the answer contained ; and averred, that she sold and described said lot to the defendant simply by the number thereof as designated, on the plat of said village, and did not at any time point out or attempt to point out to the defendant the lines and boundaries thereof.</p> <p>The defendant gave in evidence to the jury testimony tending to prove the facts alleged in his answer; and the plaintiff gave in evidence to the jury, testimony tending to prove that the defendant was still in possession and occupation of said strip of land which was enclosed with said lot, and also testimony tending to disprove the testimony given as aforesaid by the defendant.</p> <p>The court charged the jury among other things,</p> <p>“ That if they should find that there was a strip of ground six feet wide lying along the west side of said lot, and inclosed therewith, which did not belong to said lot, nor constitute a part thereof, but belonged to the public street, and that the plaintiff knew that fact but fraudulently concealed the same from the defendant; yet, if they should find that the defendant was still in undisturbed possession and occupation of said strip of ground, the defendant was then not entitled to recover of the plaintiff, on account of such concealment, any thing more than nominal damages.”</p> <p>To this portion of the charge the defendant excepted. The jury returned a verdict for the plaintiff. A motion for a new trial was made by the defendant, for the reasons,</p> <p>1st. That the verdict was against and contrary to the weight of evidence and law of the case.</p> <p>2d. That the court erred in charging the jury, that if the evidence satisfied them that the defendant was still in possession of the six feet of ground as to which the defendant claimed to recoup for damages, then the defendant could not recover.</p> <p>The motion for a new trial was overruled, and judgment rendered on the verdict. A bill of exceptions was taken by the defendant. The district court affirmed the judgment of the court of common pleas; and the supreme court is asked to reverse the judgment of the district court.</p>

In 1876 the railroad of The Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company, the plaintiff in error, ran through the lands of Eli Scudder. In a woods pasture and stubble field adjoining the railroad track Scudder pastured his hogs. Between this field and the railroad track the railroad company bad erected a post and board fence, which fence was but four boards high. The «spaces between the second and third boards from the bottom were too large.

Samuel Shoeman and Samuel Core, the defendants in error, sent one S. F. Lester, a merchant in Cleveland, Ohio, one hundred barrels of flour, of which fifty barrels, branded “Franklin Mills,” are in controversy in this su$. The flour was sent to Lester to be sold on commission, and the proceeds to be sent to the defendants in error.

<p>1. A voluntary conveyance to a trustee for the benefit of the grantor's wife and children is not fraudulent against a creditor whose claim • was at the time amply secured by mortgage.</p> <p>2. The fact that the mortgage security is subsequently lost by the credit- or’s laches, does not make such a conveyance fraudulent.</p>

<p>In an action founded on contract, the defendant may by answer set up as a set-off any cause of action he may have against-the plaintiff, arising upon contract, whether the same be a liquidated demand, or for unliquidated damages. P,ev. Stats., § 5015.</p>

<p>1. If two or more persons agree to jointly buy a tract of land, for the purpose of jointly selling it and sharing the profit, they are partners for that transaction, and, as between themselves, hold the rights and owe the duties of that relation.</p> <p>2. If the vendor, having knowledge of such agreement between the persons negotiating for the purchase of his land, aid one of them in fraudulently inducing his associates to buy, and they, on discovering the fraud, promptly elect to rescind and tender a re-conveyance (the vendor having retained possession of the laud), a decree for rescission should bo granted.</p> <p>3. If, before the discovery of the fraud, the purchasers had sold a part of the land to a third party, and forthwith after notice of the fraud they re-purchased the part so sold, for the purpose of tendering a re-conveyance of tlie wliolo to their vendor and completing a rescission of the first contract, such re-purchase was not a ratification of the first contract, and does not estop them from claiming its rescission.</p> <p>4. To complete such rescission they must return to their vendor all that they got from him, to wit: the title to the land; but he has no concern or interest in the settlement between them and their vendee.</p> <p>5. Having elected to rescind the original contract, the defrauded purchasers arc entitled to a return of the purchase money paid by them, with interest, ordinarily, from the time of payment, hut as no expenditure ■ by them added value to the land, they cannot recover more.</p>

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

<p>In an action of slander, for words which imputed to the plaintiff the crime of stealing a horse, the defendant, as a defense, pleaded the truth of the defamatory words.</p> <p>Held: That to maintain this defense, it was not necessary that it be proved beyond a reasonable doubt.</p>

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

<p>Error. Reserved in the District Court of Cuyahoga County. Facts stated in the opinion.</p>

<p>O’C. purchased and paid for certain lands, and had the same conveyed to S. to hold as his trustee. While S. held the legal title, he made advances and performed services for O’C., and, by agreement, S. was to hold the legal title to the lands until the advances and services were paid for.</p> <p>Afterwards the parties agreed upon the amount O’C. owed S. for advances and services, and at the request of O’C., S. conveyed the lands to him and received the check of a third person on a bank for the amount agreed upon.</p> <p>This check was not paid, but was immediately returned and surrendered to the drawer. The amount due S. for services and advances was not paid, and S. had no written agreement for its payment or acknowledgment of the indebtedness.</p> <p>Held: 1. That no vendor’s lien arose in favor of S. on the conveyance of the lands to O’C.</p> <p>2. That an action to enforce the claim of S. for services and advances was limited to six years.</p>

Did Schultz die by the act of his own hand? As to what is meant, in law, by “ die by his own hand,” see Ins. Co. v. 'Terry, 15 Wall, 580; 93 U. S., 286; 4 Hill, 73; 41 Ga., 338; 54 Me., 226 ; May on Ins., § 325; 47 N. Y., 52. The burden of proving it is on the insurers. Phillips v. Ins. Co., 26 La. Ann.; Jones v. Creaves, 26 Ohio St., 5.

<p>1. The agent of an insurance company, who had full power in a large territory to receive proposals for insurance against loss by fire, to fix rates of premium, to receive moneys, to countersign, issue, renew and consent to the transfer of policies of insurance, signed by the president of the company and attested by the secretary, does not exceed his authority in appointing a sub-agent authorized to solicit and receive applications, fix rates of premiums and forward the applications, on which, if approved, he, the appointing agent, is to issue policies, insuring against loss from the date named in the application. .</p> <p>2. The person so appointed is the agent of the company for these purposes, and his acts in this capacity are the acts of the company.</p> <p>3. Where an application has been made to such sub-agent and such application has been sent to the office of the agent authorized to issue the policy, the company is liable for a loss occurring before the issuing of the policy and after the date named in the application for the commencement of the risk.</p>

<p>Error to District Court of Miami County.</p>

<p>Tn an action of replevin by M. against R., a constable, for goods levied upon under an execution, which were claimed as exempt from levy and sale, where it appeared that the wife of M. owned a house ami lot which had been occupied as a family homestead, but from which M. and his family had removed before the levy.</p> <p>Held'. That M., after he had removed his family from the house and lot of his wife, and no longer occupied it as a homestead was entitled to the exemption provided for in section 3 of the act of April 9, 1SG9 (60 Ohio L., 50).</p>

On the 9fch of June, A. D. 1874, by a writing of that date, Thaddeus, Horace and Franklin Fairbanks, of St. Johnsbury, Vt., agreed to sell and convey to William E. Hulett; George H. Hulett, John… Held: or the non-payment of money due, there must be a demand for the performance of the condition or a demand for the payment of the precise sum due, or it will not cause a forfeiture of the estate.

<p>Ekbob to the District Court of Summit County.</p>

<p>1. Under the act of May 4, 1S69 (66 Ohio L., 91), a promissory note stipulating for the payment of the principal at a future time “ with interest thereon at eight per centum per annum, payable semi-annually until paid,” is not usurious.</p> <p>2. The semi-annual interest bears interest at six per cent, per annum from the day it became due until paid, but forms no part of the interest ■ stipulated for “upon the amount of such note.”</p>

<p>Eeboe to the District- Court of Richland County.</p>

<p>Eebob to the District Court, of Franklin County.</p> <p>On. May 1st, 1868, certain land in Delaware county belonging to one Polly Adams, was levied on to satisfy execution issued on a judgment for $1,557 and costs, rendered in the preceding month in the Franklin common pleas against her and others" and in favor of one Jaeger. Soon after the levy, the sum of $816.61 and costs was made and paid on the judgment, and the fact stated on the court journal.</p> <p>Sparrow became owner of the judgment, with full knowledge of the payment made and the balance due. Hosack by deed of general warranty became owner of the land, holding under Polly through intermediate conveyances with usual covenants of warranty. A vendi was issued for .the sale of the land to satisfy the judgment to its full original amount; no credit for or mention of the payment having been entered thereon. .</p> <p>The land was struck off to Sparrow for $1,468, who paid the sheriff the costs only, (amounting to $81.07); and the sale was confirmed in January, 1870, and deed delivered. The amount actually due from Sparrow on account of the purchase was $616.45, after deducting from his bid the balance due on the judgment with accrued costs. In his petition counting on the above facts, Hosack, who was plaintiff below, claimed that the above sum was had and received by Sparrow for the use of the plaintiff.</p> <p>The administrators of Sparrow demurred to'the petition. The common pleas sustained the demurrer and gave judgment for the defendants. The district court reversed the judgment. To reverse this judgment of reversal is the object of the present proceeding.</p> <p>The demurrer to the second amended petition should have been sustained on two distinct grounds.</p> <p>First. — It does not show that the plaintiff, Hosack, paid any thing on his contract of purchase, or that he ever agreed to pay any thing, or that he is entitled to recover from Sparrow or any one else. It is stated that on January 5th, 1870, J. B. Foss conveyed to Hosack, but it is not claimed that it was for a consideration. If he has paid nothing, he is entitled to recover nothing, and that he has paid nothing will be assumed from his failure to aver it.</p> <p>This assumption is sustained by what is averred as well as ' by what is not. See 15 Ohio St., 514.</p> <p>If Polly Ann Adams sold subject to the entire judgment lien, of which there seems to be no doubt and no averment to the contrary, then she was entitled to the amount which the makers of the note had paid. And in the absence of any order of the court, the sheriff pays to the plaintiff in execution, and after satisfying his judgment then the.statute directs him to pay the balance to the judgment debtor, which in this ease was Polly Adams. S. & C., 1080; Rev. Statutes, § 5408.</p> <p>Second. — There *is no privity of contract between Hosack and Thomas Sparrow, who purchased at sheriff’s sale.</p> <p>The sheriff was and is entitled to the purchase ihoney, and in contemplation of law it was in his hands subject to the order of the court, hie having returned the sale of the property.</p> <p>If the purchase money was not in fact paid to the sheriff, he is the party, and the only party to sue, and all other persons interested can look to him, and can enforce their claims by proceedings against him. Hosack was not a party to the sale or to the proceedings which resulted in thé sale. He is an entire stranger to the whole record. He took a conveyance while the property was advertised for sale to satisfy the judgment and levy, and only a few days before the day of sale, and is chargeable with knowledge of the lien thereon. His remedy, if he has any, is on his vendors’ covenants, and it is plain, adequate and complete.</p> <p>Under no circumstances can Hosack maintain an action against Sparrow’s administrators. If they, are liable at all it is to the sheriff only. 5 Yerger (Miss.) 66 ; 21 Barb., 17;' 11 Minn., 220; 4 Watts, 160; 29 Ohio St., 534, 535.</p> <p>In many, if-not" in all the cases cited by counsel for' defendant in error, there was an implied promise to pay. In the case at bar there was no implied promise, or any promise, on the part of Sparrow to pay Hosack.</p> <p>Sparrow made an express promise to pay the sheriff; and where there is an express promise to pay one person, there can be no implied promise to pay some one else. His only contract was with the sheriff, and this express contract the sheriff can enforce, even if Sparrow had paid the money to Hosack. Most of the eases cited by counsel for defendant are the common well settled cases, under the common law pleadings, where there was an actual receipt of money by one person which belonged to another.</p> <p>Under our code the common count for money had and received, can only be sustained by proof, that money has been actually received, by one, for the use of another. Swan’s Pleading and Practice, 178; Chitty on Con., 602.</p> <p>The theory upon which plaintiff below instituted this action, and which he still believes to be correct is this, viz., that upon the facts stated, an action at law will lie against Sparrow, who by his fraud upon the officers obtained the surplus, to recover back the excess as for money had and received to Hosack’s use.</p> <p>By the assignment of the judgment, Sparrow took the place of the judgment creditor. He owned and controlled the judgment. It is true he also became the purchaser of the land, but no confusion ought to be allowed to enter the mind because he occupied this double position. Counsel on the other side assume that this suit is brought against Sparrow because he purchased the land. Not so. Such an assumption is a fatal mistake. Suppose a stranger had purchased the land, and paid the purchase money to the sheriff, and the sheriff had paid the whole to Sparrow, would we then have sued the purchaser ? Certainly not. No possible ground of action would have existed against him. Having paid the' full amount of the purchase money to the officer entitled to receive it, he discharged his whole duty. But in such case we.would have sued Sparrow just the same as we have done now. We sue him not as purchaser of the land, but as owner of the judgment, who as such owner, by an abuse of the process of the court, collected on his judgment money which had already been paid. The fact that Sparrow purchased the land cannot surely relieve him from any responsibility which he has incurred as judgment creditor in the collection of his debt. Counsel on the other side are entirely correct in saying that in contemplation of law, Sparrow actually paid the money to the sheriff. Up to that point we make no complaint. But when Sparrow, as judgment creditor, took from the sheriff the whole $1,468, knowing that $616 of it did not belong to him, but did belong to Hosaek, we think his responsibility commenced.</p> <p>See 3 Blackstone’s Com., 163; Mason v. Waite, 17 Mass., 558; Mall v. Marston, 17 Id., 579; 5 Ohio, 267; 45 Barb., 69; Anderson v. Grage, Dudley (S. C.), 319; 4 Dana, 70; 38 Cal., 372; 41 N. Y., 303; 15 Wend., 321; 5 Cowen, 488.</p> <p>Instead of Mrs. Adams being entitled to the surplus, after satisfying the judgment, she had parted with that right by the successive conveyances of the property levied upon from her to Hosaek. Freeman on Executions, 447; Herman on'Executions, 279.; Bitting f Waterman’s Appeal, 17 Pa., 211; JEvery v. Mdgerton, 7 Wend., 259.</p> <p>But has Hosaek a right of action against the sheriff? If so, on what ground? The writ was regular on its face. It issued from a court having jurisdiction. ■ The sheriff hut obeyed his writ. In such case no action lies'against the officer. Swan’s Treatise, (11th ed.), p. 501; Taylor v. Alexander, 6 Ohio, 145.</p>

<p>A Mutual Life Insurance Company loaned to B. tlie sum of $12,000, for which B. made his note payable in three years, with interest at the rate of eight per cent, per annum, payable annually in advance. The company retained out of the amount of the loan the sum of $960, as the interest thereon for the first year in advance, and at the same time took from B. his two notes for $960 each, payable respectively in one and two years after date, for the interest on said loan for the second and third years thereof respectively. Said interest notes were paid at maturity, at the beginning of said second and third years respectively.</p> <p>Held: That under the act of May 4, 1869 (66 Ohio L., 91), the above transaction was usurious.</p>

On the 19th of October, 1871, A. P. and A. L. Bramble executed and delivered to J. C. Ward their promissory note due twelve months after date. A. L. Bramble was, in fact, surety for his son, A. F. Bramble, and this was known to Ward. October 19, 1872, time of payment was extended by Ward, upon payment of interest, for one year. October 19, 1878, and October 19, 1874, like extensions were again given.

By a policy dated March 7, 1871, the company insured the life of Robinson. He was required to pay annually on March 7, during the continuance of the policy a premium of $47.85. Of this he could pay $28.71 in cash, and give his note for $19.14.

Ekrob to the District Court of Perry County. I. The Newark Coal Company had no power or capacity to make the usurious contracts, and therefore the contracts are void.

<p>Eeeor to the District Court of Warren County.</p> <p>The plaintiff in error on the 5th day of June, 1879, filed his petition in the common pleas to subject the lands therein described to the payment of a judgment against Theophilus Donnel, making numerous other lienholders parties, among whom was the defendant in error, Harriet Donnel, the wife of Theophilus Donnel. The lien of the plaintiff and those of all the defendants were subsequent to the mortgage of the defendant, Harriet Donnel. What was done in the common pleas in the case, the record does not show; but at the April term, 1880, of the district court the case was tried on appeal, when the court found the facts of the case as follows: That in the year A. D. 1868 the said Theophilus Donnel obtained a loan from his wife, the said Harriet Donnel, of funds belonging to her separate estate to the amount of fifteen hundred dollars ($1,500), which sum he promised to repay her with interest; that' he did not at that time deliver to her any note or other writing evidencing said indebtedness; that on the 10th day of February, 1879, while he owed his said wife said sum of money and interest, he found himself considerably involved, unable to pay the claims of all his creditors, including the said claim of his wife. And his said wife desired and requested that he should secure her said claim; that said Theophilus Donnel then and there agreed to secure his said wife by executing to her his note secured by mortgage on his real estate; that upon the advice of their counsel it was determined not to make the note and mortgage directly to her, but to have the intervention of a trustee; that thereupon it was agreed between the said Theophilus and the said Harriet that one Michael Roat should be the trustee to hold said security-for said Harriet; that on said day a note and mortgage were drawn by their attorney, of which said note and mortgage the following are true copies, to wit:</p> <p> Know all men hy these presents: </p> <p>That I, Theophilus Donnel, of Warren County, in consideration of Twenty-four Hundred Dollars heretofore received by me from, my wife, Harriet Donnel, out of her separate property and by me appropriated, as and for her separate money, in the purchase and payment of the price of the real estate herein described, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey to tlie said______________ _______________________________________________and his assigns forever in trust for the use arid benefit of said Harriet Donnel, her heirs and assigns, the following described real estate,__________________________________________ _________________________(description of premises)__________________________ ____________and all the estate, title and interest of the said Theophilus Donnel either in law or equity, of, in and to said premises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same in trust for the said Harriet Donnel, her heirs and assigns forever. And the said Theophilus Donnel for himself, and for. his heirs-, executors and administrators doth hereby covenant with .the said_________________________________ ________________________Trustee, as aforesaid, and his assigns, that he is the true and lawful owner of the said premises, and hath full power to convey the same; and that the title so conveyed is clear; free and unincumbered; and further that he will warrant and defend the same against all claim or claims of all persons whomsoever. Provided, nevertheless, that the said Theopliilus Donnel shall pay, of cause to be paid at its maturity a promissory-note hereby secured, and which note is as follows:</p> <p>“ Three months after date I promise to pay to Michael Roat for the use and benefit of Harriet Donnel Twenty-four Hundred Dollars, for value received by me from her of her separate estate, with interest from date.</p> <p>“ February 10th, 1379. THEOPHILUS DONNEL.”</p> <p>In Witness Whereof, the said Theophilus Donnel and Harriet Donnel, who hereby releases her right and expectancy of dower in the said premises, have hereunto set their hands and seals this tenth day of February, in the year of our Lord one thousand eight hundred seventy-nine.</p> <p>THEOPHILUS DONNEL, (Seal.)</p> <p>HARRIET DONNEL, (Seal.)</p> <p> Signed, sealed and acknowledged in the presence of us. </p> <p>Peter Doughman,</p> <p>Charles Tigar.</p> <p>The State of Ohio, County of Warren, ss.</p> <p>Be it remembered, That on the tenth day of February, in the year of our Lo'rd one thousand eight hundred and seventy-nine, before me the subscriber, Peter Doughman, a J. P. within and for said Warren County, personally came Theophilus Donnel, the grantor in the foregoing mortgage deed, and acknowledged the signing and sealing thereof to be his voluntary act and deed for the uses and purposes therein - mentioned. And the said Harriet Donnel, wife of the said Theophilus Donnel, being examined by me separate and apart from her said husband, and the contents of said mortgage being by me made known and explained to her as the statute directs, declared that she did voluntarily sign, seal and acknowledge the same, and that she is still satisfied therewith, as her act and deed for the uses and purposes therein mentioned.</p> <p>In Testimony Whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid.</p> <p>PETER DOUGHMAN, J. P. (Seal.)</p> <p>In and for Warren County, Ohio.</p> <p>That subsequent to the drawing of the said note and mortgage, and on the 10th day of February, 1879, in the absence of their attorney, a justice of the peace was called in before whom said mortgage was signed, sealed and acknowledged without filling up the blanks left for the name of the trustee; that the matter of the said blanks was spoken of at the time, but that it was concluded by Donnel and the justice of the peace that as the mortgage had been drawn' by an attorney it .was probably right, and that it had better be executed as it was, and Donnel said he would show it to his attorney and if necessary that it could be corrected; that Donnel at the time of the execution of the mortgage believed it to be sufficient in form to effect the security intended thereby to be given to his said wife; that the papers were shown to the said attorney on the next day while he was in the act of leaving the station on the train, who remarked after a casual glance that the mortgage seemed “ all right; ” that soon thereafter, to wit: on the 11th play of February, 1879, the mortgage was duly filed for record; that said note and mortgage were executed by said Theophilus Donnel for the purpose of preferring the claim of said Harriet Donnel secured thereby; that neither before nor at the time of the execution of the note and mortgage was the said trustee, Michael Roat, consulted.as to his acceptance of the trust; that subsequently, and two or three days after the execution aforesaid, said Theophilus Donnel presented the note to said Roat and explained to him the nature of the trust, who accepted said trust and at the same time'delivered the note to said Theophilus Donnel for safe keeping, who has had the possession thereof since and up to the time of the-bringing of this suit, and that no part of said note has been paid. That when said mortgage was filed for record, the same was, by the recorder, indexed as a mortgage from Theophilus Donnel to Harriet Donnel, and that the defendants, other than said Harriet Donnel, claiming, and having liens on said lands hereinafter set forth had, before acquiring their said liens, no notice of said mortgage, and the lien thereof, other than that afforded by the record of said mortgage, but said plaintiff had notice thereof before acquiring his lien in his petition set forth.</p> <p>Upon this finding the court proceeded to correct and reform the mortgage of Donnel and wife, so as to supply and insert therein the name of Michael Roat as grantee, and thereupon entered a decree for the sale of the land, directing that out of the proceeds of such sale the lien of Roat as trustee be first paid, and that the other liens be afterwards paid according to their priorities..</p> <p>A petition in error is filed here by the lienholders other than Michael Roat, to reverse this decree.</p> <p>The reformation could not be made of the mortgage to the prejudice of judgment creditors. Van Thorniley v. Peters, 26 Ohio St., 471; White v. Penman, 1 Id., 110; Erwin v. Shuey, 8 Id., 510 ; White v. Penman, 16 Id., 60;' Bloom v. Ffoggle, 4 Id., 45.</p> <p>The failure to insert the mortgagee’s name makes the instrument totally defective, and is certainly as essential an element of a proper execution as the omission of a witness. Is not the failure to insert the name of a grantee as much a defective execution by implication of the law, as the signing of the instrument is by express terms ? Both make the instrument nugatory, and require a court of equity to make it operative and effectual, and until that time legal and vested rights of innocent parties are not affected by it.</p> <p>We claim that when there is an absolute want of some essential part of a deed or mortgage, there is neither a patent nor latent ambiguity, and extrinsic evidence has nothing to apply to its proper subject matter. In short the instrument is no mortgage or deed until made so by a court of equity, and from that time only does it affect the rights of third parties. Hood v. Brown, 2 Ohio, 266; May-ham v. Combs, 14 Id., 428; and eases above cited.</p> <p>The record of the instrument gave no legal or constructive notice to affect the rights of third parties. Jennings v. Wood, 20 Ohio, 261; Pringle v. Bunn, 37 Wis., 449; 16 Ohio, 60; 20 Id., 261; 4 Id., 45; 26 Ohio St., 474; 16 Id., 552.</p> <p>The conveyance inured to the benefit of all the grantor’s creditors. Conrad v. Paneost, 11 Ohio St., 685; Pichson v. Paw son, 5 Id., 218; Hide v. Olds, 12* Id., 591; Harhroder v. Eeiby,á Id., 602; Rev. Stats., § 6343.</p> <p>We maintain that courts of equity will interfere, to correct mistakes, not only between the original parties, but also those claiming under them, whether as heirs, legatees, devisees, assignees, voluntary grantees, or judgment creditors — that courts of “equity will correct all errors and defects, and treat the instrument according to the intention of the parties.” Swan & C., 694; Davenport v. Sovil, 6 Ohio St., 459; Goshorn v. Purcell, 11 Id., 641; Smelters v. Rainey, 13 Id., 568; Adams’ Equity, 406; Story’s Equity, vol. 1, sec. 165; Simmons v. North, 3 Smedes & Mar. R., 67; Wall v. Arrington, 13 Ga., 88; White v. Wilson, 6 Blackf., 448; Gouverneur v. Titus, 6 Paige Ch. R., 347; Strang v. Beach, 11 Ohio St., 283; Whitehead v. Broion, 18 Ala., 682; Rhodes v. Outcalt, 48 Miss., 367; Young v. Cason, 48 Id., 259.</p> <p>We claim that Harriet Donnel stands in the relation of a bona fide purchaser for value, said mortgage being executed for the purpose mentioned therein, and she therefore has a superior equity. A subsequent judgment creditor does not stand as a purchaser, and is not entitled to the privileges of that position. He is remitted to the rights of the mortgagor, and he acquires a lien only upon the interest of the mortgagor, and must yield to every claim that could be successfully asserted against the mortgagor. Jones on Mortgages, vol. 1, sec. 458; Anketel v. Converse, 17 Ohio St., 11; Tousley v. Tousley, 5 Id., 78.</p> <p>It is the purpose and intention of the parties that governs. Perkins v. Dibble, 10 Ohio, 434.</p> <p>Deeds omitting words of grant are held good. Bridge v. Wellington, 1 Mass., 219.</p> <p>The fact that a name other than the grantee’s appears in a place in the deed where the grantee’s name ought to be, does not warrant the finding that the conveyance was to such other person. Hawriek v. Jackson, Texas, 188Q; 16 Id., 204; 9 Id., 445; 3 Gilb., 239;</p> <p>Where the intention of the parties can be gathered from the instrument, the court will carry that intention into effect. 1 Mass., 135; 6 Id., 32; 7 Id., 384; 15 Pick., 27; 19 Id., 446.</p> <p>The mortgage did not inure to the benefit of all the mortgagor’s creditors. Lloyd v. Fulton, 1 Otto, 479; Payne v. Troyman, 68 Mo., 339.</p>

<p>Error to the District Court of Franklin'County.</p> <p>We submit that after Doherty’s mortgage bad become a lien upon the real estate of Hopkins by reason of the pay-* ment thereof becoming a part of the purchase money, and tbe distinct agreement of Hopkins to pay the same, and after- the mortgagee, Doherty, had done all that the law required to make his mortgage valid against third parties by filing- the same for record in the recorder’s office of the county where the real estate is situated, that then no subsequent purchasers could claim to hold the land in question clear of the Doherty mortgage.</p> <p>It is claimed by the defendant, Bean, in his answer and cross-petition, that he did not have actual notice of the existence of the Doherty mortgage or of the verbal understanding between Hopkins and Meacham. This is immaterial, for Bean had constructive notice by reason of the fact that the mortgage had been filed for record and he might have bad actual notice had he but searched the records. And further, from all that appears in Bean’s answer and cross-petition, he had actual knowledge of the written agreement.</p> <p>It will hardly be questioned that Hopkins could make Doherty’s mortgage a valid mortgage lieu as against himself by a written contract for a valuable consideration to that effect. And if Doherty’s mortgage was valid against Hopkins, then it was superior to the mortgage lien which Hopkins might have under the mortgage from Bean for the following reasons:</p> <p>(1.) The mortgage was first in time.</p> <p>(2.) The Doherty mortgage was made a superior lien by Hopkins’ agreement to pay the same.</p> <p>(3.) The Doherty mortgage, if considered as a lien for purchase money, was superior against Hopkins to any lien which Hopkins might have or create.</p> <p>(4.) The Doherty mortgage was filed in equity. A court of equity considering the true relations of the parties would certainly not have allowed a debtor to be paid from a fund to the exclusion of his creditors, the fund being insufficient to satisfy the claims of both, when the debtor for a valuable and sufficient consideration had agreed that his creditor should be paid from the same fund.</p> <p>The statute in force at the time of the transaction mentioned in this case and governing it is found 1 S. & C., 465 to 469, and particularly see section 7 thereof.</p> <p>As to'when a mortgage takes effect as a lien see 8 Ohio St., 471; 1 Id., 110; 14 Ohio, 418; 13 Id., 148.</p> <p>When Doherty filed his mortgage for record, August 9, 1876, the title to the premises, covered by the mortgage, had passed from the mortgagors (Meachams); and there was, then, nothing to which the mortgage could attach; and Bean takes the title from Hopkins as clear as the record showed it to be, August 8, 1876, when Hopkins received it, subject only to the then recorded mortgage of Kingrey.</p>

Eeeoe to the District Court of Licking County. This action was brought for the purpose of charging the separate estate of Mary D. Wilson with the payment of a note signed by her husband and herself. The petition alleged as facts that Mary D. Wilson was seized and possessed of real and personal property as a separate estate, and that jointly with her husband she executed and delivered the promissory note, a copy of which is set out.

In April, 1877, Hillhouse entered into an agreement with J. M. Loren & Co. by which he agreed to, and did endorse and transfer to them a promissory note made payable to him by Mary S. Spencer and I’m. H. Spencer, for the sum of seven hundred dollars. The note bore date of March 1st, 1877, and became due six months after date. In consideration for this J. M. Loren & Co. gave to Hillhouse a piano of the value of four hundred and fifty dollars and fifty'- dollars in money.

<p>1; An action against a county treasurer under section 5848 of the Revised Statutes to recover back taxes paid, which were illegally assessed, cannot be maintained when the taxes were paid voluntarily, and without . protest or objection.</p> <p>2. Where such taxes were paid after the twentieth day of December, and the treasurer, prior to the payment, had made no effort to collect them, or to enforce payment by any process authorized for that purpose; but received the taxes when payment was offered in the usual course of his official business. Held: That payment thus made was voluntary.</p>

<p>Error to the District Court of Putnam County.</p> <p>1. The plea of former recovery against the agent no bar. Hopkins v. Lee, 6 Wheat., 109; Herman on Estoppel §§ 90, 98, 99, 101; Felts v. Felts, 5 Cush., 566; Abel v. Gelder, 36 N. Y., 573; Hanks v. Drake, 49 Barb., 189.</p> <p>2. The statute of limitations. Section 15 of the code as amended April 13,1867, S. & S., 541; Hank v. Minnock, 19 Ohio St., 462; Mayne v. Griswold, 3 Sandf., 465; 1 Edward’s Ch., 343; N. Y. Code, § 91, sub. 6; Fost v. Farrington, 41 N Y., 164; 19 Ind., 79.</p> <p>3. As to liability of principal for acts of his agent, see Wood on M. & S., § 282; Adams v. Cole, 1 Daly ,(N. T. C. P.), 147; 80 N. Y., 162; B. B. Co. v. Kirby, 14 How., 487; B. B. Co. v. Dunn, 19 Ohio St., 162; Bailway Co. v. Bailey, 40 Miss., 453; 1 Blackstone, 431; Story on Agency, §§ 452, 358 ; Cooley on Torts, 119,123; 2 Addison on Torts, 437, § 1197; Greswold v. Haven, 25 N. Y., 596; Davis v. Bennis, January, 1870, Am. L. Times, 50; 40 Barb., 257.</p> <p>1. An answer pleading the statute of limitations is good on demurrer. Sturges v. Burton, 8 Ohio St., 215; Combs y. Watson, 32 Id., 228.</p> <p>I submit two propositions that seem to me too clear for intelligent controversy: First — If Gennett’s acts, as such agent, were within the scope of his authority as agent of defendant, then there was no joint liability. Ciarle v. Fry, 8 Ohio St., 358. Second — If they were not within the scope of his authority as such agent, then this defendant could not be held unless it had authorized the wrong, received the benefits derived from the wrong, or ratified or approved the wrong.</p> <p>The judgment against the agent was a bar to an action against the principal. Wharton on Agents, § 473; Priestly v. Fernie, 3 H. & C. Ex., 997; Seelen v. .Ryan, 2 Cin. Sup. Ct. Rep., 158; Administrator of Chambers v. Ohio Life Insurance and Trust Co., 1 Disney, 327, 330, 331; Meelcer v. Claghorn Cunningham, 44 N. Y., 349; Jones v. FEtna Insurance Co., 14 Conn., 501; Patterson v. Gtandesquin, 15 East, 62.</p>

<p>Error to the District Court of Union County.</p> <p>Greene, the defendant in error, was plaintiff in the common pleas. His action was against the commissioners and treasurer of Union county to enjoin the collection of an alleged illegal assessment made on his lands, in certain proceedings before said commissioners, for the improvement of a county road known as the Dover and Perkins road.</p> <p>At the January term of the common pleas, 1881, a trial upon the issues joined resulted in judgment against him.</p> <p>The district court on appeal heard the case on an agreed statement of facts and gave judgment for Greene, decreeing that a preliminary injunction which had been allowed be made perpetual.</p> <p>To reverse this judgment this proceeding in error was instituted. On the trial in the district court a bill of exceptions was taken embodying the agreed statement of facts, which need not be set out here, as the facts sufficiently appear in the opinion of the court.</p>

• In a lease dated January 21, 1875, Althorp covenanted to pay to Fox, as rent, for the premises described therein, during the term, “ twelve hundred dollars per annum', payable in monthly installments at the first of each and every month.” The installments payable on the first days of September, October, November and December, 1877, and of January, February and March, 1878, remaining unpaid, Fox, on March 19th, 1878, began, at the same time, four suits against Althorp…

The plaintiff in error filed his petition in the common pleas and alleged: That said defendant executed and delivered to him on the 12th day of February, 1868, his certain promissory note of that date, a copy whereof with all endorsements thereon is hereto attached and made part of this petition, and thereby promised to pay to the order of said plaintiff the sum of thirty dollars within one day from and after said date.

<p>Ebbob to the District Court of Jefferson County.</p>

<p>Error to the District Court of Scioto C ounty.</p>

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

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

<p>Bill of exceptions taken in the Court of Common Pleas of Wood County.</p>

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

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

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

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

<p>Error to the District Court of Van Wert County.</p> <p>cited Penn.' Qo. v. Rathgeb, 32 Ohio St., 66; Railroad Qo. v. Hlliott, 28; Id., 340; Railroad Qo. v. Miller, 25 Mich;, ■ 274-; Purl v. 8. L. K. Q. $ W. Ry. Qo., 73 Mo., 168, reported, in 6 A. & E. R. R. cases, 27; Henze v. 8. L. if. O. <f* N. Ry. Qo., 71 Mo., 636 ; T. H. I. R. R. Qo. v. Qlarh, 73 Ind., 168; 6 A. & E. R. R. cases, 84; Tucker v. Duncan, 6 Id., 268; B. $ P. R. R. Qo. v.' Stansbury, 65 Md., 648; P. R. R. Qo. v. Righter, 42 N. J., 180 ; Salter Admx. v. U. B. R. R. Qo., 75 N. Y., 278; C.f A. R. R. Go. v. Jacobs, .63 111., 178.</p> <p>cited Railroad Go. v. Sipes, 24 Ohio St., 631; Railroad Qo. v. Picksley, 24 Id., 654; 47 Pa. St., 300; Shearman & Redfield on Neg., §§ 13, 29, 31, 481; 46 Mo., 353; 2 Am. Rep., 517.</p>

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

<p>Motion to modify decree.</p>

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

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

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

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

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

<p>Error to the District Court of Crawford County,</p>

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

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

<p>Error to the District Court of Montgomery County.</p> <p>The facts are stated in the opinion.</p> <p>The payment of usurious interest in advance by the principal to the payee, without the consent of the sureties, releases the sureties.</p> <p>It is a well settled principal of law, that if the creditor, by agreement with the principal debtor, or by any other act, precludes himself at law from proceeding against the- principal debtor, the surety is discharged. McGornb v. Kittridge, 14 Ohio, 348, 350.</p> <p>The agreement to pay usurious interest and the payment of such interest for a definite time, constitutes a good eonsideration. Blazer v. Bundy, 15 Ohio St., 57, 64.</p> <p>A promise by the principal debtor to pay usurious interest, is a sufficient consideration to support an agreement by the creditor to give further time, and operates as a discharge of the surety in the note for the original loan. Wood v. Newkirk, 15 Ohio St., 295 ; Austin v. Dorwin, 21 Vt., 38 ; Tunell v. Boynton, 23 Id., 142 ; Wheat v. Kendall, 8 N. H., 504; Vilas v. Jones, 10 Paige, 76 ; 2 Am. Lead. Cases, 420; Fawcett v. Freshwater, 31 Ohio St., 637; Daniels on Neg. Inst., § 1317; Naff v. Homer, 63 Pa. St., 327; Huff v. Cole, 45 Ind., 300 ; White v. Whitney, 51 Id., 124 ; Myers v. National Bank, 78 111., 257.</p> <p>The agreement for extension need not be in writing, nor in any precise words, nor even in express language, but maybe found by the jury from circumstantial evidence of intention. Brooks v. Wright, 13 Allen (Mass.), 72.</p> <p>Part payment of a note before maturity and agreement to extend the time, is a good defense and a bar to the action until such time expires. Feck v. Beckwith, 10 Ohio St., 497.</p> <p>The inference of an agreement to extend the time on the payment of the two per cent, in advance, is authorized by a general proposition “ that a party receiving the consideration is bound to perform the thing for which the consideration was paid and received.” People's Bank v. Peirsons, 30 Yt., 711-715.</p> <p>I. The law is, that the contract to delay payment in order to discharge the surety must be (1) a valid one; (2) definite in its terms; (3) founded on a good consideration, such a one as the principal debtor could enforce; one which ties up the hands of the surety, prevents him from paying the debt, stepping into the creditor’s shoes and prosecuting the principal debtor himself. Such a contract (4) made without the sureties’ consent discharges him. But it must have all of these characteristics. Jenkins v. Clarkson, 7 Ohio, 75.</p> <p>A controlling question is: Does the contract bind the creditor and prevent him pursuing his remedy against the principal debtor. Byers v. Hussey, 4 Col., 415.</p> <p>In the first place, there was no contract binding upon the parties? The indisputable facts are that the only agreement ever made for the extension of time on these notes was made verbally, before their execution and delivery, and that the subsequent actions of the parties were pursuant to this early agreement. This being the case it had no efficacy, and all, parties were at liberty at any time to disregard it, on the familiar principle that all prior or contemporaneous negotiations are lost or merged in the written contract. Parol evidence is incompetent to show terms and conditions variant from, or in addition to, the written agreement executed by the parties, which were agreed to verbally prior to or at the time the contract was reduced to writing. Thurston v. Ludwig, 6 Ohio St., 4; Jones v. Brown, 11 Id., 601.</p> <p>Part payment of a debt already due is not a sufficient consideration to support an agreement to extend the time for the payment of the residue. Turnbull v. Brock, 31 Ohio St., 649.</p> <p>II. Payment of usury in advance is not a sufficient consideration for an agreement for extension of time. Hock v. Block, 29 Ohio St., 565; Good v. Sutton, Id., 587, 595; 2 Am. L. C., 420; State v. Board of JEd., 35 Ohio St., 519; Vilas v. Jones, 1 Comstock, 274; Hartman v. Daniels, 74 Pa. St., 36; Nightingale v. Meginnis, 34 N. J., 461; Hoivell r. Stein, 1 Lea (Term.), 360; Shaw v. Binherd, 10 Inch, 227; Meiswinlde v. Jung, 30 Wis., 361.</p> <p>In Me Comb v. Kittredge, 14 Ohio, 348; Blazer v.- Bundy, 15 Ohio St., 57; Wood v. Kewhirh, 15 Id., 295, 299, and in all other eases where it is held that an agreement to pay- or the payment of usurious interest will be a sufficient consideration for an extension, the legal interest was included in the contract; that is to say, the contract was to pay a given rate or- amount of interest, of which part was legal, and so much as was in excess of the legal rate, usurious under our statute; ánd being a valid contract to the extent of the legal rate, was, therefore, a sufficient consideration. But here the legal rate is not included in the usurious payment, but entirely separated from it.</p>

Appeal. Reserved in the District Court of Noble County. Held: that the plaintiff was not entitled to any relief; and dismissed his petition, and the cross-petitions of John E. Hanna and Belford & Okey. 1. The court will observe that by the first clause of the first item of the will, the lands of the testator are devised to his widow for life. . ■ 2.

<p>A testator, domiciled in Mississippi, devised liis entire estate to C., his heirs and assigns, with full power to dispose of the same and apply the proceeds upon specified trusts. By subsequent clauses he named C. co-executor with two others, limiting the power to sell and convey to C. alone; and provided that if C. should die or should “refuse to take upon himself the execution of the will,” O.’s power should pass to W. O. accepted the trust, was qualified as executor and took upon himself the execution of the will. Afterwards he executed a resignation, both as trustee and as executor, and on an ex parte application, an orphans’ court in Mississippi made an order accepting it, and appointed W. his successor. No law of that state gave power to any court, upon such an application, to divest a trustee, holding title, of his powers or estate. Soon after C. (who did not convey to W.) resumed action as trustee; for value conveyed part of the Ohio land to a bona JUle purchaser; received the purchase money, and placed it in the hands of the chief executor, who duly applied and accounted for it. W. never acted or claimed to act as to the land.</p> <p>Held : 1. The resignation was not such a “ refusal to take upon himself the execution of the will ” as transferred title to W.</p> <p>2. The action of the orphans’ court did not affect C.’s powers as trustee, and his deed was valid.</p> <p>8. The “ open,; continuous, adverse, uninterrupted and peaceable possession” for more than twenty-one years, of a part of the lands devised to O. as aforesaid, by one (and his grantors) who all the time claimed to own the same, is a good defense to an action for the recovery of the land so held, whether the plaintiff be the trustee or his beneficiary.</p>

<p>1. In an action for an injury alleged to have been caused by the negligence of the defendant, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.</p> <p>2. Where an action was brought for an injury received by falling into a trench which had been dug in a public street for the purpose of laying or repairing the track of a street railroad, the opinion of a witness for •the plaintiff that the condition of the trench and track was dangerous, was not competent. But after the defendant, on cross-examination, had called out the opinion of the witness, that the condition, as he claimed it to be, of the trench and track was not dangerous, it was not error to permit the witness on re-examination to state his opinion that the condition, as claimed by the plaintiff, of the trench and track was dangerous.</p>

<p>In a municipal corporation, three-fourths in interest, represented by the feet front of the owners of property abutting upon a street, petitioned for the improvement of the street by paving the same with wood and stone. Two petitions were presented to the citj- government — one, sjjjned by a majority in such interest of the petitioning owners, asked, that the street should be “ paved with eight feet of stone on each side, and twenty-four feet of wood between the stone; ” and one, signed by a minority in such interest of the petitioning owners, asked, that the street should be “paved with not less than thirty-two feet of wood center, treated with the Thilmany process, and balance stone.” The street was paved with stone and wood treated with the designated process, but not in the proportions of material asked by the minority petition.</p> <p>Held: That within the meaning of the last proviso in section 5á3 of the municipal code, as amended March 20, 1875 (72 Ohio L., 68), three-fourths in interest of the owners of property abutting upon the street, petitioned for the improvement.</p>

Eliza Reclinger, a married woman, was tbe owner of eertain real estate as her separate property. On the 10th day of August, 1871, she sold the land to Conrad Gerlach for a consideration of $2,400. Of this sum $1,600 was paid in money, and $800 remained to be paid partly in work and the balance due, after, the work was completed, in money.

<p>Error to the District Court of Marion County.</p> <p>On the 31st day of January, A. D. 1878, John Ballentine was seized in fee simple of a tract of land in Marion county, Ohio, containing 120 acres. On that day he and his wife Adaline mortgaged it to F. & R. Lazarus & Co., to secure a promissory note of the husband for $3,000, payable three years after date, with interest at eight per cent. John died testate, and his will was admitted to probate in Januaiy, 1879. Adaline survived him, and, in due form of law, declined to take under the will. His daughters, Emma and Julia, were his only other devisees and legatees. Administration, with the will annexed, was granted to A. H. Kling. The debts (including said mortgage note) exceeded the personal estate. The administrator duly filed in the probate court a petition for the sale of the land to pay debts. The mortgagees answered, making all interested parties defendants, setting up their mortgage claim. The widow, by answer, waived the assignment of dower by metes and bounds, claimed dower in the entire tract, averred that she was fifty-four years of age, and ashed the court to “ allow her in money the value, of her dower in the proceeds of a sale of the premises.” The land sold for $8,300. The sum required to pay the mortgage was $3,249.33. The proceeds of the personal estate amounted to $5,029.25. The unsecured debts were $3,212.07. The sum in the administrator’s hands was large enough to pay all the debts (including the mortgage); also all the costs of administration; to give full dower to the widow in the entire proceeds of the land and leave a surplus for the devisees.</p> <p>The probate court allowed dower only in the surplus of $50.67, found by deducting the mortgage debt from the proceeds of the land.</p> <p>The common plea's, on error, reversed the judgment of the probate court and gave to the widow dower in the entire proceeds of the land.</p> <p>The district court affirmed the judgment of the common pleas, and this court is asked to reverse the last two judgments.</p> <p>The widow should only be endowed of the surplus remaining after satisfaction of the mortgage. Swaine v. Perrine, 5 Johns. Ch., 482, 491; Hinehman v. Stiles, 1 Stockton, 361; Benton v. Nanny, 8 Barb., 618; Taylor v. Fowler, 18 Ohio, 567; Hophinson v. Bumpstead, 8 Mass., 491; Bank v. Hinton, 21 Ohio St., 509; Hawley v. Bradford, 9 Paige, 200; Scribner on Dower, 499; Gfibson v. Crehore, 15 Pick, 146.</p> <p>In examining and weighing the decisions it is important to bear in mind the principle, which probably has no exception, that “in order to bar the dower interest of the wife, the proceeding in which the sale is made must be founded directly on the mortgage.” 1 Scribner on Dower, 528, secs. ■50. 51; 18 Ohio. 567.</p> <p>This is the explanation of all the cases cited by counsel for the plaintiff in error, as well as many .others which might at first sight seem to conflict with my position. Even Mr. Scribner himself seems a little confused by not attending strictly to this distinction. 1 Scribner on .Dower, 487, 488, secs. 37, 38, et seq.</p> <p>This case is not a foreclosure of the mortgage, nor in any sense a proceeding on ,the mortgage; it is not an adversary proceeding,, but a proceeding in rem, by the administrator’, to sell property to pay debts, not a particular debt, of the decedent; nor is.it, as I have already shown, a proceeding in which the creditors, or any of them; have any more than a technical-interest; and I undertake to maintain, notwithstanding the remarks of Mr. Scribner just referred to, (1 Scribner on Doiver, 488, sec. 38,) that there are very few decisions, I have found none, in which it is held that as between the heirs and dowress the latter may be defeated of her dower by the neglect or refusal of the husband’s personal representatives to pay his debts out of his estate.</p> <p>The debt is primarily the husband’s debt. The mortgage is his mortgage. The wife’s release of dower is to the mortgagee and those entitled under him, not to heirs nor strangers to the contract. Hence, except as to the mortgagee, and those in privity with him, there, never was any release of dower and the husband’s estate is bound for the payment of the debt. 16 Ohio St., 205, 206; Scribner on Dower, 525, 526, §§ 42, 44. And as sustaining the claim of defendant, see 1 Hilliard on Mortg., 411, 412; 2 Jones (N. C. Eq.), 357; 69 North Car., 67; 1 Angelí (R. I.), 22, 25; 8 Rhode Island, 160; 3 Met. (Ky.) R., 578, 581; 12 Serg. and R., 18, 21; 1 Md. Ch. Deeis., 202; 10 Rich. Eq., 285; 2 Hill, S. C., Ch., 250; 15 N. H., 38, 42; 9 Foster, 564,-572; 37 Me., 509, 515; -10 Mass., 364; 3 Pick., 475, 481; 5 Id., 146,150; 16 Ohio St., 205, 206; 28 Id., 503-507; 27 Id., 512; 3 Paige Ch., 363.</p>

<p>B., an officer of the city of Cleveland, having a salary payable quarterly, made a draft on E,, the treasurer of the city, for eleven hundred and twenty-five dollars, payable to the order of C., on the eighth day of April, 1874, and directed that the amount of the draft be charged to his salary for the quarter then ending,-and waived demand and protest. The draft was endorsed by C. to D.</p> <p>Held: The draft was negotiable and created between B. and C. the relation of drawer and endorser.</p>

<p>A trustee under a will, wlio was also executor of the same, was empowered to manage and sell trust property, and in the course of the business wrongfully converted trust funds to his own use, and for which he gave his note, secured by a mortgage, to a third party, in trust, for and to the acceptance of his beneficiaries, some of whom are minors , and are benefited thereby.</p> <p>His beneficiaries, because of his said default, and for other reasons affecting him personally and rendering him unfit to retain the trust, requested him to resign, which he refused to do. Afterwards he resigned, and was allowed, in settlement of his trust account, all his disbursements, and was, at the request of his beneficiaries, also allowed for his services, a sum in excess of the usual allowance proper for a faithful trustee.</p> <p>In an action upon the note and mortgage f Held:</p> <p>1. The note and mortgage were valid and enured to the benefit of the beneficiaries on delivery.</p> <p>2. It was the duty of the trustee to resign when requested. And a promise by the beneficiaries, in consideration that he would resign, to cause the note and mortgage to be cancelled and surrendered, in ■ addition to procuring him said allowance for his services, is void.</p>

<p>1. S. had knowledge that his agent, by culpable carelessness, had lost money collected by him in the discharge of his duties, and for that reason required that he should either give bond to pay over all moneys hereafter received or collected by him, or quit his employment. S. did not inform the sureties of his agent’s former culpable carelessness and they had no knowledge thereof. — Held: That the principal can not avail himself of the guaranty thus obtained.</p> <p>2. After evidence had been given tending to establish the state of facts set out in the preceding paragraph, it was error for the judge to instruct the jury that it was their duty to return a verdict for S.</p>

Barker brought suit in the common pleas of Portage county against the plaintiffs in error to recover possession of certain real estate which was owned by his wife at the time of her death; and which he claimed by the curtesy. The case was tried to a jury and resulted in verdict and judgment in his favor. A demurrer to the petition had been overruled and exception noted.

Ebbob to the District Court of Lucas County. The original action was brought in the court of common pleas of Lucas county, by George W. Hicks, the defendant in error, against.

<p>In. the trial of a case to a jury it is error for the court, after having been requested by either party, pursuant to statute, to reduce the charge to writing, to give oral instructions upon matters material to the issue, in addition to a written charge.</p>

<p>1. If the holder of a promissory note of a firm, after its dissolution, accepts the note of one of the partners, payable at a future date, retaining interest for said time by discount, and agrees to release the other partner, no action on the firm note can be maintained.</p> <p>lo . Such agreement may be implied from the acts of the parties.</p> <p>CO . The omission as party, to a petition in error, of one of the defendants in the court below, will not deprive the reviewing court of jurisdiction of the case.</p> <p>4. In such a case, if the defendant in error in the district court does not there complain of a defect of parties, and that court reverses the judgment below, this court will not permit him to make such objection here; and if it affirmatively appears that the judgment of reversal will not materially and injuriously affect the rights claimed in the original case by the absent party, this court will not interfere.with it,</p>

<p>A husband and wife, to secure their joint note, executed and delivered a defective mortgage on land which was her general property, and after-wards sold and conveyed the same, subject to the mortgage, supposing it to be perfect, taking from the grantee notes arid mortgage on the premises for the purchase-money. They transferred the notes to a third party, and the grantee made a payment on the note given by the husband and wife.</p> <p>In an action to foreclose the mortgage given by the husband and wife, to which all parties in interest were parties:</p> <p>Held: 1. The grantee and those claiming under him are estopped to assert the defective execution of the mortgage.</p> <p>2. The holder of. the note intended to be secured by the defective mortgage, has a lien on the premises, and is entitled to priority of lien over the other mortgage.</p>

<p>Error to the District Court of Putnam County.</p> <p>I. Wherever by the act or procurement of the creditor-the property of the principal debtor is permitted to escape to such an extent that the surety is deprived of his means of reimbursing himself from said property, to that extent is lie estopped from collecting the debt from the surety. Dixon and Hawke v. Diving's Adm'r, 3 Ohio, 280; Cass v. Adams, Id., 223, 224; Ford v. Commissioners, 7 Ohio, 2cl pt., 492, (overruling 4 Ohio, 379.)</p> <p>II. And this, notwithstanding the surety has omitted to have himself certified under the statute as surety when the judgment is rendered. The statute does not destroy the equitable rights of the surety to be protected in his surety-ship, it simply enlarges his legal rights to the extent that by causing the certificate, that he was surety only, to be entered of record, the law then requires the property of the principal to be first exhausted before levying on the property of the surety,</p> <p>The authorities cited by the plaintiff in error, if they have any bearing at all, only go to this extent, that if a creditor voluntarily releases property on which he has a levy, and thereby the security is in any way injured, he may be released. With that we have no quarrel. The case presented by the record is not similar, either on principle or in fact, and without any further argument on that point we are willing to submit the question. We refer to Kelly v. Collins, 11 Ohio, 310; Flliot v. Flmore et al., 16 Id., 27; Ciateh v. Simpkins, 2§ Ohio St., 89.</p>

<p>Where a creditor, living at a distance from his debtor, requests the pay-, ment of the debt' without giving specific instructions as to how the money shall be sent, and the debtor sends it by an express company, and it is lost in transitu, the debtor may maintain an action against the company for its recovery.</p>

<p>The true location of an original section corner, which was a point in a township line, was unknown. In 1S10 two owners of land separated by said line, agreed upon a point to be treated as said section corner, and their surveyor’s plat stated that it was eighty-two chains twenty-five links north from the south-east corner of said section. In 1832 the owners of said lands, in a recorded deed, stated that said point was nine perches north of a dry well. These points were sixteen feet apart. Part of the village of Carthage was laid out by C., one of said owners, and stones, placed on the lines of the streets, including “ Fifth street,” accorded with the line of 1832. C. also owned other-land along the north side of said line, and his fence (which became a hedge in 1847) accorded with the line of 1832, from a period prior to that year down to 1874. Other adjacent lands had been surveyed, marked, conveyed and fenced according to the line of 1810. In 1842 a road, that had existed for some fifty years, was resurveyed, and its starting point described as “At the west end of said Fifth street, in the village of Carthage, on the line between M. and S. townships,” but furnished no means for finding said point or line. In 1874, the village, claiming that this starting point was on the line of 1810, cut down C.’s hedge and included in the road a part of land claimed by C., who sued for damages.</p> <p>Held: 1. Parol evidence was competent to show which of the two “ agreed ” lines was treated as the township line by the resurvey of the road.</p> <p>2. Although no witness of the resurvey was examined at the trial, a verdict in favor of the line of 1832, under the facts stated, ought not to be disturbed.</p>

<p>1. If there are two firms of the same name in the same community, each consisting of the same persons, but each engaged in different kinds of business, one of which contains a dormant partner and the other does not, and suit is brought on a promissory note for borrowed money bearing the signature of the common firm name, the presumption is that it is the note of the firm not containing the dormant partner.</p> <p>2. The plaintiff, to recover against the dormant partner, must prove either that the money for which the note was given was borrowed on the credit of the firm in which the dormant partner was interested, or that, when obtained, it was used in the business, or for the benefit, of that firm; and the fact that the money was borrowed on the credit of that /firm may be proved by representations to that effect made by the ostensible partners at the time of the transaction, or it may be proved by circumstances.</p> <p>3. Secondary evidence is admissible to prove, that books of account do not contain certain entries, the books being out of the state, and beyond the jurisdiction of the court.</p>

<p>Error to the District Court of Butler County.</p> <p>About December 1st, 1870, George F. Elliott, a distiller, doing business in Butler county, Ohio, failed. His debt to the United States was about $80,000. His brother William A. Elliott and Louis Sohngen were his sureties on the bond held by the government. George assigned his property to William for the benefit of his creditors. By permission of the Commissioner of Internal Revenue, William operated the distillery at his own expense during part of the year 1871, and although he lost money in the venture he paid $8,000 on the said bond debt. Sohngen furnished to William malt to a considerable amount during 1871, and William paid him in full therefor. Late in 1871 the distillery was sold and the proceeds, $12,000, paid on said debt. The United States, on January 11th, 1872, recovered a judgment on said bond against George F. Elliott, William A. Elliott and Louis Sohngen for $15,831.66 and costs. The government consented to cancel $6,000 of this judgment.</p> <p>On June 11th, 1872, William A. Elliott made and delivered to Sohngen-three promissory notes, payable to the order of Sohngen — one for $5,000 in two years after date, one for $5,000 in three years after date, and one for $2,000 in four years after date, all payable at the First National Bank of Hamilton, with interest at eight per cent, per annum from date, payable annually. On the same day William and his wife duly executed, acknowledged and delivered to Sohngen a mortgage to secure said notes, conditioned in the usual form, which was duly entered for record in the county recorder’s office and recorded on June 28th, 1872. This mortgage conveyed two tracts of land in said county, one containing about 320 acres and the other about 130 acres. Sohngen made his own notes as follows— (all dated June 25th, 1872,) one for $10,600, payable in three years, and three for $848 each, payable respectively in one, two and i^iree years from date. Through a broker, he induced one Clawson to discount these (Sohngen) notes, pledging the Elliott notes (indorsed by Sohngen) and the mortgage as collateral security. Sohngen handed the proceeds of this discount ($9,605.49) to William A. Elliott, who paid it to the United States on said judgment. In July, 1872, $1,164.77, due from, the United States to George F. Elliott, upon another matter, was paid to his assignee and by him applied upon the judgment. This completed its satisfaction.</p> <p>On April 19th, 1873, William A. Elliott and wife, by deed with covenants of general warranty and against incumbrances, conveyed to Louis Sohngen, his heirs and assigns, the 130 acre tract that was included in the mortgage of June 11th, 1872. This deed wras duly entered for record April 23d, 1873, and recorded June 24th, 1878. The consideration was $14,000. An agreement, dated April 12th, 1873, stated how this was to be paid, to wit:</p> <p>To Joseph Curtis, for Elliott’s use, . . $2,000 00</p> <p>To Owens & Beckett, for his use, . . . 750 00</p> <p>To Schultz, for his use, .... 1,000 00</p> <p>To Second National Bank, Hamilton, Ohio, for his use, . . . ■ . . . 1,100 00</p> <p>To interest on $10,000 mortgage held by man in Cincinnati,...... 850 00</p> <p>Amount due Sohngen, for malt, . . . • 2,000 00</p> <p>Amount paid Wm. A. Elliott, . . . 2,400 00</p> <p>Amount cash to William A. Elliott, to pay on principal of $10,000 mortgage held by my man in Cincinnati, .... 2,000 00</p> <p>To pay amount raised on Sohngen’s indorsement</p> <p>to pay Government tax, . . . 1,900 00</p> <p>$14,000 00</p> <p>On August 26th, 1875, Sohngen duly made and delivered his mortgage to William E. Brown, securing two notes, one payable April 1st, 1876, for $11,389.70, €tnd the other on April 1st, 1877, for $2,937.37, to order of said Brown, with interest from date. Said mortgage covered the aforesaid 130 acre tract, and was entered for record on October 18th, 1875, and recorded. Brown transferred, by indorsement, to the Second National Bank of Hamilton, Ohio, the note for $2,937.37. On the 6th day of February, 1878, Conrad Windisch recovered a judgment in the court of. common pleas of Butler county, against Louis Sohngen, for the sum of $16,815 and costs, and said judgment became a lien upon Sohngen’s land in Butler county, from January 7th, 1878. On January 17th, 1878, Sohngen made an assignment of his property to Luke Bradley, Joseph Curtis and Christian Moerlein, for the benefit of his creditors. On the 4th day of February, 1878, said assignees began a civil action in Butler common pleas against Sohngen, his wife, Brown,-the bank and others claiming liens, and prayed that the premises covered by mortgage and other liens- might be sold, the rights of claimants adjudicated, &c. William A. Elliott was not a party to this action.</p> <p>The note for $10,600, discounted for Sohngen by Clawson, became due May 1st, 1875. To meet it Sohngen made two notes for $5,000 each, payable to his own order in one and two years respectively, from May 7th, 1876, and through the same broker who acted for him in 1872, got Samuel Kuhn to discount them; Kuhn taking the collaterals theretofore held by Clawson (the W. A. Elliott notes and mortgage) and Clawson receiving payment in full of the Sohngen note held by him. When the note due May 7-10, 1876, matured, Kuhn accepted a six months note for same amount, in renewal thereof, retaining the same collaterals.</p> <p>On May 10th, 1877, Sohngen took up both of the $5,000 notes held by Kuhn, and gave in their stead one $10,000 note, payable in six months after date, Kuhn retaining the Elliott mortgage and notes as collateral.</p> <p>On July 2d, 1878, Kuhn began a civil action in Butler common pleas, on the Elliott notes and mortgage, against William A. Elliott, his wife, William E. Brown, Sohngen’s assignees, and others. The petition contained four causes of action — one upon each note, and a fourth on the mortgage, asking for a decree of foreclosure and sale, and “for other and all proper and equitable relief in the premises.” Elliott, on March 1st, 1879, filed an answer. His first defence was a legal one to the $2,000 note. The second and third were in the nature of cross-petitions for equitable relief, averring that the debt was Sohngen’s, and claiming that the other two notes ought to be first paid out of the proceeds of the 130 acre tract.</p> <p>The action by Sohngen’s assignee wras No. 11190. That of Ifuhny. JElliott et al. was No. 11483. In No.’ 11190 the 130 acre tract, was sold on August 2d, 1879, for $9,100. Afterwards, by consent of parties, the two actions were consolidated, and on September 26th, 1879, Elliott filed in the consolidated case an amendment to his answer in No. 11483. This amendment charged that Kuhn took the notes after they were all due, and in addition to. the relief prayed for in original cross-petition, asked that the notes and mortgage be delivered up and cancelled.</p> <p>Kuhn, by reply to Elliott’s answers and cross-petition, denied substantially all their material allegations, and prayed as in his petition. Sohngen’s assignees by answer to Elliott’s cross-petition averred that he was, by contract with Sohngen, liable for the whole of George’s debt, and denied the facts set out by William. ' Brown and the Bank by proper pleadings denied the facts averred- by Elliott as giving him a right to relief as against them; claimed to be purchasers in good faith for value without notice, and that Elliott’s covenants’of warranty and against incumbrances estopped him from setting up any claim that the mortgage held by Kuhn should be first paid out of the proceeds of the 130 acre tract. Windisch also claimed to be a lien holder entitled to payment out of the 130 acres. All three prayed that Kuhn, if his mortgage debt should be beld a valid and subsisting lien, should first exhaust the 320 acre tract. Elliott filed replies in the consolidated case to the answers of Brown, of the Bank and of Windisch, Mrs. Sohngen claimed dower in the 130 acre tract, assented to a sale free from dower, and asked for dower out of the proceeds. The consolidated case was submitted to the common pleas as is shown by the following extract from the journal entry:</p> <p>“The above entitled causes, having been by consent of parties heretofore consolidated, and there being now in the hands of Luke Bradley, Joseph Curtis and Christian Moerlein, assignees of Louis Sohngen, funds in cash and notes arising from the sale of the one hundred and thirty acre tract of land, known and described as the ‘ Elliott Farm,’ by said assignees sold under, an order to them issued in said case No. 11,190, and of rents of said farm by them collected, as follows, to wit: — Amount derived from sales of farm, $9,100; add interest on $6,066.66 from August 2d, 1879, till now, $151.50. Amount derived from rents collected, $894.66; and making the aggregate of said fund $10,146.16, the sale of said land having been heretofore confirmed. These causes were by consent of parties submitted to the court upon issues joined in their pleadings between the several parties for determination, finding and decree, as to the rights of the respective parties in said fund, and for an order and decree of distribution thereof.”</p> <p>The court found that as between Sohngen and Elliott the notes and mortgage were paid, but that Sohngen and those claiming under him were estopped from so claiming; that Kuhn took them after the notes were due and could not enforce the mortgage against Elliott’s land; that as against Sohngen and his assigns Kuhn held the first lien upon the 180 acres and Brown the next; that Mrs. Sohngen has no dower as against the Kuhn mortgage. A decree was made distributing the fund in conformity with said finding.</p> <p>Kuhn, Brown, the Bank, and Windiseh appealed to the district court, giving bonds as directed by the decree. Elliott filed in the district court a motion to dismiss the appeal “ so far as affects the claim of Samuel Kuhn upon his note or to a personal judgment.” That court did not pass upon his motion. It heard the case and made a finding (besides other matters) that as between Elliott and Sohngen the mortgage notes were all paid; that when Kuhn took the notes, one of them was due; that Sohngen and those claiming under him were estopped from claiming as against Kuhn that the mortgage debt had been paid, and decreed that Kuhn was entitled to be paid out of the proceeds of the 130 acre tract before any of the other claimants. It also found that for any deficiency Kuhn could resort to Elliott’s 320 acre tract. A decree was made in conformity with this finding. Brown, the Bank and Windisch filed motions for a new trial because (amongst other reasons) “said decision, finding and decree are not sustained by sufficient evidence, and are contrary to law,” and “ the court ought to have decreed said lands so remaining in the name of William A. Elliott, to be exhausted by said Kuhn before coming on the-proceeds of said 130 acres.” Windisch’s motion was not so phrased, but it presented the same questions, with others. The motions were overruled, exceptions duly made, and a bill of exceptions presenting the whole of the evidence made part of the record. Brown filed a petition in error in the supreme court making all parties to the case in the district court defendants in error, and all were duly brought into court by service of summons in error or by proper waiver and appearance. Windisch, Mrs. .Sohngen, Sohngen’s assignees and Kuhn filed cross-petitions in error, but no summons in error was issued on either cross-petition and no waiver or appearance was ■made thereto.</p> <p>• Pending the case in the supreme court Elliott died, and, on motion of Brown, the plaintiff in error, the case in error was revived against his administrator and heirs. No motion for revivor was made by any of the cross-petitioners.</p> <p>Elliott’s representative and heirs insist:—</p> <p>1. That-the decree of the common pleas finally determined that as between William Elliott on the one hand and Sohngen’s assignees and Kuhn on the other, the mortgage debt was paid; that that branch of the case was not affected by the appeal.</p> <p>2. That as no summons in error’was served on him, and no appearance made by him as a defendant to either cross-petition’ in error, neither of the cross-petitioners can ask anything in this court against him.</p> <p>3. That neither of the cross-petitioners can ask anything liere against Elliott’s administrator, or heirs, because the only revivor was in the case made on Brown’s petition in error.</p> <p>I. Brown and the Second National Bank, respectively, are, in equity, entitled to have so much of the proceeds of the sale of the 180 acres of land, as is necessary for that purpose, applied to the payment of the mortgage indebtedness which the district court adjudged to be owing to them respectively.</p> <p>Inasmuch as Kuhn has a first lien on 327 acres of land, as well as on the 130 acres of land, to secure the payment of the indebtedness found due to him, and the 327 acres of land will sell for an amount largely in excess of such indebtedness, and Brown and the Second National Bank have a lien on only the 130 acres of land, Kuhn, as such prior lien holder, will be compelled, in equity, to subject so much of the 327 acres of land to the payment of the indebtedness owing to him, as is necessary for that purpose, instead of subjecting the 130 acres of land, or the proceeds thereof, to the payment of such indebtedness. Fassett v. Traber, 20 Ohio, 540; Teaff v. JRoss, 1 Ohio St., 469, 475; Shorten v. Brake, 38 Ohio St., 76, 85.</p> <p>II. William A. Elliott is not in a position to controvert this right of Brown and the Second National Bank. Under the circumstances he is estopped, as against them, from setting up a latent equity as between him and Sohngen. By his own acts, in executing and delivering an absolute deed for the 130 acres of land to Sohngen, who afterwards mortgaged the same to Brown and the Second National Bank, he plainly said to them, and all other persons, that Sohngen was the absolute owner of the land, and that they might safely deal with him as such owner. To allow him now, in any way, or for any purpose, to set up claims inconsistent with these acts, and to the prejudice of Brown and the Bank, as mortgagees, would be, in effect, to work a fraud upon their rights. JResor v. O. M. JR. JR. Go., 17 Ohio St., 139; Martin v. Outland, 18 Id., 383; Lx'rs of Swartz v. Leist, 13 Id., 419.</p> <p>1. In some states, an assignment of a mortgage, to operate as constructive notice to subsequent purchasers, must be recorded. The Registry Act of this state does not provide for the record of such an assignment. But where the mortgagee, retaining the legal interest in the mortgage, subsequently to the legal transfer of the mortgage debt, or of a part thereof, enters satisfaction and a discharge upon the record of the mortgage, such discharge operates to cancel the record of the mortgage, as against subsequent purchasers and mortgagees, in good faith and without notice; and as against them, the assignee of the note can not assert his equitable lien. Lx’rs of Swartz v. Leist, 13 Ohio St., 419. So that in this case had Sohngen, upon the delivery by Elliott to him of the deed conveying the 130 acres of land to him, absolutely entered satisfaction and a discharge upon the record of the mortgage from Elliott to him, and Brown had afterwards become a mortgagee in good faith, and without notice of Elliott’s alleged latent equity, Kuhn, as against Brown, could not have asserted his equitable lien as assignee of the note secured by such mortgage : A fortiori Elliott cannot assert his alleged latent equity to the prejudice of Brown and the Bank. Yet, such alleged latent equity is. the only thing which is interposed against the right of Brown and the Bank to have the debt due to Kuhn satisfied out of the 327 acres of land.</p> <p>2. Brown, when he advanced his money on the mortgage executed to him by Sohngen, had no actual notice of Elliott’s alleged equity. And he was affected with constructive notice only, that the notes secured by the mortgage which had been executed by Elliott to Sohngen might have been assigned to a third person. He was not affected with constructive notice of Elliott’s alleged latent equity between him and Sohngen. And, inasmuch as the -jportgage of Elliott to Sohngen was upon the 327 acres of' land as well as upon the 130 acres of land, Brown could rely upon his right to compel the assignee of said notes to subject so' much of the 827 acres of land as should be necessary for that purpose, to the payment of the amount due upon such notes, before enforcing his lien on the 130 acres' ¿f land. -</p> <p>3. As between Brown and Elliott, Brown had a right to rely upon the covenants in the deed of Elliott to Sohngen, that the 180 acres of land were free and clear from all incumbrances, and that he would forever warrant' and defend the same against all lawful claims whatsoever.</p> <p>It is a well settled principle that if one conveys real estate, with a general covenant of warranty against all lawful claims, he cannot be allowed to set up against his grantee, or those claiming under him, any title to such real estate. Even if the warrantor acquires á title subsequently to his conveyance, such new title will inure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This principle is founded in equity and justice, as well as the policy of the law.</p> <p>• III. Brown and the Bank stand on the footing of Iona -fide purchasers, for a valuable consideration passing at the time of the execution of the mortgage of Sohngen to Brown, without notice of the alleged latent equity between Elliott and Sohngen; and Brown and the Bank are, therefore, entitled to be protected as such purchasers or mortgagees, in good faith, and without notice. Shorten v. Brake, 38 Ohio St., 76, 85.</p> <p>Thé equities of Brown and the Bank, as bona fide mortgagees, are stronger than Elliott’s alleged latent equity. He negligently or confidingly executed and delivered to Sohngen, an absolute deed of conveyance in fee, for the 130 acres of land, containing covenants against incumbrances-and of general warrant}1-. Sohngen was thus invested by Elliott with the legal power, and ostensibly, a perfect right to convey the land to Brown, either by deed absolute or by way of mortgage. And, as between Elliott and Brown and the Bank, Elliott having reposed confidence in Sohngen, and given him the power to deal with the land free from any latent equity'or claim of Elliott’s, he should suffer the consequences of any loss which must be borne by reason thereof. . . ■</p> <p>Elliott ■ could easily have protected himself against loss by taking an obligation from Sohngen, with security, for the payment of the mortgage indebtedness,-which he claims Sohngen assumed to pay. Elliott, therefore, through his own negligence or misplaced confidence in Sohngen, having failed to so protect himself against loss, cannot now cast the loss upon Brown, who-was induced to loan his money upon the faith of Elliott’s conveyance to Sohngen. Fx’rs of Swartz v. Leist, 18 Ohio St., 419.</p> <p>As to third parties, and surely, as to any person claiming as grantee or mortgagee of Sohngen without notice of any secret equities between Elliott and Sohngen, the covenants in the deed of Elliott to Sohngen were evidence, and, as against Elliott, conclusive evidence that the 130 acres of land were unincumbered, and that he had no claim of any kind, either legal or equitable, therein or connected therewith. Justice requires that Brown and the Bank should, ■have the protection and benefit of these covenants. The covenant of warranty runs with the land, and in Ohio, so does the covenant against incumbrances. Foote v. Burnett, 10 Ohio, 317, 333; Rawle on Covenants, &c. (4th ed.), 350.</p> <p>IV. To charge - Brown and the Bank with constructive notice of the alleged latent equity of Elliott against Sohngen, in the absence of any claim or proof of knowledge of the facts upon which such alleged latent equity is founded, or of fraud, or of gross or willful negligence on the part of Brown or the Bank, would be inconsistent with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business. Williams v. Jackson, 107 U. S., 478, 484, and cases there cited-</p> <p>I. It is a principle well established in equity, that when a senior mortgage is a lien upon two properties, and a junior mortgage is a lien upon one of the same properties, the former will be compelled to first exhaust its exclusive: security, so that the' latter may, if possible, be satisfied out of the common security. Jones on Mortgage, § 1628 et seq.; Wright’s Rep., 498; Bassett v. Traber,- 20 Ohio, 540; Teaff v. Moss, 1 Ohio St.,.469-475; Carey v. Balsom, 14 Id., 365; Green v. Mamage, 18' Ohio, 428.</p> <p>Wm. A. Elliott, by the'covenants on his deed to Sohngen,. proclaimed to Sohngen, and all claiming under him, that the 130 acres were free 1 and unincumbered, and that he. would warrant and defend the same against all claim or; claims of all persons whomsoever. These covenants run-with the land. Foote'y. Bennett, 10 Ohio, 317-333; King v. Kerr, Adm., 5 Id., 154; Wilson v. Taylor's Bx., 9 Ohio St., 595; Rawle on Covenants, 313, et seq.; Wead v. Larkins, 54 111., 489, S. O. 5 Am. Rep., 149. He is now estopped from denying his covenants. Biglow on Estoppels, 578; Rawle on Covenants, 404, et seq.; Quintan v. Myers, 29 Ohio St., 500-501; Broadwell v. Phillips, 30 Id., 255; Magruder v. Bsmay, 35 Id., 221; Rosenthal v. Mayhugh, 33 Id., 155; Lessees of Boston v. Heirs of Moore, 15 Ohio, 408.</p> <p>It does not help the covenantor to show that the covenantee, or those claiming under him, knew the covenant was not true. A lien was not excepted from a covenant against incumbrance, or an outstanding title, from a covenant of warranty, by the mere fact that the covenantor or covenantee or both knew of its existence. Rawle on Cov., p. 116, et seq.; Harlow v. Thomas, 15 Pick.,-70; Medler v. Hiatt, 8 Ind., 173; Suydom v. Jones, 10 Wend., 185; Loyd v. Quinley, 5 Ohio St., 262-265.</p> <p>Assume that -Sohngen was the principal debtor, and that as against him Elliott may have had,the right to insist that the 130 acres should first answer the mortgage, still as against subsequent purchasers, Elliott, by reason of his covenants, occupies about the same position that a senior mortgagee occupies towards a junior mortgagee, when he has released a part of his security not liable to the junior. If the common security is inadequate to pay both claims, the junior is preferred to the senior pro tanto, the amount released by the latter, Fassett v. Traber, 20 Ohio, 540; Teaff v. Foss, 1 Ohio St., 469; Cheeseborough v. Milliard, 1 John. Ch„ 409.</p> <p>claimed that she as wife of Louis Sohngen (both now living) was entitled to an inchoate, or contingent right of dower in the real estate in controversy, and that she is to be compensated therefor out of the purchase money of said real estate. 7 Paige, 886, 408-10; Blade v. Kalman, 30 Ohio St., 196; Rosenthal v. Mayhugh, 33 Id., 168; Munger v. Loiter, 32 Id., 210.</p> <p>I. We claim as to William A. Elliott, that the issue as to his three promissory notes, were properly triable by jury; that they were fully and finally settled by the judgment in the court of common pleas, and that there was no appeal from this judgment. Section 5226, Rev. Stat.; Brundridge v. Groodlove, 30 Ohio St., 377; Rowland v. Fntrelein, 27 Id., 47; Massie v. Stratford, 17 Id., 597; Fleming v. Kirlcendal, 31 Id., 571; Keller v. Wenzell, 23 Id., 597. He no longer had any interest in the question of. the distribution of the proceeds of the 130 acres, which question alone was carried up by the appeal.</p> <p>Cross-petitions in error were filed, by Conrad Windisch and the Second National Bank of Hamilton, but summons in error were not issued on either of them, nor has any appearance been entered by William A. Elliott in his life, or by his administrators or his heirs since his death, and in fact as to said cross-petitioners the proceeding in error has not been revived against the administrators and heirs. It was revived only as to William E. Brown. The court then has no jurisdiction to try the said cross-petitions. Rev. St., § 6713.</p> <p>II. It is claimed by counsel for Brown that he and the Bank have a right to compel Kuhn to exhaust Elliott’s other property before resorting to the proceeds of the 130 acres, on which alone they have a lien. The correct rule is stated in 2 Jones on Mort., § 1628. Two things must exist before the general rule can be applied:</p> <p>1. The mortgagee must have other valid security. '</p> <p>2. It must not work injustice to any other person interested in the securities.</p> <p>Both these requisites are wanting in the case before the court, and the rule cannot be applied. Kuhn has no security on Elliott’s other land. The mortgage was by agreement paid in 1873; even if Clawson stood before the court, claiming the mortgage, Elliott would have the right to compel him to first exhaust the 130 acres. But in 1875, Sohngen paid Clawson his debt and the Elliott notes and mortgage were returned to him. He had before agreed to surrender them to Elliott. He complied with the agreement in part by paying Clawson. By paying Clawson he paid Elliott’s notes and mortgage. He had agreed to surrender them to Elliott, but instead of doing so he wrongfully repledged them upon a new loan with Kuhn. They were paid before Kuhn got them. Besides, they were overdue. The court will observe that Kuhn did not- obtain his title to the Elliott notes from Clawson, and he is in no sense protected by Clawson’s title.</p> <p>There was no new indorsement of the notes and mortgage to Kuhn. The moment the collaterals came back in 1875 into Sohngen’s hands, Elliott’s right to them was not only superior to any other right but it was the then only right. Neither Kuhn, Brown, the Bank or Windisch then had any right whatever. The mortgage of Brown and the Bank (which are the same) is dated August 25, 1875, long after Clawson was paid and the collaterals surrendered. Windisch’s lien began in 1878. I insist that the finding and judgment of the court of common pleas declaring that the Elliott notes were paid, was unappealable, and that it is not an open question whether or not they are paid.</p> <p>Besides, Brown in his. answer and the Bank in its answer say nothing is due to Kuhn on the Elliott notes; that Sohngen had no right to pledge them to Kuhn; “without the knowledge or consent of said Elliott, and without authority and is void.” Windisch is, if any thing, still more explicit. In his answer, he says: “ and for his second defense said defendant says, that all of said notes (Elliott’s) have been paid, and said mortgage is fully satisfied.” Brown, the Bank and Windisch are therefore estopped from now claiming that Kuhn has a valid other security upon Elliott’s lands.</p> <p>The other requisite to the application of the rule cited from Jones, to wit: that it must not work injustice to another person interested in the security, is also wanting. Elliott having paid the claim in 1873, had a superior equity from that date. The mortgage delivered to Kuhn was paid as to Elliott, and so far as his lands are concerned he has a right to insist upon a cancellation. As to Sohngen a different rule applies. He represented to Kuhn that the Elliott mortgage was valid, and upon the faith of his representations he' induced Kuhn to lend him the money. Sohngen then held the legal and equitable title to the 130 acres. No other claimants stood in the way as to this 130 acres.</p> <p>The rule in such a case is this: “ The owner of lands who treats a mortgage upon the same which has been assigned to him as a valid instrument, and transfers it as such is estopped from insisting as against the assignees under him, that in his hands it has merged and disappeared in the fee.” 4 Waite’s Actions and Defenses, 533-34; Powell v. Smith, 30 Mich., 451.</p> <p>Kuhn has no right to the Elliott mortgage, except by way of estoppel arising out of Sohngen’s fraudulent representations as to its validity, and this right is limited to that portion of the land embraced in the mortgage belonging to Sohngen (the 130 acres). Sohngen could do no act that would bind Elliott. See Jordon v. Furlong, 19 Ohio St., 96.</p> <p>III. It is claimed by counsel for Brown, that when Elliott conveyed the 130 acres to Sohngen, he covenanted that the same was unincumbered and that Elliott is thereby estopped to show that Sohngen was to pay the mortgage. Precisely the opposite doctrine is held in Pied v. Syoks, 27 Ohio Sfc., 285. See Jones on Mort., §§ 865,'867; Mickles v. Townsend, 18 N. Y., 575 ; 14 Ohio St., 405; 22 N. Y., 535; Rawle Cov. Lit., 340; 10 Ohio, 333; 3 Id., 211; 17 Id., 60.</p> <p>I. We claim that Samuel Kuhn’s equity in the 130 acre tract, is superior to Brown and all other parties. Brown claims that he had no notice of the outstanding mortgage of Kuhn; that he was authorized to assume that the Sohngen mortgage had merged in the fee by operation of law. He knew the mortgage was on record and was uncancelled, and .he knew that it was still a valid lien on the other tract of 327 acres. The defeasance clause showed him that as to two of the notes, they were not due and were negotiable in August, 1875, when he obtained his mortgage. This state of the record gave him positive notice, that the mortgage was still alive; that it represented a thing of life, — an actual debt, and put him upon notice and inquiry. Brown and the Bank 'are not innocent purchasers. Their debt remaining unpaid under their mortgage, was antecedent,— their mortgage, so far as the debt unpaid is concerned, was given to secure an antecedent debt, and was not for a present consideration passing at the time; They did not part .with any money on the faith of the mortgage. The mortgage was also given to indemnify the mortgagee against three certain notes, in existence prior to the taking of the mortgage, and upon which Brown was liable with Sohngen. Brown knew at the time that two of the notes at least were not due, and might be in the hands of innocent third parties, and he knew that if so, the mortgage went with the debt, the incident must follow the principal thing, and he knew from the record that the mortgage was not released, discharged or satisfied as to the 130 acres, or as to the 327 acres. Did this not put tíim upon notice ? Should he not have inquired as to who, if any person, held the notes not due and negotiable ? Is he not himself guilty of laches ? He has not suffered on account of any act or conduct of Kuhn.</p> <p>II. The principle in equity of two funds or double funds, does not* apply in this ease. The principle contended for by the plaintiff in error, applies only where the liens are founded upon debts existing against a common debtor. In the case at bar, the lien of Samuel Kuhn, is against Elliott, that of the plaintiffs in error, and the Second National Bank and Windiseh, are against Sohngen. They have no claim, debt or demand whatever against Elliott. They acquired their liens- against Sohngen, upon land conveyed to him by Elliott, founded upon debt against Sohngen alone, and these liens were all acquired with full notice in law of the prior mortgage of Kuhn. The rule in equity as to marshalling liens where a creditor or senior mortgagee has two funds or properties, is elementary, and none will. dispute it, but there must be a common debtor, otherwise the rule cannot apply. In this case, there is no common debtor, this necessary element is wanting. Elliot is Kuhn’s debtor, but is not debtor to the Bank or Windiseh.</p> <p>III. We maintain that Kuhn is not bound by the contract of 1873, as between him and Elliott, or as between him and Sohngen, and that they are both estopped from asserting it against him. The Elliott notes and mortgage were not paid or satisfied by the contract of 1873, so far as Kuhn was concerned. By this contract, Sohngen merely assumed the payment of it, as between him and Elliott, and the latter was still bound on his notes and mortgage to Clawson. Elliott knew at the time of making the contract that some man in Cincinnati held his notes and mortgage, and he had constituted Sohngen his agent, to negotiate his notes and mortgage, all of -which was for his-benefit in con- . junction with Sohn'gen. As he received the benefit of this transaction, he is now estopped from denying his liability7".</p> <p>As between Kuhn and Windiseh, each - having a lien on the 130 acre tract, and Kuhn, the prior lien-holder, having also a lien on other property, to secure his debt, on which Windiseh has no claim, there can be no doubt that Kuhn will be compelled in equity to exhaust the property on which Windiseh has no lien, before coming on the 130 acre tract, to satisfy his claim. Forrest v. Traber, 20 Ohio, 540; Miami Fx. Co. v. Bank XT. Wright’s R., 249, 256; Lodwick v. Johnson, Id., 498;' Jones on Mort-., § 1628, et seq.</p>

<p>A testator devised certain lands to his son, providing in his will that the ' - lands should be taken at a cer,tajn,.pric¡B to be paid by the devisee in equal portion to his five children and K., his grand-daughter, in four equal installments, the bequests to be secured by the devisee by a mortgage on the lands, and providing further: “That the share of my grand-daughter, Laura J. Karch, shall be held by my son John, free from interest, until her arrival at the age of 21 years, at which time it is my will, if said Laura should not be living, that her share be equally divided among all my children aforesaid.”'</p> <p>The devisee accepted the lands in pursuance of the devise to him, and said Laura lived to the age of 22 years. Held: That the bequest to her became absolute when she attained the age of 21 years, and the same could be recovered by the administrator of her estate.</p>

<p>The L. M. R, R. Co. built its track on a street oí the village of Pulton, in 1843, at a grade agreed upon by the village council and the railroad, where the track has remained to the present time. Prom 1864 to 1869, the company gradually raised the grade of the track, altogether about twenty inches. In 1867, it laid a new track in the street, by putting, additional rails on the ties already there. On December 1, I860, it leased its road to the P., C. & St. L. E. E. for ninety-nine years, renewable thereafter for ever, and the latter company has continued to use the track ever since, and has, since the lease, raised the track somewhat.</p> <p>In an action against both companies by an owner of adjacent lots and property, for damages resulting from the change of grade and from the laying of the additional track:</p> <p>Held: 1. That tbe railroad company did not acquire the right to maintain its iraek at the raised grade and the additional track, until twenty-one years from the time it was so raised, of the additional track was so laid.</p> <p>2. That the plaintiff may recover for;.permarient injury to his property, ' resulting from a change of grade; or for the additional track, at any time before the right to maintain the track at the raised grade and the additional track, was complete.</p> <p>3. That the right to recover for-temporary injury resulting from a change of grade, or for the additional track, is limited to four years prior to the commencement of an action for the same.</p> <p>4. That one company having raised the grade and laid the additional track, and the other having taken possession of and continued the permanent use of the same, they are jointly liable for permanent injury to the property of the plaintiff resulting therefrom, and also for temporary injury occurring after the lease from causes created, without right, by the lessor and continued by the lessee.</p>

<p>.A railroad corporation assumes the- performance of duties for the benefit of the public generally. When such corporation, for a period of five years, fails to construct the line of railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines, owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises and privileges.</p>

In September, 1878, Hawkins brought suit against the Iron Yalley Furnace Company and its surviving stockholders and the administratrix of a deceased stockholder.

Error. Reserved in the District Court of Pickaway County. The plaintiffs in error, who were defendants in the court of common pleas at the time of the doing of the things complained of, were the duly elected and acting commissioners of Pickaway county.

The defendant in error, the Union Central Life Insurance Company, commenced an action in the court of common pleas of Clarke county against the plaintiff in error, George Spence and his wife, upon a promissory note secured by a mortgage of lands, in which the relief demanded was a finding of the amount due on the promissory note and a decree for the sale of the property described in the mortgage to pay the' amount due on, the note.

The plaintiff in error, Enoch Higgins, brought an action against Joseph Grove, the defendant in error, before a justice of the peace, to recover the statutory penalty for an alleged obstruction, by Joseph Grove, of a county road forty feet wide, laid out on the middle line that divided section twelve in township seventeen and range twenty, and extending to the north-west corner of north-east quarter of section thirty-six in township eighteen and range twenty, in Morrow…

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

Ebbob to the District Court of Knox County. At April term, A. D., 1859, of the court of common pleas of Knox county, Ohio, the Western Reserve Bank, an Ohio corporation, in an action to' foreclose a mortgage, obtained a decree ordering the sale of a tract of land, in said county, then the property of Daniel S. Norton, in order to satisfy a debt of A. Baldwin Norton secured by said mortgage. This debt was found to be 1535.48.

Ekroe to the District Court of Hamilton County. On the 5th day of August, 1866, Jacob Cox died intestate. At the time of his death he was seized of one hundred acres of land in Hamilton county of the value of 116,000. His wife Sarah Cox and seven children survived him. In April, 1867, and after' the children had partitioned the land among themselves, the widow entered into a contract with her children in regard to her dower interest.

Ebbob to. tbe District Court of Franklin County. On the 8d day of November, 1850, William Miller, Sr., of Franklin county, Ohio, died leaving a last will and testament executed on the 10th day of.

Ekroe, to the District Court of Medina County. On the 16th day of November, A. D. 1872, two Ohio corporations, the Silver Creek Mining and Railway Company; of the first part, and the Wadsworth Coal Company, of the second part, executed a contract under seal, of which the following is a copy, to wit: “This agreement made and entered into at Cleveland, Ohio, this sixteenth day of November, A. D. 1872, by and between “ The Silver Creek Mining and Railway Co.” party of the first…

On the 21st day of May, 1879, one H. 'C. Plyly, a resident of Twin township, in Ross county, gave to Houk, the plaintiff in error, a chattel mortgage on a crop of growing wheat on a farm in Jackson township in Pike county, to secure the sum of about $800. The mortgagee filed his mortgage with the clerk of Jackson township, Pike county, the township in which the wheat was.

The Monitor Furnace Company was organized as a corporation in 1868. On April 18, 1875 (the company before that time having become insolvent), a majority of its board of directors by resolution determined to offer the real estate, leases and privileges belonging to the company, for sale at public auction on the- 20th day of May following, if not sold before that time at private sale. On that day the property was sold to the Lawrence Furnace Company for §45,000.

Ekrob. to the District Court of Licking County. Jones bad in no way, verbally or by written covenant, agreed to pay this mortgage. He paid full consideration for the property, and besides, Birkey agreed to pay off and cancel all incumbrances upon the property, and did pay one of them. Jones was not, therefore, personally liable for the debt, as he would have been if he had received the ■conveyance with an assumption in it to pay this mortgage ■as part of the purchase money.

Exceptions by the Prosecuting Attorney to the Court of Common Pleas of Sandusky County. The defendant in error, Mook, was indicted at the October term, 1880, of the common pleas of Sandusky county for embezzlement. The case was tried at the January term, 1881. The indictment charged the embezzlement of numerous articles of dry goods, dress goods, clothing, shoes, millinery goods and notions.

Ebjroe, to the District Court of Butler County, The original action was brought in the common pleas of Butler county by Mary E. Saum against Jacques Speer, executor of John H. Thomas, and Flickinger and Sanders, his sureties on the executor’s bond. The bond is in the usual form.

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

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

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

The original action was brought by the plaintiffs in error, John W. Rutherford, James M. Brown, and Silas W. Cochran, partners under the firm name of John W. Rutherford & Co., in the Superior Court of Cincinnati, against the defendants in error, Henry Brachman, Paul F. Mohr, Jr., David K. Este, Aaron A. Colter, Joseph Clare, Wils. H. Corbly, and Abraham Hopper.

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

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

<p>Error to the District Court of Belmont Countjr.</p>

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

Eiirob. to the District Court of Cuyahoga County. Henry and Maria B. Nieberding, on the 3d day of April, 1877, executed and delivered to F. Doerner their promissory note for the sum of $575 due in two years after date. On the same day Doerner sold and conveyed to Maria B. Nieberding, wife of Henry, a certain parcel of real estate, and this note was given in lieu of a part of the purchase money. This note was secured by a mortgage, executed by.

<p>Error to tire District Court of Montgomery County.</p>

<p>Ekkok to the District Court of Warren County.</p>

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

<p>Where an employe of a railroad company, rightfully engaged in the repair of a freight car belonging to his employer, calls upon his son, a minor under eleven years of age, to render him necessary temporary assistance in the work, and the son, while so assisting, without any negligence on his part or 6n the part of his father, is injured through tiie negligence of the agents and servants of another railroad company in backing a train of cars upon a side-track where the ear is being repaired, the latter company is liable, in an action by the son, for damages for the injury by him so received.</p>

<p>Eeboe to the District Court of Morrow County.</p>

<p>Errok to the District Court of Hamilton County.</p>

<p>Error to the Court of Common Pleas of 'Mahoning County. Reserved in the District Court.</p> <p>The original action was brought by John Stewart, one of the defendants in error, in the Court of Common Pleas of Mahoning County, against Calvin McCombs, James Brown, Simeon D. Brown, James B. Drake, The Cleveland & Mahoning Valley Railway Co., and Alvin C. .Voris and George F. Robinson, Trustees of the Pennsylvania & Ohio Canal Company. The action was brought to recover damages for maintaining a milldam, to the height of fourteen feet, across the Mahoning River, in Poland Township, Mahoning County, whereby the lands of the plaintiff lying above the dam upon the same stream were flowed and inundated. The defendants answered the petition in several separate defences, and among them set up several defences of the statute of limitations. The plaintiff, by leave of court, filed a supplemental petition, in which, among other things, he alleged,</p> <p>That for a period of more than twelve months preceding the December term of the Supreme Court of this State, A. d., 1872, said canal had been entirely abandoned by said Company, and suffered to become entirely useless and out of repair for the purposes of a public highway, by means of said canal as a water-way, and has ever since been abandoned as a canal or public highway by means of water navigation, and, previous to the judgment of ouster by said supreme court, had entirely fallen into disuse and been abandoned as a canal or public highway by means of water navigation by boats or other means of conveyance upon or through the waters thereof.</p> <p>That said Pennsylvania & Ohio Canal Company was, by judgment, order, and decree of the Supreme Court of this State, at its December term, 1872, dissolved and altogether ousted from its corporate franchises, and altogether ousted and altogether excluded from being a body politic and corporate of and within said State, and from all and singular, any and all rights, powers, privileges, liberties, freedoms, and franchises appertaining or attaching to such corporation, under the laws of this State, and that the said corporation was and is, to all intents and purposes, dissolved.</p> <p>That the said Alvin C. Voris (together with Samuel Quinby, since deceased) were appointed by said supreme court, as required by the statute in such case made and provided, as trustees of the creditors and stockholders of the corporation so dissolved, and entered upon the performance of their duties as such trustees, having been first duly qualified thereto, and, in the discharge of their duties as such trustees, sold said dam mentioned in plaintiffs’ petition to said Cleveland & Mahoning Valley Railway Company, upon the 15th day of August, 1878, at public auction.</p> <p>That said dam has been so unlawfully kept up and maintained by said defendants, said Alvin C. Voris and said George F. Robinson (the latter having been appointed trustee instead of said Samuel Quinby, lately deceased, being sued in their capacity as such trustees), since the dissolution and ouster of said Pennsylvania & Ohio Canal Company, as aforesaid, to the damage of the plaintiff, as in his amended petition set forth.</p> <p>On the 26th of February, 1877, the two Browns, McCombs, and Drake, filed an amendment to their original answer as follows:</p> <p>“ The said James Brown, Simeon L. Brown, Calvin McCombs, and James B. Drake, for amendment to their original answer for fifth defence, say that heretofore, to-wit: on the 18th day of November, in the year 1862, the Pennsylvania & Ohio Canal Company, a corporation under and by virtue of the laws of this State, was seized in fee simple of the following described lands, to-wit: Part of lot No. 66, in said township of Poland, county and State aforesaid, bounded on the northerly side by the center of the Mahoning river, and extending along the same from the northwest corner of said lot, a great distance, south 56 degrees east, to-wit, 117 rods; thence south 35 degrees west 22 and 12-100 rods to a stake, thence north 55 degrees west 100 rods, thence north 2-|- degrees west 27 and 88-100 rods to the place of beginning, and containing all the site of said dam on the southerly side of said river, and extending a great distance above and below the same, and including the mills of said defendant, James Brown, hereinafter mentioned, and as appurtenant thereto, and to other lands, tenements, and hereditaments then and there owned and'possessed by said corporation in fee simple. The said Canal Company then owned and was seized and'possessed in fee simple of the dam aforesaid, of the height aforesaid, and customarily elevating the waters of said stream to the height and in the manner in said petition alleged, and as appurtenant as aforesaid in like manner owned, and was seized and possessed in fee simple of the right customarily to elevate and flow the waters of said stream to the height aforesaid, and among others, for the purposes hereinafter stated, and being so seized and so owning said premises, the said Pennsylvania and Ohio Canal Company, on the day and year first aforesaid, in due exercise of its corporate powers, granted to-one, John Booh, and one Samuel H. McBride, in fee simple, the lands first herein described, together with other lands to the north-west and south-east thereof and therewith, also granted as appurtenant thereto, the right to use upon said lands, the water from said dam, for the purpose and sufficient therefor, of propelling and operating-divers and valuable mills and machinery, and to maintain said dam, and cause the same to be maintained therefor, and said right by divers and sundry mesne grants and conveyances and assignments became, and is, the property and inheritance of the said James Brown.</p> <p>And the defendants further say, that long before the said first mentioned date, to-wit: on the 8th day of October, 1835, the said corporation did, in the manner and to the extent aforesaid, own, and was seized and possessed in fee simple, of the lands and appurtenances aforesaid, together with the right as appurtenant thereto, to elevate and flow the water as aforesaid, for the uses aforesaid, and also for the uses hereinafter stated, and subject to the right aforesaid; that one George Hunter was then seized in fee simple of a parcel of land bounded upon the said center of said river, in that part thereof constituting the northern line of the premises first herein described, and extending up and down said river a great distance, and including the bed of said stream north of said center line and a parcel of land adjacent thereto, and thereupon, to-wit, on said last mentioned date, said corporation granted and assigned to said George Hunter, as appurtenant to his said land, and to his grist mill thereupon, in fee simple, the right to have said dam kept up and maintained, and to have said water elevated and flowed as aforesaid, subject only to occasions of necessary repairs of the works connected therewith, and of unavoidable accidents, to the effect and purpose that the said George Hunter, his heirs and assigns, might use from said dam sufficient water to drive two pairs of four and one-half foot mill stones, and the machinery properly and customarily to be used in connection therewith, and subject only to the provision, that said George Hunter and his heirs and assigns, should not use water from said dam, to the suspension or injury of the canal of said corporation, connected therewith; and the said mill and premises on ■which the same was situate, and the said water right and appurtenance as appurtenant thereto, has by sundry mesne assignments, and grants, become the property and estate of the defendants, and they well may maintain said dam and cause the same to be maintained as aforesaid.”</p> <p>“ Sixth: — And for a sixth defence herein, the defendants say that they had an estate of inheritance in the lands when said dam Avas erected, and that they and those under Avhom they hold, have had such estates for more than twenty-one years next before the commencement of this suit, and during all said time, have held and enjoyed as appurtenant to said estate and as of their OAvn proper right in virtue thereof, the customary elevation and fioAv of the Araters of said stream, for the use of divers mills on said lands, and to as great an extent as the same has been done during the time specified in said petition.”</p> <p>At the January term, 1878, the case Avas tried by a jury upon the issues joined, and a verdict Avas rendered for the plaintiff, and the court granted a new trial. At the January term, 1879, the case was tried by the court without a jury, when the following findings and judgment were determined upon by the court: —</p> <p>“ William M. Arrel and John E. Cavitt, Executors of James Brown, deceased, also James Brown, Jr;, and Mrs. Almira Brown, AvidoAV of James Brown, deceased, appear and on their own motion become defendants, with leave to answer instanter. George F. Arrel disclaims appearing for said Almira Brown; thereupon this cause comes on for trial, and a jury being waived by the parties, was tried by the couA upon the evidence by the parties respectively given; was argued by counsel, and the court, after consideration of the case, was requested by the defendants’ counsel, and with the view of excepting to tbe decision of the court upon the questions of law involved, in the trial, to state its finding of facts specially and separately from the conclusions of law; and the court do, therefore, find that after the passage of an act of the General Assembly of the State of Ohio, incorporating the Pennsylvania & Ohio Canal Company, and of the act of the Legislature of the State of Pennsylvania, for the same purpose, and of the various acts of the General Assembly of Ohio, amendatory of said first-named act, and previous to the. 1st day of January, 1840, and after the said Pennsylvania & Ohio Canal Company had been organized and had entered upon the worh of constructing its canal, and on and before the 25th day of September, 1835, one David Houston was seized in fee simple and possessed thereof, of the lands described in the amendment of the defendant’s fifth defence in their answer herein, as part of lot No. 56, in the township of Poland, said county; and the said Pennsylvania & Ohio Canal Company desiring to procure the same, to be used in and about the construction of its said canal, the said David Plouston, on said day, by deed of conveyance duly executed and delivered, conveyed said lands to said Pennsylvania & Ohio Canal Company, and to their heirs and assigns forever; and on the 8th day of October, 1835, and for a long time previous thereto, and except as hereinafter stated, continuously thereafter, one' George Hunter was seized in fee simple of the lands in said fifth defence described, as so belonging to him, and appurtenant thereto, and situate thereon, was seized and possessed in fee simple of a certain grist-mill thereon- situated, and of a dam of the water of said stream, of the height of about three feet, and made of brush, furnishing water for the said mill; and the said Canal Company, desiring to procure the right to build and construct upon áfcid land, and upon the lands first aforesaid, a dam across said stream to the height of fourteen feet, hereinafter stated, and thereby to construct a portion of its said canal by means of the said dam, and the waters thereby elevated; and whereby the said water privilege of the said Hunter, as then used, would be destroyed, entered into an agreement with the said George Hunter for the construction and maintenance of said dam, as hereinafter stated, and for the use by said George Hunter of a part of the surplus water furnished by said dam for the purpose of propelling the machinery of a new mill to be erected upon and adjacent to said dam, and as appurtenant to the lands and mill so owned and to be constructed by him, and as hereinafter stated; and thereupon said Pennsylvania & Ohio Canal Company, before said 1st day of January, 1840, erected upon said lands so conveyed to them by said David Houston, and so owned by George Hunter in fee simple a large and sufficient dam of the height of fourteen feet, hereinafter stated, and elevating the waters of said stream so as to afford as a part of said canal some miles of navigable water, commonly called slack water, and used the same as hereinafter stated, and leading from said dam to a channel of said canal below the same, and upon the lands of said George blunter constructed a lock through which the waters of said canal, below said dam, were accustomed to flow during all the time hereinafter stated; and the said George Hunter thereupon and before the 1st day of January, 1840, put in possession of his said lands, one John G. blunter and one William Watson, for the purpose, in his name and in his right, of building a mill, and of using said portion of said surplus water-power in. operating said mill, and the said blunter & Watson, thereupon, and before the day last aforesaid, and with the concurrence and under the direction of said Pennsylvania & Ohio Canal Company, constructed upon said lands and upon said dam, upon the northerly end thereof, a large and valuable grist-mill, and placed therein two pair of 4J feet mill-stones, with the necessary machinery and. apparatus for the operating thereof, and to be used in connection therewith, and with the necessary bulk-head and flumes for the furnishing of sufficient water to propel said stones and machinery from said dam, and the said Hunter & Watson, and other persons claiming under them, as hereinafter stated, have continuously used said surplus water-power for said purpose, from thence hitherto; said surplus water-power being in excess of the water needed for the use of said canal and the said Pennsylvania & Ohio Canal Company, having from the date aforesaid, maintained said dam at the height • before then constructed as aforesaid, continually, until the said Canal Company was dissolved and ousted by the judgment of the Supreme Court of Ohio, as stated by the plaintiff in his petition and the amendments thereto, and which is the same height at which the same has been maintained by the defendants since, to-wit, 14 feet high. And the court further finds that said canal was not used after the close of navigation in the fall of 1872, as a canal orthoroughfare.</p> <p>“ And the court further finds, that, on the 19th day of June, in the year 1845, the said George Hunter being seized as aforesaid, of the lands aforesaid, by deed of conveyance duly executed and delivered, conveyed said lands, in fee simple, to said Hunter & Watson, and on the same day by deed so duly executed, conveyed to said Hunter & Watson, in fee simple, all his right in said water power described in said deed as being perpetually leased to said George Hunter, by lease or contract made and executed on behalf of said Canal Company, by Abner Lacock and William Rayen, on .the 8th day of October, A. D. 1835, the quantity of -water thereby leased and intended to be conveyed, being sufficient water from the pool of dam No. 1, meaning the dam aforesaid, or from the canal immediately below-said dam, to drive two pair of 4J feet mill stones, which said dam No. 1 is situated, on the Mahoning river, in said township of Poland, and said Hunter & Watson thereafter openly and notoriously, until the 15th day of November, 1870, held ■ possession of- said lands, water power and appurtenances, claiming to own according to and under the conveyances aforesaid, and having all the title, during all that time, which they acquired by the premises; and on that day said Hunter & Watson, by deed of conveyance duly executed and delivered, conveyed all said 'right and title to said Calvin McCombs, William Brown, James Brown, Simeon D. Brown and James B. Drake, the defendants in this action, except said William Brown, who have continuously, since and hitherto held said lands and water power by virtue of the premises, and claiming thereunder.</p> <p>“And the court further find that by means of the said dam, said Pennsylvania & Ohio Canal Company, besides the surplus water aforesaid, still held and had a large amount of water power over and above the reasonable needs of said canal, and for the purposes of availing itself of the revenue reasonably to be derived therefrom, in consideration of a large sum of money, to-wit, $1,450, to it therefor paid by one John Book and S. H. McBride, on the 18th day of November, 1852, by deed of conveyance duly executed and delivered in fee simple, conveyed to said Book & McBride, the lands in said fifth defence of the answer of defendants first described; and therewith also granted to said Book & McBride,-and their heirs, in fee simple, as appurtenant to said lands, the right and privilege of using the surplus water of said dam, when said dam may be full and running over; with the understanding and agreement that at all times the said Pennsylvania & Ohio Canal Company shall have the absolute and reserved right of passing, using, or diverting’ so much of the water of said river from the pool of the dam 'as they should deem advantageous or convenient for the- use of navigation or to supply the mills, or any hydraulic works,, equal in quantity to what was used by the mills on the 7th day of July, 1847, of Hunter & Watson, being the mills aforesaid. The surplus water thereby granted to said Book & McBride, being, in the terms of said deeds, expressly contracted, limited, and restricted by the foregoing conditions, and absolutely suspended whenever the water in the pool of said dam, either from scarcity or by reason of such reserved use or diversion to other objects. And it was also expressed in said deed, that it was understood and agreed by the parties that the said McBride & Book, in taking the water from the pool of the dam, constructing buildings and machinery. for its use, fixing the gauge and using the water, should follow the instructions, and conform to the direction of the principal engineer of said Company, or the person having superintendence of that part of the canal, and that no claims for damages against said Canal Company should ever arise under said deed or agreement by reason of any deficiency of water, suspension of navigation, breaks in the canal or any of its appendages, and that the absolute right was reserved to said Canal Company of occupying and using so much of the foregoing premises as should be necessary for keeping said canal, dam and other works connected therewith, in constant repair, and by said deed said Pennsylvania & Ohio Canal Company, did covenant with said Book & McBride, their heirs and assigns, that said Pennsylvania & Ohio Company would warrant and defend said above granted and bargained premises against all lawful claims whatever, subject, however, to the conditions, limitations, reservations and restrictions above specified, and to them only, and thereupon, said McBride on the 16th day of November, 1853, by deed of conveyance duly executed, conveyed in fee simple, all his interest in said lands to said Book, and thereupon, said Book, on the 7th day of November, 1858, by deed of conveyance duly executed, conveyed said lands in fee simple, to James Brown, defendant herein, and thereupon, said James Brown entered upon said lands and built thereon, and at the southerly end of said dam, a large and valuable grist mill and .saw mill, with bulk heads and flumes, to take the- water from said dam to said mills, and suitable and convenient for the propelling of the wheels and machinery of said mills, and thereby and with the water thus obtained, the said James Brown operated said mills and machinery thereof, continuously until the commencement of this suit, and until his death, since.</p> <p>“The court further find, that said plaintiff, at the several times stated in his petition, was the owner of the land in said petition mentioned and described, and as therein stated; and said dam so as aforesaid constructed by said Canal Company, and at the height thereof, as the same was then built, and as the same has since then been maintained, caused the waters of said stream during all the period aforesaid, to be from time to time flowed over and upon a portion of the land owned as aforesaid by said plaintiff, and thereby to injure the use and possession thereof; and the court find that since the dissolution of said Canal Company, and within four years next before the commencement of this suit, the plaintiff has sustained damages by reason of the overflowing of his said land in the sum of three hundred and twenty dollars.</p> <p>“ The court, as a matter of law, arising upon the facts above found, find that since the dissolution of said P. & O. Canal Co., as aforesaid, the defendants have not, nor have either of them any right or title as against the plaintiff to maintain said dam at the height aforesaid, to the injury of said plaintiff, as aforesaid.” To which the defendants except.</p> <p>Thereupon said defendants moved the court for a new trial in said cause, which being heard and considered by the court is overruled, to which defendants except.</p> <p>Thereupon the defendants moved the court to enter judgment upon the finding of facts aforesaid in their favor, which the court refused; to which said defendants excepted.</p> <p>It is therefore considered and adjudged by the court, that plaintiff recover of the defendants his damages aforesaid, and the costs of this suit herein to be taxed.</p> <p>A petition in error Avas filed by defendants in the district court to reverse the judgment of the .common pleas; and The Cleveland & Mahoning Valley Railway Co., Alvin C. Voris, and George F. Robinson not joining in the petition, they were made defendants. In the district court, on motion of the plaintiffs in error, the case was reserved to this court for decision.</p> <p>. The question is as to the porver of the corporation, under its charter. Had the corporation the power, in the contract with Hunter as to the lands north of the river, and Avith the grant of the lands on the south side, to grant the water-right in question, with a perpetuity independent of the continuance of the corporation, and of. the suspension of the navigation of the canal ? If they had not this poAver, the water-right ended at the dissolution of the company. If they had this porver, then the water-right still continues, and it was a bar to the action below.</p> <p>This question resolves itself into the question of legislative poAver and legislative intention in enacting the charter of the company. The first question is:</p> <p>. 1. Had the Legislature the constitutional poAver to confer upon the corporation the ability to make such a grant ?</p> <p>The other is:</p> <p>2. Had the Legislature the intention, by this charter to confer such a power ?</p> <p>1. This question of power does not respect the capacity of a corporation to take by grant, clothed with an absolute title. In the State of Ohio, corporations in general can, by grant, take by a title which not only enables them to convey an indefeasible title to others, during their corporate existence, but by a course of legislation, Avhich has now continued more than forty years, the property, which they have at dissolution by judgment in proceedings for that purpose, is passed over to trustees of the creditors and stockholders of the corporation. A provision of this kind was enacted as early as 1838 (1 Corwin, 438-9), and in various statutes 1ms been in force ever since.</p> <p>Indeed, long before the passage of these statutes, it had come to be a settled rule of the common law that the title to the general property which a corporation had aliened was not affected by its dissolution afterwards. 2 Kent Com., 282; State v. Sherman, 22 Ohio St., 411; Malone v. Toledo, 34 Ohio St., 541; Kayivard v. Mayor fc., 7 N. Y. R., 314; Bexford v. Knight, 11 N. Y., 308 ; Brooklyn v. Park Comm’rs, 45 N. Y., 234; JDingley v. The City of Boston, 100 Mass. R., 544; Chase v. Sutton Manfg Co., 4 Cush., 152 ; Kaldeman v. Penn B. B. Co., 50 Penn, St. R., 425.</p> <p>2. The act incorporating the canal company is found in 25 Ohio Laws, p. 3.</p> <p>A little attention to the subject matter of this act, and to other peculiar provisions of it, will show that any other intention of the legislature than is here claimed would be highly improbable if not absurd. Its necessary and known route lay along the course of streams important enough to be -declared navigable. Such -was the case with this very stream. Dams were to be built of great height and capacity. In this case it was fourteen feet in height. Large amounts of water-power were to be created. In this case there was a power sufficient to supply two mill-seats, and to run at least four.run of mill-stones, in addition to the ordinary needs of the canal. It would have been absurd that this should go to waste. It would have been especially so in those times, when there was little or no practicable power, superior to horse-power, and in a country where water-power, at the best, was scarce. The Legislature did not intend such power should be lost. They provided for its use in the way in which, among others, they were of opinion it might often be necessaiy, and in which, in this case, it was found necessary to make this -available, by alienation. But at the same time they did this, they provided in section 25, that if, after the completion of the canal, the corporation should fail for twelve months, at anyone time, to keep the canal in repair, then the corporation should thenceforth forever cease, and the charter be forfeited. This provision was under consideration in the case of Ohio v The P. S? O. Canal Co., 28 Ohio St. R., 121, and in that case it was held that this provision furnished an obligatory rule for the courts in a proceeding in quo warranto against the corporation, and that the failure to keep any part of the canal in repair, for the specified time, required the court in such a case to adjudge a forfeiture and dissolution.</p> <p>If, therefore, the principles applied by the court below were sound, no person' could safely invest money either in the purchase of water-power, or in the purchase or making of improvements thereon. No prudent person could be expected to do either, for, if he did, it was liable to be sacrificed by the- negleet or the wilful act, continued for a year only, of other persons over whom he had no control. To incorporate such a principle into this charter was to make certain provision for stupendous waste without benefit to any one, or for inveigling the unwary into the investment of large sums of money on unfounded expectations, to be ruinously ■ disappointed, as it is now claimed for the defendant In error, the plaintiffs must be disappointed.</p> <p>Section 28 of this charter requires that the act shall be benignly and favorably construed for the purposes therein expressed and declared. One of the very important purposes expressed in the act is to avoid the waste of'waterpower, both the natural, which it should interfere with, and the accumulated, which it should create. Surely a construction of the provisions on that subject which would deter all persons from engaging to carry them out, except such as should misunderstand them, would be neither benign nor favorable. To my mind, it is opposed, both to the- letter of the act and to the spirit of it.</p> <p>The Legislature did not authorize the Pennsylvania & Ohio Canal Company to make any such grant or conveyance, as against the rights of others, as claimed by plaintiffs in error. See Charter P. $ O. Canal Co., Ohio Laws, Yol. xxv, p. 3; Pittsburgh Lalce Erie B. B. Co. v. Bruce, Pa. St.,-, 1883; Same case, 10 Eng. and Am. R. R. Cases, p. 1; Je ssup v. Loucks, 55 Pa. St., 351; McArthur v. Kelly, 5 Ohio, 139; Cooper v. Williams, 5 Ohio, 139; Buckingham v. Smith, 10 Ohio, 288; Corwin v. Cowan, 12 Ohio St., 633; Longstreet v. Hardaker, 17 Ohio St., 23; Hubbard v. Toledo, 21 Ohio St., 379; Elevator Co. v. Cincinnati, 30 Ohio St., 629; Pox v. Cincinnati, 33 Ohio St., 492; Commonwealth v. The Penna. B. B. Co., 51 Pa. St., 351.</p> <p>II. The Legislature had not the constitutional power to confer upon the corporation the ability to make such a grant. See same cases referred to above; also, National Manure Co. v. Donald, 4; Hurlst Nor, 8-19, and Washburne on Easements and Servitudes, 532.</p> <p>Or, to sum up the whole matter, we claim that the finding of law by the court below, that “ since the dissolution of the Pennsylvania & Ohio Canal Company, the defendants (now plaintiffs in error) have not, nor either of them, any right or title as against the plaintiff (now defendant in error) to maintain said dam at the height aforesaid, to the injury of said plaintiff aforesaid ” was not erroneous.</p>

<p>Error to the District Court of Putnam County.</p> <p>The action in the common pleas was brought by the manufacturing association of Seymour, Sabin, & Co., against the plaintiff in error, Call, a constable, and Crawfis and Cannie the sureties on his official bond. The plaintiff alleged that it had sold a threshing machine to one Kagy for the sum of $440, for which it had taken his three notes, or contracts in the form of notes. These notes were alike in form, and became due on January 1,1879, January 1, 1880, and January 1,1881, respectively.</p> <p>The following is a -copy of the note first falling due :</p> <p>“ Leipsic, Ohio, August 1, 1878.</p> <p>On the first of January, 1879, the subscriber, whose post office is Leipsic, county of Putnam, and State of Ohio, promise to pay Seymour, Sabin, & Co., or order, one hundred and forty-seven dollars, for' value received, with interest at eight per cent, per annum till paid, with exchange on New York, payable at the national Exchange Bank, Ottawa, Ohio. The express conditions of the sale and purchase of the Separator and Horse Power, for which this note is given, is such, that the title, ownership or possession does not pass from the said Seymour, Sabin, & Co., until t this note, with interest, is paid in full. The said Seymour, Sabin, & Co., have full power to declare this note due and take possession of said Separator and Horse Power at any time they may deem this note insecure, even before maturity of the note, and to' sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase price.</p> <p>.Leander Kagy.”</p> <p>The plaintiff in its petition alleged that the defendant Call, as constable, on or about the 15th day of March, 1879, took possession of the machine under an order of attachment duly issued to him as constable of Blanchard township, Putnam County; and that when he so took possession of the machine, he had full knowledge that Kagy was not the owner of the machine, but that the ownership therein Avas claimed by the plaintiff, the manufacturing association of S. S. & Co. The petition further alleged that Call, the constable, with full knowledge of the claim of the plaintiff in and to the machine, sold it at a constable’s sale, and further alleged that the purchase price of the machine remained wholly unpaid, and that the return of the machine to S. S. & Co. had been demanded of Call, the constable, before the sale by him, and of the purchaser after constable sale. And that the constable and the purchaser had each refused to surrender or return the property.</p> <p>A demurrer Avas sustained to the petition in the common pleas, and judgment given for defendants.</p> <p>This judgment Avas reversed by the district court. It is now sought to reverse the judgment of the district court.</p> <p>The cases relied on by defendant in error are mere rent contracts with the option to purchase, while the case at bar Avas a conditioned sale with absolute agreement to pay, and this was an evasion of the registration larv. Ilart v. Barney, 7 Fed. Rep., 543, 552 ; Hervey v. Locomotive Works, 93 U. S., 664, 672; 1 Benjamin on Sales, § 452; Boynton v. Libby, 62 Me., 253; Bugbee v. Stevens, 53 Vt., 389; McClelland v. Nichols, 24 Minn., 176; Williams v. Porter, 41 Wis., 422; Bunn v. Valley Lumber Co., 51 Wis., 376; Singer Co. v. Holcomb, 40 IoAva, 33; Myer v. Car Co., 102 U. S., 110; Whitcomb v. Woodworth, Yt. Sup. Ct., Jan. 7, 1882, and numerous cases in Penn., e.g., Martin y. Mathiot, 14 S. & R., 214; Heryford v. Davis, 102 U. S., 235.</p> <p>relied on Sage v. Slentz, 23 Ohio St., 1; Sanders v. Keber, 28 Ohio St., 630, and cited 1 Parsons on Con., 538; Maynard v. Anderson, 54 N.Y., 641; Wait’s Dig. Par., 109, p. 664; 40 N.Y., 341; 15 N.Y., 409; 3 Gray, 546; 2 Pick., 516; Story on Sales, §§ 304-313.</p>