Volume 41 — Ohio State Reports, New Series

<p>Error to the District Court of Fayette County.</p> <p>The Continental- Life Insurance' Company of Hartford, Conn., incorporated under a special charter by the legislature of that State, and holding a certificate of authority from the Ohio Superintendent of Insurance, was doing business in Ohio in 1874. The charter named the company, and, in the first section, provided: “and by that name shall be, and hereby are empo wered:to purchase, have, hold, possess, and enjoy, -to themselves and their successors, lands, tenements, hereditaments, goods, chattels, and effects of every kind, and the same to grant, alien, sell, invest, and dispose of, to sue and be sued, plead and be impleaded in all courts of justice, to have and use a common seal, &c.” Section'twelve of the'charter provided thus: “The capital stock and other funds of said corporation shall be invested, either in loans upon bonds and mortgages upon real'estate1' of double the value of the debt secured thereon, or in loans upon or purchase of United States stocks and bonds, bank stock or stocks and bonds issued by any of the States of this Union, or by municipal or other corporations, and the sáme may be called -in and re-invested under the provisions of this act.”</p> <p>A rule of the Company provided • that loans from their capital and funds should be made to-policy-holders only.-.</p> <p>Samuel C. Roberts, of Fayette County, Ohio, desiring a loan,- applied for and obtained a policy of insurance, in said Company, on his own life* to the amount of $10,000, paying the usual premium therefor. He then borrowed from the Company $10,000, for which, he gave his promissory note,-dated Jan-. 1, 1875, for $10,000, payable to the order of said Company, at its office in Hartford, Conn., five years after date, with interest thereon at eight per cent, per annum payable semi-annuálly. To secure this note he duly executed and delivered to the Company a mortgage upon his real estate in Fayette County,- Ohio, conditioned in the usual form. This was duly entered for record on the 7th day of January, 1875; at 3 o’clock p. m., and duly recorded.. At the time of the delivery of said note and mortgage, he also made and delivered ten other promissory notes, for $100 each, payable at intervals of six months ;• each one hundred dollar note falling due at the same time with an instalment of interest on the $10,000 note. These notes were however made payable to the order of the person who acted as agent of the Insurance Company. . They were nominally given as said person’s commission for procuring the loan for Roberta, but were actually intended to enable the Company to realize ten-per cent, on the loan.</p> <p>In November, A. d.,. 1876, said Roberts borrowed $19,794.18 from the First National Bank of Washington C. H., Ohio, and gave to the bank' his three notes, each for one-third of that sum, secured by a mortgage upon the land covered by the mortgage to the Insurance Company. The mortgage to the bank was duly entered for record on November 29, 1876.</p> <p>At November term, 1879, of Fayette Common Pleas, in a proper action for foreclosure, said court, having confirmed a sale of the mortgaged premises, made a decree, holding that the mortgage to the insurance company was a lien' prior to that of the bank, and ordering that the principal, and the legal interest due thereon, should be paid before any payment should be made to the bank. By proper pleadings the facts as hereinbefore stated were in issue. The bank contended: —</p> <p>That the mortgage and note were void:</p> <p>1. Because the charter authorized only loans upon bond and mortgage;</p> <p>2. Because illegal interest was stipulated for ;</p> <p>3. Because the Ohio Statute (71 Ohio L., p. 12) provided that “No company or corporation organized under the laws of any other State, or of the United States, or of any foreign government, doing a, banking, or any other kind of business,'in connection wRh insurance, shall do business in this State.”</p> <p>Upon appeal, the district court made substantially the' same decree as the common pleas had rendered. A motion for a new trial was overruled; a bill of exceptions containing all the evidence was made part of the record, and a petition in error filed in this court by the bank.</p>

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

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

Osborn sued one McKee and the executors of William Clark before a justice of the peace of Coshocton County. McKee was not served with summons. The suit was on two promissory notes made by McKee and the decedent who was surety thereon. Judgment passed, and the case was appealed to the common pleas. In the common pleas a demurrer to the second count of the answer was overruled. And an issue joined by that count and reply was tried to a jury.

The Springfield, Jackson & Pomeroy Railroad Company was incorporated in 1874 for the purpose of constructing and operating a railroad from the city' of Springfield to the city of Ironton, Ohio. On the 5th day of February, 1878, this railroad company made a mortgage to Samuel A. Bowman, as trustee, to secure a series of bonds, amounting in the aggregate to nine hundred thousand dollars. This became the first mortgage lien upon the property of the railroad companjr.

<p>In an action by M. against D., a demurrer to tbe petition was sustained for want of a material averment therein, and M. failing to amend, judgment was given for D.</p> <p>M. afterward brought another action against D., upon the same cause of action, and in his petition supplied the material averment wanting in the petition in his first action.</p> <p>Held: That the judgment in the first action was not a bar to the cause of action alleged in the second one. .</p>

<p>1. In a commercial partnership, each partner has the right to borrow money and give notes for partnership purposes in the firm name, and thereby bind all the partners, notwithstanding a private arrangement among themselves to the contrary, if such arrangement be not known to those giving the credit.</p> <p>2. B., such a partner, with authority to borrow money in the firm name, representing that he wished to borrow money for the use of the partnership, effected a loan on the strength of such representation, and, in two days after receiving the money, brought to the lender a note therefor, payable to the order of the lender, signed by the partner in . his individual capacity, and endorsed by him in the name of his firm, Beld:</p> <p>That the note not having been delivered until after the transaction, the form of the note was only a circumstance for the consideration of the jury in connection with what was said and done at the time of the transaction, in determining whether at the time of advancing the loan, the lender had notice that the partner borrowed the money for his own private use.</p> <p>3. Where the act of the partner is within the scope of the partnership, a declaration made by him at the time of the transaction, is competent to show, that the act was done in behalf of the partnership ; and if the credit was obtained on the faith of such declaration, the falsity of the representation is not material.</p>

<p>1. S. made an assignment of all his property to D. and W. for the benefit of his creditors, under the assignment laws of the state. A portion of the real estate was sold by the assignees at private sale, and all steps taken about the sale were in strict conformity to amended section five of “an act regulating the mode of administering assignment for the benefit of creditors.” (58 Ohio Laws, 105.) — Held: This was a judicial sale.</p> <p>2. Where the assignees afterwards brought an action against the purchasers to foreclose the mortgage given to secure a portion of' the purchase money, it is not a good defense to show that the assignees and purchasers were mistaken as to the number of acres in the tract of land so sold.</p>

<p>1. In an action by a creditor of an insolvent corporation to enforce the personal liability of its stockholders, where the stockholders were not ail before the court, and it did not appear that those not served with process could not have been served, it was error to assess upon the stockholders served the whole amount of the indebtedness of the corporation.</p> <p>2. In such action it was error to give judgment for some of the stockholders releasing them from assessment, upon the finding that they did not own stock at the time the liability sought to be enforced accrued, without finding further that the stock held by these defendants had not been sold by the corporation prior to the time such liability accrued.</p>

<p>Appeal. Reserved in the District Court of Ottawa County.</p> <p>In the township of Danbury, Ottawa County, Ohio, is a triangular body of water named “East Harbor.7’ It is separated from Lake Erie partly by a narrow strip of land, described in a survey made in 1808, thus: “The dike, or gravel bar, between the lake and marsh is from six to twelve rods wide, and about eight feet high,” and partly by an island similar to the “dike” in composition, width and height. The island is a little more than two miles long; the “ dike ” about one mile.</p> <p>The dike runs nearly west from the main land; the island runs northwesterly. Between dike and island is an inlet from the lake, about six rods wide and about eighteen feet deep. The western end of the island curves to the west and south, and there a narrow water passage connects “East Harbor” with another like body called West Harbor. At the extremity of the island, another “inlet” connects West Harbor with the lake. In this case “ East Harbor ” is thus described:</p> <p>The body of water is about two miles long east and west, and at the widest point is two miles north and south. It is an irregular triangular shape. The water varies in depth and rises and falls with the water in the lake.</p> <p>There is a channel or current extending westerly from the mouth of East Channel, through about the central part of the harbor and northerly to West Harbor. The water is from five to ten feet deep in this channel, and increases in depth as it nears the mouth, and decreases in depth towards the shores on either side. The average depth of water in East Harbor is about six feet. Unaffected by the wind the current in the channel would be out and towards the lake all the time.</p> <p>Boats drawing from four to six feet of water have entered East Harbor frequently through East Channel outlet, and occasionally through West Channel, and loaded wood, timber and sand.</p> <p>The shore around the greater part of East Harbor is well defined, and is not subject to overflow by the rising of the water in the lake or harbor, except at the west end where the harbor ends in a marsh, and a rise in water of a foot would cover several acres.</p> <p>. Wild rice and rushes grow up over most of the harbor, excepting in the channels. Wild rice will grow in water six feet deep. The bottom is muddy.</p> <p>The water has been used for fishing purposes in spring and fall, and even in winter through the ice, and for hunting and trapping, and has been generally considered by most people in that neighborhood, to be public and common to all; nor has any person been interfered with in fishing or hunting, or prohibited therefrom by any claimants.</p> <p>Danbury township lies within “the Western Reserve.” On September 13, A. d. 1786, Connecticut, by deed, ceded to the United States all its claim to both territory and jurisdiction west of a line drawn from a point in north latitude 41°, one hundred and twenty miles west of the west line of Pennsylvania, due north to the national boundary in Lake Erie. On the next day the old Congress accepted this deed, impliedly recognizing Connecticut’s title east of the-line so drawn.</p> <p>In A. D. 1792, Connecticut granted to the people who had suffered loss by the incursions of the British troops during the Revolutionary war, a half million acres of land, bounded on the north by the shore of Lake Erie, on the west by the west line of the Reserve thus drawn; on the south by the forty-first degree of north latitude, and extending far enough east to make up the half million acres. The state also directed a survey to be made at the expense of the grantees, to contain within its limits 500,000 acres, and for this purpose, a traverse was run along the shore of the lake. The grantees were then incorporated under the name of “ The Proprietors of the Half Million Acres of Land lying south of Lake Erie.” The land was laid out into townships and sections, and the Township of Danbury was described as follows: Bounded on the north and east by the shore of Lake Erie, southerly and easterly by the shore of Sandusky Bay, and on the west by the United States land. Section Two, which contains East Harbor, was described as bounded on the north by the shore of Lake Erie, on the east by Section One, on the south by Sandusky Bay, and on the west by the Third and Fourth Sections.</p> <p>In order to ascertain the proportions in which these lands should be held by the grantees, the loss of each individual was found in pounds, shillings and pence, and as considerable: time elapsed before partition was made, many of the sufferers assigned their claims, but instead of conveying any definite quantity of land, they simply conveyed values in pounds, shillings and pence. In this way many of the assignees acquired claims enough to locate an entire section, and the Classification Record shows that Section Two of Danbury Township was allotted to two men as the assignees of the original grantees. These men were. Henry Franklin and William Chappell. ...</p> <p>Franklin’s share of the losses was, ¿£809 7s. lid.</p> <p>Chappell’s “ “ “ . 534 19 1 .</p> <p>Total loss classified in Section Two, ¿£1344 7 0 This Section Two included all of the “Dike” except a small part of its east end; all of the island except about three acres at its northwest end; the greater part of East ■Harbor; about 25 acres of the eastern side of the small peninsula that lies west of the harbor, and all of the main peninsula between sections one and four. ■</p> <p>By the act of April- 28, A. D. 1800, Congress authorized the President “to execute and deliver letters patent in the name and on thé behalf of the United States, to the governor of the state of Connecticut, for the time being, for the use and benefit of the persons holding and claiming under the state of Connecticut, their heirs and assigns, forever, whereby all .the right, title, interest and estate of. the United States, to the soil of that tract of land ” * * * “including all that territory commonly called the Western Reserve of Connecticut and which was excepted by said state of Connecticut out of the cession by the said state heretofore made to the United States and accepted by a resolution of. Congress of .the fourteenth of September one thousand seven hundred and eighty-six.” The word soil was used for the purpose of showing that jurisdiction was not to be Conveyed. Connecticut was required to cede “jurisdiction”. to the United States. The state complied, and empowered its governor to accept the patent. Thus, while jurisdiction passed to the United States, ownership of soil — land and water — by express conveyance, sanctioned by the sovereign power, vested in the state, (represented by its governor) in trust for its grantees. The lines of the grant were defined with precision; the northwest corner being far out in Lake Erie, in latitude 42° 6'.</p> <p>With equal precision “ section two ” was aparted to Chappell and Franklin. It lay between the west line of section one and the east line of sections three and four, and between Sandusky Bay and “ the shore of Lake Erie,” and contained about 4120 acres. Its east and west lines were parallel running from Sandusky Bay to the main body of Lake- Erie. Actual surveys show that in the part of the section not covered by water, there are about 70 acres on the island; and about 3050 on the main land. Unless then the water of East Harbor, and the ground under it, be included, there is a deficiency of at least one thousand acres in the section. The actual area of the harbor is about 1145 acres.</p> <p>On the 19th day of January, 1811, Franklin conveyed all his interest in the section to three grantees: To James Stevens one-half, and to Isaac Ambler and James Skelding one-fourth each.</p> <p>On the 28th day of February, 1811, Chappell conveyed all his interest in the section to five grantees, to wit: Seymour Jarvis, Frederick Scofield, William King, Azariah Scofield and Josiah Lockwood, Jr.</p> <p>The section was then owned by these eight in common, and, while so owned, the tillable land was laid off in lots numbered from one to twenty. These lots do not extend to the Lake but are bounded on the north- by courses,, distances and monuments as shown by map and table.</p> <p>Afterwards they aparted the lots among themselves, leaving that portion of the section between the lots and the lake shore in common.</p> <p>Seymour Jarvis, one of the five grantees of Chappell, sold all his interest in the marsh to the other four grantees; and then Azariah Scofield, one of the five grantees of Chappell and one of the four grantees of Jarvis, conveyed all his interest in the marsh to James Skelding, one of the three grantees of Henrj'- Franklin, thus making Skelding the owner of one fourth of Franklin’s share of the marsh, and one fourth of Chappell’s share of the same.</p> <p>On the 6th day of October A. d. 1877, the heirs of James Skelding conveyed to Thomas Hogg the undivided one fourth — (the samé being all the interest owned by said James) of the part of section two (2) bounded on the north by “ the shore of Lake Erie, on the east by section one, on the south by lots 18, 14, 15,16, 17,18, 19 and 20, and on the west by section three.” The north line of said lots was about, the southern edge of the marsh.</p> <p>On October 30th, A. D., 1813, James Stevens conveyed to Benoni St. John, lots 8, 9 and 20, containing “about 400 acres,” and “ the remainder ” to make up six hundred acres was described as “ being holden in common by us, Isaac Ambler and others, also lying in said section.” Stevens’ share of the ground outside of lots 8, 9 and 20 was over 200 acres.</p> <p>On the 31st of March, 1836, the heirs of St. John, by the same description conveyed to E. Cooke and others, who secured the unpaid purchase money by a mortgage. This mortgage was foreclosed, (mortgagors and mortgagees being the only parties to the action,) and, about 1840, James B. St. John bought the mortgaged premises at sheriff’s sale, taking a deed with the same description. On January 23d, 1846, James B. St. John, by deed with same description, conveyed to Jacob Ramsdell. From 1849 down, so much of the island as lay in section two stood upon the tax duplicates of the township as about “72” acres, at first in name of Jacob Ramsdell and afterwards in the names of his heirs or grantees. On July 18th, 1846, Ramsdell quitclaimed to Edward J. Lockwood, so much of a certain interest conveyed by deed of James B. St. John and his wife to Jacob Ramsdell, bearing date January 13th, 1846, and recorded June 11th, 1846, in book B., pages 30 and 31, by S. H. Brown, recorder of Ottawa county, as lies east of lot No. 18 in the 3d section of Danbury and adjoining the same, containing about twenty-five acres, more or less, as survejmd by George W. Reilly, county surveyor of Ottawa county, on the lOfch of December, 1845, as by reference being had to said deed and survey, may more fully appear.</p> <p>Ramsdell exercised ownership as stated in the following quotation from the testimony of George Ramsdell: “ I am son of Jacob Ramsdell. Father claimed the island just as much as he did the farm he lived on. He said it was his. He claimed the whole of it. People used to go there to steal cedar, and father got Shanks to go on there to guard it and keep off trespassers. Father let Mr. Thompson go on and cut some hay there, some 33 to 37 years ago.- We always pastured it. Kept hogs and cattle there, and rented pasture there to others. The island or bar is adapted to pasture and to use for fishing. We used to cut wood there. Carsten Ahrens bought sand of us there to build his brick house. Mr. Jewett got permission of us to set out some grape cuttings there.”</p> <p>The heirs of Jacob Ramsdell made divers quitclaims. On the 10th of December, 1877, Thomas Hogg began a civil action, in Ottawa common pleas, against the heirs and grantees of Jacob Ramsdell, and the unknown heirs, grantees and devisees of Stevens, Ambler and others. His petition averred that plaintiff owned in fee simple one undivided fourth part of “All that part of said section two, (2) bounded on the north by the shore of Lake Erie, on the east by section one, (1) on the south by lots thirteen (13) to twenty, (20) inclusive, and on the west by the west line of said section two, (2) containing about fourteen hundred acres;” that Jacob Ramsdell in his life time claimed to own 78 acres; that in 1846 he had conveyed the 25 acres to Lockwood who had held adverse possession for more than twenty-one years; that Ramsdell’s heirs and their grantees claim the remaining 53 acres (of the 78); that the other defendants are entitled to shares in said premises. The prayer was to have plaintiff’s one'full and equal one fourth- part set off to him in severalty; that in so doing due regard may be had to the 25 acres of Lockwood, and for such other and further relief as may be right and proper. The heirs of Ramsdell and their grantees answered claiming title in themselves to the entire premises, denying plaintiff’s title, and setting up the 21 years’ statute of limitations.</p> <p>A reply traversed. all new matter in the answer. An amendment to the petition asked for an account of rents and profits by those defendants who had been in possession. To this said defendants answered thus: They deny the allegations of said amendment — except they admit that they have claimed and controlled so much of said premises as is capable of private ownership and occupation. And they aver that a good part of said premises as described in the petition consists of open and navigable waters, and is part of Lake Erie, being a mere arm .or bay thereof. And they pray that said petition and amendment be dismissed.</p> <p>Other defendants answered admitting the facts stated in the petition and asking that their shares might be aparted to them.</p> <p>The common pleas “dismissed the petition and amendment ” and rendered judgment for costs against the plaintiff. He appealed. The district court referred the case to E. B.. King, Esq., as referee. The case was heard before him and he found the facts to be as hereinbefore stated, and as matter of law reported thus:</p> <p>That the original survey of said Sufferers’ Land, and the - subsequent partition thereof, and the deeds from Chappell and Franklin and Schofield, and from Skelding’s heirs to' plaintiff, included, by the intention of all parties thereto, that portion of East Harbor and bar adjacent, which is now in controversy.</p> <p>I find that if East Harbor is capable of private ownership, the plaintiff is seized in fee, and entitled to an undivided one fourth (|-) part thereof.</p> <p>That since 1847 said bar or island, excepting that portion' in section three (3), has been in the possession of Jacob Ramsdell till his death, and since his death, of the defendants Pettibone and Beerman.</p> <p>That their possession has been- open, actual, notorious, distinct, hostile and adverse.</p> <p>And that the non-residence in Ohio of plaintiff’s grantors as herein before found, does not take the case out of the statute.</p> <p>I further find that East Harbor is a bay, arm or inlet of Lake Erie ; that it is not an inland river but a part of Lake Erie, and as such, the owners of land abutting thereon, are bounded bj1- the line at which the water usually stands when free from disturbing causes, and possess such riparian rights as are incident to such ownership, but have no title to or in the water of said harbor or land underneath.</p> <p>That the court has jurisdiction in this case upon the pleadings to hear and determine the interests and titles of each of the claimants to this harbor and bar, or any part thereof, and the jurisdiction of the court is not ousted by the fact that the defendants in their answer deny that plaintiff has any title to the premises claimed by him.</p> <p>I therefore find that plaintiff is not entitled to the partition of said premises, as prayed for in his petition, and that he ought to take nothing by this action, but the same should be dismissed at plaintiff’s costs.</p> <p>The plaintiff moved before the referee for a new trial, and took a proper bill- of exceptions showing all the evidence. He also filed, in court, exceptions to the report. The defendants, heirs of Ramsdell and their grantees, made no motion for a new trial; took no bill of exceptions; but filed in court exceptions to certain rulings and findings of the referee.</p> <p>Both sides moved the court to set aside the report, and the court “being of opinion that difficult and important questions arise in the case to be determined,” reserved the cause for decision by the supreme court.</p>

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

<p>The provisions of section 4925 of the Revised Statutes, authorizing the levy of an extra tax to improve a state, county or turnpike road, do not authorize the levy of such tax to improve a certain specified part only of such road.</p>

<p>Error to the District Court of Clarke County.</p> <p>The facts are stated in the opinion.</p>

<p>A railway company, by its train, unlawfully obstructed a village street. S., therefore, walked around the rear of the train, entered another street, and there, having selected one of several routes to her home, .■ slipped on some ice, fell, and sustained serious injury. The same railway company had placed the ice there in the process of clearing its track, which occupied part of the street. The street was laid out after the railway was in use, and the rights of the public in said street were subject to tbe rights of tbe railway company. .</p> <p>Held: 1. The proximate cause of the injury was the placing of the ice in the street.</p> <p>2. If the railway company was not in fault in so placing the ice, it was not liable for the injury caused by the fall.</p>

<p>1. Where a patented machine becomes known to the public by a distinctive name during the existence of the patent, any one at the expiration of the patent may make and vend such machines, and use such name; and no one, by incorporating such name into his trade-mark, can take away from the public the right of so using it.</p> <p>2. Where machines during the time they are protected by a patent become known and identified in the trade by their shape, external appearance or ornamentation, the patentee, after the expiration of the patent, cannot prevent others from using the same modes of identification, in machines of the same kind manufactured and sold by them.</p>

The plaintiffs in error brought their action in the common pleas in November, 1877, to enjoin the defendant in error, Roney, as auditor of Brown county, from entering on the tax duplicate of the county, an assessment made by the county commissioners to pay the cost and expense of the improvement of a road; and to enjoin the defendant Drake, as treasurer of the county, from collecting the assessment.

<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 Seneca County.</p>

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

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

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

Reserved in the District Court. The defendant in error, Frank Cone, brought an action in the court of common pleas of Lucas_ county, against the plaintiff in error, the City of Toledo, to recover damages for personal injuries by .him sustained.

On February 21, A. D. 1878, in a case appealed from a justice’s court, William Glenny & Co. filed a petition, in Hamilton common pleas, against the Great Western Despatch South Shore Line.

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

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

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

At the October term, 1877, of the court of common pleas of Meigs county, the plaintiff in error obtained a judgment against Y. Koenig upon causes of action which arose subsequent to the taking effect of the act of 1869 exempting the homesteads of families from sale on executions.

On tbe 4th day of March, A. D. 1879, John B. Purcell by deed conveyed all of his real estate to Edward Purcell his heirs and assigns. The nominal consideration was one dollar.

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

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

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

Error. Reserved in the District Court of Greene County. The plaintiff in error alleged in her petition in .the common pleas that she was the owner of a certain lot in the city of Xenia, described in her petition; that the city counoil granted to the Dayton and South Eastern Railroad Company the right to locate, construct and operate its railroad through and along one of its streets; that the railroad company did locate, construct and operate its road in the street, and that…

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

<p>A wife became seized in fee of land in 1863, and died in 1S72. Her husband and three children survived her. In 1876 the husband mortgaged his estate by the curtesy to secure his own' notes. The children are still living. The mortgagee by action seeks to sell their father’s said estate and apply the proceeds on the mortgage. The children resist.</p> <p>Held: Under section 1 of the act entitled “An act concerning the rights and liabilities of married women” (58 Ohio L., 54), passed March 27, 1861, as amended March 23, 1866, (S. & S., 391), the mortgage cannot be enforced so long as either of said children survives.</p>

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

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

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

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

<p>A testator provided in his will as follows: “I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of fifteen hundred dollars per year, to be paid to him by my executor in monthly installments.”</p> <p>Held: 1. That this provision of the will in favor of Harker was not a legacy, but a testamentary provision requesting his services in the settlement of the estate and fixing the relation between him and the executors, in case he entered upon the performance of the services and the same were accepted by them.</p> <p>2. That the liability of the estate for the discharge of Harker was the . same as if he had been wrongfully discharged from such service when in the performance of a contract with the executors, to serve upon the same terms and conditions.</p>

On the 10th daj'- of October, A. D. 1848, Isaac Darst of Pickaway county, died testate.

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

Errol to the District Court of Franklin County. The original action was brought by the plaintiff in error against the city of Columbus for damages for injury received, by falling into an open area on the east side of the city building of the defendant. The city building fronts northward upon State street, and an open area extends along the east side of the building northward to a point about thirty feet from the south limit of the street.

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

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

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

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

<p>Appeal. Reserved in the District Court of Hamilton County.</p>

<p>A proceeding in bastardy may be maintained in this state under chapter 3, title 1, division 7, Revised Statutes, by an unmarried woman, the mother of a bastard child, notwithstanding the child was begotten and born in another state, and the mother and child never were residents of, Ohio. .</p>

<p>1. The jurisdiction of a justice of the peace in this state is inferior and limited; and to support a judgment of his court the record must show that it had obtained jurisdiction over the person of the defendant.</p> <p>2. Sec. 14 of the Act of March 18th, 1853 (S. & C., 773) regulating the jurisdiction and procedure before justices of the peace, provides that summons must be served by delivering a copy thereof with the indorsements thereon duly certified to the defendant, or leaving the same at his usual place of residence: Held, That a return by the constable of service of summons in these words, “ served on the second day of January, 1861, by reading” shows a want of service and not merely a defective service or return; and where the record does not otherwise show that jurisdiction of the defendant was obtained, a judgment by default is a nullity and may be attached collaterally.</p>

<p>Error to the District Court of Cuyahoga County.</p> <p>On the 16th day of March, 1880, The Kerosene Lamp Heater Co., plaintiff in error, as owner of certain letters patent for a “ coal oil stove,” entered into a written contract with The Monitor Oil Stove Co., defendant in error, whereby a license was granted to the latter company to manufacture and sell coal oil stoves, during the entire unéxpired term of said letters patent. The following is a copy of those portions of the contract, which relate to the questions that arise on the record:</p> <p>“Know all men by these presents, that The Kerosene Lamp Heater Company, a company organized pursuant to the laws of the State of New York, hath granted and by these presents doth grant to The Monitor Oil Stove Company a license to manufacture and sell kerosene oil stoves, under certain letters patent of the United States granted to William B. Billings, dated January 17th, 1865, and numbered 45957, re-issued March 16th, 1880, No. 9121, within the states and territories of the United States, for and during the entire unexpired term of said letters patent, upon the terms and conditions as follows:</p> <p>First — That this license is a personal one, and shall not be assigned, transferred, or otherwise disposed of without the consent of The Kerosene Lamp Heater Company.</p> <p>Second — That the said licensee shall pay or cause to be paid to said The Kerosene Lamp Heater Company a royalty of ten cents per inch, wick measure, being the width of the wick tube or wick tubes in such stoves, for each and every stove manufactured and sold by said licensee during the unexpired term of said letters patent, which said royalties shall be paid on all stoves manufactured and sold during each month, before the expiration of the month, thereafter succeeding, and if paid on or before the tenth day of such succeeding month, then and in that case a reduction of sixty per centum shall be made on the amount of royalties at that time due and payable, until such time as a decision of the United States Circuit Court sustaining the said letters patent may be had. And in case of such decision, then from that date the reduction as aforesaid shall be only twenty-five per centum on said royalties, if the same are paid as aforesaid.</p> <p>Third — That said licensee shall keep just and true books of account, showing the number and size of all stoves so manufactured and sold, to whom sold, and the date of such sales, and the said The Kerosene Lamp Heater Company, by its lawful agents or attorneys, shall have free access to said books at all reasonable times, until said royalties shall have been finally satisfied and discharged.</p> <p>Fourth — That the said licensee shall furnish to the said The Kerosene Lamp Heater Company a report duly verified, on or before the 10th day of each and every month of all stoves sold by said licensee during the preceding month.”</p> <p>On the 15th day of May, 1880, The Kerosene Lamp Heater Co. commenced two suits in the Circuit Court of the United States, for the second circuit, and northern district of New York, one against James H. Shaut, and the other against J. T. Shaut and Charles M. Shaut, alleging infringement of said letters patent, by the manufacture and sale of a coal oil stove known by a certain trade name, and asking for an injunction restraining such infringement, and an accounting of profits, and an assessment of damages.</p> <p>In both suits the defendants failed to plead, answer or demur, and the bill of complaint was, in both, taken pro eonfesso by a rule duly entered. On the 8th day of December, 1880, an interlocutory decree was entered in both suits,.. awarding a perpetual injunction to the complainant, an accounting of profits and assessment of damages, and decreeing a reference to a master, to take and state and report to the court, an account of gains, profits and advantages received by the defendants, and of damages sustained by the complainant. Upon the coming in of the master’s report, a final decree was .made and entered in both of said, suits, on the 21st day of June, 1881.</p> <p>On the 8th day of March, 1881, The Monitor Oil Stove Co. paid to The Kerosene Lamp Heater Co. the royalties for stoves manufactured by it in the month of February, 1881, reserving sixty per cent.' on the amount of royalties due, as provided in said contract and license; but The Kerosene Lamp Heater Co. refused to accept the sum paid as in full satisfaction. On the 8th day of April, 1881, The Monitor Oil Stove Co. tendered and offered to pay to The Kero-, sene Lamp Heater Co. the amount due for royalties on stoves manufactured under said contract and license in the month of March, 1881, after deducting sixty per cent on the amount of royalties due; but the latter company refused to receive the amount so tendered, claiming, that by the terms of said contract and license, and after the entry of the decrees in said suits on the 8th day of December, 1880, The Monitor Oil Stove Co. was entitled to a discount or reduction of only twenty-five per cent, on the amount of royalties if paid on or before the 10th day of each month, as provided by the terms of said contract.</p> <p>An action was brought by The Kerosene Lamp Heater Company, in the Court of Common Pleas of Cuyahoga County, to recover the sum of $688.08, with interest, as royalties alleged to be due under said contract, for stoves manufactured in the months of February and March, 1881. In the court of common pleas there was a verdict and judgment for the plaintiff for $268.50,- which judgment, upon a petition in error filed by The Kerosene Lamp Heater Company, was affirmed, by the district court. This proceeding is now prosecuted to reverse the judgment of the district court.</p>

<p>Error to the District Court of Cuyahoga County.</p> <p>On the second day of January, 1880, Carpenter was duly appointed and qualified as the assignee of Matthew G. Rose, and at once gave notice thereof. • On the third day of August, 1880, the assignee filed a partial account of his trust and on the twenty-sixth day of the same month the account was approved and the assignee was ordered to pay a dividend of twenty per cent, to the creditors of Rose upon claims presented and allowed prior to the making of the order.</p> <p>On the nineteenth day of October, 1880, Dick & Meyer presented a claim to the assignee against Rose. After the payment of the dividend the assignee had in his possession sufficient money to pay the same dividend upon the claim of Dick & Meyer that had been paid to other creditors. In compliance with an order of the court of common pleas the assignee upon the twenty-second day of December, 1880, accepted the claim of Dick & Meyer, but refused to pay thereon the dividend of twenty per cent, paid on the claims of other creditors.</p> <p>Thereupon Dick & Meyer asked the probate court for an order directing the assignee to pay a dividend upon their claim of twenty per cent, out of money remaining undistributed in his hands. The probate court granted the order asked for by Dick «Sc Meyer and upon appeal the court of common pleas rendered the same judgment. Upon error the district court affirmed the judgment of the court of common pleas. We are asked to reverse the district court.</p>

<p>If a wife, when asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and he, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his own use and benefit.</p>

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

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

Ekkor to the District Court of Cuyahoga County. The original action was by the plaintiff in error against the defendant in error, her brother, for the failure to perform a contract, as she claimed, by which the defendant had agreed to furnish her a home during her life, in consideration that she should act as the housekeeper of the defendant during that time.

<p>1. A creditor, who has not proved his claim, may, pending proceedings in bankruptcy, commence a suit on a provable claim against the bankrupt, notwithstanding Sec. 5106 (U. S. Rev. Stats.) prohibits the prosecution of such suit to final judgment until the question of his discharge shall have been determined.</p> <p>2. A material alteration of a promissory note by one of the joint payees and holders avoids it as to sureties not assenting thereto.</p>

<p>1. If an installment of stock in a railroad company remain unpaid by tbe original subscriber, an assignee of the stock, who is willing to comply with the corporate regulations respecting the issue of stock certificates and the ti'ansfer of stock, may, upon making a proper tender of the unpaid installment, with the interest thereon, maintain an action in equity, against the corporation, to compel it to issue to him a stock certificate.</p> <p>2. As against such an action, the statute of limitations will begin to run from the time of such tender.</p>

<p>Error to the District Court of Hamilton County.</p> <p>The- payees sued the makers in Hamilton Common Pleas, upon a promissory note reading thus:</p> <p>“ 1288.33. Cincinnati, Ohio, April 1st, 1879.</p> <p>“ One year after date we promise to pay to the order of John M. Neely and James Hulick two hundred and eighty-eight and^N dollars, with eight per cent, interest from date, payable at First National Bank of Batavia, Ohio. Value received.</p> <p>Wm. H. Harrison,</p> <p>Sarah A. Harrison.”</p> <p>The makers filed separate answers. W. H. Harrison averred, first, that the note was “ given wholly without consideration ; and second, that it was given because the payees threatened him with a groundless criminal prosecution.” Sarah alleged that the note was given without consideration; and that she was surety only. A reply to W. H. Harrison’s answer denied its averments. Hulick died, and on motion of Neely the administrator was made a party plaintiff. After this, Sarah filed an amended answer, making the following defense:</p> <p>“That at the time of the alleged making of the note in the petition set forth, she signed the same upon the sole and only consideration that the plaintiffs then claimed and represented that her son, the said William H. Harrison, defendant, had rendered himself liable to a criminal prosecution on the charge of obtaining money under false pretences, and that unless she signed said note they would prosecute her son, criminally, for obtaining the amount of said note from them by false pretences; that thereupon this defendant, upon the sole consideration of the forbearance to so prosecute and of the compounding of said claimed felony upon the part of her said son, and upon no other consideration whatever executed said note; that said consideration is illegal and void.”</p> <p>This was denied by a reply. At the trial the defendant, W. H. Harrison, was placed upon the stand, and by his attorney asked the question, “ State whether or not, prior to the signing of the note in controversy, the plaintiffs, Messrs. Neely and Hulick, called to see you at your house, in reference to the money claimed by them to be due them. by you ? ” to which the plaintiffs, by their attorney, objected, as well as to the party defendant testifying to anything that occurred in connection with James Hulick, deceased; the defendants then stated that, to maintain their defense to the action, they offered and ;were prepared to prove by said witness that Messrs. Neely and Plulick, the original plaintiffs in this action, came to Cincinnati, to the residence of W. H. Harrison on two occasions, first by themselves and secondly with their attorneys, and then and there represented to the said W. H. Harrison, one of the defendants in this action, that he had been guilty of obtaining money under false pretences and had rendered himself liable to a criminal prosecution, and that unless he gave them a note for the amount, with good and sufficient security, they would institute criminal proceedings against him. That the said Harrison then advised the said Neely and Hulick that he could get nobody to endorse his paper but his mother; and that thereupon, and at their instance, he went to his mother and represented to her that Messrs. Neely and Hulick were about to prosecute him criminally, and would- so prosecute him, and claimed that they could successfully prosecute him unless he secured her endorsement; and that thereupon she, the said Sarah Harrison, party defendant, by reason of said threats, and to save her son from the disgrace of a public criminal prosecution, and for this and no other consideration, was induced and did sign the said note upon which this action is .based. The plaintiffs objected to the admission of said testimony by the said witness, a party defendant, which objection was sustained by the court, to which the defendants excepted. The verdict was for the plaintiffs. .A motion by defendants for a new trial was overruled, and judgment rendered on the verdict. A bill of exceptions was duly made part of the record. The District Court affirmed the judgment.</p>

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

<p>Error. Reserved in the District Court of Summit, County.</p> <p>The original action was commenced November 7, 1878, by the plaintiff in error, Samuel Burgner, against the defendants in error, Julius Humphrey, William B. Coleman, and the Norton Coal Company, in the court of common pleas of Summit county. The action was founded on a written agreement, which reads as follows:</p> <p>“ This agreement, made and entered into this 10th day of September, 1866, by and between Samuel Burgner, of the township of Norton, county of Summit, state of Ohio, of the first part, and Julius Humphrey and William B. Coleman, of the state of Ohio, of the second part, witnesseth: That for the consideration of one dollar in hand paid by the said parties of the second part to the said party of the first part, the receipt of which is hereby acknowledged by the said party of the first part, and in consideration of the further covenants, agreements and stipulations hereinafter mentioned on the part of the said parties of the second part, the said party of the first part hereby bargains, sells, transfers, aliens and conveys unto the said parties of the second part their heirs and assigns, all the mineral coal, iron ore, limestone,- and all the other minerals, together with all the rock or petroleum oils and salines in, under or upon the following described tract or parcel of land, situate in the township of Norton, county of Summit, state of Ohio, bounded and described as follows, to wit: Being the south part of lot 73 in said township bounded south, east and west by the lines of said lot, and north by a line parallel to the south line of said lot, and far enough distant therefrom to contain 110 acres of land. Being the same land upon which Burgner now resides. And the said party of the first part also hereby further gives, grants and conveys unto the said parties of the second part, their heirs and assigns, as well as their workmen and laborers, the right, privilege and license to enter upon the above described lands at any and all times hereafter, and .search and explore thereon for said mineral coal, iron ore, limestone, clay and other minerals, oils and salines, or for any of them, and when found to exist on said lands, to dig, mine and remove the same therefrom, together with all and singular, the rights, privileges, licenses and easements necessary or incident, or in any wise appertaining to the proper prosecution of the business of mining and removing any or all minerals and substances aforesaid, and also the right of way for all necessary roads and railroads over any portion of said lands, and the right to erect thereon all necessary structures, buildings and fixtures of every kind necessary in the proper prosecution of said business; and the right to occupy a sufficient area of the surface of said land for stocking and storing the said coal, ore, limestone, or other substances, and the refuse therefrom, and the right to remove and transport the coal and other minerals from other lands over or under the land described during the continuance of this agreement; for and in consideration of which the said parties of the second part hereby agree and bind themselves and their heirs, executors and assigns, to enter upon said lands within one day from the date hereof, and make.search and exploration thereon for said mineral coal, iron ore, clay, limestone, and other minerals, oils or salines, unless satisfied from examination of lands adjoining or in the vicinity, that said exploration will be fruitless; and if the same or any of them be found to exist thereon in sufficient quantities and under such circumstances as to warrant the said parties of the second part, their heirs or assigns, in digging, mining and removing the same, then, and in that case, the said parties of the second part agree and bind themselves, their heirs, assigns and legal representatives to pay the said party of the first part, his heirs, legal representatives or assigns, the sum of ten cents per ton for each ton of 2,000 pounds of mineral coal mined and removed from said land as ¿merchantable coal, and other minerals according to the bills of the diggers, but not to include slack or fine coal, which said parties of the second part are to have the privilege of removing and selling free of charge, and the sum of ten cents per ton as above, for each ton of iron ore mined and removed therefrom, and the sum of ten cents per ton for each ton of clay mined and removed therefrom, and one-twentieth part of the net proceeds of any and all other minerals, oils and salines taken or procured from said lands by said parties of the second part, their heirs, legal representatives and assigns. And it is also agreed by and on the part of the said parties of the second part, their heirs, legal representatives and assigns, that so long as this lease shall be held by the said party of the first part, his heirs, executors, administrators or assigns, after the expiration of one year from June 2, 1866, a sufficient quantity of the said minerals, or one of them, shall be mined each year, to amount at the rate above mentioned to the sum of one hundred dollars, or that the same shall be paid to the said party of the first part, his heirs, legal representatives or assigns, the same as though a quantity of one or more of said substances had been mined sufficient to amount at the rate aforesaid to said sum. But all sums thus paid for any year in pursuance of this stipulation, and not applied in payment of any such minerals actually mined, shall be applied in payment of that subsequently mined, so far as the same will pay therefor at the rate aforesaid. It is mutually agreed that said parties of the second part shall have the privilege of cancelling and surrendering this lease at anj^ time upon payment of the amount due thereon at that time. It is also further agreed by the parties hereto for themselves, their legal representatives and assigns that all payments to be made hereunder shall be made annually, counting from the 2d day of June,-1866. (It is also agreed that the correctness of the scales and weighing of said coal and other minerals, and the books showing the weight thereof, and other minerals mined shall be open at all times during business hours to the inspection of the said party of the first part, his agents, legal representatives and assigns.) It is also agreed that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land as to injure said buildings. This lease is made to protect and make more full a lease between the parties hereto entered into the 2d day of June, 1864. In testimony whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.</p> <p>Julius Humphrey,</p> <p>Samuel Burgher,</p> <p>Wm. B. Coleman.”</p> <p>Under this lease mining operations were carried on by the defendants, or some of them, until about the commencement of this' action.</p> <p>In his petition, the plaintiff sets forth four causes of action.</p> <p>In the first cause of action, plaintiff avers that the defendants, under the lease, mined and removed from the land over 125,000 tons of good, merchantable coal, of 2,000 pounds each, estimating the same at miners’ weights, or according to the bills of the diggers, for which he was entitled to receive under the lease $12,500; that defendants have paid plaintiff a sum not exceeding $5,000, for all the coal mined since the date of the lease, and that the defendants have neglected and failed to'keep proper and accurate accounts of coal mined under the lease; that they have not kept said diggers’ bills or any true copies thereof; that the accounts, books and memoranda of said defendants, relating to the mining of said coal are, and have been from the commencement of said lease false, fraudulent and grossly inaccurate, and that said accounts of said defendants do not show the true amount of coal mined from plaintiff’s premises by the defendants; and that said accounts were so kept for the purpose of cheating and defrauding the plaintiff in the premises; and the plaintiff further avers that the original bills of the diggers for the coal mined, and also other original memoranda and statements showing the amount of coal mined by the miners have been destroyed by the said defendants for the purpose of cheating the plaintiff; and the said original memoranda, miners’ weights and bills of the diggers are not and have not been accessible to the plaintiff by reason of their destruction as aforesaid. The plaintiff further avers, that said Norton Coal Company is incorporated under the laws of Ohio; and that the said Julius Humphrey and William B. Coleman are members of said company, and have been since its organization; that on or about the 23d day of September, 1866,. the said Humphrey and Coleman in writing assigned said lease to the said Norton Coal Company; but, that the plaintiff was not consulted in the making of said assignment, nor has he at any time given his assent thereto, or released said Humphrey and Coleman, or either of them, from the terms of said contract.</p> <p>The second cause of action was for wrongfully extending the mining so near the dwelling house and other buildings as to injure them in violation of the provisions of the lease.</p> <p>Plaintiff in his third cause of action avers that the defendants wrongfully, negligently, carelessly and improperly conducted their mining operations, and so excavated the earth and removed the coal from said land as to cause the surface of said land in many places to sink down in deep holes whereby the same became and was greatly damaged.</p> <p>That the amount of land so destroyed by falling in, embraces about sixteen acres, and that the same by reason of, the premises has been rendered unfit for cultivation or plowing ; that by reason of the careless, wrongful and improper manner in which the said work was prosecuted by the defendants, the plaintiff has been damaged in the sum of $3,000.</p> <p>In his fourth cause of action, the plaintiff seeks to recover pay for the coal mined under the buildings at the rate of fifty cents per ton.</p> <p>The answers of the defendants aver that, of all the coal mined and removed, a correct account thereof was kept, and the books showing the weight of the coal mined and removed from said premises have been open to the inspection of the plaintiff at all times; said books showing the amounts mined by each digger and allowed in his bill, and that the plaintiff has been annually settled with by the defendants and paid the sum of ten cents for each ton of 2,000 pounds mined and removed from said premises as merchantable coal according to the bills of the diggers in pursuance' of the terms of the lease.</p> <p>The defendants deny every charge of fraud contained in the petition, and insist that the books are correct, showing the bill of each digger.</p> <p>The defendants deny the averments of the second cause of action except that they mined coal under the barn, but say that that was done with the knowledge of the plaintiff, and that he has received full compensation therefor.</p> <p>In answer to the third cause of action, the defendants deny that they wrongfully, negligently, carelessly and improperly conducted their mining operations, but on the contrary say, that the mining and removing of said coal has been done in a careful, workmanlike manner; that if any injury resulted to the surface therefrom, such injury is only the ordinary and natural injury that would arise from the mining and removing of said coal.</p> <p>To the averments in the fourth cause of action, the defendants interpose a general denial.</p> <p>To the defendants’ answer, the plaintiff replied by a general denial.</p> <p>The plaintiff, to sustain the issues on his part, and to maintain the allegations contained in the first cause of action of his petition, offered the testimony of a civil and mining engineer, and of coal miners, to show the thickness of the vein of coal of said farm, the number of acres actually mined and taken away by the defendants; the size, length, breadth and depth of the rooms in said mines, and the number of tons per acre for each and every acre so mined, excavated and removed by the defendants of good merchantable coal, and that in fact the coal actually mined was much greater in amount than shown by the books of the defendants. To all of which testimony, the defendants by their counsel objected, which objection was overruled, and the court thereupon allowed the said evidence to go to the jury, for the purpose of showing that the books and diggers’ bills and weights kept b}^ the defendants in their books and otherwise, were fraudulently kept or grossly inaccurate. And the court then and there cautioned the jury, that the said evidence was not permitted to go to them for the purpose of showing the quantity of coal actually mined as against the books and bills of the diggers kept by the defendants, but for the purpose of impeaching said books for fraud or gross inaccuracy, unless, in the event that such books and diggers’ bills were impeached for fraud or gross inaccuracy, when, the jur}^ might consider the evidence offered, to determine the quantity of coal mined. To which decision and direction of the court, so limiting said evidence, the plaintiff by his counsel then and there excepted.</p> <p>The plaintiff, to further maintain the action on his part, and to maintain the issues of his third cause of action, offered evidence to show that the defendants in mining and removing said coal under their said lease, also removed all the pillars, ribs of coal, and supports whereby the surface was supported, and that by reason of the removing of said pillars, ribs of coal and supports, the surface of the ground caved in, swagged, and fell in deep holes, whereby the said surface of the plaintiff’s land was greatly damaged, and was thereby rendered wholly unfit for plowing and cultivation. And thereupon the defendants, in answer to the claim for damages on said third cause of action, introduced witnesses, and offered to prove by them, that the mining and removing of said coal was done in a careful and prudent manner, and in accordance with the best and most approved method of mining and removing coal, and that it was the approved method of mining coal, to mine and remove all the coal without leaving pillars, ribs, or supports for the surface, and that the defendants mined coal from the plaintiff’s said premises under said lease, and removed said pillars and supports in a careful and prudent manner, and in the best and most approved method. To all of which evidence showing or tending to show such approved method of mining, by which the pillars and ribs of coal were drawn, and all supports of the surface removed, the plaintiff by his counsel then and there objected, on the ground, that the plaintiff was entitled to have the surface supported by sufficient pillars, ribs and supports to keep it up, and that such method would not be reasonable, and could not be shown to deprive the plaintiff of his right of surface support. But, the court overruled said objection, and admitted said evidence, to which decision of the court in overruling said objection and admitting said evidence, the plaintiff by his counsel then and there excepted.</p> <p>The plaintiff produced a witness, and offered to prove the allegations contained in his fourth cause of action as to the quantity and value of the coal mined and removed from under the barn and dwelling-house, contending that such coal was exempt from the mining operations provided for in the lease, and that its value was not fixed by the price put upon the other coal mined under the lease, but, the defendants objected to the introduction of any evidence by the plaintiff in support of said fourth cause of action, which objection was sustained by the court, and the plaintiff was not allowed to offer any evidence in support of the allegations in said fourth cause of action. To which decision of the court, excluding said evidence, and all evidence under said fourth cause of action, the plaintiff by his counsel thereupon excepted.</p> <p>The court thereupon proceeded to charge and instruct the jury. And the plaintiff then and there excepted to all that part of said charge and instruction, in which the court uses the following language, to wit: “ I say to you further, that unless this mode pointed out in the contract for determining the weights and the amount to be paid be impeached for fraud, then the contract must prevail, and must determine the rights of the parties.”</p> <p>And the plaintiff further excepted to all that portion of the charge of the court in which the jury were instructed, that unless the books and diggers’ bills kept by the defendants were first impeached for fraud, the jury must take such diggers’ bills exclusively to determine the quantity of coal mined, and that all the other evidence in the case bearing upon or tending to show the quantity of coal mined, must be taken and considered exclusively for the purpose of showing whether the diggers’ bills and the books of defendants were or were not honestly kept.</p> <p>And thereupon the jury found a verdict, together with special findings, as then and there directed by the court. Under the 1st cause of action, the jury found for the defendants; under the 2d cause of action, for the plaintiff, and assessed his damages at $500; under the 3d cause of action, for the plaintiff, and assessed his damages at $1,658.33; and under the 4th cause of action, for the defendants. In their special findings, by way of response to certain questions in writing propounded to them by direction of the court, the jury found, That the books kept by the defendants were not fraudulent or grossly inaccurate; that the damage done to the dwelling-house and barn by mining and removing coal amounted to $500; that there was no negligence or carelessness in mining the coal which caused the surface to fall in, other than the removal of the ribs and pillars; that the ribs and pillars were removed in a proper and reasonable manner, if the defendants had the right to remove all the coal from under the land, without reference to any support for the surface; that the damage done to the surface of the land by mining and removing coal, amounted to $1,658.33, and that the defendants’ mined, digged and carried away the coal and slack underlying the plaintiffs’ land, without leaving ribs, pillars, posts or supports to keep up said surface.</p> <p>Judgment was rendered on the first, second and fourth causes of action in accordance with the verdict; but the court, upon motion of the defendants, rendered judgment in their favor on the third cause of action, notwithstanding the verdict.</p> <p>A bill of exceptions was taken and allowed, embodying a portion of the evidence, and the charge of the court in full. A petition in error was filed by Samuel Burgner in the district court, where the questions arising in the case were reserved and sent to this court for decision.</p>

<p>Cases in error. Reserved in the District Court of Lorain County.</p>

<p>Appeal. Reserved in the District Court of Fulton County.</p> <p>The original action was brought in the Fulton Common Pleas by Alexander II. Ogle against Emeline Ogle and Joachim, her husband, Miles Hayes and wife, and John Plettner. Its object was to foreclose a separate mortgage given by Emeline to Feebacb to secure payment of nine promissory notes made by her to Feebach, and which had been duly assigned to the plaintiff. It was a mortgage back t.o secure payment of a part of the purchase money for same premises which Feebach had simultaneously conveyed to her. The petition did not admit that she was married at the time; but it claimed that if she were, the notes were a valid charge on the land, notwithstanding it had been conveyed by Emeline and her husband to Hayes, and by him to Plettner. Both Hayes and Plettner, when they respectively took title, had notice of Feebach’s claim and its character. Emeline, a married woman at the time, fraudulently represented to Feebach that she was unmarried, and he believed and relied on the statement. Answers were filed by Feebach and Plettner. The findings of the district court render further statement unnecessary. In the common pleas Plettner had judgment. In the district court, on appeal, the case was reserved to this court on these findings. They are,</p> <p>“ That on the 12th daj'- of April, A. D. 1876, the defendant, George Feebach, was the owner in fee simple of the real estate in the petition described, and conveyed the same to the defendant, Emeline Ogle, who then was and thence hitherto has continued to be, a married woman and the wife of the defendant, Joachim Ogle, who was then absent and not with his said wife, for the nominal consideration of twenty-five hundred dollars, of which one hundred dollars was afterwards remitted on settlement between said parties, and thirteen hundred dollars thereof was paid by the conveyance, by said Emeline Ogle to said Feebach, of said real estate in the city of Toledo, subject to'a mortgage lien and nominally placed at that value, and the remaining eleven hundred dollars was included in and constituted the consideration of the notes in the petition set forth, and was secured by a mortgage which said Emeline then executed to said Feebach upon the same real estate.</p> <p>“That said Emeline Ogle represented to said Feebach at the time he sold said real estate to her and received said notes and mortgage therefor, that she was a feme sole and ■had no husband, and said Eeebach believing and relying upon said representations, and not knowing nor having reason to know the falsity thereof, made said conveyance of said real estate and received therefor the notes and mortgage described in the petition of plaintiff, none of which were signed or executed by the husband of said Emeline, nor did said Feebach know of his existence.</p> <p>“ That on the 1st day of November, A. D. 1876, said Emeline Ogle and her husband, Joachim Ogle, joining, attempted to convey said real estate by a deed of that date to the defendant, Miles Hayes. And on the 29th day of May, 1877, said Emeline and Joachim, both joining, executed to said Hayes another deed conveying to him said real estate, and which last deed was in all respects properly executed. Both of said deeds contained general covenants of warranty, but the mortgage executed by said Emeline to said Feebach was especially excepted from said covenants in each of said deeds by a clause as follows, to wit:</p> <p>“ To have and to hold the same to the said Miles Hayes, his heirs and assigns forever, we hereby covenanting that the title so conveyed is clear, free, and unimcumbered, excepting a mortgage hereafter mentioned, and that we will warrant and defend the same against all claims whatsoever, excepting a certain mortgage executed by Emeline Ogle to George Feebach, on the 12th day of April, A. D. 1876, to secure the payment of eleven hundred dollars.”</p> <p>In August, A. D. 1878, the defendant, Flettner, was negotiating with said Hayes for the purchase of said real estate, when Feebach notified him through a third person not to purchase the same, for the plaintiff had a claim thereon, which he, plaintiff, would proceed to enforce at the next term of the court in Fulton county, and Plettner thereupon discontinued such negotiations till after said term, when no such proceedings having been commenced, on the 16th day of December, A. D. 1878, he purchased said real estate of Hayes for the nominal consideration of eight hundred dollars, which was its approximate cash value, and which was paid as follows: one hundred dollars by Plettner’s individual note to Hayes, of which thirty dollars was paid before the trial in the court below, but when, does not appear, and the balance has since been paid. Three hundred dollars by the assignment to Hayes of a conditional obligation due to Plettner from one Jefferson Beard, which was apparently secured by a mortgage which has since proved entirely worthless in consequence of a previous mortgage on the premises, which had been foreclosed but of which Plettner was ignorant, and four hundred dollars was paid by the sale and transfer to Hayes of a patent right in a certain territory.</p> <p>Hayes conveyed said real estate by a quit claim deed to Plettner, who knew of the existence of said mortgage to Feebach, but supposed it to be of no legal force or effect because it had been executed by a married woman.</p> <p>On the 20th day of January, A. d. 1877, said Feebach transferred said notes and mortgage executed by Emeline Ogle, to plaintiff, who afterwards commenced this action thereon. The defendant, Hayes, as a part of the purchase price of said real estate so conveyed to him, agreed to pay the mortgage executed to Feebach, and also before the conveyance by him to said Plettner, he negotiated with plaintiff for the payment of the same, but such'agreement and negotiation did not appear to be known to said Plettner except so far as it might be shown by the deed from Hayes to him, and as he may there be charged with such knowledge and by the other facts in the case.</p> <p>All such deeds and mortgages were forthwith after the execution thereof as aforesaid, respectively delivered to the recorder of said county of Fulton, for record, and by him immediately properly recorded in the respective records of mortgages and deeds in his office.</p> <p>When said notes and mortgages were assigned to plaintiff, he had no knowledge or notice of the fact that said Emeline Ogle was or had been a feme covert, or that other defenses existed to.the same.</p> <p>There was no evidence introduced of the existence of the patent mentioned by said Plettner, except his own testimony, and no evidence of its non-existence. At the date of the commencement of this action, the said Emeline Ogle was and ever since has continued to be insolvent.”</p>

<p>Error to the District Court of Clinton County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Error to the District Court of Hamilton County.</p> <p>The original action was brought in the superior court of Cincinnati by O’Connor against the heirs of John B. Ryan. The plaintiff alleged that on April 1, 1858, he conveyed the lands described in his petition to one Caleb E. Nourse, and that Nourse at the same time made and gave to O’Con-nor his two promissory notes for seven hundred and fifty dollars each, payable in one and two years, and that O’Con-nor then agreed to furnish the money to pay these notes at their maturity, and that Nourse should- hold the legal title to the lands to indemnify him against his liability on the notes; that O’Connor furnished the money to pay the notes of Nourse at maturity; and that after the. notes were so paid, Nourse held the title to the lands until July 30, 1861, when he conveyed to John B. Ryan; that the conveyance was made to Ryan without the knowledge of O’Connor and was without consideration and was taken by Ryan to hold in trust for O’Connor, and that Ryan died intestate in January, 1871, holding the legal title to the lands. The plaintiff alleged also that the lands had been conveyed to him July 7, 1851, and that ever since that time he had been in possession thereof, and that the conveyance to Nourse and from Nourse to Ryan cast a cloud upon his title, and asked to have his title quieted as against any claim or right of the heirs of Ryan. To this petition various matters of defense were set up, amongst others, that the matters in dispute had been finally determined by an action between the same parties for the same cause; that Ryan held the title to the lands from 1861 to 1871, the time of his death, during which time O’Connor made no claim to the property; that the conveyance from O’Connor to Nourse was made to hinder and delay the creditors of O’Connor from enforcing the collection of their just claims against him. The conveyance from O’Connor to Nourse and from Nourse to Ryan were admitted to have been made as stated in the petition.</p> <p>Upon the trial in the superior court the deposition of Nourse was offered and read in evidence. The court, however, not finding that the plaintiff had been in possession of the lands as stated in his petition, gave judgment for the defendants!</p> <p>This judgment was reversed by the district court. The heirs of Ryan bring this proceeding to reverse the judgment of the district court.</p>

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

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

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

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

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

The petition in the common pleas was as follows: The said plaintiff, James D. Lehmer, complains of said defendant, the Cow Run Iron Tank Company, for that on the 18th day of November, A. D., 1876, he, the said plaintiff, was the owner of and entitled to the immediate possession of the following described goods and chattels, to wit: Thirty-eight hundred and thirty and seven one-hundredths barrels of Cow Run, Ohio, crude petroleum of the value of $16,000; that on said 18th day…

Ebkob to the District Court of Jefferson County. This action was brought in the court of common pleas of Jefferson county against the railway company to recover damages on account of the death of George Davis. He was killed on the morning of May 1, 1880, while he was riding upon a hand-car on the company’s road between Reed’s Mill and Smithfield Station, by the car being run into by one of the company’s passenger trains, No. 7.

By contract dated July 18th, 1864, Marvin Kent agreed to convey to Edward L. Day, Charles T. Williams and Edward P. Williams, composing the firm of Day, Williams & Co., “that lot of land and the buildings and improvements thereon known as the Franklin Glass Works, situate in the township of Franklin, Portage county, Ohio, bounded and described as'follows: Beginning on the west side of Canal street at a point where a continuation of the south side of Mill street, in the town…

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

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

<p>Motion to attach Harvey J. Nettleton for contempt.</p>

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

Ekrob to tbe District Court of Richland County. On the 1st day of April, 1873, Baker gave his promissory note to one,Blystone for $500, payable two years after date. On the same day one Rummell, and Blystone as his surety, gave to Baker their three promissory notes, two of which were for $200 each, and the other for $125, payable respectively on the 1st day of October, in the years 1874, 1875 and 1876.

The plaintiff in error, William G. Bentley, treasurer of Columbiana. county, brought his action against Henry Barton, defendant in error, alleging that there stood charged on the duplicate of taxes for that county for the year 1880, the sum of $9.23 against eighty-three acres of land in section sixteen of Elkrun township, in the name of Henry Barton, and prayed that in case said taxes were not paid by a day to be fixed by the court, the lands should be sold to satisfy such…

List, as the administrator of the estate of Elias L. Abbott, deceased, brought his action in the court of common pleas against Benjamin Wardlow, and his petition contained two causes of action. The single question now presented in the case arose on the first cause of action, which was founded upon a promissory note,- of which the following is a copy: $800.00 September 27, 1871.

Ekror to the District Court of Trumbull County. The will of Truman Jones, deceased, was admitted to probate m Trumbull county, Ohio, on the 20th day of August, A. D. 1872. In it the testator designated James M. Jones to be executor, and expressed a wish that he might execute the same without giving bond.

The petition filed in the district court of Henry county read thus: “ The said relator represents that the said Lewis E. Holtz is now and for many years past has been, a citizen of. the state of Ohio, and of the county of Putnam; that heretofore, to wit, on the 8th day of October, A. D. 1872, he was duly elected to the office of county surveyor, in and for said county of Putnam and state of Ohio, and on the 6th day of January, 1873, duly entered on the duties of his said…

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

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

The original action was commenced in the court of common pleas of -Lawrence county, by the defendant in error, John A. Howell, against the plaintiffs in error, William D. Kelly, Lindsey Kelly and Ironton Kelly, co-partners doing business under the firm name of W. D. Kelly & Sons.

Ebbob to the District Court of Lucas County. On August 26,1876, Harriet O. Holmes, holding a decree in Lucas Common Pleas against Theophilus P. Brown for $13,605(^5-, on wliicb interest ran from October 18, 1875, was about to put the mortgaged premises to sale. The Merchants National Bank of Toledo, at the same time, was about to enforce an execution against Brown upon a judgment in its favor for over $7,000.

The city of Circleville on the 20th day of December, 1881, made a contract with one Peter Barndt to construct a public cistern for the city in one of its streets, according to plans and specifications adopted by the city council. Barndt agreed to furnish all materials and do all the labor in the construction of the cistern for a given price agreed upon by him and the city council. The cistern was eighteen feet in diameter and twenty feet deep.

The original action was brought in the common pleas of Pickaway county by Wagner and Smith against one Olds, the judgment creditor, and Crouse to enjoin the collection óf a judgment taken in that court against Nancy M. Renick, D. J. Crouse, D. B. Wagner and P. C. Smith, on the ground that it had been paid by Crouse, and was rendered on a promissory note made by the judgment debtor on which AVagner and Smith were sureties for Crouse.

<p>1. The act of March 29, 1882 (79 Ohio Laws, 59), authorizing incorporated villages having within their limits a college or university, to provide against the evils resulting from the sale of intoxicating liquors therein, is not repugnant to the provisions of the constitution.</p> <p>2. A village council acting under the authority conferred by this law, exceeds its power when it makes an ordinance which prohibits the sale of intoxicating liquors to all persons and for all purposes except mechanical and medicinal, and the sections of the ordinance so providing are void.</p>

In February, A. d. 1858, Daniel Stewart, of Athens county, Ohio, died testate. His will was admitted to probate, and on March 3, 1858, the executors named therein were duly appointed and qualified.

<p>A board of education being authorized by a special act (66 Ohio L., 402) to issue its bonds to an amount not to exceed the sum of $20,000, issued the same to the full extent of its authority, payable to-- or bearer ; and thereafter took up and paid certain of such bonds and loft them with its treasurer, who was a member of such board, with instructions to cancel them, which he failed to do, but negotiated them, before maturity to S., as collateral security for a loan made to him by S., who made no inquiry in regard to them. Held:</p> <p>1. The payment of the bonds by the board extinguished them, and they were incapable of being re-issued.</p> <p>2. There was no negligence on the part of the board in not seeing that its treasurer complied with its instructions to cancel the bonds.</p> <p>3. S. was guilty of contributory negligence in taking the bonds without inquiry.</p>

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

<p>The owner of a domestic note left it with a bank for collection, and if not collected to fix the liability of an indorser. It not having been paid at maturity, the bank, according to a general usage of the place, handed it to a reputable notary for presentment and protest:</p> <p>Held, That the notary was the sub-agent of the owner, and the bank is not answerable for a default of the notary in making presentment for payment, whereby the liability of the indorser was released.</p>

<p>1. The creation, of a fund with which to pay an indebtedness of an educational institution is not a consideration in law for a written promise given by the maker to the institution with a view to contribute to that object.</p> <p>2. Where such promise contains a stipulation that the amount is to be applied exclusively to the payment of such indebtedness, and is accepted by the institution, Held: That the acceptance does not give rise to a case of mutual promises in the sense requisite to constitute a consideration in law.</p>

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

In June, 1871, one Richey, as agent of Mrs. Davenport (who with her family was then sojourning in Europe), left for collection with Cox, Burnett & Follett, attorneys, of Cincinnati, a note made by one Simon, secured by his mortgage of certain real estate in that city. In July, 1871, judgment by confession was taken for $10,907.18, with order of sale, but it was agreed to suspend execution for three years, if, in the meantime, the interest was annually paid.

<p>A widow’s unassigned right of dower, in lands of her husband, occupied and enjoyed by herself and their children, may be subjected by proceedings in equity to the payment of a judgment against her upon a debt created by her after her husband’s death.</p>

The original action in the common pleas of Meigs County was in the nature of a creditor’s bill brought by the Pomeroy Flour Company against the Marine Dock Company and Joseph H. Rogers. Both companies were incorporated under the act of April 8, 1858, (1 S. & C., 301) providing for the incorporation and control of manufacturing companies and the act supplementary thereto (S. & S., Í84).

E. Ingalls was the duly appointed and acting receiver of the Indianapolis, Cincinnati and Lafayette Railroad Company. Stephen Eagan was his local ticket •agent in Cincinnati. He had sole charge and control of dbe sale of passenger tickets issued for Ingalls’ railroad, and sold at the local office in Cincinnati; but his authority was limited to sales for cash.

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

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

Reserved in the District Court. In February, 1880, The Baltimore & Ohio & Chicago Railroad Company brought suit in the common pleas of Defiance County against Joseph Ralston and others. The defendants were James Cheney and others, the survivors and representatives of fifty-two persons, parties of the one part, to a contract with the company which is set out in the petition. In the common pleas a demurrer was sustained to the petition.

In May, 1878, Phoebe B. Johnson, the widow of Samuel C. Johnson, Sr., and at that time the sole owner of the estate of her late husband, brought an action in the court of common pleas of Lawrence county against Samuel C. Johnson, Jr., Frank F. Johnson and John Campbell.

The plaintiffs in error, Greer & King, on March 29th, 1878, recovered a judgment against D. Carroll & Son, in the superior court of Montgomery county, for the sum of $832, and $28 costs. They caused execution to be immediately issued on this judgment to the sheriff of the county, who levied upon the property of Carroll & Son.

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

Ekkoe to the District Court of Mahoning County. On the 31st day of March, 1875, Robert A. Barnes and Avarilla A. Barnes, his wife, made and gave to the plaintiff in error, Slagle, their promissory note for $1,500, payable in one year with eight per cent, interest, and at the same time said Barnes and his wife executed and delivered to Slagle their mortgage deed of certain lands in Mahoning county to secure the payment of this note.

Ekbok to the District Court of Ross County. In A. D. 1877, the First Presbyterian Society of Chillicothe was in possession of lot 86 in that city. It contained four acres, and was full of graves. The Scioto Valley Railway Company began a proceeding in Ross probate court to appropriate the lot. This was duly completed, and the assessed value of the land, $7,500, was placed in the court, pending legal determination of the ownership of the fund.

The contract was: “ For valuable consideration Robert C. Lucas and.

In the year 1867, H. B. Tuttle entered in his own name in the United States land office, at Menosha, Wisconsin, about 3,655 acres of land in said state, supposed to be mineral lands, the purchase money of which was paid equally by himself and' Henry Harvey.

<p>A married woman mortgaged lier separate property to secure tlie note of her husband given for the purpose of raising money to pay the debt of a lumber company of which he was president. The money was raised by loan from'an insurance companj^ on the note of the lumber company at one year, with the mortgage as collateral thereto — the insurance company having knowledge that the mortgaged property was designed by the mortgagor to serve as surety for the payment of tho loan. Without the mortgagor’s knowledge or Consent, the note of the lumber company at the end of the year was renewed, and soon thereafter surrendered, cancelled, and mai'ked “ paid ” upon the hooks of the insurance company, and a new note with other and different parties was substituted in its place. Held: That the mortgage was released.</p>

<p>Error to the District Court of Cuyahoga County.</p> <p>This was a ease agreed upon and submitted without action, in the Court of Common Pleas of Cuyahoga county. Laura W. Hilliard and Mary H. Sterling claimed to recover of the New York and Cleveland Gas Coal Company the sum of $627.09, with interest, and said company resisted the claim. The facts on which the controversy depended are contained in the agreed statement, of which the following is a copy:</p> <p>“On the 1st day of April, 1876, the plaintiffs leased to the defendant two rooms of a block owned by them, by the lease hereto annexed under which defendant entered and .occupied up to about July 1, 1878. At the time the lease ■was made, there was no building on the lot tying next northerly, and the offices were lighted by windows on that side except the rear office, which in addition to a window on the northerly side, had two windows on its easterly side. In the spring of 1878, the owners of the adjoining lot on the northerly side, constructed a building, the southerly wall of which was within a foot of the northerly wall of the block which cut off the light and ventilation from that side, so that one room had neither light nor ventilation, and the other very little, for the reason that. the light from the windows on the east side were obstructed by a building within seven or eight 'feet. The plaintiffs, with the consent of the defendant and tenants occupying rooms next westerly, which would also be darkened, took a space of about twelve feet in width in part from the defendant’s front office and in part from the office adjoining, for an area which was opened up to the roof and lighted by a skylight and glass partitions put up for the purpose of affording light and ventilation to the rooms on both sides of it. During the time this was being done, the defendant occupied the rooms, but at the same time insisted that if, on- the completion of the work, the offices were not sufficiently lighted and ventilated, and a fair reduction of rent made to cover interruption and loss of part of room surrendered, they would abandon the lease. On completion of the work, April 1, 1878, the question arose with regard to the adjustment of rent on account of reducing the size of the office, and the-plaintiff consented to reduce the amount of rental which should be paid from $700 per year to $550 per year for the remainder of the term, which agreement was iu writing and signed by the agent of the plaintiffs,' and assented to by the defendant. During the quarter between April 1st and July 1st, after the use of fire in the rooms had been discontinued, it was found that the walls of the rooms were so damp that in places on the north wall of the rear office the paper became moist and mildewed, and dropped off in spots. The other walls were also damp to such an extent that the varnished surface was moist, and moisture appeared on tbe surface of oil paintings hanging on the wall. The defendant went to great expense to paper said rooms and make them habitable, and in a short time the paper had in spots on the north wall of the rear office discolored and decayed, rendering the rooms danger, ous to health in such a degree that they were pronounced by physicians an unfit place for the agent of the company, who was suffering from rheumatism, supposed to have been brought on by the damp and unhealthy condition of the rooms.</p> <p>“ The defendant notified the plaintiffs that they should abandon the lease on account of the condition of the rooms, and thereupon they did abandon and surrender said rooms, although the plaintiffs offered to try and have the walls so constructed that the dampness should be avoided. Defend-, ant had informed plaintiffs, prior to their election, that the rooms were in a condition which rendered them untenantable, yet the plaintiffs up to the time of said election had not bettered their condition, but after the defendants had notified plaintiffs of their intention to leave said offices and offered to surrender said lease, the plaintiffs offered to make said offices tenantable if they would continue, but defendants decided to stand by their election, and from the time of their abandoning possession shortly thereafter, and on 1st of July, 1878, neither occupied nor in any manner exercised any control over said offices. The plaintiffs thereupon entered upon said premises and made repairs, and afterwards, on the 1st day of March, 1879, leased the same for the sum of $425 per year for the remainder of the term of said lease, being the best lease which they could effect of the premises, but in entering on said premises, making said repairs and lease, it was mutually agreed between the plaintiffs and defendant, that the plaintiffs should not thereby discharge the defendant from any legal liability they might be under, except to discharge them to extent of rent to be received on new lease.</p> <p>“ The defendants claim to have had the right to abandon the lease on account of the premises not being tenantable, and. plaintiffs claim rent under the lease to the time of making the new lease and difference of rent for balance of time.</p> <p>“ It is agreed, that if defendants are found liable, liabilitjr for full term shall be fixed in like manner, as if same had expired, except that proper discount may be made to cover any amount to be paid before its proper maturity.”</p> <p>The lease referred to in said agreed statement, among other covenants, contains the following:</p> <p>“ An.d the said lessee doth, for itself and assigns, covenant and agree to and with said lessors, their heirs, executors, administrators and assigns.....that said premises and all plumbing therein are in good repair at the commencement of this term, and they shall be kept in good and constant repair by and at the expense of the second party, and shall be delivered up and surrendered to the first party at the expiration of the term aforesaid in as good condition and repair as the same shall be at its commencement, the natural decay and wear and loss by fire not resulting from the carelessness, willful or negligent acts of the lessee, its agents or employees, only excepted; that if said premises are destroyed, this lease shall become void and determine, and all rent thereon shall cease......The party of the first part, their heirs, executors, representatives and assigns, shall have the privilege of entering said premises at proper times to view and inspect the same.”</p> <p>The parties waived the intervention of a jury, and submitted the case to the court upon the agreed statement of facts, which was made part of proof, and filed with _ the pleadings in the case. The court found for the plaintiffs. The defendant excepted to the finding of the court, filed its motion for a new trial, which motion was overruled, the ruling excepted to, and the court rendered .judgment in favor of the plaintiffs.</p> <p>A bill of exceptions was taken, and on petition in error the district court reversed the judgment of the court of common pleas.</p> <p>To reverse the judgment of the district court this proceeding is prosecuted.</p>

<p>A village was annexed to a city in A. d. 1872, pursuant to chapter 57, Municipal Code, (66 Ohio Laws, 267). The “terms and conditions of such annexation” authorized the city (in order to pay certain bonds theretofore issued by the village, under ordinances that contemplated their payment by taxes upon its general duplicate), to collect the money “in the manner and from the property specified or contemplated in ” the said village ordinances. The village territory formed two wards of the city. The city council levied a tax upon the general duplicate of those wards alone, to pay said bonds. This, when added to the other taxes on said duplicates, exceeded the authorized limit of eleven (11) mills. Held:</p> <p>1. The levy of said tax upon the village territory alone, pursuant to the “ terms and conditions of such annexation,” is not forbidden by Article XII,' Constitution of 1851.</p> <p>2. The tax as actually levied was illegal because the statutory limit was exceeded.</p>

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

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

<p>Error to the District Court of Lawrence county. Motion for a re-hearing.</p>

The board of education of Hubbard township, Trumbull county, in June, 1868, commenced proceedings under section 21 of the act of March 14, 1853,'to provide for the reorganization, supervision and maintenance of common schools, S. & C., 1346, as amended May 14th, 1868, S. &. S., 712, to establish in that township a central or high school.

<p>Error to the district court of Cuyahoga county.</p>

<p>R. the owner, having sold land and taken a mortgage thereon from the vendee to secure the payment of the purchase money, executed a release of the mortgage and took a second mortgage on the premises from tire vendee, 'f<jr the balance of the purchase money then unpaid. The release and second mortgage were entrusted by R. to the vendee to be by the latter entered for record. The vendee caused the release to be immediately recorded, but failed to deliver the second mortgage for record. After the release was recorded, the vendee made his notes to L. and executed to him a mortgage on the premises to secure the same, without consideration therefor, which mortgage was within a few days recorded and thereafter, on the 17th of January 1879, the notes were before maturity indorsed and delivered, and the mortgage was assigned by 1. to J. — a bona fide purchaser for a valuable consideration, without notice. After the mortgage to L. had been recorded, the vendee returned the unrecorded mortgage to R. who filed it for record on the 21st of April, 1879. Held:</p> <p>That the mortgage of J. is the first and best lien on the premises.</p>

<p>In the making of tbe statement of the mortgagee required on a chattel mortgage, the agent of the corporation omitted to affix his name thereto. Underneath the statement was a certificate by a notary public duly signed and sealed which in effect stated that the statement was sworn to by the mortgagee before him. Held:</p> <p>That this verification is sufficient prima facie and can only be overcome by evidence that the statement was not in fact sworn to by a proper agent of the corporation.</p>

<p>A person who purchases and slaughters hogs, for the purpose of adding to the value thereof by certain processes and combination with other materials — whereby they are converted into bacon, lard and cured meats, — with a view of malting a gain or profit thereby, is a manufacturer and taxable, as such, under Section 2742 of the Revised Statutes.</p>

Ebbob. Reserved in the District Court of Lucas County. Section 2 of the act of May 18, 1796 (Brightley’s Dig., U. S. Stats., 498), provided that the public lands northwest of the river Ohio “ shall be divided by north and south lines, run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square, unless where the line of the late Indian purchase, or tracts of land heretofore surveyed or patented, or the course of…

Error reserved ,in the District Court of Ashtabula County. On the 12th day of November A. d. 1880, James Christy died testate in Ashtabula countjn He left no issue of his body, no adopted child, and no legal representative of any such issue or child. On the 18tl} day of December, 1880, his will was duly admitted to probate.