Volume 42 — Ohio State Reports, New Series

Eeeor to District Court of Muskingum county. Lemert, plaintiff below, brought an action against Lu-genbeal and others, charging that they unlawfully took a horse and buggy, the property of the plaintiff, and converted the same to their use, for which he asks damages $140, that being, the alleged value of the property. The defendants deny the unlawful taking and conversion, also that plaintiff was the owner of said property.

On June 2,1877, Thomas McGovern commenced an action, as indorsee, before a justice of the peace upon a joint note made by Reuben Yoho and Jacob 0. Yoho, dated February 2, 1877, whereby they promised to pay one hundred and ten dollars on the 1st day of June next after date. Summons was served upon Reuben, but as to Jacob it was returned not found, the latter being a non-resident of the county and making no appearance in the action.

Ebeob to the District Court of Pike county. Dietrick brought suit against Noel to recover possession of real estate. This involved a question of boundary between their adjacent farms. Held: for twenty-one years. There is no question here as to the location of the true line, but only as to the character of the possession of Noel and those under whom he held.

<p>Error. Reserved in the District Court of Richland county.</p>

<p>Application for alternative writ of mandamus.</p> <p>The district court of Hamilton county refused to grant the alternative writ prayed for, and the application is now made to this court for that purpose.</p> <p>There is no denial of the facts stated in the petition, so the question of law presented is, do these facts warrant the issuing of the writ ?</p> <p>The petition, after alleging that defendant is a manufacturing corporation under the laws of Ohio, avers that the plaintiff purchased of a stockholder, a share of stock in the defendant corporation, and received the certificate thereof, duly transferred to him, whereby he became the owner of such share.</p> <p>He avers that he presented said certificate with the transfer thereon, to the officers of the corporation and demanded a transfer of the stock to his name, and that he be enrolled among the list of stockholders, and be recognized as a member, and admitted to all the rights of a stockholder. These requests were refused, and he was then notified that he should not then nor at any other time be so recognized, or be admitted to the privileges of a stockholder, or to vote, or receive any profits or advantages to be derived by a stockholder.</p> <p>Then follows what are claimed as special reasons for granting the writs, as follows:</p> <p>“ Plaintiff further says that defendant company was organized and incorporated, as aforesaid, for the purpose of manufacturing carriages, buggies and other vehicles, in said city of Cincinnati, and has ever since been and now is manufacturing said carriages, buggies and other vehicles, and selling same for profit, and conducting said business; that his right to have said certificate named, transferred on the books of said company, and to have his name registered or enrolled on said book, kept for that purpose by said secretary, for said' company, as a member and stockholder therein, and to become a member thereof, to participate in the management and conduct of the business, is of great and inestimable value to him, not only in the present, but also, and more particularly, in the future, because of the great good will which the said business enjoys and the great prospective value of the business itself; that not only is the said paid up certificate of stock now the property of the plaintiff, of great value, but said company has for several years past been doing a large and profitable business, has • made large sums of money, acquired the title to valuable real estate, now of great value with prospective enhancement, and has a large factory now in operation, which it now owns and holds by legal title, with right of alien-ability, in said city of Cincinnati; and that the prospects for future business, based upon said good-will, and its property and assets, and the growing business of said company are conducive to further earning of large profits, in which the plaintiff, as said stockholder, has a vested right, which, by the said refusal, as aforesaid, he will be unable to acquire and enjoy ; that the real value of said share of stock, based upon the present assets and property of said company, cannot be ascertained with certainty, but in view of said good will and the said growing business will become very valuable by the proper conduct and management of said business, to which the plaintiff is entitled, by virtue of being a stockholder, to have a voice.</p> <p>“ That he has no adequate remedy at law in the premises, and that said company threatened to, and do prevent the plaintiff from any access to the said business or participation in the same, or in the profits, which will certainly be derived in the management of said business, and that the refusal and denial of the rights hereinbefore urged, will work, unless pro-ected by the court, irreparable injuiy to him.”</p> <p>The relator being the undisputed owner of a share of stock in defendant company, and having demanded a transfer to his name, on the books of the company, and such demand being refused, mandamus will be awarded to compel a transfer. Weston v.Bear River Min. Go., 5 Cal. 186 ; People Y.Croclcett, 9 Cal. 112; Green Mountain Turnpilce Go. v. Bulla, 45 Ind. 1; Campbell v. Morgan, 4 Bradw. (Ills.) 105 ; Cooper Y.Oanal Go., 2 Murp. (N. C.) 195; State v. Warren Foxmd/ry Co., 32 N. J. L. 439 ; Townsend'Y. Mclver, 2 S. Car. N. S. 25; Martin v. N. O. da O. R. R., 30 La. An. 308; Field on Corp. § 139 ; 1 Redfield on Railw. 144; 2 Id. 281.</p> <p>And mandamus has been awarded to compel the admission as members to a corporation of those entitled to become such. Rex v. March,- 2 Burr. 999; Da Oosta v. Russia Go., 2 Strange, 783 ; Reg. v. Saddlers Go., Bail Court Cas. 183; People y. Medical Society of Erie, 32 N. Y. 187 ; Lamphere v. Grand Lodge A. O. U. W., 11 N. W. R. 286.</p> <p>And it lias been awarded to compel a corporation to keep a registry and insert therein the names of stockholders. Harris v. Irish Land Go., 3 Ellis & B. 512 ; Beg. v. Bailway Go., 11 Eng. C. L. 408; Beg. v. Midland B'y Go., 9 Law Times (N.S.) 151 ; Morris v. Irish Land Go., 8 Ell. & B. 525 ; Ma-rot y. South-Bast B’y Go., 29 L. J. Q. B. 177; Swan v. North British, etc. Go., 31 L. J. Ex. 425.</p> <p>And generally where the performance of a plain duty is imposed either by statute, charter, custom or contract on an officer of a public or private corporation mandamus will be awarded to compel its performance. Field on Gorp. § 504.</p> <p>Defendant company was organized under the act of April 12, 1858 (55 OhioL. 145) S. & C. 301. Section 81, page 304, provides among other things that the directors, “ shall cause a record to be kept of all stocks subscribed and transferred, and all business transaction, and their books and records shall at all reasonable times be open to the inspection of any and every stockholder,” and this provision has been substantially incorporated into the Revised Statutes, 1880. See section 3242„as amended 80 Ohio L. 42, 3263, as amended 79 Ohio L. 104, 3264, 3268. We are aware that there are a number of authorities in which it has been held that mandamus will not be awarded to compel a transfer of shares, because there is an adequate remedy at law in an action for damages ; but it will be noticed that they were all decided upon one of the follow-lowing points : 1st. That the shares in controversy had an ascertainable market value, and were of that class of stocks bought and sold in the market, and their value could be readily and certainly ascertained. 2d. That there was a controversy, or one likely to arise as to the ownership of the shares, and the title of the relator not clear.</p> <p>This will appear by reference to State ex reí/ v. Peoples B. & L. Ass'n, 43 N. J. L. 389 ; Staelepole v. Seymore, 127 Mass. 104; Murray v. Stevens, 110 Mass. 95; Shipley v. Bank, 10 Johns. 484; Dos Passos on Stock Brokers, 741.</p> <p>This writ lies in all cases where the relator has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate specific remedy exists. C. W. & Z. R. R. Go. v. Clinton Co., 1 Ohio St. 77, 105 ; Moses on Mand. 108; Wood on Mand. 23, 24.</p> <p>In other words, the remedy must be plain, adequate, and give relator full and complete satisfaction, equivalent to a specific relief, to justify the refusal of the writ.</p> <p>And the mere fact that an action or proceeding will lie, does not necessarily supersede the remedy by mandamus. The relator must not only have a specific, adequate and legal retnl edy, but it must be one competent to afford relief upon the very subject matter of his application, and if it be doubtfu-whether such action or proceeding will afford him a complete remedy, the writ will issue. Moses on Mand. 112; 6 Col. 318 ; Fremont v. Crijjpen, 10 Cal. 211; Ethide v. Rail, 7 Porter, 47 ; 23 Cal. 391; People ex rel. v. State Treas., 24 Mich. 469 ; State v. Wright, 10 Nev. 167, 175 ; G. IF. c& Z. R. R. Go. v. Clinton Go., 1 Ohio St. 77, 105 ; Dos Passos on Stock Brokers, 742.</p> <p>Tested by the rule stated in the foregoing authorities an action for damages could under the allegations of the petition be either plain, adequate, or equivalent to the transfer of the share to relator, the value of the share not being ascertainable, and such a remedy, resulting necessarily, in the loss of the stock as property, by a judgment for value, even if such value is ascertainable. The relator’s remedy at law is not only doubtful, but he has no adequate remedy except by mandamus, to give him all he is entitled to, and to allow him to retain his ownership of the share. The rule is that the measure of damages for refusing to transfer a share of stock is the value at the time of such refusal. Railroad v. Robbins, 35 Ohio St. 501.</p> <p>Of course this would deprive relator forever, from enjoj^-ing any of the rights or advantages, which belong to the share, either as an investment, or otherwise, after judgment rendered.</p> <p>How conld the value of the good-will be estimated ? It may be valued as of a certain time, at the death or retirement of a partner or the sale of the business, but not as of a future time, or in a going concern. 3 Kent’s Com. 64 and notes; Collyer on Part. § 162 ; Moody v. Thomas, 1 Disney, 294, 298 ; Gary v. Gunnison, 17 N. W. Rep. 881.</p> <p>The attempt to determine the value of the good will of a going concern like defendant company, at a future time, and the value of its property, assets and business for the purpose of ascertaining relator’s damages by the refusal to transfer the share, recognize and admit him to membership, with its rights and privileges, would be entering into the field of uncertainty, speculation and conjecture, which the law does not permit. Rhodes v. Baird, 16 Ohio St. 573.</p> <p>The relator is not entitled- to the writ of mandamus, because he has a plain and adequate remedy by action in the ordinary course of the law. 2 R. S. of Ohio, § 6744.</p> <p>A mandamus is a writ commanding the execution of an act, where otherwise justice would be obstructed, or the king’s charter neglected, issuing regularly only in cases relating to the public and the government; and is therefore termed a prerogative writ. 3 Bacon’s Abridgment, 527, Mandamus A.</p> <p>Prior to 1853, the date of the adoption of § 570 (2 S. & 0. 1126), there was no statute in Ohio pointing out “ the oc-. casion upon which the writ is to issue.” Matter of Turner, 5 Ohio, 543.</p> <p>The court there adopts the definition of mandaibus, and the rule as to when it will issue, that are laid down by Lord Mansfield in 3 Burrows, 1267.</p> <p>These principles of common law became statutory rules in Ohio, by § 570 (2 S. & 0. 1126), which provided that this writ “ May not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.” Wo submit, therefore, that mandamus will not lie in this case, because the relator had a plain and adequate remedy, by action for damages. The following cases hold, that when a corporation improperly refuses to transfer stock, the party injured has an ample, though not a specific, remedy by action, and that mandamus will not lie. ' King v. Banh of England, 2 Doug. 524; Matter of Shipley v. Mechanics’ Bank, 10 Johns. 484; Exp. Firemen's Ins. Go., 6 Hill, 243; Wilkinson v. Providence Bank, 8 R. I. 22; Baker v. Marshall, 15 Minn. 177 ; State v. Rombauer, 46 Mo. 155; People v. Parker Vein Goal Go., 10 How. Pr. 543; American Asylum v. Phoenix Bank, 4 Conn. 172; Elliott v. Guerrero, 12 Nevada, 105 ; Murray v. Stephens, 110 Mass. 95 ; Stackpole v. Seymoior, 127 Mass. 104 ; State v. Warren Foundry Go., 32 N. J. Law, 439 ; State v. Building Association, 43 N. J. Law, 389 ; Birmingham Fire Ins. Go. v. Gommonwealth, 92 Penn. St. 72, 77; Bank v. Harrison, 66 Ga. 696 ; Hill v. Pine River Bank, 35 N. PI. 300 ; Morawetz Private Corp. § 337 ; King v. London Assurance Go., 5 Barnw. & Aid. 899.</p>

<p>Error to the District Court of Ottawa county.</p> <p>On October 28, A. D. 1878, J. B. Hart, the defendant in error, commenced an action of replevin in the court of common pleas of Ottawa county, Ohio, against Elizabeth Barrett, the plaintiff in error, and one John Mitchell, to recover the possession of a steam tug owned by Elizabeth Barrett, and upon which she had given a mortgage to Hart, to secure the payment of four notes amounting to $750, given for a boiler furnished by Hart for the tug. The notes matured on the 24th day of May in each year, commencing in 1878, and the' first note had been paid at maturity. None of the other notes were due at the time suit was begun.</p> <p>It was provided in the mortgage that the mortgagor was to retain the possession of the tng until default in performing the conditions set forth in the mortgage, one of which was, if TIart should “ at any time deem himself in danger of losing said debt, or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof,” then Hart might take possession.</p> <p>On the trial in the court of common pleas the parties waived a jury and the ease was tried by the court. Hart testified, that at the time this suit was commenced the tug was lying on the bar in Lake Erie, outside of the government piers, she was lying on her side sunk, one side and part of her pilothouse was out of water; she seemed to be going down, she was on a sand-bar; her machinery was under water and damaging ; a northeast wind would have been damaging ; at .the time she was wrecked I do not know what she was used for; while she lay there I could not swear as to the condition of her hull as it was under water; I could not see it; at the time the petition was filed she was lying outside the bar; at that time there was nobody trying to get her off, but there had been; I came from Sandusky that day on the morning train, about ten o’clock, to Port Clinton, where she lay. Then the following question was asked the witness by his attorney, to wit: State whether or not at the time you commenced this suit you thought yourself in danger of losing the debt secured by said mortgage or any part of it if yon longer delayed collecting it? To which question the defendant Elizabeth Barrett then and there objected, on the ground that the witness could not be heard to testify as to what ho thought about the danger of losing his debt or a part of it. When the plaintiff, by his attorneys, stated to the court that they expected the witness would answer that at that time he thought himself in danger of losing said debt, or at least a part thereof, if he longer delayed the collection thereof. But the court sustained the objection and refused to allow the question to be answered by Hart, to all of wliicb ruling the plaintiff, by his attorney, then and there excepted.</p> <p>After other testimony judgment was given for Elizabeth Barrett for $1,500, and the case was dismissed as to Mitchell.</p> <p>The district court reversed the judgment of the common pleas as to Elizabeth Barrett, on the ground that the court refused to allow Ilart, to answer the following question, to wit:</p> <p>“ State whether or not at the time you commenced this suit yon thought yourself in danger of losing the debt secured by mortgage or any part of it if you longer delayed collecting it?”'</p> <p>To reverse this judgment of the district court, reversing the judgment of the common pleas, Mrs. Barrett has filed her petition in error in this court.</p>

<p>A., having executed in due íovm a deed of gift of real estate to his son, said to B.: “ Take this deed and keep it. If I get well I will call for it. If I don’t, give it to Billy,” the grantee. A. was then ill and died within a few days thereafter of the same illness, and B. then handed the deed to the grantee, who caused it to he recorded. Held, that this did not constitute a delivery, and the instrument was invalid as a deed. Crooks v. Crooks, 34 Ohio St. 610, and Ball v. Foreman, 37 Ohio St. 132, approved but d'stinguished.</p>

<p>Notices to liquor dealers under tlie act of 1875 (72 Oliio L. 35, Rev. Stats. §§ 4359, 4360), need not be recorded by clerks of townships and municipal corporations. A tabular statement, showing-the substance óf the notices, is sufficient.</p>

<p>EekoR to tbe District Court of-Hardin county,</p> <p>Strong, as administrator of John D. King, upon a petition in the probate court, and upon a showing that it was necessary, obtained an order for the sale of decedent’s real estate to pay debts. It was alleged that the debts were about $6,000, that the costs and expenses of administration would be about $350, and that the personal assets would not exceed $4,000. The land was encumbered by mortgage and judgment liens, the holders of which were defendants, in the following order: 1st. a mortgage past due to plaintiff in error; 2d. A judgment lien to Mrs. King, and 3d. A second mortgage, also past dno, to plaintiff in error ; in all, the liens amounted to $4,400. Upon this order of sale, the land was sold for $4,125, which was not sufficient to pay liens thereon, aside from the cost of sale and any compensation to the administrator.</p> <p>The sale was made to the plaintiff in error, the holder of the 1st and 3d liens, and the controversy arises upon the order of distribution, which is as follows :</p> <p>1st. To payment of cost.• . $28.54</p> <p>.2d. To the administrator his commissions . on the amount for which the land sold, $4,125, computed at 6 per cent, on first $l,Q00and 4 per cent, on the residue . . . 185.00</p> <p>3d. To apply on the first mortgage to the plaintiff in error ..... 2,609.95</p> <p>■ 4th. To payment of judgments to Sarah E. King, 2d lien .... . . . 1,059.95 Less her proportionate share of the above commission. 53.38 — 1,006.57</p> <p>5th. To apply on 2d mortgage to plaintiff in error, being 3d lien. 294.94</p> <p>$4,125.00</p> <p>This left a balance due plaintiff in error on her second mortgage of $429.17 unsatisfied.</p> <p>On the hearing of the case, it appeared that the personal assets would not exceed $1,700, and that the estate was insolvent, and if the real estate had sold at its appraisement, the liens would have been paid in full, and there would have been a surplus to be used in payment of debts.</p> <p>The plaintiff in error excepted to the order of distribution :</p> <p>1st. Because the administrator could not sell the fee, but must resort to the equity of redemption to pay debts, and therefore could only charge commissions on the surplus arising from the sale, after payment of prior liens.</p> <p>2d. That by proceedings to sell, the administrator could not acquire a lien for commissions and expenses for making the sale to the prejudice of existing liens.</p> <p>3d. That as plaintiff in error was the purchaser, the amount coming to her on her mortgages, was not “ money arising on the sale,” to be administered, and therefore did not come within the statute allowing a per centum compensation.</p> <p>4th. The court erred in allowing commissions on the purchase money at the highest rate fixed by statnte, disregarding the amount of personal estate in graduating the amount., -</p>

<p>ERROR to the District Court of Geauga county.</p> <p>cited Green v. Armstrong, 1 Denio, 550 ; Lansingburgh v. Orary, 1 Barb. 542; Warren v. leland, 2 Barb. 613 ; Pierpont v. Barnard, 5 Barb. 371; McGregor v. Brown, 6 Selden, 117 ; Silmernail v. Qole, 12 Barb. 685; Bennett v. Scott, 18 Barb. 347 ; Put-ney v. Bay, 6 N. H. 430; Olm,stead v. Nile, 7 N. IT. 522 ; Kingsley v. 1Tolbroolc, 45 N. IT. 313 ; 38 Yt. 64 ; 42 Yt. 306 ; Whitmarsh v. Walker, 1 Met. 313 ; Glafivn v. Carpenter, 4 Met. 580 ; Giles v. Simonds, 15 Gray, 441; Burton v. Schaff, 1 Allen, 133 ; Brake v. Wells, 11 Allen, 141; 35 Miss. 700 ; 33 Pa. St. 376 ; 61 Pa. St. 294; 20 Ala. 412 : 21 Iowa, 399 ; 46 Ind. 488; 17 Mich. 375; Jones v. Timmons, 21 Ohio St. 596..</p> <p>cited Hilliard on 'Vendors, 112; Cassell v. Collins, 23 Ala. 676; Tyler on Fixtures, 667; Curtiss v. IIoyt,l§ Conn. 151, 164, 165,166; Brown on Stat. Fra. § 234; Cliitty on Contracts, 302; Fortman v. Goejoper, 14 Ohio St. 558 ; 2 Parsons on Contracts, 315; Bostwick v. Leach, 3 Day, 476 ; KiUman v. Mowlett, 48 N. T. 569; 5 Wait’s Actions & Defenses, 595; Slocum v. Seymour, 38 N. J. (7 Vroom) 138 ; s. c., 13 Am. Rep. 432.</p>

<p>ERROR to tlie District Court of Harrison county.</p> <p>I. Branson, the commissioner, and Jarvis, the surveyor, were disqualified by reason of interest. Robb v. Braohman, 38 Ohio St. 423; Fanderheyden v. Young, 11 Johnson (N. Y.) 158; Cooley on Const. Lim. 410 etseq. / State v. Grane, 36 N. J. 394; State v. Commissioners, 8 Nev. 309 ; Railway Go. v. Howard, 20 Mich. 18 ; Commissioners v. Hunt, 33 Ohio St. 176 ; Gommissioners v. Junldns, 19 Ohio St. 348 ; Burroios v. Arthur, 3 Ohio, 333 ; Ferris v. Bramble, 109. It makes no difference how small the interest is. Gregory v. Railroad Co. 4 Ohio' St. 675 ; Haehett v. Braddoch, 3 Burr. 1858 ; Peck v. Freeholders of Essex, 1 Zab. 656. That there was a quorum concurring, without Branson, makes no difference. 36 N. J. 394 ; 3 N. Y. 547; 1 Disney, 370 ; 26 Me. .254; 10 Peck, 277 ; 86 Eng. C. L. 414; 37 Hale (Col.) 190, md see Bellows v. Pearson, 19 Johns. 172. • The fact that one of the viewers of a proposed public road is a petitioner therefor, is fatal. Fjjler v. Hinman, 5 Ind. 459 ; Doggy v. Green, 12 Ind. 303; In re, Ma/ytown Road, 4 Yeates (Pa.) 479 ; State v. Delesdernier, 11 Me. 473 ; In re Road in Radnor and Newtown, 5 Binney, 612 ; Exp. Hinelcley, 8 Greenl. 146. Where the land over which a road is laid by the county commissioners is owned by a railroad company, a stockholder in the company is not disinterested, and cannot be appointed on the committee. Friend’s Appeal, 53 Me. 387; Bowen v. Bteere, 6 E. I. 251; 5 W. Ya. 448'; Morse on Arbitration, 106, 630 ; Eussell on Arb. (3 ed.) 205 ; Smith v. Cooley, 5 Daly (N. Y.) 401; 87 N. H. 286; 48 N. II. 433.</p> <p>II. No notice was given of the filing- or presentation of the petition for the improvement as required by section 4641, Rev. Stats. ; Grinnell v. Adams, 34 Ohio St. 44, 45 ; Ferris v. Bramble, 5 Ohio St. 109 ; Sessions v. Crunkilton, 20 Ohio St. 349.</p> <p>III. Neither the viewers or surveyor were sworn or affirmed as required by section 4833 Rev. Stats. This was fatal. State v. Jackson, 36 Ohio St. 282 ; Wheeler v. City of Chicago, 57 Ill. 415; State v. Perth Amboy, 38 N. J. 425 ; Merritt v. Tillage of Portchester, 71 N. Y. 309; State v. Hiotchinson, 5 Halsted, 242; 9 Ohio, 94, 95 ; Bryson's Road, 2 Penn. 207; State v. Barnes, 1 Green, 268 ; Trith v. Inferior Cotort, 30 Ga. 723.</p> <p>IY. The vendee of real estate, having an executory contract for the purchase of the same, is not the owner of such real estate. Brush v. Kinsley, 14 .Ohio, 20; McCombs v. Howard, 18 Ohio §t. 422 ; Clmrchill v. Little, 23 Ohio St. 307; 13 N. Y. (S. O.) 553; 36 N. J. L. 181; Pomeroy on Contracts, 386 ; 7 Hun, 572; 1 Bibb, 295 ; 34 Me. 89.</p> <p>Y. All the lands to be assessed were not included in the report and an injunction will lie to resti’ain further proceedings. 24 Ohio St. 232.</p> <p>I. No notice was necessary to be given under the act under which the proceedings in question were had. And the notice as given, of the meeting of the viewers and surveyor was sufficient in substance, form and time. 1 Nash Pi. & Pr. 42; Olcott v. Robinson, 21 N. Y. 150 ; 1 Mass. 255 ; Sheldon v. Wright, 3 Selden, 497.</p> <p>II. If. the auditor had not authority to administer the oath to the viewers and surveyor, it was not such irregularity as would result, in setting aside their proceedings. Woolsey v. Board of Supervisors, 32 Iowa, 133.</p> <p>III. The surveyor, Jarvis, and Branson, the commissioner were not disqualified. As to Jarvis, see sections 4831, 4833, 4835, Rev. Stats. As to Branson, see 11 Pick; 322; 3 Ohio. 290; 27 Ohio St. 662; 20 Ohio St. 507 ; 5 Iowa, 552. The acts of the commissioners were not j udicial. MoMeelcen v. Cincinnati, 4 Ohio St. 394 ; 27 Ohio St. 649 ; 27 Ohio St. 232; 17 Ind. 169; 12 Conn. 464; 8 Met. 69; 29 Mich. 19; 30 Mich. 351.</p> <p>IV. As to lands omitted by the viewers by místate. The plaintiff claims they should have been added, by the commissioners, to the list before the final order for the improvement. We say not, see section 4838 Rev. Stats. The commissioners have no power to do anything in the premises until after the final order. Then they have. Glenn v. Waddel, 23 Ohio St. 605; Parlcer v. Burgett, 29 Ohio St. 522; 25 Ohio St. 308.</p>

<p>1. An agreement made on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name; and the facts that the instrument evidencing such agreement is under seal, and that such third person is not named therein, do not affect the right to enforce it.</p> <p>2. Where a bridge company, owning a toll bridge, sells it, under authority of law (66 Ohio L. 22, 338), to the commissioners of a county, for a consideration, in money, paid to a controlling stockholder of the company, who, to induce, and as part consideration of, the purchase, gives his bond for the use and benefit of the county, conditioned, among other things, “.to pay oil all liens and debts, whether in judgment or otherwise, existing against said bridge,” judgment creditors of the company, who had an execution lien upon the bridge at the date of the bond, may recover the amount of their judgment thereon against the obligor.</p> <p>3. The statute of limitations does not interpose a bar to recovery upon such an instrument within fifteen years from the accruing of the cause of action upon it.</p> <p>4. In an action to recover the amount of a judgment theretofore rendered, the plaintiff is entitled to recover interest upon the costs adjudged to him, from the date of the original judgment to the time of recovery.</p>

<p>The owner in fee of real estate conveyed the same to a trustee to secure a debt to a third person. After the granting clause to the trustee in fee, there was a condition that if the debt was paid at maturity the conveyance was to be void, otherwise the trustee was authorized to sell the land at public sale to pay the same.</p> <p>Held: 1. This conveyance was a deed of trust in the nature of a mortgage and not an absolute conveyance in trust to secure the debt.</p> <p>2. The legal title remains in the grantor or mortgagor in possession after default, subject to the right of the trustee or creditor, to enforce the condition of the mortgage.</p> <p>3. The fact that the conveyance is to a trustee, with power of sale in case of default, does not change its character in this respect.</p> <p>4. A judgment against the grantor who remains in possession of the premises, with the acquiescence of the mortgagee, after default, is a lien on said premises, subject to said mortgage.</p>

<p>Eekob to the district court of Montgomery county.</p>

On January 8, 1883, G. & B. Gerdes, defendants in error, by their attorney made an affidavit before a justice of tbe peace that Young & ~Wohlater being indebted to them, bad property and rights in action which they concealed, and have removed and are about to remove their property out of the county, with intent to defraud their creditors, and upon this affidavit caused an attachment to be issued, under which the property of plaintiffs in error was seized. .On January 13,…

<p>1. A mutual fire insurance company organized under the laws of another state, but similar to domestic mutual fire insurance companies, which lias at least $50,000 in premium notes, on which at least $10,000 in cash has been paid before commencing the business of insuring, may, so far as its capital is concerned, be admitted to transact business within this state.</p> <p>2. "Where a public officer is called upon to perform a plain and specific public duty positively required by law, ministerial in its nature, calling for the use of no discretion, nor the exercise of official judgment, his performance of such duty may, upon his refusal and in the absence of other means of relief, be enforced by mandamus.</p> <p>3. When such officer, in determining upon the performance of a public duty, is called upon to use official judgment and discretion, his exercise of them, in the absence of fraud, bad faith, and abuse of discre- . tion, will not be controlled or directed by mandamus.</p> <p>4. Where a foreign insurance company, tendering compliance with our laws, applies for authority to transact its business within this state, the superintendent of insurance has no power, in the exercise of a mere arbitrary discretion, to refuse such admission.</p> <p>5. It is within the province of such superintendent, in considering the application of such insurance company for admission to transact business within this state, to inquire into its financial soundness, and . if upon such inquiry, made in good faith, he is not satisfied of its financial soundness, he is invested with discretion to refuse such, admission, and his exercise of such discretion will not be controlled by mandamus.</p>

Habeas Coepus. At the November term, 1883, of the court of common pleas of Ashland county, Joseph D. Mumper recovered a judgment against Thomas White for $1,000 and costs, in an action for malicious prosecution. White’s property, real and personal, worth $10,000, was sold by- him while the suit was pending.

The plaintiffs, as indorsees, sued Eishop, as indorser of a note made by Nancy M. Wiley and J. A. Wiley, of which the following is a copy : “$200. Zanesville, Ohio, Jany. 10, 1876. “ Five years after date we promise to pay to the order of Henry A. Eishop two hundred dollars, at six per cent, annually. Yalue received. Naijoy M. Wiley.

<p>In order to preserve tlte lien of a chattel mortgage beyond the first year the filing of the verified statement and copy required by section 4155 of the Revised Statutes, must be done during the thirty days immediately preceding the expiration of the year. The refiling of the mortgage with such statement before the commencement of the thirty days is not sufiicient.</p>

<p>1. In a general sense, a tax is an assessment, and an assessment is a tax; but there is a well-recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity, and levied with reference to special benefits to the property assessed.</p> <p>2. A municipal corporation insisting on the right to impose an assessment, should be able to show that such power has been cleaily granted to it by statute; but authority being shown, in general terms, to make the assessment, whoever insists that his property is exempted from the burden will bo required to support his claim by a provision equally clear.</p> <p>3. An incorporated cemetery association is not relieved from an assessment for a street improvement by a statutory provision exempting its lands from taxation, such exemption being regarded as confined to taxes as distinguished from local assessments.</p> <p>4. While the lands of an incorporated cemetery association, so far as exempted, cannot be sold to pay an assessment for the improvement of a street, the municipal corporation may enforce the assessment by such remedies as the statute and courts of equity afford.</p>

<p>1. The commission, created by “ An act to provide for additional accommodations for the insane,” passed April 18, 1888 (80 Ohio L. 181), was authorized to adopt plans limited by the act, but had no power to adopt plans which provided for the expenditure of a sum that exceeds $500,000.</p> <p>2. After the adoption of valid plans provided for by that act, the further proceedings in erecting the building (including giving public notice for bids, etc.), are governed by the statutes relating to public buildings. Title 6, Chapter 1.</p> <p>8. Until proper plans are adopted, no valid notice for bids can bo given, and no valid contracts thereon can be made.</p>

Joseph C. Thompson, one of the defendants in error, filed liis petition in the court of common pleas of Allen county, setting up in substance, that on October 5, 1878, he recovered a judgment before a justice of the peace in Ottawa township, Allen county, Ohio, against William McComb, Jr., and that on said October o, 1878, a transcript of said judgment was filed in the office of the clerk of the court of common pleas of Allen county, and entered on the execution docket.

ERROR t-o the Common Pleas of Jackson county. Luke Jones, William Jones and Laban Stephens were jointly indicted for the murder of Anderson Lackey, while attempting to rob him in his own house, on the night of April 28, 1883. Luke and William Jones were first tried and cónvicted.

<p>MotioN for leave to file a petition in error to reverse tbe judgment of tbe Court of Common Pleas of Hamilton county.</p>

On October 23,1882, Scbults recovered a judgment against John G. Roig for $057.21 and costs, in.the court of common pleas of Lorain county, and caused execution thereon to be levied on the land in controversy, as the property of the defendant Roig, situated in said Lorain county.

<p>ERROR to the District Court of Franklin county.</p>

At the May term of the court of common pleas of Athens county A. D. 1882, William Dilcher, the plaintiff in error, was indicted for procuring, persuading and suborning James M. Stewart, to commit perjury. He was tried and convicted. The judgment of conviction was reversed by this court and the cause remanded for a new trial. Dilcher v. State, 39 Ohio St. 130. He was again convicted, and to reverse the judgment of conviction the present proceeding is prosecuted.

On December 1, 1846, one John Mears, being the owner in fee simple of certain real estate in the city of Cincinnati, by deed duly.executed, leased the same to Winthrop E. Smith, his heirs and… Held: and also the further proposition is stated, in the second division of the syllabus, “ that after an unconditional assignment by the lessee, he is not liable for future rents,” that is to say, he is not liable even to the original lessor.

The case is sufficiently stated in the opinion of the court. The cases of Ohio v. Frysinger, error to the district court of Yan Wert county, and Curtis v. State of Ohio, error to district court of Erie county, were argued and decided with the principal case.

The plaintiffs here, were plaintiffs below, to wit: Lewis A. Cahoon, Matilda Gr.

Jolm McKisson was tlie executor of the estate of Isaac Jarrett. His first settlement of account was passed upon by tlie probate judge July 26, 1867; and bis second settlement account was passed upon February 1, 1878.

<p>EititoB to the District Court of Brown county.</p> <p>Proceedings were bad under section 4511 of the Revised Statutes, which provides that, “The trustees of any township may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located, and constructed, as hereinafter provided, any ditch, within such township.”</p> <p>The original action was by M. Hatton and Isabella Hatton against A. McQuillen before the trustees of Perry township, Brown county. M. Hatton and Isabella Hatton are husband and wife, and were the only petitioners for the proposed ditch. Isabella and McQuillen are the owners of the land adjoining the line of the proposed ditch. Since the commencement of these proceedings A. McQuillen has deceased, and his executrix was made a party.</p> <p>The proceedings were regular, and the trustees located and established the ditch partly on the lands of Isabella Hatton and partly on the lands of McQuillen. McQuillen appealed to the probate court, and a jury tidal was had there, under the provisions of Revised Statutes, section 4533 and following, and the jury found in favor of the establishment of the ditch. McQuillen moved for a new trial, which motion was overruled, and entry made establishing the ditch.</p> <p>On the trial, some of the witnesses on behalf of Hatton testified that, in their opinion, the proposed ditch would be conducive to public health, convenience and welfare ; and on cross-examination they assigned as a reason for such opinions, that the proposed drain would enable Hatton and McQuillen to raise larger crops and that these larger crops would be a public benefit, and in this way only would the proposed ditch be conducive to public health, convenience and welfare.</p> <p>Thereupon McQuillen asked the court to charge the jury some thirteen propositions, which the court refused to give and to Which refusal McQuillen excepted, and took a bill of exceptions. The last part of the ninth proposition is as follows, to wit: “ The mere fact that the ditch in question might enable Mr. Hatton or Mr. McQuillen to raise more corn or other grain does not authorize you to return a verdict in favor of the establishment of the ditch.”</p> <p>And the tenth is, — “ The fact that the ditch in question might enable the petitioner to raise larger crops is a fact going to show that they would be privately benefited, but it requires more than this to authorize you to find a verdict showing that it would be conducive to public health, convenience or welfare to locate the ditch.</p> <p>“ If you find that the petitioners, M. Hatton and Isabella Hatton and the appellant A. McQuillen are the only persons in any way interested in the location of the ditch, and that it would not be conducive to public health convenience or welfare to locate the ditch in question, then, and in that case, you should return your verdict against the proposed ditch.” The latter part qf the tenth was given, the rest was refused. The proceedings were taken on error to the court of common pleas, where the judgment of the probate court was affirmed; and the district court affirmed the judgment of the court of common pleas. McQuillen is now here seeking to reverse the judgment of the district court.</p>

<p>In prosecutions under section 6901 of the Revised Statutes, for compounding or abandoning, or agreeing to compound or abandon criminal prosecutions, threatened or commenced, it is not necessary to aver in the indictment, or prove on the trial, that a crime had been actually committed by the person so prosecuted.</p>

<p>MotioN for leave to file a petition in error to reverse the judgment of the Court of Common Pleas of Hamilton county.</p>

Lawrence county. William Gore, sen., owner of a tract of land in Lawrence county, conveyed it in 1858 to his son, Madison Gore, who died in 1864, seized thereof, leaving to survive him his widow Elizabeth and three children, Delilah Keyes, Tabitha Mitchell and James M. Gore.

The original action was brought by Elizabeth Archer against Schmulbach Brewing Co., before a justice of the peace of Belmont county, to recover damages in the sum of $300, for that “ on June 23, 1883, while crossing a public alley in the city of Bellaire, she was, by reason of negligence and reckless and careless driving by the agent and servant of the defendant, struck and run over by a beer wagon of the defendant, thereby injuring her greatly and permanently, and causing…

This was a petition in the common pleas against the village council of Hanover, to compel that body to order an election as required by sections 1633 to 1647 of the Revised Statutes on the question of the surrender of its municipal powers.

<p>K.,-engaged in the traffic in liquors on the premises occupied by him as a tenant, made to the assessor the returns provided in the act commonly known as the Scott law (80 Ohio L. 164), and on May 5, 1883, commenced suit against the county auditor and county treasurer, for the purpose, it is claimed, of restraining the levy and collection of the assessment, and also filed a motion, accompanied with affidavit for an injunction, hut such motion was never submitted to or decided by the court. Subsequently to the time provided for the collection of the assessment, the auditor and .treasurer demurred to the petition, at which time, consistently with the record, the tax may have been voluntarily paid: Held :</p> <p>1. Even if the petition is sufficient, a reviewing court cannot say, in the circumstances, there was error to the plaintiff’s prejudice in sustaining the demurrer and dismissing the petition.</p> <p>3. Where a petition for such a purpose is not only general, hut vague and • indefinite in its allegations and object, it is to be regarded as insufficient in substance and not merely in form.</p> <p>3. Assuming, without deciding, that the Scott law, so called, is unconstitutional in all respects, still, the petition in this case does not state facts sufficient to constitute a cause of action, and hence there is no error.</p>

<p>1. Whether a statute is in effect a license law, and therefore in conflict with the eighteenth section of the schedule to the constitution of 1851, must be determined from the operation and effect of the statute, and not from the form it may he made to assume. State v. Hipp, 38 Ohio St. 199, followed and approved.</p> <p>2. The act of 1883, commonly called the Scott law (80 Ohio Laws, 164), so far as it provides for a lien on real estate occupied by a tenant who isa dealer in liquors, is, in effect, such license law, and therefore unconstitutional, whether the lease be executed before or after the passage of the act, and it will make no difference that the owner, in any case, has consented in writing to such traffic.</p> <p>3. Whether the act known as the Scott law, is in any other respect unconstitutional, is a question not presented by the record in this case, and it is therefore not decided.</p>

On November 23, 1880, the trustees of the Cincinnati Southern Railway, a board appointed by the superior court of Cincinnati, under an act of the general assembly of the State of Ohio, passed May 4, 1869 (66 Ohio, 80; Rev. Stat. § 8303), passed a resolution declaring the necessity for the appropriation of certain property and their intention to condemn and appropriate the same to tlie uses of the railway, of which they were trustees, for the purposes of terminal facilities…

<p>MotioN for leave to file a petition in error to the District Court of Butler county.</p> <p>The original action was a proceeding before a justice of the peace, by Mrs. Winterstein against Abraham Rothwell and wife, under chapter nine, title three, of Revised Statutes, for the unlawful and forcible detention of a house and lot situated in the city of Hamilton in said county. Upon the trial of the case, judgment was rendered in favor of the plaintiff and an order of restitution was issued,</p> <p>It appears from the record that Mrs. Winterstein was a married woman and the owner in her sole and separate right of the premises in controversy, but neither of these facts appeared in the complaint.</p> <p>To reverse this judgment the defendants made application to the court of common pleas of Butler county for leave to file a petition in error, and assigned for error, 1. That the plaintiff had no legal capacity to sue. 2. That the'complaint did not show that the premises in dispute were her sole and separate property, and that the justice erred in overruling a motion to dismiss the action for these reasons. 3. That the justice erred in rendering judgment against them for all the costs made in the case.</p> <p>Upon the hearing of this application the court refused leave to file a petition in error.</p> <p>Thereupon a petition in error was filed in the district court of Hamilton county by Rothwell and wife to reverse the judgment of the justice of the peace, and also to reverse the ruling and refusal of the court of common pleas in refusing leave to file a petition in error.</p> <p>In the district court a motion was made by Anna L. Win-terstein, defendant in error, to dismiss the petition in error therein, for want of jurisdiction. This motion the district court sustained and rendered judgment in favor of defendant in error, against the plaintiffs in error, for her costs therein taxed at $16.37.</p> <p>Leave is now sought to file a petition in error in this court to reverse the judgment of the courts below.</p>

<p>Eiíeob to the District Court of Pike county.</p> <p>Michael and Peter Nessler furnished to the contractors of the Scioto Talley Railway Company, plaintiff in error, to be used in the construction of its railroad, certain cross ties. Within thirty days after their delivery (in October, 1877), —their claim for the ties being wholly unpaid, — the Nesslers served a notice in writing upon W. A. Hutchins, a director of the railway company, of the furnishing of such cross ties, such as is required by “ An act to secure pay to persons performing labor or furnishing materials in constructing railroads,” passed March 31, 1874 (71 O. L. 51).</p> <p>Thereafter, the Nesslers sold and assigned their claim for the ties to the defendant in error, who brought his action upon it against the company in the court below. His judgment of recovery was affirmed on error in the district court, and to reverse this judgment of affirmance, the present proceeding is prosecuted. The alleged insufficiency of the notice of the furnishing of the ties is chiefly relied upon to reverse the judgments below.</p> <p>cited Dunn db Witt v. Banhin, 21 Ohio St. 132; By. Co. v. Gronin, 38 -Ohio St. 122 ; Farrell Foundry Go. v. Dart, 26 Conn. 3T6; Ang. & Ames on Corp. §§ 306, 308; Ouster v. Tomphins County Banh, 9 Barr (Pa.) 21; Ins. Go. v. Shriver, 3 Md. Ch. 381 ; Banh v. Cunningham, 24 Pick. 270 ; Story on Agency, §§ 140b, 140e; Oraighead v. By. Co., 9 H. of L. 711; National Exchange Go. v. Drew, 2 Mich. 105 ; 6 Ellis & B. 963 : 2 De Gre;x, M. &. O. 522; 2 H. of L. 497.</p> <p>People v. Tweed, 13 Abbott Pr. 442 ; Rev. Stat. § 3248 ; By. Go. v. McPherson, (Mo.) 4 Am. L. Reg. (N. S.) 567; Maynard v. Ins. Go., 8 Am. L. Reg. 186 ; Smith v. Boyalton Banh, 32 Yt. 341; 121 Mass. 490 ; Ang. & Ames on Corp. § 306,</p>

<p>1. Where there has been such acquiescence in the decision of a court that it has become a rule of property, such decision will not be overruled unless it violates fundamental principles, or is clearly wrong and mischievous in its consequences.</p> <p>2. An order of the probate court for the sale by a guardian of the real estate of his ward, where the bond provided for in the statute (1 S. & C. 676, §§ 27, 28 ; Rev. §§ 6285, 6286) is not given, although it may be erron eous, is not void. Mauarr v. Parrish, 26 Ohio St. 686, followed and approved.</p>

<p>.MaNDAMus.</p> <p>On June 23, 1884, Banks & Brothers, of New York, made application to this court for a writ of mandamus, and presented a petition therefor, which, omitting caption, signature of counsel and verification, is as follows : “ Your petitioners, David Banks & A. Bleeeker Banks, partners as Banks & Brothers, respectfully' represent, that on April 17, 1882, the general assembly of Ohio passed the following joint resolution : ‘Joint Resolution providing for the publication of the Ohio State Reports and the advance sheets of the same. Be it resolved by the general assembly of the state of Ohio, that the secretary of state be and he is hereby authorized to contract with some-responsible person or firm to furnish materials, print bind and supply the state with three hundred and fifty copies of the thirty-eighth and any other subsequent volume or volumes of the Ohio’State Reports, that may be ready for publication wfithin two years from the 23d day of June, 1882; said contract to be made with the lowest responsible bidder, as provided in section 2, article 15 of the constitution, after first giving public notice to bidders for four weeks in some weekly newspaper in Columbus, Ohio, and of general circulation in the state. Said contract to be made in accordance with the provisions and subject to the limitations and instructions of section 437 of the Revised Statutes, as to cost and otherwise, and shall include the advance sheets provided for in said section. The volumes to be in quality of paper and binding equal to volume 1, Ohio State Reports, as provided by law.’ 79 Ohio Laws, 249.</p> <p>“ On June 16,1882, in pursuance of the resolution, Charles Townsend, then secretary of state of the state of Ohio, and acting as such, made and entered into the following contract with H. W. Derby & Co., which contract said H. W. Derby & Co. did in June, 1882, assign to these relators for good and valid consideration, and thereby these relators succeeded to all the rights and liabilities of said H. "W. Derby & Co. under said contract: ‘ This agreement made and entered into this 16th day of June, 1882, by and between H. "W. Derby & Oo., of the city of Columbus and state of Ohio, of the first part, and the state of Ohio, of the second part, witnesseth, that whereas, in pursuance of the provisions of section 437 of the Revised Statutes of Ohio, and as amended January 17, 1882, in relation to contracts for furnishing the materials, printing 'and binding of the Reports of the Supreme Court of Ohio, and in pursuance of the provisions and requirements of the joint resolution of the general assembly of the state of Ohio adopted April 17, 1882, requiring the secretary of state to let said contract to the lowest responsible bidder therefor, after giving public notice to bidders for four weeks in some weekly newspaper published in Columbus, Ohio, and of general circulation in the state. And whereas the secretary of state did, prior to the 6th day of June, 1882, give notice as therein required, in the Ohio State Journal, a weekly paper of general circulation published in Columbus, Ohio, for four consecutive weeks : a copy of which notice is hereto attached, marked A. And whereas, on said 6th day of June, 1882, at 12 o’clock M., the said secretary of state received divers bids therefor in writing, and opened and examined the same in the presence of the several bidders, and it appearing from said examination and the bid of H. W. Derby & Co., which is hereto attached marked B., that the said H. W. Derby & Co. were the lowest responsible bidders therefor. And whereas the said secretary of state accepted the same and awarded the said contract t,o the said H. W. Derby & Co. Now, therefore, for the consideration herein after named, the said H. W. Derby & Co. hereby agree and bind themselves to furnish the materials for and print and bind, on paper and in character and quality of binding, equal to volume 1, Ohio'State Reports, in the manner in all respects and with the expedition as provided by law, a sufficient number of copies of volume 38, and of the next succeeding volume or volumes, if any, of the Ohio State Be-, ports that are or may be ready for publication within two years from and after the 23d day of June, 1882, to supply the State of Ohio with three hundred and fifty copies of each volume so to be published, and to deliver the same to the secretary of state, at his office at Columbus, Ohio, as soon as bound, at 92-¡¿- cents per volume. And the said H. W. Derby & Co. further agree and bind themselves to furnish the materials for and to print and bind on like quality of paper and character of binding and with like expedition and promptness, and to furnish a sufficient number of copies of each of the said volumes of the reports so as aforesaid to be published, to supply the demand of the citizens of the state at a cost not exceeding one dollar and fifty cents per volume, the same to be delivered and kept for sale at Columbus, Ohio. And the said H. W. Derby & Co. agree that their price per volume of the reports to any person or firm, for use or sale in this state, shall not exceed the sum of $1.50, being the sum named in the said contract with said secretary of state, for a period of twenty years. And the said IT. W. Derby & Co. further agree, that upon the receipt from the secretary of state, or other officers, of sufficient manuscript reports of said Ohio State Reports, herein required to be published, to make a form of 16 pages of printed matter of the size and kind required by law, that they will, in every such case, cause the same to be set up in a form as required by law and furnish to said secretary of state a proof sheet of such form or forms, and when said proof sheets shall have been duly corrected by the officer required by law to correct the same, shall be returned by said secretary of state or such other officer to said II. W. Derby & Go., and saidH. W. Derby & Co. shall print such number of copies of such corrected form or forms as said secretary of state may require, not exceeding two hundred of each, and immediately deliver the same to said secretarry of state at his office at Columbus, Ohio, free of all charge and expense to the state.</p> <p>‘ In consideration of the covenants and agreements herein made by the said EL. W. Derby & Co., parties of the first part, the said State of Ohio, party of the second part, hereby agrees that the said II. W. Derby & Co., as such contractors, shall have the sole and exclusive right to publish the reports aforesaid so far as the said State of Ohio can confer the same, for and during the said period of two years commencing with said 23d day of June, 1882, and that they shall moreover be furnished with all the manuscript thereof to be printed, as provided by law.</p> <p>‘ In witness whereof the parties hereto have hereunto subscribed their names and affixed their seals this day and year first above written.</p> <p>‘ II. W. Derby & Co., party of the first part.</p> <p>£ Chaules Townsend, Sec. of State, party of the second part.</p> <p>£ For value received we hereby assign all our rights and interest in the within contract and agreement to Banks & Brothers, 144 Nassau St., New York, this — day of June, 1882. II. W. DERBY & Co.’</p> <p>“ The relators say they have proceeded to carry out all the terms and conditions of the contract, and have in all respects complied with the same, and are still ready and willing to comply with the terms and conditions thereof in all respects. And they say that the respondents (James W. Newman, secretary of state and E. L. De Witt, reporter of the supreme court) have furnished to them, under said contract, prior to this 23d day of June, 1884, manuscript for a part of what will be, when published, volumes 41 and 42 of the Ohio State Reports, volume 41 being supreme • court commission and volume 42 supreme court reports ; and these relators have furnished the material for and have printed all the manuscript copy which has been furnished for said volumes 41 and 42 of said Ohio State Reports, as required by the contract, and have in so doing been at great expense of labor and material. The manuscript so furnished under the contract by the respondents to the relators, amounts to about 75 printed pages of volume 41 and 32 pages of volume 42 of the reports, and the relators have been required to furnish materials for and print the same, and in so doing have been required to prepare materials for and to make contracts for the printing and binding of said volumes 41 and 42 of said Ohio State Reports, entire.</p> <p>“ The relators are now ready and willing and fully prepared to complete and furnish said volumes 41 and 42 of the Ohio State Reports in the manner provided for in the contract, but they say that the respondents, James W. Newman, as secretary of state, and E. L. De Witt, as reporter of the supreme court, decline to furnish any more manuscript copy for either of the volumes, although they have a large amount of the same on hand which should be furnished, and the relators have made demand on each of them therefor ; and the relators still refuse as aforesaid. No other or further contract has been made for the printing of said reports.</p> <p>“ The relators are without .remedy in the premises unless it is afforded by the interposition of this court, and they therefor pray that a writ of mandamus may issue against James W. Newman, secretary of the state of Ohio, and E. L. De Witt, reporter of the supreme court, directing them to furnish to the relators sufficient manuscript copy to fully complete said volumes 41 and 42, under the terms of the aforesaid contract, and that such further orders may be made as the cáse may require.” '</p> <p>De Witt, by his answer, “ admits that the allegations of the petition are true, but says that the contract set forth in the petition of the plaintiffs expired on the 23d day of June, 1884, and no new contract has been made with Banks & Brothers or with any one else by the secretary of state for the further printing of the Ohio State Reports, and no resolution has been passed by the general assembly of Ohio authorizing him to make any further contract in that behalf.” And the answer of the defendant N ewman is in the same form.</p> <p>It appears that previous to the publication of the forms of vols. 41 and 42, above referred to, the whole body of vols. 39 and 40 had been printed, except the indexes.</p> <p>The Revised Statutes provide, with respect to the publication of the Ohio State Reports, as follows :</p> <p>“ Sec. 427. The reporter shall, when required by the court, attend its sessions and consultations, and, under its direction, report and prepare for publication its decisions, and such other decisions as it designates. (69 v. 99, § 2.)</p> <p>“ Sec. 428. The court shall cause to be reported, with as much brevity as practicable, each of its decisions, whether made in disposing of a motion or otherwise, that determines or modifies any theretofore unsettled, or new and important, question of law in this state, or that gives construction to a statute of ambiguous or doubtful import, together with such other of its decisions as are deemed of public interest and importance. [69 v. 99, § 3.]</p> <p>“ Sec. 429. The reporter immediately after the decision of any case to be reported, shall prepare for publication a report thereof, under the direction and supervision of the court, and in general conformity with the plan hitherto adopted and pursued, and deliver the same, in manuscript, to the supervisor of public printing or Other officer having charge of the state printing, and take his receipt therefor, which receipt shall be filed in the clerk’s office, with the other papers in the case; but no argument of counsel shall be published with such report, other than a brief of the points made, and authorities cited and relied upon by counsel, unless especially ordered by the court. [69 v. 99, § 4.]</p> <p>“ Sec. 430. When the supervisor, or other officer, receives sufficient manuscript reports to make a form of sixteen pages of printed matter of the size and kind herein required, he shall deliver the same to the printer having the contract for the printing thereof, who shall forthwith cause the same to be set up in a form, as aforesaid, and after such form is duly corrected and approved by such supervisor, or other officer, the reporter shall cause to be printed three thousand copies of such reports; which copies shall be delivered to the supervisor, or other officer ; the manuscript shall likewise be returned to the supervisor, or other officer, to be by him kept, subject to the order of the reporter. [69 v. 99, § 5.]</p> <p>“ Sec. 431. On receiving the copies, the supervisor, or other officer, shall deliver to the secretary of state a sufficient number of the same to supply the state officers, judges of the supreme court, judges of the supreme court commission, judges of the courts of common pleas and superior courts, and clerks of the courts of common pleas, for the sole use of their offices, respectively, with one copy each; and the secretary shall forthwith forward-the same by mail to said officers, respectively; and the remainder of said copies the supervisor, or other officer, shall carefully preserve till a full volume is so printed, and shall then cause the same to be bound as hereinafter provided. [69 v. 99, § 6.]</p> <p>“ Sec. 432. The reports shall be printed on good paper, and bound in law-leather, in style not inferior to volume one Ohio State Reports, and shall be in form and manner of execution similar thereto ; and each volume thereof shall contain all the cases for report and prepared, decided during the year ending on the first day of April immediately preceding the publication of such volume, and such others theretofore decided as the court directs; and the court may, for the sake of uniformity in the size of the volumes, or for other good cause, direct a volume to be closed on a different day, and the issuance thereof with a less or greater number of cases; and each volume shall contain an index and table of cases similar to those in volume one, which the reporter shall prepare and furnish to the supervisor, or other officer, to be printed, delivered, and distributed, as aforesaid, in time so as not to delay the publication of such volume. [69 v. 99, § 7.]</p> <p>“Sec. 433. When the printing of any volume is completed, as aforesaid, the supervisor, or other officer, shall cause the copies thereof not distributed, to be bound according' to law, and'shall deliver the same so bound to the secretary of state, together with a statement of the actual cost to the state of publication per volume; and the secretary shall forthwith send by mail to the several clerks of the court of common pleas in the state such statement per volume, with ten per centum added thereto; and thereupon, on the receipt in money of the price with such per centum added per volume, accompanied with a certificate, to be made and delivered without cost, of any such clerk, under seal, or other satisfactory evidence that each copy of the report thus sent for, is for the actual use of some person being a citizen of. this state, the secretary shall pay such money into the state treasury, and forward such copy or copies to the person or persons so transmiting the price thereof; but no more copies shall be sold in any county than would be sent thereto, were the whole edition distributed among the several counties according to their population, respectively. [69 v. 99, § 8.]</p> <p>“ Sec. 434. After receiving the number of copies of the first edition of any such report necessary for the distribution authorized by law, and a sufficiency in addition to supply the probable demand for actual use in this state, the residue thereof shall be disposed of in such manner, by way of exchange for works on law and equity for the use of the state law library, or otherwise, as the supreme court or the general assembly by resolution directs; but the court,shall not authorize the sale of any volume for less than the cost price thereof, with ten per centum added ; and no volume of the first edition of any such report shall be sold, or offered for sale in this state, to any citizen thereof, for more than such cost price, with twenty per centum added; and any person violating this provision is guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than ten nor more than one hundred dollars. [69 v. 99, § 9.]</p> <p>“ Sec. 435. The commissioners of public printing shall, at the same time and place, in the same manner and under the same restrictions and requirements that they advertise and let the other public printing of the state, advertise and let the printing required by this chapter to be done; each volume of the reports to be equal in quality and mechanical execution to volume one Ohio State Reports ; and the binding herein required shall likewise be provided for by the commissioners; but they shall cause the same to be done at the binding department of the deaf and dumb asylum, if, in their judgment, that be practicable. [69 v. 99, § 10.]</p> <p>“ Sec. 436. The reporter shall secure a copyright, for the use of the state, for each volume of the reports so published; and he shall receive such compensation for his services, not exceeding eighteen hundred dollars per year, during the time the supreme court commission is in session ; and at all other times not exceeding one thousand dollars yearly, payable out of the state treasury, in such installments as the supreme court, by order entered on its journal, directs. [73 v. 172, §11-]</p> <p>“ Sec. 437, as amended January 17, 1881, 78 Ohio Laws, 14. In lieu of the letting, and printing, and binding of the reports by the means aforesaid, the secretary of state, when and as often as he is thereto authorized by resolution of the general assembly, may contract with any responsible person or firm to furnish the material and to print and bind in the manner in all respects, and with the expedition provided in this chapter, a sufficient number of copies of each volume of the reports to supply the state with three hundred and fifty copies at a cost not exceeding one dollar and fifty cents per volume, and the demand of the citizens of this state, at a cost not exceeding one dollar and seventy-five cents per volume, delivered at some convenient point within the state ; and, in addition thereto, to furnish the secretary promptly with a requisite number of advance sheets of such reports, as herein provided, for distribution as aforesaid, and the price per volume of the reports to any person or firm in this state shall not exceed the sum named in the contract with the secretary, for a period of twenty years; but nothing in this chapter shall prevent the person or firm so contracting with the secretary from doing or causing the work to be done outside the state of Ohio ; and such person or firm so contracting shall enter iirto bonds to the state, with at least three good and sufficient sureties, residents of the state, to the satisfaction of the governor, in the sum of ten thousand dollars, conditioned for the printing and binding, as provided in this chapter, of such reports for the state, and for citizens thereof, on demand, at a cost named in such contract, and for the furnishing of such advance sheets for distribution, as aforesaid. Such contract shall not be for a longer period than two years ; and such contractor shall have the sole and exclusive right to publish such reports, so far as the state can confer the same, during such period of two years, and shall be furnished with the manuscript to be printed as provided in this chapter.”</p> <p>All the duties with respect to the publication of the Ohio State Reports, required to be performed by the supervisor of printing, are devolved upon the reporter of the supreme court.</p> <p>No objection has been made by the state to the assignment of the contract to Banks & Brothers, but on the contrary the state has uniformly recognized them as substituted for H. W. Derby & Co., contractors.</p>

This case is one of twelve cases, each of which has similar facts and questions of law. The plaintiffs owned iron blast furnaces for the manufacture of pig iron, and the furnaces were located along the line of the Scioto and Hocking Yalley Railroad between Portsmouth and Hamden. All but five of them were built after the construc-tiojn of the road, and after that time all the furnace companies relied exclusively upon it for transportation.

<p>Ebeoe to the District Court of Licking county.</p> <p>On March, 8, 1881, the sheriff of Licking county, by virtue of an order of sale issued to him from the common pleas court of his county, to satisfy certain decrees which were the only liens upon certain real estate of Townsend Reed, the plaintiff in error, sold to Michael Radigan, the defendant in error, such real estate for the sum of $3,250, who paid the same into the hands of the sheriff. On March 10, 1881, the sheriff made his report to the court of the sale. The proceedings up to and including the sale, were, in all respects, in conformity to law. During vacation and before any motion had been filed to confirm the sale, Reed paid the decrees in full, with all interest and costs. On April 5, 1881, Reed filed a motion to set aside the sale, upon the ground that the decrees, with interest and costs, had been paid in full.</p> <p>Thereafter, at the April Term of the court, 1881, this motion was overruled, and the motion of Radigan to confirm the. sale was allowed, the sale confirmed, and the sheriff ordered to convey to the purchaser. The several rulings of the court upon these motions were excepted to by Reed. The district court, on error, affirmed the judgments and rulings of the common pleas; and to reverse the judgment of affirmance the present proceeding is prosecuted.</p>

<p>Error to the District Court of Muskingum county.</p> <p>On the 9tb of February 1867. John L. Taylor executed to Henry Blandy a chattel mortgage on certain property therein described to indemnify Blandy as surety for Taylor on certain indebtedness therein specified. On this mortgage was entered a statement verified under oath as follows.</p> <p>“ The State of Ohio, MusKihguh CouNty, ss.</p> <p>Henry Blandy, mortgagee, being duly sworn, upon his oath says that the within named mortgagor, John L. Taylor, is indebted to him in the sum of ten hundred and thirty dollars, with interest; that the said claim is just and unpaid ; and that to secure the payment of the same, the within mortgage has been executed to him in good faith.</p> <p>HeNRY BlaNdy.”</p> <p>. On the 31st of March and the 16th of April 1877 respectively Taylor executed to Blandy other chattel mortgages similar in all respects to the foregoing except as to names, dates, amounts and description of property. These several mortgages were duly filed.</p> <p>On the 19th of April 1877, Taylor executed to one Alexander Johnson a deed of assignment for the benefit of his creditors, describing certain property real and personal. This deéd contains the following clause:</p> <p>“ This conveyance includes all the real and personal property owned by me, whether specifically described herein or not, excepting from the operation of this assignment all existing liens, which are not to be affected hereby, excepting therefrom, and saving and reserving to the said John L. Taylor his homestead, and all other rights and property to which he may be entitled under the homestead exemption or other laws of Ohio.” •</p> <p>This deed was duly filed in the probate court, in Musking-um county, and subsequently Henry Blandy was appointed trustee for the benefit of creditors in the place of Alexander Johnson, assignee.</p> <p>Henry Blandy, as successor of Johnson, converted the assigned property, including the chattels embraced in the foregoing mortgages, into money, and filed, in tbe probate court, bis account, claiming a credit of $1,082.78 on account of moneys paid as surety for Taylor, under tbe chattel mortgages aforesaid.</p> <p>Tbe probate court allowed tbe credit claimed by Blandy, bolding tbe mortgages to be valid liens against tbe general creditors of tbe assignor.</p> <p>Tbe creditors, Benedict, Hall & Co. and others, appealed from this judgment to tbe court of common pleas, Muskingum county, where tbe preference of Blandy’s mortgages over the claims of general creditors was denied. Tbe judgment of tbe common pleas, on error, was affirmed by tbe district court. ■</p>

William E. Guerin, on November 16, 1880, brought suit in the court of common pleas of Franklin county, against Julius H. Weil, surviving partner of Walker & Weil. The petition,omitting caption, signature of counsel, and verification, is as follows: “The plaintiff says that William Walker and Julius H. Weil were late partners as Walker & Weil, and engaged as partners in the merchandise business at Gallia county, Ohio. That in the fall of 1878, the said William Walker died.

The parties above named were co-defendants in an action in the common pleas relating to the land in controversy. Mrs. Hanna by a cross petition set up a prior lien on the land, to wit, Lots 67 and 68 in the Scioto Salt Eeservation, in Jackson county, by virtue of a mortgage on said lots, executed to her by John H. Stephenson and wife and recorded March 21,1868. This mortgage remains unsatisfied in part, and her prayer is for a sale of both lots to pay the same.

Boyer claimed there was an indebtedness to him from Moore for services rendered from 1872 to 1879, and for money received' by Moore from the sale of lands. The parties being unable to agree .as to the state of their accounts, entered into bonds, on October 13, 1881, for the submission of the matters in controversy to the arbitrament of persons therein named. On November 3,1881, the arbitrators made their award, finding due from Moore to Boyer $809.51, and costs.

<p>1. Where D., the husband of S., receives from W., the father of S., money and property as advancements for S. upon her share of the estate of W., D. holds the same for S. ; and, upon the death of W., when the amount of her distributive share is ascertained and ready for payment S. has a right to compel D. to account for and pay to her such money and property, or she may demand and collect her share in full of the administrator.</p> <p>2. In such case, when S. elects to sue the administrator, and compels him to pay her the distributive share in full, including the amount of such advancements, the administrator, by operation of law, is subrogated to the rights and remedies of S. against D. as to such advancement.</p>

The original action was brought in the court of common pleas of Franklin county, by John Fitzpatrick against the Little Miami Railroad Company, for injuries to his person, alleged to have been caused by the carelessness and negligence of the company. The company denied carelessness or negligence on its part, and averred that the injuries complained of were caused by the negligence of the plaintiff, upon which averment issue also was taken.

. . Plaintiff in error, C. L. Meinzer, was on the' 30th of August 1880, duly appointed administrator of the estate of John Gr. Essig, who died August 20, 1880.' He accepted the appointment and gave bond witb sureties approved by the probate court of Crawford county, and entered upon the discharge of his duties.

EeboR to tlie District Court of Montgomery county. Peter P. Lowe brought suit against Samuel J. Redgate and Mary T. Redgate, for $1,000, damages for alleged trespasses of Mary T. Redgate, who was the wife of Samuel J. Red-gate.

Ekeoe to tbe court of Common Pleas of Columbiana county. Plaintiff in error was convicted and sentenced under an indictment charging him that with a certain gun, loaded with powder and leaden balls, he shot at one Hiram Lamborn with intent to kill.

Mandamus. This case (others were heard with it) involving the constitutionality of the Scott law, was, on September 25, 1884, assigned for oral argument on October 22, 1884. It was also ordered that all causes then on the docket involving the same questions, should be heard at the same time. The court, having considered the causes, announced its decision on

MANDAMUS. This proceeding is prosecuted by the relator to compel the respondents the Board of Education ,of Delaware county, to award to him a contract for the construction and completion of a High school building., ♦ It appears that the respondents,.having determined to erect a High school building in the city of Delaware,,under section 3988 of Revised Statutes, advertised for bids from contractors. The time for receiving bids ended at. noon, August 15, 1884.

At three o’clock P. M. of the 24th of March, A. D. 1883, Wilhelmine Stout duly executed and delivered to George J3. Cass, the plaintiff in error, a chattel mortgage, to secure the payment of indebtedness therein described. The mortgage was duly verified by the mortgagee, and at the hour of eleven o’clock P. M. of the same day was deposited with the clerk of the proper township.

Ebbor to the Court of Common Pleas of Franklin county. At the October term, 1883, of .the court of common pleas of Franklin county, an indictment was found against John Mitchell, in which it was charged, that on September 3, 1883, with a revolving pistol, loaded witli gunpowder and two leaden balls, he unlawfully, maliciously, purposely and feloni-ously did shoot Gleorge Eigensee, with intent to kill him.

Eekoe to the District Court of Gallia county. William G. Hampton was indicted in Gallia county for burglary and for grand larceny. ' He was tried and convicted of burglary. When the jury returned into court with their verdict, thé defendant was in court; on the rendition of the verdict of guilty, he was ordered by the court into the custody of the sheriff, and the sheriff so took and held him.

<p>Where administration, of an estate is committed to two or more persons residing in different counties, “ the moneys, credits and investments” belonging to the estate must be listed for taxation under section 2735 of the Kevised Statutes, in the county where the administrator, having actual possession and control of the property to be listed, resides at the time of listing.</p>

Ekroe to the District Court of Hardin county. Held: paid the taxes on the land for more than thirty-three years prior to the commencement of the action below, and for nearly twenty-one years next prior thereto had been in continuous possession of it, making valuable improvements.

EkeoR to the Court of Common Pleas of Wayne county. Theodore Kent was convicted in the court of common pleas of Wayne county, at the February term, 1884, of the crime of arson by burning the storehouse of Frances A.. Geitgey, on January 28, 1881, the indictment having been found at August term, 1883; in accordance with the conviction, he was sentenced to the penitentiary.

IN quo wabRANto. .Reserved bj the District Court of Clark county. I. The act under consideration is in contravention of the last clause of section 1, art. Y. of the constitution, which vests in every elector the right to vote at all elections. No constitutional right of a voter can be abridged, added to, or altered by legislation. Monroe v. Collins, 17 Ohio St. 666, 686 ; Copin v. Foster, 12 Rick. 485, 488 ; Page v. Allen, 58 Pa. St. 338; Bills v. Kennedy, 49 Wis. 555. II.

MotioNS for leave to file a petition in error to the district court of Henry county, and to the district court of Crawford county. William Bolles brought suit in the court of common pleas of Henry county, upon the bond of William H. Stockman as administrator of John J. Stockman.

Steinfeld is the'owner of about 170 acres of land which is divided by the Columbus & Toledo railroad into two parts, the one on the east side, where the house and buildings are situated, being about 75 acres, and the one on the west side being about 90 acres — the balance of the farm being taken by the right of way. ' These two parts of the farm are cut off from each other by an embankment from 15 to 23 feet high and a cut from 12 to 15 feet deep.

The original action was brought by the plaintiffs in error, against the defendants in error, under the statute, to recover damages resulting from the death of their intestate, alleged to have been caused by the wrongful act, neglect and default of defendants in failing to provide a convenient exit, or fire escape from the upper stories of certain buildings situate in Cincinnati, and used as a rag factory and workshop by Henry Dreman & Co. in which the plaintiff’s intestate…

<p>1. Section. 4452 (Rev. Stats.) which authorizes the county commissioners to view the line of a proposed ditch, and determine, by actual view of the premises along and adjacent thereto, whether the ditch is necessary, or will be conducive to the public health, convenience or welfare, invests the commissioners with political and not judicial powers, and notice of such proceedings to the owners of lands crossed by the ditch is not essential to the validity of such enactment or of such proceedings thereunder.</p> <p>2. Sections 4461, 4471 and 894 (Rev. Stats.) authorize the payment of money out of the county treasury as compensation forlands taken for a county ditch, within the meaning of section 19 of the bill of rights, which ordains that: “ When private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by deposit of money.”</p> <p>8. The statutes relating to county ditches, in force in the year 1881, were valid and constitutional enactments.</p> <p>4. In an action by a resident owner of land crossed by the line of a proposed ditch, who has neither notice nor knowledge of such proceeding prior to the hearing upon the engineer’s report, to enjoin the construction of the proposed ditch, it is error in the court to send the proceedings before the commissioners for hearing upon the plaintiff’s claim for compensation and damages, and leave the commissioner's at liberty to proceed with the construction of the ditch without regard to whether his compensation for lands taken he first made in money or first secured by deposit of money, as required by section 19 of the bill of rights.</p>

<p>ERROR to the Superior Court of Cincinnati.</p> <p>For a specific statement of the facts and pleadings.in this case, see the same case, 36 Ohio St. 261. The statement theremade contains the proceedings down to the time this court reversed the judgment below for errors hereafter to be noticed and remanded it for further proceedings.</p> <p>Under this mandate, further proceedings were had before the master, and a judgment was rendered by the court below, which it is now sought to reverse.</p> <p>Prior to October 16, 1871 plaintiff and defendant bad for more than 20 years been doing business under the firm name of Burckhardt & Co. their line of business consisting chiefly of the sale of carbon oils, including all the products of petroleum, the manufacture and sale of lard oil, stearine, and the sale of parafine wax, whiskey received on consignment, the sale of cotton as the liquidator of E. O. Hurd & Co. also the sale of peanuts consigned to it, and as a commission house.</p> <p>In these several lines of business and especially in the petroleum trade, the Arm had built up a large and profitable business. On the 16th of October 1871 the partners mutually agreed in writing to dissolve the partnership, and to that end were to meet on the 26th of October and bid each against the other for the real estate then owned by the firm, including fixtures, &c. and not including the stock of oil lard, stearine or other merchandise pertaining to said business.</p> <p>The party buying, was to pay one half the entire price as follows:</p> <p>One third cash, one third in one and one third in two years, the deferred payments to be secured by a mortgage on the real estate sold, and the party selling, “ Agrees to execute a good and sufficient deed of his interest in the real estate, with release of dower in said premises to the party buying, and to transfer said personal property so to be included in said bidding and sale together with the good will of the business heretofore done and ca/rried onby said firm, and to stipulate therein that the party selling shall not thereafter do business under the name of Burckhardt & Co. in the city of Cincinnati, but he reserves the right to carry on business in his own name or under any other name and style than that of Burckhardt & Co.”</p> <p>On the 26th of October following, the parties met and bid against each other.</p> <p>Frederick was the successful bidder at the sum of $166,000, for the entire property, including the good-will, or $83,000 for Leopold’s half. In performance of this contract, Leopold by warranty deed conveyed the property so purchased to Frederick, who executed a mortgage back for the deferred payments and for an invoice of merchandise, the half of which was also sold and transferred to Frederick. For the purpose of fixing the proper revenue stamp in the deed the sum of $45,000 was agreed upon as the value of the real estate. Leopold at the same time executed a contract, reciting that in consideration of $35,000 paid by Frederick (which was the balance of the one-half the purchase price to wit; ($83,000), he sold to Frederick his moiety of all the fixtures, machinery, utensels, furniture, packages and chattel, .... and also the good-will of said partnership in business, subject to the reservation contained in the agreement of October 16, and for further consideration of $3,340.13, he sold his interest in the stock of merchandise as per invoice annexed.</p> <p>. He also, in consideration of the premises, and in pursuance of the articles of dissolution, agreed and bound himself as follows : “ that I shall not nor will at any time hereafter do business in the city of Cincinnati by or under the name of Burck-hardt & Co. reserving nevertheless the right to carry on business either in my own name or any other name and style than that of Burckhardt & Co.”</p> <p>The record shows that two actions were commenced, one by Frederick, setting out this transaction, taking possession by Frederick of the business of the firm and charging Leopold with having violated his contract in the following particulars, to wit:</p> <p>And the plaintiff further says, that immediately thereafter, the defendant, in violation of his said agreement and of the terms of said sale to this plaintiff, and for the purpose of injuring this plaintiff, entered into the business of receiving and selling petroleum and coal oils and of stearine and lard oils in the city of Cincinnati, under the name and style of “ L. Burckhardt & Co.,” and has ever since continued the same, and held himself out to the community and to the persons engaged in trade with the said original firm of Burckhardt & Co., as the successor to said firm. And the defendant has caused bill-heads, cards, circulars and brands to be made and printed in imitation of the bill-heads, cards, circulars and brands of the said original firm of Burckhardt &. Co., that were calculated and intended to deceive the public and the customers and consignors and those who had theretofore dealt with the said firm of Burckhardt & Co., and to induce them to believe that he was carrying on and continuing the business of said original firm of “ Burckhardt & Co., and the defendant, by promise of reward and otherwise, enticed away the employees of said firm, who were employed and instructed by said firm and acquainted with their customers and trade, and .held out and represented to the consignors of oils to said firm and to the customers thereof, that he was entitled to do the said business, and in every possible manner attacked, injured and destroyed the goodwill of the business that he had so sold and conveyed to this plaintiff, whereby the good-will of said business was "wholly destroyed and rendered of little or no value to the plaintiff. And the plaintiff avers, that the consideration of said sale and of said promissory notes to the extent of the sum paid for the good-will of said business, and the exclusive right to said firm name, has thereby wholly failed and been lost to this plaintiff.”</p> <p>He prayed, that Leopold be restrained from transferring the notes and mortgages for the' deferred payments, and to the extent of the sum paid for the good-willOof said business and the' exclusive right to the firm name, said notes and mortgages be canceled and satisfied.</p> <p>There is also a prayer for general relief.</p> <p>Shortly after this, Leopold commenced an action against Frederick on his notes and mortgage asking for judgment and foreclosure. These two actions were by order of the court consolidated.</p> <p>The petition of Frederick stands as an answer and counterclaim to the petition of Leopold. Sundry pleadings of a supplemental nature were afterwards filed by the parties by means of which an issue was joined upon the so called counter-claim of Frederick. For a specific statement of these pleadings reference is made to this case as reported in 36 Ohio St. 261. It is sufficient now to say that the main question involved was, what was the contract of October 16, 1871, and whether Leopold had violated it or not, and if so, what were the damages sustained by Frederick. At the January term 1875, the court found specially the execution of said contract, the sale made under it for $166,000, whereby Frederick became liable to pay Leopold $83,000, together witb the other facts above stated.</p> <p>It further found that Leopold sold his half of the property, including good-will of the business theretofore carried on by the old firm in the name of Burckhardt & Co. (and not merely the good-will attaching to the premises upon which such business had been carried on), and the exclusive right thereafter to the use of the name of Burckhardt & Co. as his trade-mark. It further found “ that he bid for and purchased them all for $83,000, and that Leopold had failed to give him or had deprived him of the exclusive benefit to the use and enjoyment of such good-will, and such firm name of Burckhardt & Co., and the real estate sold by Leopold was only of the value of $45,000, and that $35,000,'was the value of such good-will and firm name as a trade-mark, as fixed by the parties in this transaction.</p> <p>The court further found as follows:</p> <p>“ Third. Whether in point of fact, Leopold is entitled to recover from Frederick no part of such sum of $35,000, or whether he is entitled to recover part of it, and if so, what part, we do not now undertake to determine. That must be done by a master, upon a reference of the case to him upon the testimony now before us, and such other testimony as the parties may adduce before him upon the subject of the extent of the deprivation, or damages sustained by Frederick, by reason of the premises. The master will determine such question upon such evidence, not requiring the defendant to make proof, as of a bill of particulars of his injuries, but upon the testimony applied to the case, in view of the nature of the subject; to which and to all the circumstances, he will give due weight and consideration. He will be required to report to the next general term of this court.”</p> <p>The case was then referred to John S. Conner as a special master in obedience to the third finding above stated.</p> <p>The master took testimony and made eleven specific findings of fact together with his conclusions of law, which will be found stated in 36 Ohio St. 272, 275. That case was reversed by this court chiefly on the ground that in assessing the damages to Frederick his measure of damages was the actual “ amount of improper solicitation ” of the customers and consignors of the old house of Burckhardt & Co., and not “ the actual loss in money,” to Frederick from the loss of business to the old house, or in other words, that unsuccessful improper solicitations was the basis of recovery of damages.</p> <p>It was further held by this court that Frederick’s counterclaim could be properly asserted as such in an action by Leopold to foreclose his mortgage and, as in either case where there is an independent action, or by way of counter-claim, the measure of damages is the same.</p> <p>It was further held in that case, that the fact, that the parties had by mutual agreement fixed upon the sum of $45,000, for the mere purpose of determining the revenue stamp required, did not destroy or sever the entirety of the consideration for the purchase as fixed by the contract of sale.</p> <p>Under a mandate from this court, the case was again referred to the same master to rehear the case upon the same and such further evidence as either party might offer and “ to ascertain and find the amount of damage, if any, suffered by defendant (Frederick), with respect to the business and good will referred to in the pleadings herein by reason of the acts and conduct of plaintiff and those acting by his direction and authority.</p> <p>The master took additional testimony and submitted the following findings of the facts and law.</p> <p>As Matter oe Fact.</p> <p>1. That the first eleven (11 j findings of facts, to-wit: findings 1 to 10 inclusive, in his former report filed in this court, and confirmed by it Feb. 24, 1877, are now re-found, and re-affirmed. '</p> <p>2. That the defendant, Frederick Burckhardt, has suffered material and great damage with respect to the business and good will referred to in the pleadings herein by reason of the acts and conduct of the plaintiff, Leopold Burckhardt and those acting by his direction or authority, hereinbefore reported by said master to have been done and carried on by them.</p> <p>3. That the average amount of capital, including real estate, employed by the old firm of Burckhardt & Co., in its business, for a period of six (6) years prior to its dissolution in October, 1871, was two hundred thousand ($200,000) dollars ; and the average yearly profits during the same period realized by it from all sources was thirty-five thousand ($35,000) dollars.</p> <p>4. That while Leopold’s interest in the real estate, fixtures and machinery, and good-will and exclusive right to the use of the name of “ Burckhardt & Co.” was sold to Frederick as an entirety and as a going business, for the sum of $83,000, (the total valuation as fixed by said sale being $166,000,) the value then of the whole real estate was $90,000, of the fixtures and machinery $6,000, and of such good-will and firm name as a trade-mark $70,000.</p> <p>5. That if the testimony offered on the present hearing by the defendant, as to the difference in the value of the whole property, real estate, fixtures, and good-will or of the goodwill alone, before and after commisson of the acts by, and the conduct of Leopold and his agents, heretofore found to have been done and carried on by them, be competent and sufficient evidence, and is to be considered independent of and not modified by the former finding of the inaster, that but four-fifths in value of the consignors and customers of the old house were solicited by Leopold and his agents, then the defendant, Frederick, was damaged, with respect to the business and good-will referred to in the pleadings herein by reason of said acts and conduct, to the extent of the value of the good-will and exclusive use of the old firm name, to wit, to the extent of thirty-five thousand ($35,000) dollars.</p> <p>6. That of said testimony, referred to in the 5th finding, is to be considered subject and modified by the former finding as to the amount of the solicitation, by Leopold and his agents, of the consignors and customers of the old firm, (which finding has in no way been modified by any testimony offered on the present hearing, but is now re-affirmed), there is no direct testimony tending to prove the specific damage, in the way of loss of business or profits, to Frederick, resulting from such solicitations (and in some cases, there was no loss of business or profits from such solicitations), the same being ineffectual. And considering said testimony, with respect to the general damage caused by the said acts and conduct of Leopold and his agents considered generally,'as modified by the former finding that the solicitations were not absolutely general, but consisted actually of but four-fifths in value of the consignors and customers, were confined almost entirely to the carbon and lard oil branches of the business, and that some of them were ineffectual, then the amount of damage suffered by the defendant, Frederick, with respect to the business and good will referred to in the pleadings herein by reason of said acts and conduct, was far less than $35,000, and could in no event .exceed twenty-eight thousand ($28,000) dollai's, the four-fifths cof the value of said good will and exclusive use of the old firm name; but the exact amount of said damage cannot be ascertained from the testimony now in the case.</p> <p>7. That if the testimony offered on this hearing as to the value of all the property, or of the good will alone, before and after the«ommission of the acts by and the conduct of Leopold and his agents heretofore found, be incompetent, or, although competent, be insufficient in the absence of further and specific proof, to prove the damages suffered by the defendant, Frederick, by reason of said acts and conduct, then there has been a failure of proof on the part of the defendant of any damage therefrom.</p> <p>As Mattee of Law.</p> <p>1. That the measure of the damage suffered by the - defendant, by reason of the acts and conduct of Leopold and his agents, heretofore found to be done and carried on by them, is the amount of injury sustained therefrom ; and this may be ascertained both by proof of specific loss of business and profits, and of diminution in the value of property sold by Leopold to Frederick, considering the same as an entirety, or the good will alone.</p> <p>2. That the burden of proof of such amount of injury is upon the defendant, and it must be established by clear positive testimony, and not from mere conjecture, independent of the evidence.</p> <p>3. That the defendant is entitled to recover- interest, upon the amount of his damage, from August 1, 1S73, when Leopold went out of business.</p> <p>4. That the defendant is'entitled-to have the amount of his damage and interest thereon, from August 1, 1873, off-set against and deducted from the principal and interest of the notes, given by him for his deferred payments on the purchase of the property sold him by Leopold.</p> <p>5. That if the testimony offered on this hearing, as to the difference in value of all of'said property, sold by Leopold to Frederick, or of the good will alone, before and'after the commission of the acts by, and the conduct of, Leopold and his agents, heretofore found to have been done and carried on by them, be incompetent; or, although competent, be insufficient, either alone, or in connection with the former testimony and findings, to base a finding of the amount of damage suffered therefrom, by the defendant, and there being no proof of amount of specific loss of business and profits, then the de-, fondant can only recover nominal damages.</p> <p>The undersigned further reports, that he has given very careful and long consideration to the testimony offered on this hearing, and, while he has considered the same to be competent and of great weight, yet he has not deemed it, even in connection with the other evidence in the ease, sufficiently conclusive, when considered in the light of, and modified as he thinks it must necessarily be modified, by the former finding of the amount of solicitation done by Leopold and his agents, to enable him to make a positive and definite finding of the exact amount of damage suffered by Frederick. Knowing that this honorable court will have to pass upon the competency and weight of this testimony, and upon the numerous questions involved by his rulings, made during this hearing, and knowing also that the case is to be fully argued before this court, upon both the evidence and law, he respectfully submits the above findings, without coming to a conclusion of the exact amount to be allowed the defendant as his damage.</p> <p>To this final report of the master Leopold excepted to the findings of fact by the master on the grounds that same is contrary to the evidence, namely: to Nos. 1, 4, 5, 6, 7, 9 and 10 of the former report re-affirmed by No. 1 of the last report, also to findings No. 2, 3, 4 and 5 of the last report, also to Nos. 1, 2 and 3 of his finding of law.</p> <p>, Frederick excepted to No. 6 in his findings of fact to the effect, that if his former rule that unsuccessful solicitations was not the true measure of damages, then there is no direct testimony tending to prove specific damage, and also to the finding that the exact amount of damage can not be ascertained from the testimony in the case.</p> <p>He also excepts to the 7th paragraph of the findings of fact, that if the testimony offered cn this hearing as to the value of all the property or of the good will alone before and after the commission of the acts and conduct of Leopold and his agents be incompetent or insufficent to prove the damages suffered, then there has been a failure of proof on the part of Frederick of any damage.</p> <p>He further excepts to the 5th finding of law to the effect that if the testimony offered in the hearing as to the difference in value of all the property sold, or of the good will alone, before and after the commission of the acts and conduct of Leopold be incompetent or insufficient in connection with former testimony, to base a finding of the amount of damages suffered by Frederick and there being no proof of amount of specific loss of .business and profits then the defendant can only recover nominal damages.</p> <p>This report of the master with the exceptions thereto, again came on to be heard by the general term of the superior court •which rendered its final decree December 15, 1882.</p> <p>That decree first found the amount due Leopold on his .notes and mortgage, not■ necessary to be particularly stated ■here. Upon the issue joined on the counterclaim of Frederick, and upon the master’s report and evidence it found as follows:</p> <p>And the court further find that the plaintiff has in sundry instances improperly solicited the trade of customers of the former firm of Burckhardt c& Go., that there is a faihtre of proof of damage eaused by such solicitations, except as to the solicitation of W. 33. Brooks & Co., of Nelsonville, Athens county, Ohio, L. D. Poston of the same place, Leith & Leineke, of Evansville, Indiana, and Philip Hornbrook of the same place, and that the damages suffered by the defendant because of such improper solicitation of the parties above named, so far as shown by the evidence, amount to one hundred dollars and no more, that defendant is entitled to recoup from the sum due on said notes, said sum of one hundred dollars, and that the plaintiff is entitled to have the real estate described in the petition sold to pay the balance of said indebtedness, amounting to ($62,719.06) sixty-two thousand seven hundred and nineteen and 6-100 dollars.</p> <p>And the court further finds that the defendant should pay the costs of this case accruing since the issuing of the mandate from the court, including the fee of the special master of five ■hundred dollars ($500), which is hereby allowed.</p> <p>The court also overruled all the exceptions of Frederick except so far as they were sustained by the foregoing finding, to all of which he excepted.</p> <p>A motion for a new trial on his behalf was overruled, bill of exceptions taken embodying all the evidence, and a judgment was rendered according to the foregoing findings of the court.</p> <p>To reverse this judgment is the object of the present proceeding in error. The principal ground of error and the only one noticed in the opinion of the court is that the report of the master and of the finding of the court is to the effect that Leopold was guilty of violating his contract as to the sale of the good-will, and of improper solicitations of the customers and consignors of the old firm, and yet it is held there should be proof of specific loss or damage and that there is a failure of such proof as will warrant the court in finding any damage except in the case of the aforenamed customers and to the extent of $100 only.</p> <p>The nature of the acts complained of by Frederick, are set out in his answer and counterclaim as a basis for damages.</p> <p>Upon this issue tlie master in his fourth finding of fact in his original report, reaffirmed in his second report, finds, that the wrongs complained of were by solicitations of the old customers, in the manner following : “ that such solicitation was done frivaiel/y by letters, envelopes, cards, quotations, or price currents, or personally, by Leopold Burckhardt, or his agents or employees, runners or traveling agents; asking said parties to deal with the house of Leopold Burckhardt & Co.; or by specially applying to said parties, and urging and holding out special and designed inducements to them to leave the successors of the old firm, and deal with it.”</p> <p>The final judgment rendered December 15, 1882, above cited, reaffirms the original judgment of the court before reference to the master upon the issues joined upon the counterclaim, by .specially finding that Leojmld had, “in sundry instances improperly solicited the trade of customers of the former firm of Burckhardt & Co.”</p> <p>The court, however, proceeds to hold, that there is a failure of proof of damages caused by such solicitations, except in four cases named, where the evidence showed specific proof of actual loss of gains and profits by reason of such improper solicitation.</p> <p>This is the error coni plained of.</p> <p>The master further finds as a fact, and of this there is no complaint, that as to some branches of the business of the old firm, the house of Leopold Burckhardt & Co. did not engage, such as in the cotton business, but very slightly if any, dealing in peanuts, and in the manufacture of lard oil or stearine, and did not deal in stearine, but did engage in active competition with the old firm, in dealing in carbon oils, received on consignment the sale of lard oils purchased or consigned, upon which it put its own brands, sales of linseed oil and a few sales of whiskey.</p> <p>The extent of the injury caused by the improper solicitations of Leopold is thus found by the master.</p> <p>“ 10. That it is clear that nearly every prominent customer of the old house in carbon oils and lard oils, and every prominent consignor of the old house of carbon oils and whiskey, dealing with it the year preceding its dissolution, was solicited by the house of Leopold Burckhardt & Co.; and that as a result of such solicitation, the business of Frederick Burckhardt as' successor of the old house, was most seriously affected, and for a time, a large part of it was taken away.”</p> <p>Leopold Burckhardt had no right to solicit the trade of the old customers, not because such solicitation would be a breach of contract, for lie had made no contract not to solicit, but because he had made a grant of the good-will; and to solicit the trade of the old customers, would be, as the court said in La Bouehere v. Dawson, 13 L. R. Eq. 322, to derogate from his own grant. For the same reason he had no right to entice away the consignors, nor to persuade the employees of the old'Jinn to leave Frederick, and enter his employment, nor to do any of the acts complained of. And every one of those acts was a trespass upon the property of Frederick in the good will. And, as it is for the injury to that property that we ask compensation, we claim, upon the principle of compensation, the,right to show to what extent the value of that property was impaired by that injury.</p> <p>That the person injured shall received a compensation commensurate with his loss or injury, is the universal and cardinal principle of the law of damages. This principle is paramount, and by it all rules on the subject of compensatory damages are tested and corrected. In eases of willful or malicious injury, and injury from reckless or illegal acts, or from positive fraud, the damages are not so strictly confined, to proximate consequences as when these elements do not exist. 1 Sutherland on Damages, 71. Where there, is fraud or other intentional wrong, there is not the same strictness to exclude remote or uncertain damages, even where punitory damages are not involved. Sutherland on Damages, 161,173 ; Deathless v. Taw-son, 7 Daly, 355 ; Coffee v. Meigs, 9 Cal. 363; Allison v. Chandler, 11 Mich. 552; Morse v. Ilutehins, 102 Mass. 439 ; T-oullte v. Harding, 13 Pa. St. 242 ; Cook v. Collingridge, Jac. 607 ; Collyeron Part. § 322n.; Smith v. Everett, 27 Beavan, 4b), 456; Mellersh v. Keen, 28 Beavan, 453; Mitchell v. Head, 84 N. Y. 556.</p> <p>Leopold Burckhardt having attacked covertly and openly, and by every means in his power, the good-will which he had sold and transferred to Frederick — that intangible, shadowy property, the value of which, as Sir John Bomilly said, is so easily affected — we insist-that we have the right to prove by the testimony of witnesses of long experience in the business how the value of the property was affected, and what diminution of value resulted from the wrongs complained of. And wo claim that the cases above cited are authority.</p> <p>submitted and discussed the following propositions.</p> <p>I. The wrong complained of by Frederick is to be considered in two aspects, which should not bo confounded with eaeh other: One of them being the willful destruction of the good-will of the old firm, which Leopold had sold to Frederick for a valuable consideration; the other, the covenant, or contract, entered into by Leopold, for a valuable consideration, not to go into business under the old firm name.</p> <p>II. Leopold’s efforts to divert to his own benefit the goodwill he had sold, were violations of law and duty relating to good-will; his active warfare on the business of the old firm, by reduction of prices, and other irregular inducements, was a breach of his contract not to go into business under the old firm name, and also in relation to good-will.</p> <p>III. The going into business by Leopold (who has no partner), under the name'and ¡style’of “ L. Burckhardt & Co.” and of “ Leopold Burckhardt & Co.” tested by the law of trademarks, was not, in legal effect, going into business under a name and style other than “ Burckhardt & Co.” unless the initial L., or the name Leopold, signifying the same person who was the head of the firm, changed it into another firm. The use, in connection with the style and name of “ Leopold Burck-hardt & Co.” of letter-heads, bill-heads, and other trade-marks of the old firm, and deceptive representations made to customers of the old firm, show a deliberate purpose to represent the new concern as the same whicli' tbe customers of the old firm had been dealing with, and to appropriate the benefit of the reputation of the old firm.</p> <p>IY. It is unnecessary to consider what Leopold might lawfully have done in soliciting business, or in reducing prices, in the absence of a contract not to go into business in the old firm-name ; or if he had gone into business in his own name; or under a name and style really, instead of col or ably, different from the old firm name. Because nothing which he might lawfully have done can be used to mitigate damages for his unlawful and wrongful conduct. He cannot recoup or set-off against the damage unlawfully committed by himself, possible damage, conceivably possible to have been lawfully inflicted.</p> <p>Y. The proof, before the master and before the court below, of damages caused by defendant in error to plaintiff in error, outside of and other than the four instances for which damage was decreed, was, and is, in respect to directness and •certainty, and to legal competency and sufficiency, adequate and ample; and the finding of it not so was error.</p> <p>And as to the measure of damages cited : 1 Sutherland on Damages, 106, US, 119; Bell v. Cunningham, 3 Peters U. S. 69 ; Fritz v. Hobson, L. R. 14 Chy. Div. 542; Jacques v. Miller, L. R. 6 Ch. Div. 153; L. R. 3 Com. Pleas, 499; Had-ley■■ v. Baxendale, 9 Ex. 341; Schell v. Plumb, 55 N. Y. 592; Rhodes v. Baird, 16 Ohio St. 573 ; Battler v. R. R. Co., 66 N. Y. 50 ; Simpson v. Ry. Go., L. R. 1 Q. B. D. 274; Macrae v. Ciarle, L. R. 1 C. P. 403; Dalton v. Ry. Go., 4 O. B. (N. S.) 296 ; Tilley v. Ry. Co., 29 N. Y. 252; Rowley v. Ry. Go., L. R. 8 Ex. 221; Philips v. Ry. Co., L. R. 5 C. P. Div. 280 ; 3 Wall. 315 ; 97 U. S. 348 ; 93 U. S. 64, 67; 91 U. S. ' 646 ; 16 How. 480 ; 7 Cush. 322; 67 Me. 414; 62 Mo. 171; 10 N. Y. 489; 37 Conn. 278 ; S4 N. Y. 556.</p> <p>The two questions presented by the assignments of error are :</p> <p>1. Was there a failure of proof of damage ?</p> <p>2. Did the court exclude evidence which was competent, in .connection with the other evidence, to make out a case for the assessment of damages ?</p> <p>I. The burden which rested upon the defendant, in Older to make out his counterclaim, involved his establishing — (1) Violation by the plaintiff, in the particulars charged in the counterclaim, of the legal obligation imposed upon him by the agreement of sale. , (2) Substantial loss to the defendant by reason of such breach of obligation on the part of the plaintiff. (3) The amount of such loss, with a reasonable degree of certainty. In support of the second and third of these propositions, we cite the following authorities. As to necessity of proof of substantial loss, in addition to proof of breach of duty, see Blofield v. Payne, 4 B. & A. 410 ; Leather Cloth Co. v. Birschfield, L. R. 1 Eq. Cas. 299 ; Browne on Trade-Marks, §§ 499, 503 ; Parker v. Bulme, 1 Fisher, 56,; Smith v. Weed Sewing Machine, 26 Ohio St. 562 ; Banh v. Telegraph Co., 30 Ohio St. 555 ; Blalte v. Robertson, 94 U. S. 728 ; Treat v. Shoninger Melodeon Co., 35 Conn. 543; Burclchardt v. Burclchardt,, 36 Ohio St. 261. Date must be furnished by which the loss may be calculated with reasonable certainty. Leake on Contracts (2nd ed.) 1054; Philip v. Bock, 17 Wall. 460; Browne oh Trade-Marks, § 505.</p> <p>II. As to the exclusion of the testimony offered by plaintiff in error, to rebut and explain the evidence of his books, see Kilbourn v. Jury, 26 Ohio St. 153,162 ; Alexander v. Jacoby, 23 Ohio St. 388 ; 1 Sutherland on Damages, 793,794; Norman v. Walls, 17 Wend. 136 ; Shepherd v. Willis, 19 Ohio, 142 ; A. da G. W. R. R. Co. v. Campbell, 4 Ohio St. 583. The exceptions upon the exclusion of evidence are really all pressed in defiance of the elementary rule which requires the book itself to be produced, where the witness cannot swear to the fact from recollection, any further than as finding it entered in the book. State v. Perry, Wright, 662 ; Doed. Church v. Perkins, 3 T. R. 749 ; Ball v. Ray, 18 N. H. 126 ; Stan-wood v. McLellan, 48 Me. 275 ; Chapin v. Latham, 20 Pick. 473.</p> <p>III. We concede, that, in the business which the plaintiff established shortly after the dissolution, and carried on for eighteen months, he solicited the trade generally, including customers of the old house, in one of the departments of its business. This he had a right to do. The preliminary agreement of dissolution and the final transfer, both expressly reserved to the plaintiff “ the right to carry on business in his own,name, or under any other name and style than that of Burckhardt & Co.” This reservation entitled him to solicit former customers. Hanna v. Andrews, 50 Iowa, 462. The sale of good-will, even without such a reservation, does not prevent the vendor’s setting up again a similar trade, in the absence of express covenant to that effect. Sale of good-will simply confers upon the vendee the right to hold himself out as the successor in business of the concern whose good-will is sold. OruttweU v. Lye, 17 Yes. 335 ; Shackle v. Baker, 14 Yes. 469; Ohurton v. Douglas, 1 Johns. (Eng.) 187; Hupp v. Over, 3 Brews. (Pa.) 133; Bassett v. Pereival, 5 Allen, 345; Bergamini v. Bastían, 16 Rep. 460 (La.) Jan. 1883 ; Bammelsierg v. Mitchell, 29 Ohio St. 54; White v. Jones, 1 Abb. Pr. N. S. 337; Collier on Part. § 322 n; Demis v. Hodgson, 25 Beav. 182; Johnson v. Ilelléby, 34 Beav. 63; Hall v. Burrows, 33 L. J. Eq. 204; Palmer v. Graham, 1 Pars. Select Eq. Cas. 476 ; 2 Bindley on Part. 844, 1026; Story on Part. § 99. The ease of Ldbouchere v. Dawson. L. R. 13 Eq. Cas. 322, is not authority, see Walker v. Mottram, L. R. 19 Ch. D. 355, 356; Leggott v. Barrett, L. R. 15 Ch. D. 306.</p> <p>It is an egregious violation of elementary and fundamental principles of the science of jurisprudence, to hold that the sale of good-will imposes an obligation upon the seller not to solicit former customers.</p> <p>Ail rights, according to scientific classification, are embraced within two classes; rights in rem or those which avail against the world at large; and rights in personam or those which avail only against a determinate individual or individuals. Austin’s Jurisprudence, Lect. xiv., 380 et seq. (4th ed.); Digby’s History of the Law of Real Property, 223, 224, 225, pars. 2 and 3; Markby’s Elements of Law, § 136; Anson on Contracts, 3, 4; Holland’s Elements of Jurisprudence, 92, and chaps, xi., xii.</p> <p>The right to restrain others from soliciting customers is necessarily a right in personam. There can be no such right against the world at large (i. e., in rem).</p> <p>But a right in personam can not be generated by a mere sale or transfer. A grant or conveyance never creates a right in personam in the grantee against the grantor, as will readily appear from an example. I own Blaekacre, which means that I possess the right as against all the world to use and enjoy it, without unlawful interference, and to transfer it at pleasure. I convey it to you, and you thereby acquire the rights with respect thereto, which before were vested in me. But you acquire no special right against me which you do not have against persons generally. After my conveyance I am no more and no less bound to refrain from interfering with your use and enjoyment of the property than is the rest of the world. My conveyance creates no special obligation against me. No conveyance ever has that effect. Its office is simply to transfer to the grantee and to vest in him, the rights which formerly resided in the grantor ; and as a necessary result the grantor is thereafter with repect to the grantee and the subject of the grant, simply in the situation of one of the world at large against whom the grantee’s newly acquired rights avail.</p> <p>To create a right in personam, a contract, as distinguished from a conveyance, is required. But there is no word of contract or promise in the instrument,'executed by plaintiff, except his promise to" perpetually forbear from doing business in the city of Cincinnati by or under the name of Burckhardt & Co., and that promise he has not violated and is not alleged to have violated. As to the good-will, there is only a “ selling, assignment and setting over,” — words of conveyance, and not of promise or contract. And as a right in personam— which the right to restrain others from soliciting particular customers must necessarily be — is not susceptible of creation by a mere conveyance, it cannot be true that such a right arose from the transaction at bar.</p> <p>Good will, as a legal concept, must indicate some sort of a legal right — a right recognized and enforced by law, to do something which other people may not do. The right to use the name of a concern, and after its dissolution, to hold oneself out as its successor in business, has value in commerce, and has acquired recognition as a legal right, under the name of good will. That this right to hold oneself as the successor of an establishment is the precise legal right indicated by the term good-will, is evident from the authorities. It is the very right in the exercise of which all the cases show the purchaser of good-will to have been protected.</p>

<p>1. In cities of tlie second class the terra of office of city clerk is two years. State v. Squire, 39 Ohio St. 197, followed.</p> <p>2. Where, in April, 1883, A. was elected such city clerk for the “coming term,” such term of office will extend to April, 1885, and A. is entitled, without re-election, to hold such office for the full term, unless lie abandons the same or is estopped from claiming it.</p> <p>3. A.’s accepting the office in 1883 with the knowledge that the council each year elected a city clerk, and his soliciting a re-election in 1884 do not estop him from claiming the full term ; and in April, 1884, while A. rightfully insisted on holding the office for the full term, another person could not be duly elected to such office.</p>

EeROe to the District Court of Hardin county. On the 3d day of March 1817, L. A. Gormley, one of the plaintiffs in error, commenced an action in the court of common pleas of Hardin county, against J. H. Poore, for the recovery of the possession of certain chattels, of which he alleged he was the owner and entitled to the immediate possession, and which he alleged were wrongfully detained by the defendant, Poore.

The original action was brought by George W. Wells against the Farmers’ Insurance Company, on a policy of insurance against loss by fh’e to recover five hundred dollars, being the amount of risk taken on a certain dwelling-house of the plaintiff and, which was wholly destroyed by fire during the period for which the policy was written.

<p>1. Assessments for street purposes are those special and local impositions upon property in the immediate vicinity of an improved street, which are necessary for the improvement, and laid with reference to the special benefit which such property derives from the expenditure of the money ; and a re-assessment is a re-apportionment of the cost and expense of such improvement, and the imposition may be either upon the same lands, or part of the same lands, and it may include other lands.</p> <p>2. While a taxing district is essential to a valid local assessment, the statute (70 Ohio Laws, 127, § 539), which confined the assessment to “lots and lands that are contiguous and adjacent ” to and “ those that abut upon the improvement, and the provisions which defined the powers and proscribed the duties in this regard of the board of improvements, equalizing board, and council, under the municipal code' of 1869 (§§ 584, 587, 588, 089), after due notice to and opportunity to be heard by persons interested, under sections 585, 586 of the same code, and this before the special tax could be levied and assessed, provided for such taxing district; and the statutes relating to assessments for street purposes, in force in 1873, were not in conflict with the constitution, art. 13, § 6, for any defect therein in that respect.</p> <p>3. The revised municipal code, passed in 1878 (75 Ohio'Law, 161-419, Rev. Stats. §§ 1536-2729), by which the general laws then in force granting power to assess and re-assess for street improvements were repealed, contained the following saving clause : “‘No suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made.” 75 Ohio Laws, 165, § 4 ; Rev. Stats. § 1539. At the time of the passage of the act, an assessment had been made under the acts in force in 1873, which were among those repealed, but subsequently to such repeal the assessment was enjoined, not on ground going to the power to assess, or the justice of an assessment, but for the reason that the particular assessment was, in form, illegally made : Held, that the various steps in council and before the boards, with respect to such street improvement, constituted a proceeding, within the meaning oí the above provision, and hence council was empowered to re-assess pursuant to the municipal code of 1869, §§ 551, 552.</p>

The facts are stated in the opinion. claimed that section 6942, Revised Statutes, was in conflict with section 8, art. 1 of the constitution of the United States, for that it is a regulation of commerce, among the several states, discriminating against the products of other states and in favor of the products of Ohio, and cited: 2 Story on Constitution, §§ 1067 to 1073; .Cooley on Const.

<p>1. While “ a speedy.public trial by an impartial jury” is guaranteed to every person accused of crime, the right to review a conviction, on error or otherwise, is not guaranteed, but depends solely on statutory provision. '</p> <p>S. At the time the Revised Statutes were adopted, the jurisdiction of the supreme court and district court to review, on error, the judgments of the court of common pleas, in criminal cases, was in all respects concurrent, and extended to every prejudicial error properly appearing in the record, including the power to determine whether the verdict was against the weight of the evidence ; but while the jurisdiction of the district court and its successor, the circuit court, remains the same, the jurisdiction of the supreme court has, by the amendment to the Revised Statutes, § 7856, passed in 1883 (80 Ohio Laws, 170), been so limited that “in the supreme court only errors of law occurring on the trial, or appearing in the pleadings or judgment, can be reviewed.”</p> <p>3. “ Trial,” in the sense of this limitation, has reference to a trial. upon a plea in bar, and does not extend to a hearing on a motion to quash, or trial upon a plea in abatement; it commences, at least, when the jury is sworn, and embraces questions as to the admissibility of evidence, refusals to charge and the charge given, and the like; and it ends with the rendition of the verdict. Qucere, whether “trial ” extends to matters occurring during the impaneling of the jury ?</p> <p>4. “Pleadings,” in the sense of that provision, do not embrace motions to quash, but include the indictment and pleas in abatement as well as in bar ; but where matter, not the proper subject of a plea, is incorporated ■ in a paper denominated a plea, a decision with respect to it will not, ordinarily, be reviewed in the supreme court upon the ground that it is an error in the “pleading.”</p> <p>5. “Judgment,” in the sense of the provision, has relation to the final judgment and the orders with respect to the “ pleadings.”</p>

Moses R. Walker commenced an action in the court of common pleas of Clark county, against the city of Springfield, for damages for personal injuries received in one of its streets, and alleged to be caused by the negligence of the city.' Before trial, Walker and the city of Springfield entered into a, bond as follows: “ Whereas, a certain suit is pending in the court of common pleas of Clark county, wherein Moses E. Walker is plaintiff, and the city of Springfield is…

July 26, 1872, John Gross was, by the probate court of Crawford county, appointed guardian of the persons and estate of William A., Martha, Thomas and Mary Gross, children and heirs of Frederick Gross, deceased, and on the same day the guardian gave bond in the penal sum of $10,000, with Jacob Gross and Isaac Eichelberger as sureties, conditioned to be void “ if the said guardian shall discharge with fidelity the trust aforesaid in him aforesaid, shall render an accurate…

Quo WarrANTO. Proceedings to oust the defendant from being a corporation under the laws of Ohio.

EeROR to the Common Pleas of Hamilton county. On January 31,1881, Patrick Hartnett was arrested on the charge of killing his wife, Mary Hartnett, on that day. Prom the time of his arrest he was held a prisoner on that charge. For this crime an indictment, charging murder in the first degree, was reported on April 17, 1881, and on April 21, 1881, he was arraigned and pleaded not guilty.

Quo WarrANTO. The defendant is a corporation organized on the 17th day of April 1877, under the provisions of the law since embodied in the Revised Statutes, § 3630, for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families and heirs of deceased members. The object of the present proceeding is to oust it from its franchises to do business as such corporation.

Appeals from tbe Court of Common Pleas of Franklin county. Reserved in the District Court. January 29, 1876, J. L. Hastings and others, brought suit in the court of common pleas of Franklin county, against the city of Columbus, Francis Wenger, Henry T. Chittenden and others.

Eeeoe to the District Court of Hamilton county. At the January term, 1884, of the court of common pleas of Hamilton county, Joseph Palmer was indicted for the murder of William 0.

<p>1. Under the provisions of the act of March 23, 1840 (3 Rev. Stats 417, §§ 20 to 23 inclusive), relating to the canals of the state, it is the duty, as well as the right, of the hoard of public works, to resume the privilege or right to the use of surplus water, leased or sold for hydraulic purposes, or any portion thereof, whenever, at any time, it may he deemed necessary for the purposes of navigation, or whenever its use for hydraulic purposes shall be found in any manner to interfere with and injuriously afEect the navigation of the canal, feeder or stream from which such water is taken.</p> <p>2. The hoard of public works is not authorized by said statute to in any manner surrender, abridge, restrict or limit its power to resume, at any time, the surplus water leased ór sold for hydraulic purposes, whenever it may be deemed necessary for the purposes of navigation ; nor to create or impose any burden or obligation upon the state, by reason of the exercise of such right of resumption, other than is authorized by the 23d section of said act.</p> <p>3. Hence, a clause providing that on such resumption of surplus water and termination of the lease, the board of public works shall pay to the lessee the value of the lasting improvements erected for the use of such water, is a restriction on the performance of a public duty, and is unauthorized and void.</p>

<p>Error. Reserved in the District Court of Lucas county.</p> <p>The original action was bought by the Northwestern Savings Bank, as indorsee, against Dearborn, the maker, and others, as indorsers, to recover on certain promissory notes and to enforce the lien of a mortgage given to secure the payment of the notes by the maker to the payees, and transferred with the notes by the payees to the plaintiff.</p> <p>. The plaintiff sues as 'a corporation of the state of Ohio, organized under the statute of Febuary 26, 1873 (70 Ohio Laws, 40), and doing business at Toledo, as authorized by said statute. The corporate existence of the plaintiff was put in issue on the alleged ground that the statute of February 26, 1873, never had any. force or effect for the reason that it was an act assuming .to confer “ banking powers ” and was never submitted to the electors of the state for their approval, as required by section 7 of the 13th article of the constitution.</p> <p>In the court of common pleas judgment was rendered for the plaintiff.</p> <p>The defendant Dearborn filed a petition in error in the district court to reverse the judgment of the common pleas. The district court reserved the case for decision in this court.</p>

<p>ERROR to the District Court of Darke county.</p> <p>September 21, 1880, James Robinson filed in the court of common pleas of Darke county, a petition against the incorporated village of Greenville, in that county, wbicb petition, omitting caption, verification and signature of counsel, is as follows:</p> <p>“ The plaintiff complains of the defendant, and says, that on and before the committing of the grievances hereinafter complained of, the defendant was an incorporated village under the laws of the state in such case made and provided. That on September 26, 1876, the plaintiff was in the village of Greenville, and started to go from his place of business on Broadway, south of Third street, to the city hall, and while he was passing along such public street, and in the act of crossing from the west to the east side, along and over the regular street crossing, provided and used for the purpose, and in a prudent and careful manner, he was suddenly fired upon by a crowd of men, who had placed a cannon within a few feet of such crossing, and in or near the center of the street or highway. That the cannon was loaded with powder, scrapings of sole leather and wadding, and the crowd of persons, whose names are to the plaintiff unknown, had placed the same at the point aforesaid, and carelessly and negligently pointed and aimed at and toward plaintiff as he was passing over the crossing as aforesaid, and the cannon was suddenly discharged and shot off, without notice or warning to plaintiff of any kind whatever, thereby giving to plaintiff, with the leather and wadding so discharged out of the cannon as aforesaid, in and upon his right leg, a severe and dangerous wound, extending from below the knee to the ankle, whereby the plaintiff’s leg became and was so badly bruised and wounded that, in order to save the life of plaintiff, the leg was amputated just below the knee. «</p> <p>“ The plaintiff further says, that the defendant and the authorities of the village had full knowledge that such crowd of persons were engaged in firing the cannon for a number of hours, within the corporate limits of the village, and endangering the lives and limbs of its citizens and travelers upon the street. That the authorities of the village had negligently and carelessly given permission to such persons to fire the cannon as aforesaid, and after they had received notice that such persons were engaged in firing the cannon upon the public places and streets of the village, thus negligently and carelessly permitted the same to be continued, without any effort to stop or remove the same, to the great peril of all persons using or passing over the streets.</p> <p>“ Plaintiff says that be was so fired upon or injured as aforesaid without any fault or want of care and caution on his ¡iart, and solely by the carelessness and negligence of the defendant and its authorities and officers in giving permission and allowing the firing of the cannon upon its streets as aforesaid.</p> <p>“ Plaintiff says that by reason of his wound so received as aforesaid, he became sick, sore, lame and diseased, and so remained for the space of six months next ensuing, and in consequence of his wounds and the amputation of his leg, he has ever since been unable to attend, and prevented from attending his ordinary business, and has lost all wages he would otherwise have earned and made in his business, to his damage in the- sum of thirty thousand dollars. Wherefore plaintiff prays judgment against the defendant for the sum of thirty thousand dollars, his damages so as aforesaid sustained.”</p> <p>The court of common pleas having sustained a demurrer to and dismissed the petition, the district court affirmed the judgment; and a petition in error having been filed in this court, the same question presented in the court below, is again presented, namely, does the petition contain facts sufficient to constitute a cause of action ?</p>

<p>In an action of slander, the petition charges defendant with having spoken certain false, malicious and defamatory words concerning the plaintiff, while giving his testimony before a court having jurisdiction of the subject matter then on trial, in answer to interrogatories put to him as such witness. For aught that is stated in the petilion, these answers were relative to the issue then on trial, and were honestly believed to be true, though in fact they were untrue. Upon demurrer to the petition,</p> <p>Held,: 1. That the court will presume,' in the absence of an averment to the contrary, that the answers of the witness were within the scope of inquiry pertinent to the issue then on trial, and that they were believed by the witness to be true.</p> <p>3. That upon the statements of the petition and the presumptions arising therefrom, the witness was absolutely privileged, and he is not liable to a civil action for so testifying.</p>

<p>1. The clause of the constitution, art. 2, § 26, providing that “ all laws of a general nature shall have a uniform .operation throughout the state,” is not directory, hut mandatory, and a statute in violation of it is void.</p> <p>2. A statute providing punishment for an act which is malum in se wherever committed, being a law of a general nature, cannot be made local on the ground that the inhibited act is a greater evil in a large city than in other parts of the state.</p> <p>2. Key. Stats. § 1924, which provides punishment by fine and imprisonment against any person found in a city of the first grade of the first class, or within four miles thereof, having burglar’s tools in his possession, is a law of a general nature within the inhibition of the constitution, art. 2, § 26, but being local in form and operation, it is void.</p>

<p>1. C. & Co., a partnership, engaged in private banking, gave a certificate of deposit to B. Thereafter they ceased doing a general banking business, and were immediately succeeded by a savings bank, incorporated under the act of February 26, 1873 (70 O. L. 44), which conducted its business in the former banking rooms of C. & Co., whose members were trustees of the bank — one its president, another its treasurer and cashier, who had full control of its business. B. presented his certificate at the bank, whoso cashier cancelled it with a stamp of C. & Co.; filed it with their redeemed certificates ; issued to B. a certificate of deposit of the bank in lieu of it, and charged the amount of it on the books of the bank to C. & Co., who had an unauthorized credit on the bank books (making a large credit balance in their favor), placed there by the president and cashier without the knowledge of the other trustees. This certificate was, from time to time, renewed by the cashier bjr like certificates, until the issuing of the one in suit. For two years prior to the issuing of the last named certificate the managing officers of the bank had, without the knowledge of the other trustees, in like manner redeemed, either by the bank's money or certificates, the cer tificates of C. & Co., who were ia fact "insolvent and debtor to the . bank, but in good credit. B. was not a party to, and had no knowledge of the fraud and bad faith, of the officers of the bank. Held: 1. The bank was liable to B. upon its certificate of deposit.</p> <p>2. Where a transaction with an incorporated banking association properly pertains to the business of such an association, neither the abuse or disregard of his authority by its managing officer or agent, nor his fraud or bad faith will be permitted to be shown in defense of such bank in an action against it by an innocent party, growing out of such transaction.</p>

<p>1. The act of May 9, 1868, amending the act of May 5, 1868, commonly called the Building and Loan Association Act (S. & S. 194), which authorizes building and loan associations to receive deposits of money was not an act granting “ banking powers ” within the meaning of section 7, of article 13, of the constitution. Dea/rborn v. Northwestern Savings Bank, ante, approved and followed.</p> <p>2. A person who applies to a building and loan association for a loan of money, and deposits therewith a sum of money, however small, for the purpose of making himself eligible as a borrower, and thereby receives a loan, is estopped, when sued for the money by the association, from denying that he was, in fact, a depositor-of the association.</p> <p>3. Compensation for the use of money advanced by a building and loan association to a member or depositor, in excess of the rate of interest allowed by law, and not derived from dues, fines or premiums paid by the borrower for the right of precedence in taking said loan, is usurious. The premium which shall not be construed to make the loan usurious, under section 3, of the act of May 9,1868, is a premium bid by a member or depositor for the right of precedence in taking a loan, at a competitive sale of such right..</p> <p>4. A building and loan association, having taken security for a loan advanced," by mortgage on real estate, may for the purpose of protecting its security, pay taxes or assessments levied on such real estate, which appear on the tax duplicate to have been duly and legally assessed, and where the association has no knowledge or notice of any defect or illegality in the assessment. Payments so made are the first lien on the premises, and as between the mortgagor and mortgagee cannot be defeated by showing an illegality or irregularity in the assessment.</p> <p>5. In an action by such association to foreclose such mortgage, wherein its secretary and treasurer was made a party who prayed judgment in his own name for taxes so paid, and it appeared that the taxes were paid by him for the benefit of the association and with its money, a judgment for the plaintiff was rendered as well for the taxes so paid as for the foreclosure of its mortgage, without amending the petition so as to pray for relief on account of the taxes paid. Held: that the omission to so amend plaintiff’s petition was not a substantial prejudice to the mortgagor for which the judgment should be reversed.</p> <p>6. For error in including usury in the judgment, the same is reversed.</p>