Volume 43 — Ohio State Reports, New Series

<p>Mutual protection and relief association insurance — Right of assured to bequeath proceeds of certificate of membership to stranger.</p> <p>.1. A certificate of membership issued by an association organized under the provisions of the Revised Statutes, section 3630, “for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of the deceased members,” which by its terms is made payable to the assured member, “or any person designated by his will, or his heirs, if no person is designated herein, or by will,” within ninety days after proof of death of the assured member, does not authorize such member, by testamentary appointment, to constitute a person a beneficiary of such insurance, who is not of the family of the assured, or may not, upon his death, become his heir.</p> <p>2. A bequest by an assured member of such a company, of the proceeds of his certificate of membership to a stranger or a creditor, does not constitute such legatee an “ heir” of the testator, in the statutory sense of that term.</p>

<p>Construction of statute — Punctuation—Rev. Stats., sec. 4207 — Parol evidence to prove existence of pound for animals.</p> <p>1. In construing a statute, punctuation may aid, but does not control unless other means fail; and in rendering the meaning of a statute, punctuation may be changed or disregarded.</p> <p>2. In section 4207 of the Revised Statutes, that provides for impounding animals running at large, the vroiifort/iwith, in its meaning and force, is not separated by the comma from the words that follow it; and the meaning is as though written — forthwith giving notice thereof.</p> <p>3. On the trial in replevin for animals impounded, where there is no record of the action of township trustees in procuring or constructing a pound, parol evidence may be given to show what such trustees did, and whether there be such a pound.</p>

Mandamus. Petition. — “Tho said relator, 'William Otenberger, for petition, says that at the October term, a. d. 1884, of the court of common pleas of Greene county, Ohio, he was tried on an indictment charging him with murder in the second degree, and the jury in said case, at said term, returned a verdict against him of ‘guilty of murder in the second degree as charged in the indictment;’ that the said James E. Hawes is one of the duly elected and qualified judges of the…

<p>Savings and loan associations — Usurious contract made out of state — Statutory sanction as to interest exclusive — Forfeiture of usurious interest a penalty — Contract for usurious interest not void in toto.</p> <p>1. A corporation organized under the act of February 26, 1873, entitled “An act to 'incorporate savings and loan associations,” as amended March 3, 1875, can not enforce, in this state, a usurious contract for the loan of money, to the extent of the usury stipulated for therein, although the contract was made in another state, where the laws authorize contracts for interest at the rate stipulated for in the contract sued on.</p> <p>2. A corporation can make no contracts, and do no acts, either within or without the state which creates it, except such as are authorized by its charter. Bank of Augusta v. Earle, 13 Peters, 519.</p> <p>3. Savings and loan associations organized under the act of February 26, 1873, as amended March 3, 1875, are authorized, on the loan of money; to contract for “interest at the rate allowed or that may be allowed by the laws of Ohio, and shall be subject for the violation thereof to the same penalties as natural persons.” Seld: 1. That the sanction named by the statute is exclusive. 2. The forfeiture of usurious interest must be regarded as a penalty. 3. That in contracting for usury in such case, the common law rule, that the contract, in toto, is void for want of power to make it, does not apply. Bank of Columbus v. Carling house, 22 Ohio St. 492, approved and followed.</p>

Error, to the District Court of Eranldin county. Eor many years prior and up to March 16, 1876, Benjamin E. Smith and John E. Bartlit were partners under the firm name of Bartlit & Smith, in the banldng business in Columbus. On that day Bartlit died testate, and D. S. Gray was qualified as his executor.

January 24, 1880, the city of Cincinnati passed an ordinance granting to Samuel Silsbee the right to lay pipes in the streets of the city for certain purposes, and this permission was upon certain conditions, among which were the following : That Silsbee “ shall furnish to the city of Cincinnati on the several streets, lanes, alleys, avenues, commons, etc., in which the main or lateral pipes for supplying the citizens with heat and power shall be laid and in use, heat for…

■ The original action was commenced by defendants in error against plaintiff in error, before a justice of the peace. The action was appealed to the court of common pleas of Brown county, where, on March 29, 1877, the plaintiffs declared on a book account for teas sold and delivered by them to defendant on the 25th day of February, 1876, of the value of $61.77. To this account the defendant pleaded payment in full on the 11th of July, 1876.

Motion to dismiss petition in error to the District Court of Brown county. The judgment sought to be reversed was rendered September 5, 1882. On May 29, 1884, the plaintiff in error filed in this court his motion for leave to file a petition in error to reverse the judgment of the district court.

<p>Motion for leave to file petition in error to the District Court of Madison county.</p>

July 7, 1879, plaintiffs, Neihaus and Klinckhamer, obtained a judgment against Barbara Paul for $413.57 and costs.

<p>Bill of exceptions— When not considered part of record.</p>

Since 1867, Moses C. Younglove has owned a lot of land 235 feet wide, situated in East Cleveland, which, in October, 1872, became a part of the city of Cleveland. In 1878 Prospect street was extended east through this lot, so as to divide the lot into two parts; the part on the north side being but 22 feet in depth and 285 feet front, and the part on the south side being 235 feet front and of a much greater depth.

<p>Taxation — County ditch improvement — Necessity of notice of proceedings to resident land-owner — Sections 4490 and, 4491 Revised Statutes.</p> <p>Where county commissioners linvo caused to bo placed on the duplicate a personal tax to be collected against a resident owner of land as part of the cost of a county ditch affecting his land, under a proceeding of which such land-owner had neither notice nor knowledge, such tax is illegal, and its collection may be perpetually enjoined. The remedial provisions of sections 4490 and 4491 (ltev. Stats.) do not apply to such a case. Miller v. Graham, 17 Ohio St. 1, distinguished.</p>

<p>Pleadings — Construction—Judgment of justice of the peace — Collateral attack — Default judgment against married woman, whether void■ — ■ When enjoined.</p> <p>1. Pleadings, under the present system, must be fairly and reasonably, not strictly, construed; and where the plaintiff seeks to restrain the enforcement of a judgment upon a promissory note, rendered against her while she was a married woman, an allegation with respect to her execution, during coverture, of such note, that “ she was ignorant of what she was signing,” should be construed in connection with the other parts of the pleading; and if by so doing, the fair meaning of such phrase appears to be merely that she was not fully informed as to the exact nature and extent of her obligation on such note, the phrase will bo so construed.</p> <p>2. In order to render a valid judgment, ajusticeof the peace must have jurisdiction of the subject-matter and parties, as prescribed by statute, and this must fairly appear by his record; but jurisdiction appearing, his judgments aro as impregnable against collateral attack as those of any other tribunal.</p> <p>3. A judgment rendered upon default against a married woman, in an action to which coverture would have been a defense, is not void, but voidable; and the enforcement of such judgment will not be enjoined, unless some equitable ground of relief be shown, such, for instance, as fraud or coercion.</p>

The original action was brought in the court of common pleas of Eranklin county by Thomas E. Taylor, guardian of Mary Elizabeth Hoffman, against Synon Eitzgerald and Rose Gorman, on the bond of Eitzgerald, a former guardian of said Mary Elizabeth Hoffman, who had been removed as such guardiau by the order and judgment of the probate court of Eranklin county, and Rose Gorman, his surety thereon.

The record presents several alleged errors, but in. affirming the judgment the court reserves for report but a single question.

QUO WARRANTO. By direction of the governor of the state, the attorney-general, on behalf of the state, filed his petition in this court, by which he gave it information that the defendants, John M.… Held: nor members of such board elected, after the passage of this act, such board with respect to such cities being hereby abolished. “Sec. 16. That section nineteen hundred and ninety-eight (1998) of the revised statutes be so amended as to read as follows : “ Sec. 1998.

<p>Promise of debtor to second mortgagee to remove lien of first mortgage, whether valid— Whether within statute of frauds — Extension of time by mortgagee to purchaser of premises — Effect upon debtor.</p> <p>1. A dobtov executed a note and second mortgage to his creditor, and afterward, in consideration that the creditor would relieve him from personal liability on the note, and look solely to the mortgage for payment, agreed to remove and discharge the first mortgage, so that the second should become the first lien on the premises, whereupon the creditor released, in writing, the, debtor from personal liability on the note. ' Held: 1. The promise of the debtor to remove and discharge the first mortgage is valid. 2. Such promise is not within the statute of frauds, and need not be in writing.</p> <p>2. A debtor who has given a note secured by a mortgage on real estate to his creditor sells the mortgaged premises to a third person, who, in part consideration of the purchase, assumes and agrees with his vendor to pay the mortgage debt, of all which the creditor has notice. Afterward, without the knowledge of the debtor, the creditor agrees with the purchaser, in consideration of the payment of interest in advance, to extend the time of payment. Held: 1. By such extension of time the debtor is not discharged from all liability on the note. 2. That, in equity, such debtor is released from liability to the extent of his loss by reason of such extension.</p>

<p>Occupation of premises notice to mortgagee — Deed—Contract for — Rights of subsequent mortgagee — Payment—Evidence of.</p> <p>1. A. loaned to B. a sum of money, receiving B.’s promissory note and a mortgage on real estate to secure the same; but when A. accepted the note and mortgage, C. was in actual possession of the premises, and resided thereon with his family. Held., that A. was chargeable with notice of O.’s rights and interest in the premises; and A. having assigned the note and mortgage, his assignee occupied the same situation; nor will the fact that A. and his assignee did not know that O. was in possession, make any difference.</p> <p>2. B. sold to O. real estate, placed him in possession, and agreed in writing to execute to him a deed on payment of the purchase-money in monthly installments. Subsequently B. executed to A. a mortgage on the premises, which was recorded. Held, that such mortgage was valid, hut subordinate to the rights of C.; that O. may, validly, make payments of purchase-money to B., until A. or his assignee, by suit or in some other unequivocal form, asserts the right to receive from C. the unpaid installments of purchase-money; and that the assignee of O. has the same right.</p> <p>3. The assignee of A. asserted, by action, his right against B., 0., and the assignee of 0., to such unpaid purchase-money. Held, that a deed from B. to the assignee of 0., reciting the payment of the purchase-money, is not, as against the assignee of A., evidence of such payment.</p>

Appeal. Reserved iu the District Court of Mahoning county. The city of'Youngstown is a city of the second class in a county not containing a city of the jirst grade of the first class. This is an action ‘to restrain the collection of a special assessment upon a part of o'ut-lot No. 80, in that city, to pay for a portion of the cost and expense of certain improvements.

Thomas H. Moses leased and was repairing a flouring mill. Joseph G. Butler kept a feed store, but he had new bolting-cloth for sale. Bolting-cloth is a silk fabric forty inches wide and of foreign manufacture, and it is worth from $2 to $6 per yard, according to fineness.

September 24, 1878, Lawhead commenced an action in the court of common pleas against Charlotte Elliot, a married woman, and Cyrus S. Gilbert, stating that there was due to him from her the sum of seventy-five dollars for services as her attorney, rendered by him at her request about her separate estate and property; that said employment for such services was made by her in reference to and upon the faith and credit of her separate estate, which she thereby charged.

On the 8d day of July, 1878, Rezin W. Shawhan, defendant in error, duly conveyed to the city of Tiffin, for city park purposes, about six acres of land, for the consideration of $2,680, which was then paid him.

<p>Acts April 27, 1872, and April 6, 1876 — Municipal corporations — Cleveland viaduct lawful structure — Damages to property owner — “ Bounding and abutting” owner — Revised Statutes, section 2315.</p> <p>Under the acts of 1872 and 1876 (69 Ohio L. 138; 73 Ohio L. 107; 3 Rev. Stats. 616, 617), a viaduct sixty-four feet wide, with a level roadway was constructed in Cleveland across the Cuyahoga river. On the south side of Superior street, between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and .the viaduct was constructed over that strip and over part of Superior street, about thirty-seven feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect Superior street, which was ninety-three feet wide, is reduced in width between Water street and the river, and opposite Cohen’s premises its present width is sixty-six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen, which are on the north side of Superior street, midway between Water street and the river, the elevation is forty-five feet, and it is alleged that the viaduct diverts travel from that part of Superior street, impairs the light and air to Cohen’s premises, causes noise and the jarring of his house day and night, and has impaired the value of his property and reduced its rental value. Held:</p> <p>1. The viaduct is a lawful structure.</p> <p>2. On proof of the alleged injury, Cohen is entitled to damages.</p> <p>3. Cohen is not owner of a lot “ bounding or abutting upon the proposed improvement,” within the meaning of the municipal code,.section 564 (Kev. Stats., § 2315), and hence it was not necessary for him to file a claim for damages under that section.</p>

<p>Service — Summons—Revised Statutes, sections 0354 and 5357 — Judgment— Mistake of clerk — Correction—Notice- of -proceeding — -Waiver—Mistake question of fact — Nunc pro tunc order — Exchange of lands— Mortgage part of purchase-money — Vendor’s lien — Waiver—Do-wer.</p> <p>1. A summons against A. and B., who were husband and wife, was returned indorsed: “ Served the same by leaving at each of the within named defendant’s . . . usual place of residence, a certified copy of the within summons, etc. Sheriff’s fees: Service, 45, copies, 50, etc.;” show's a good service upon each defendant.</p> <p>2. A motion to confirm a sheriff’s sale was granted and the sale confirmed, but, hy mistake, the judge noted on the court docket that the motion was refused, and this note misled the clerk and induced him to make a like entry on tho journal of the court. Held, that this was a mistake of the clerk as well as of the judge, which may he corrected, under section 5354, sub. 3, of the Revised Statutes.</p> <p>3. In proceedings under section 5357 to correct such a mistake, w'lien the adverse party appears and defends, the notice required by tnat section is vaived.</p> <p>4. Whether there was a mistake made, is a question or fact to he determined by the court upon competent evidence; and the papers in the case, the recollection of the judge who rendered the decision, in connection with that of others who heard the decision announced, as well as the minutes made by him, are competent evidence.</p> <p>5. The court, in making a correction, may, by nunc pro tunc order, make it as of the term when the mistake was made, if there are no intervening rights or equities.</p> <p>6. P. and'E. exchanged real estate. P. paid $300 and conveyed hy warranty deed and in fee, to E., lot No. 2. In consideration therefor, E. conveyed by like deed lot No. 49, and also agreed so pay off and discharge certain mortgages on lot No. 49, and executed a mortgage back to P. on lot No 2, to secure such payment by him, and to save P. harmless from said mortgages. Each put the other in possession, but E. failed to satisfy said mortgages, and P. was compelled to pay the same, to save his property. Held, that the amount necessary to satisfy said mortgages was a part of the purchase-money of lot No. 2, .for which P. could assert an equitable lien thereon, on failure of E. to pay the same.</p> <p>7. P., by taking a mortgage to secure the payment by E. of this part of the consideration, did not thereby waive his vendor’s lien on lot No. 2; nor was the covenant to pay said mortgages, nor the mortgage by E. to secure such payment, a substituted security, which defeated the vendor’s lien as between the parties.</p> <p>8. As the conveyances of lot No. 2 and the mortgage back to secure the payment of this part of the purchase-money, were simultaneous acts, and parts of the same transaction, the wife of E. had no inchoate right of dower superior to P.'s equitable lien. ■</p>

<p>Motion for leave to file petition in error to the District Court of Hamilton county.</p> <p>In June, 1881, plaintiff:' in error filed with the board of county commissioners of Hamilton county, an application for the refunder of taxes alleged to have been erroneously paid. This application was subsequently rejected by the commissioners, and plaintiff in error thereupon appealed to the common pleas court in conformity with section 896 of the Revised Statutes. There the issues were made up, a full hearing and trial had, and upon the 23d day of July, 1883, the court rendered judgment in favor of plaintiff in error.</p> <p>To this judgment the commissioners excepted, and filed a petition in error in the district court, seeking to reverse the same. Plaintiff in error then filed in the district court a motion to dismiss the said proceedings in error, on the ground that the district court had no jurisdiction of the cause, which motion was overruled. The district court then assumed jurisdiction; proceeded to hear the cause; entered a judgment reversing the common pleas court, and rendered judgment for costs against plaintiff in error, who then filed a motion to set aside said judgment, for a rehearing on the grounds that there was error in the ruling of the district court, and that said court had no jurisdiction, which motion was overruled.</p> <p>To all these adverse rulings plaintiff in error excepted, and now prosecutes this petition in error in the supreme court, seeking to reverse said rulings and proceedings in the district court.</p>

<p>Error, to the District Court of Belmont county.</p> <p>Thomas McKelvey died in February, 1882, leaving his will, made on June, 23, 1879. On March 11, 1882, this will was duly admitted to probate in Belmont county, and is as follows :</p> <p>“Item 1. I give and devise to the heirs of my deceased brother James McKelvey: To his son Robert McKelvey, thirteen hundred and eighty-eight dollars ($1,388); to his son James McKelvey thirteen hundred and eightv-eight dollars ($1,388); to his son David McKelvey, one thousand three hundred and eighty-eight dollars ($1,388); to his daughter Margaret Ann Mitchell, eight hundred dollars ($800); to his daughter Rachel Dixon, five hundred dollars ($500); to his daughter Mary McConnell, eight hundred dollars ($800).</p> <p>Item 2. I give and devise to the heirs of my sister Elizabeth McCaffrey : To her daughter Margaret McCann, eleven hundred and twenty dollars ($1,120); to her daughter Rebecca Robison, nine hundred dollars ($900); to her daughter Isabella Paul, $100 in addition to $800 that she has already received; to her daughter Martha Reid, nine hundred dollars ($900); to her daughter Fanny McCaffrey, nine hundred dollars (900); to her son James McCaffrey, nine hundred ($900).</p> <p>Item 3. I give and devise to the heirs of my deceased brother Robert McKelvey: To his son James McKelvey, twelve hundred and thirty-three dollars ($.1,233); to his son John McKelvey, twelve hundred and thirty-three dollars ($1,233); to his son Thomas McKelvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Eliza Harvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Nancy Myers, twelve hundred and thirty-three dollars ($1,233).</p> <p>Item 4. I give and devise to my brother Weir McKelvey, five thousand dollars in addition to a mortgage that I now hold on the house he now lives in, in Bellaire city, said mortgage to be released at my decease.</p> <p>Item 5. I give and devise to my brother George McKelvey, six thousand dollars.</p> <p>Item 6. I give and devise to the heirs of my sister Margaret Drugan: To her son William Drugan, fifteen hundred dollars ($1,500).</p> <p>Item 7. I give and devise to Matilda Anderson, wife of Jacob Anderson, five hundred dollars ($500).</p> <p>Item 8. I give and devise to the United Presbyterian church of Belmont congregation, to be applied to the building of a new church for Belmont congregation, nine hundred dollars ($900). I also give and devise one hundred dollars ($100), the interest of which shall be applied to .keeping the graveyard at the Belmont United Presbyterian church in good order’, and the trustees of said church shall keep the said one hundred dollars on interest for said purpose and no other.</p> <p>Item 9. I set apart out of my personal property or money, twelve hundred dollars for my funeral expenses and Scotch granite monument.</p> <p>Item 10. I give and devise to my brother Samuel Mc-Kelvey, twenty-two thousand and eighty dollars ($22,080).</p> <p>Item 11. I give and devise to my brother Joseph McKelvey, twenty-two thousand and eighty dollars ($22,080).</p> <p>Item 12. It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this, my last will and testament, shall be divided equally amongst them.</p> <p>Item 13. I do hereby nominate and appoint David Mc-Kelvey and William McKelvey, sons of Samuel and Joseph McKelvey, executors of this, my last will and testament.”</p> <p>In settling up the estate there was about $20,000 to be disposed of under “Item 12” of the will.</p> <p>The children of the deceased brothers and sisters of the decedent, who are legatees under the will, claim that after paying the costs and expenses of administering the estate and the several legacies provided for in the will, the residue should be equally divided, per capita, among them and the surviving brothers of the decedent.</p> <p>But the surviving brothers of the testator claim that the residue should be distributed, per stirpes, equally among the living and deceased brothers and sisters of the decedent, so that only the share of a deceased brother or sister should be distributed equally among his or her lawful heirs.</p> <p>The executors brought this action for the court to construe the will and to determine the matters in doubt and controversy. The following is an agreed statement of facts used on the trial in the district court on appeal:</p> <p>“ It is agreed that Thomas McKelvey was never married; that he had originally six brothers- and two sisters as his next of kin; that prior to the time of making his will, being the will in controversy, two of his brothers, viz : James and Robert, and his sister, Margaret, had deceased; that he made his said will on the 23d day of June, 1879; that he had then living four brothers, viz: Weir, George, Joseph, and Samuel, and one sister, viz., Elizabeth McCaffrey, all well known to him; that his sister, Elizabeth, was at the time aged and in very feeble health; that his brother, James, died, leaving as his children and heirs the persons named in the first item of said will, who are all living; that his sister, Elizabeth McCaffrey, who was living as aforesaid, had the children named in the second item of said will, and no others; that they are all still living; that Elizabeth died since this case was tried in the court of common pleas, leaving said persons as her heirs; that his brother, Robert, had died as aforesaid, leaving the persons named in the third item of said will as his only heirs, who are all living; that his sister, Margaret, had died, leaving as her only heir the person named in the sixth item of said will, who is still living; that his brothers, Weir, George, Joseph, and Samuel, are still living; that the testator died about February, 1882, aged about •-years, leaving no other heirs, except the persons named in said will; that he left an estate valued in round numbers at about $100,000; that after paying the specific bequests, there will remain to be distributed under the 12th item of the will about $20,000; that Matilda Anderson, named in the 7th item of the will, is not an heir of said testator.”</p> <p>On the trial in the district court, the agreed statement of facts, and the copy of the will on file with the petition, were all the evidence that was offered, and “the court found and adjudged that the remaining estate of the testator, under the 12th item of the .will, ■ should go to the brothers and sisters of the testator living, each one-eighth part thereof, and to the children of the deceased brothers and sisters of the testator, to each family, per stirpes, the one-eighth part thereof.” The finding and judgment were excepted to, and a motion for a new trial was overruled, and a bill of exceptions was filed.</p> <p>The plaintiffs in error now claim that:</p> <p>“The court erred in adjudging that the residue of the estate of Thomas McKelvey, deceased, to be distributed under item 12 of his will, should be divided into eight shares, and one share each given to his living brothers and sister, and one share each to the families of the deceased brothers and sister.</p> <p>“The court erred in refusing to divide said residue of the testator’s estate into twenty-two shares, and giving to plaintiffs in error each one share.”</p>

<p>Appeal — Waiver by receiving amount of judgment — Usury—Estoppel to assert — Usury in successive loans finally secured by mortgage — Right to deduct on foreclosure.</p> <p>1. In an action for an account of the amount due on a mortgage of real estate and a sale of the mortgaged premises, the only question was whether usurious interest was embraced in the mortgage. The court found that the mortgage did embrace Í>1,533.30 illegal interest, and found the amount due to the plaintiff to be as claimed by him, less such illegal interest, rendered judgment accordingly, and ordered a sale of the property to satisfy such judgment. The plaintiff received and receipted for the full amount of the judgment so rendered. Held, that the plaintiff did not thereby waive the right to appeal to the district court with respect to such alleged usurious interest. Tdbler v. l^iseman, 2 Ohio St. 207, distinguished</p> <p>2. A., B., and 0., partners, having executed a promissory note to D. embracing usurious interest, and having also executed to him a mortgage on real estate to secure the note, A. conveyed to B. and C. his interest in the partnership property, including the real estate mortgaged, B. and C. agreeing, in consideration thereof, to pay the firm debts, including the debt to D. Held, that B. and O. were not estopped to assert such usury, in an action by IX for the sale of the mortgaged premises; nor is the assignee in bankruptcy of B. and C. precluded from making such defense, although B. and 0., in the bankrupt proceeding, reported D.’s debt at the full amount claimed by him.</p> <p>3. In 1869, 1870, and 1872, A. loaned money to B., talcing at each loan a promissory note therefor, the note for the loan of 1870 embracing, also, the amount of the loan of 1869, and the note for the loan of 1872 embracing, also, the amount of the two preceding loans. In each off the notes usurious interest was incorporated. Held, that in an action to foreclose a mortgage given to secure the payment of the note of 1872, and obtain a sale of the mortgaged premises, all the illegal interest should be deducted.</p>

<p>Negligence — Master and servant — Injury to passenger while assisting driver of street ear.</p> <p>The plaintiff was a passenger on defendant’s street railroad, on a car northward bound. The railway was a single track, with occasional sidetracks for the passage ot cars moving in opposite directions. The north-bound car, having been drawn beyond the side-track, where it was to have met the south-bound car, it became necessary to push it back to the side-track, so that the cars could pass and each proceed to its destination. At the request of the driver of the north-bound car, the plaintiff assisted him in pushing the car back to the side-track. While so engaged, without fault on his part, he was injured by the carelessness of defendant’s driver on the south-bound car Held:</p> <p>1. The plaintiff did not engage m the service ot defendant as a mere volunteer.</p> <p>2. Under the circumstances the plaintiff can not be considered as a fellow-servant with the driver ol the south-bound car</p> <p>3. In the case stated, the doctrine of respondeat superior applies.</p>

<p>Constitutional law — Eminent domain — Benefits set off against value of land taken — More land taken than necessary — Occupancy and burden upon surplus by other corporation — Power of appropriating corporation to sell surplus — Estoppel to sell surplus.</p> <p>Oliver was owner in fee of a lot of land, which extended to the middle of the Maumee river, on the east side of that stream. In February, 1851,-the Lake Shore Kailway Company appropriated for its road running noflth and south, parallel with the river, a strip of ground through such lot one hundred feet in width and twelve hundred feet in length, which left a portion of such lot between the land appropriated and the river, and also a portion on the other side of the strip appropriated. No compensation in money was assessed or paid, the supposed benefits having been set off against the actual damages, as authorized by the constitution. of 1802. The appropriation was made under the act of 1848, “regulating railroad companies” (2 Curwen, 1394, (5 9), by which such a company had the right to enter upon land and “ appropriate so much thereof as may be necessary for its railroad,” and “hold the interest in such lands . . . and the privilege of using any materials on said roadway within fifty feet on each side of the center of such roadway, for the uses aforesaid.” Immediately after such appropriation, the company constructed its railroad on the western half of the strip, and it has continued to operate its road on that half to the present time, but it has never used the other half of such strip. In 1872, the Pennsylvania Company, a corporation under the laws of Pennsylvania, hut not authorized to appropriate lands in Ohio, under our statutes, desiring to have twenty-five feet of the strip so appropriated, being the twenty-five feet lying immediately east of the fifty feet so used by the Lake Shore Company, for the purpose of constructing and operating thereon a railroad, and the Lake Shore Company, after the lapse of more than twenty-one years, having become satisfied that it did not and would not need such strip of twenty-five feet for any purpose, it was agreed by the two companies, that the Pennsylvania Company, for the consideration of $7,500, paid by it to the Lake Shore Company, should have the right to construct and operate, on such twenty-five feet, a railroad, and hold such twenty-five feet for such purpose in perpetuity; and accordingly the Pennsylvania Company constructed and is still operating such road; but there was no appropriation of such twenty-five feet by the Pennsylvania Company, nor was any compensation paid therefor to Oliver. * The track of the Pennsylvania Company is constructed on a different grade from that of the Lake Shore Company, and by reason of this fact that portion of Oliver’s lot lying between the strip appropriated and the river, theretofore.aceessible to Oliver, has become inaccessible to him and comparatively worthless. In an action by Oliver against the Pennsylvania Company, commenced in 1876, to recover damages by reason of the premises, Held:</p> <p>1. Under the constitution of 1802, which was unlike the present constitution in that respect, where lands were appropriated by a railroad company for its track, supposed benefits might be set off against the value of the land taken, and hence the land might be appropriated without the payment of any money whatever.</p> <p>2. The power to take, in invitum, private property for the purposes of constructing and operating a railroad thereon, can only be delegated to a corporation by statute; and as such statute must be strictly construed and followed, the land-owner, by one appropriation pursuant to the act of 1848, above mentioned — where more land was appropriated by such corporation than was necessary for its use — could not (as but an easement and not a fee passed) be subjected to the occupancy and burden, upon such surplus, of another common carrier holding under an attempted grant in perpetuity from the first corporation. In so holding, we recognize fully the right of sale or lease of a road and right of way to another railroad corporation, which shall pass all the rights of the original company to the purchaser or lessee, to the extent contemplated in our legislation or recognized in the decisions of this court, none of which are questioned in this case.</p> <p>3. The fact that it became evident, subsequently to an appropriation, that the company has appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for tvhich the appropriation was made, will not authorize the company to sell in perpetuity such surplus part to another railroad company; and where the latter company, pursuant to such purchase, constructed on such surplus a railroad, and operated the same for several years, the land-owner is not authorized to recover by civil action such surplus, or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation.</p> <p>4. In such an action the land-owner is not estopped by the condemnation proceedings to show that the first company appropriated more land than was necessary for its use.</p>

<p>Revised Statutes, sections 2478, 2485, 3552 — Statutory construction — “ Person" includes corporation — Term of franchise of gas company — Regulation of price.</p> <p>1. The words “person or persons,” as used in Revised Statutes, section 2485, include a gas company or other private corporation.</p> <p>2. Where a gas company, under the provisions of Revised Statutes, section 3552 (56 Ohio L. 92, §1), extends into a village its pipes used for conveying gas, and is vested with the right of way where such pipes are laid, and uses such pipes to convey to the village lamps, gas manufactured by such company outside the village, and uses such manufactory and pipes as one plant, such company may he regarded as established in such village, within the meaning of Revised Statutes, section 2478; and such extension of pipes may he regarded as the extension of gas-works for supplying the village with gas, within the meaning of section 2485. In such case the inhibitions of section 2478 and of section 2485 apply to the council of such village.</p> <p>3. In making a contract with a gas company for supplying gas to a municipal corporation and its inhabitants, section 2478 and section 2485 do not authorize a contract that for an indefinite period leaves to other parties the regulation of the price that shall be paid, or the quantity or quality of gas that shall be furnished.</p>

<p>Request to charge ffiry — When may be refused — Revised Statutes, section 3324 — Liability of railroad for defect in fence to track — Sufficient evidence of negligence — Evidence—Opinions of witnesses as to sufficiency of fence to turn stock.</p> <p>1. Where a party presents to the court a written request for instructions to the jury, unless he is entitled to have it given in the terms in which it is expressed, there is no error in refusing it.</p> <p>2. Section 3324 Revised Statutes, requiring railroad companies to fence their tracks, and providing that they shall he liable fin- damages sustained by reason of the want or insufficiency of such fences, is to be reasonably construed; and where such damage results from defects (occurring without the fault or neglect of such companies) in an otherwise sufficient fence, there is no liability.</p> <p>3. The fact that an insufficient fence has for several weeks been maintained by a railroad company along its right of way, is sufficient lo justify a jury in finding it guilty of negligence; and the fact that the plaintiff's stock had, during all such time, been kept in a field adjoining the right of way, without escaping through such fence and passing upon the railroad track, is not sufficient to excuse the company from such neglect.</p> <p>4. Where the immediate means or cause of such stock passing over such fence and upon the railroad track is that, recently prior thereto, a board or rail liad become detached and fallen from the fence, without the knowledge of the company, such company is not excused from liability, where there is evidence to justify the jury in finding that such special defect was attributable to the generally defective condition of the fence.</p> <p>5. Where one of the issues in an action is whether a fence is sufficient to turn stock, it is error to permit witnesses, who show no other qualificaeation than that they had seen the fence, to give to the jury their opinions as to the sufficiency of the fence to turn stock.</p>

The action in the common pleas was brought by McClelland against Mrs. Osborn and others to foreclose a mortgage, made by her to her daughter, Jennie L. Eaxon, to secure the following note: “ 5,000. Columbus, O., March 30,1874. “ Three years after date, I promise to pay to the order of Jennie L. Eaxon, the sum of five thousand dollars, with interest from date, payable annually, for value received. “ Secured by mortgage. Emelins L. Osborn.” Indorsements. “ May 12.

Mandamus. This is a proceeding in mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for the sum of $13,898.90, to pay for a site purchased from him by the commissioners of that county for a children’s home.

Mandamus. .This is an action by the state of Ohio on the relation of Thomas Q. Ashburn against A. B. Shaw, clerk of the court of common pleas of Olermont county.

<p>Instruction to jury — Assumption in, of existence of disputed fact, erroneous— Criminal law — Intoxication as defense — Evidence of, how far admissible — Malice—Necessity of showing in prosecution for maliciously shooting.</p> <p>1. Where a fact, material to the issue, concerning the existence, of which there is conflict in the evidence, is assumed by the court, in the charge to the jury, to be fully established, the province of the jury is invaded, and prejudicial error is shown.</p> <p>2. Intoxication is no defense to a prosecution for crime; but in some cases evidence of intoxication is admissible to show that no crime has been committed, or to show the degree or grade of a crime; and in a prosecution for maliciously shooting with intent to wound, evidence that the defendant was so much intoxicated that he could not form or have such intent, is admissible.</p> <p>3. In a prosecution for maliciously shooting with intent to wound or kill, it is error to charge that the defendant should be found guilty of such felony, if he might have been properly convicted of manslaughter had death resulted from the shooting.</p>

<p>Township road — Proceedings to establish — Record should show notice of presentation of petition — Sufficiency of notice.</p> <p>1. It is essential to the validity of proceedings by township trustees to establish á township road, that the record shall show either that the required notice of the presentation of the petition was duly given, or that the trustees were satisfied that it was. Ferris v. Bramble, 5 Ohio St. 109, approved and followed.</p> <p>2. Where the record fails to show more on the subject of notice than: “Petition presented to the township trustees on the 26th day of April, 1877, after having notice up in three public places in the township for thirty days,” it is error for the trustees to proceed to order the establishment of the road, for the reason that there is no sufficient showing in the record, either that the proper notice was given or that the trustees were satisfied that it had been given.</p>

‘ Motion for lebve to file petition in error to the Court óf Common Pleas of G-reene county. A great number of errors are assigned, all of which have been passed upon by the court, but only one js reserved for report. The indictment was for murder in the first degree, in killing one John T. Yan Boren, marshal of the village of Wilmington, Clinton county, and on change of venue the accused was convicted and sentenced for manslaughter in Greene county.

Reserved by the District Court of Gallia county. On March 26, 1881, Reuben Aleshire became accommodation indorser for James A. Simmons & Co. to the Yinton County National Bank on a note of $1,500, payable to his own order four months after date at the banking house of the indorsee. The indorsement was in. blank. Before the maturity of the note, Reuben Aleshire assigned to George House all his property for the benefit of his creditors, under the laws of the state of Ohio.

These cases are alike in legal principles. In March of the year 1877, William.

This suit is brought by certain members of the Victoria Building- Association No. 2, who have borrowed money from the association, in behalf of themselves and all other members who have borrowed money from the association, to enjoin the defendant from enforcing the following amendment to its constitution : “An annual settlement shall be had with .each borrowing member, when he shall receive a rebate of interest on the amount of dues paid and earnings credited for the…

<p>Criminal law — Robbery—Violence concomitant with the taking — Conviction of lesser degree of crime — Arraignment, necessity for.</p> <p>1. The violence which is essential to the crime of robbery must be concomittant with the taking of the property from the person of another.</p> <p>2. On the trial of a person indicted for the crime of assault with intent to rob, it is error to refuse to charge that violence, in order to constitute the crime, must not be subsequent to the attempt to take the property.</p> <p>3. Such, indictment will support a conviction for assault and battery, and it is error to refuse to so charge. Howard v. The State, 25 Ohio St. 399.</p> <p>4. The record of a conviction for crime must show that the defendant was arraigned on the indictment.</p>

The original action was on a sheriff’s bond. The petition avers that Robert W. Hubbard was elected sheriff of Jackson county in October, 1872, and duly gave bond, conditioned “ that if the said Robert W. Hubbard shall faithfully discharge all and singular the duties of sheriff of said county of Jackson for the term aforesaid, according to law and the best of his ability, then this obligation to be void, otherwise, to be and remain in full force and virtue in law.” The bond…

<p>Statute of limitations — Whether saving clause repealed by implicatioii by married women’s act of April 3, 1861.</p> <p>The act of April 3, 1861, constituting the real and personal property of a married woman her separate estate, and the provisions of section 28 of the Civil Code (now Revised Statutes, section 4996), authorizing her to sue and be sued alone, did not repeal by implication the saving clause in the statute of limitations securing to married women the right to maintain actions within the respective times limited after such disability is removed.</p>

<p>Dower — Appeal.</p> <p>A proceeding by a widow for the assignment of dower in the lands of her deceased husband is a civil action, and a judgment or final order therein may be appealed from.</p>

<p>Error. Reserved in the District Court of Summit county.</p> <p>THe action below was brought by Good to recover upon a policy of fire insurance of $1,000, issued by defendant, which it had converted into a building contract by the following clause in its policy;</p> <p>“ Eor further particulars see application and survey, No. 20,451, which is hereby made part of this policy, and a warranty on the part of the assured, on file in the office of the Buckeye Mutual Eire Insurance Company.</p> <p>“Against all such immediate loss or damage sustained by the assured and his legal’ representatives, as may occur by fire, to the property specified not exceeding the sum insured, nor the interest of the assured in the property, except as hereinafter provided; from the fifth day of May, eighteen hundred and seventy-eight, at 12 o’clock, noon, to the fifth day of May, eighteeu hundred and eighty-three, at 12 o’clock, noon; to be paid ninety days after due notice and satisfactory proof of the same, made by the assured, are received at the office of this company, in Shelby, Ohio; it being covenanted as conditions of this contract, that this company may repair, restore, or replace the property lost or damaged, on giving notice of such intention within ninety days after receipt of proofs herein required, in which case the assured shall furnish plans and specifications of the property so lost or damaged.”</p> <p>The petition avers a total loss by fire on the 18th of June, 1878, due notice thereof on the 5th of July thereafter, and notice by the defendant on the 24th of J uly of its intention to repair and rebuild within a reasonable time, and that plaintiff, as required by the policy, furnished the necessary plans and specifications therefor, on the first day of September, 1878, whereby the defendant was bound to rebuild said building, and plaintiff was prevented and hindered from rebuilding. Although a reasonable time had elapsed, nothing whatever was done toward performing such contract, and on October 23, 1878, it notified the plaintiff that it did not intend to, and would not rebuild.</p> <p>On the same day the parties mutually agreed that certain persons named “ should appraise and estimate at the true cash value the damages by fire to said property which appraisement and estimate in writing by them, or any two of them, should be binding on both parties so far as regards such appraisement of loss or damage to said building.”</p> <p>On the 24th of October, these appraisers made their report that such damage amounted to f32,990, of which defendant had due notice, but has failed to pay the same on any part thereof.</p> <p>Wherefore he prays judgment for $10,000, with interest from October 24, 1878.</p> <p>The answer admits a partial loss not exceeding $20,000, of which it had due notice; that it served upon plaintiff as alleged notice of its intention to repair, but has not done so by reason of the following state of facts: That at the time the fire occurred, plaintiff had other insurance in nine other companies, aggregating $32,000, making the total insurance $33,000; that eight of said companies, including this defendant, having $29,000 of insurance, gave notice of their intention to repair the building; that two companies which gave no such notice, and which had $4,000 insurance, did not elect to rebuild; that the several companies representing $29,000 of insurance, including this defendant, advertised for bids, and let the same, and were about to enter into a contract with the successful bidder, when the plaintiff, without the knowledge or consent of the defendant, compromised and settled with said several companies, except the two who had not elected to rebuild, for about $20,650, and released said companies from all claims upon them to rebuild and restore said building; that when this settlement came to the knowledge of defendant, this defendant and plaintiff “ waiving all acts done or rights accruing under said notice to rebuild and repair ” (except as to defendant’s share of expense to plaintiff for preparing plans and specifications for rebuilding, amounting to $37.50, which it has always been ready and willing to pay), the parties entered into an agreement in writing, to submit the amount of loss and damage according to the provisions of said policy to appraisers, as stated in the petition.</p> <p>The reply admits that there was $33,000 of insurance, but that $3,000 thereof was in favor of one Hall, a mortgagee, to secure his interest in said property. It admits that the eight companies carrying insurance to the amount of $29,000 did, on July 24, 1878, give notices which were several and not joint of their intention to repair and rebuild, each of which notices was severally signed by -the respective companies so electing. He admits settling with all the companies so electing to rebuild, except defendant, for about $20,500, which was $7,500 less than the amount due from said companies.</p> <p>He avers that defendant had notice of this settlement before, at the time and after the same was made, and made no objection thereto.</p> <p>On trial to a jury the issues were found for the defendant, followed by motion for a new trial, the overruling of the same, prosecution of error to the district court, the reversal of the judgment by that court, the remanding of the case for a new trial, the second trial to a jury, a like verdict, the overruling of a -motion for a new trial, with another bill of exceptions, error again to the district court, and a reservation to this court.</p> <p>The errors assigned are that the court erred in its instructions to the jury in refusing to charge as requested, in overruling the motion for a new trial, and in giving judgment against plaintiff. On the trial plaintiff admitted that he had $29,000 of concurrent insurance in the several companies electing to rebuild, and $4,000 not included in said $29,000; that each of said companies so electing served upon him a notice, of which the following is a copy:</p> <p>“Akron, O., July 24, 1878.</p> <p>“Jacob Good, Esq. — Dear Sir: This company is in receipt ■of papers purporting to be proofs of loss under policy No. 20,451, issued by this company and held by you. Tour attention is respectfully directed to the general conditions of said policy, and you are hereby notified that it is the intention of this company, acting jointly with other insurance companies claimed to be interested, to repair and rebuild the premises claimed to have beeu damaged, with other of like kind and quality, wdthin a reasonable time, and you are hereby required to furnish plans and specifications of the building destroyed. Any communication you may have to make in reference to the matter please direct to the office of this company at Shelby, Ohio. Respectfully.”</p> <p>Each of said notices being signed by the company giving it.</p> <p>That on October 12, 1878, plaintiff settled with each of the companies so electing to rebuild, except this defendant, carrying $28,000, and received from them $20,500, and released each one of them from all claim which he may have had upon their respective policies or arising under said contract to rebuild or repair.</p> <p>The evidence of witnesses in the case relate chiefly to the loss or damage. It appears that after the settlement and compromise with the seven companies, which, with the plaintiff, had elected to rebuild, the parties to this action attempted to compromise. Upon this point Eoust, the general agent of the company, testifies as follows :</p> <p>“On the 19th day of October, 1878, S. 8. Bloom, president of the company, received a letter from J. J. Hall, requesting the company to settle the loss ; Bloom answered that I would be there Tuesday or Wednesday following; Tuesday, October 22, 1878, at five o’clock p. m., I arrived at Akron for the purpose of settling Good’s loss; soon after coming there I went from the Sumner House to Good’s building, where the fire occurred ; I saw that they had already commenced preparatory work for rebuilding the same. Wednesday, October 23, 1878, p. m., I met Messrs. Upson and Hall, attorneys for Good, in Hall’s office; they claimed one thousand dollars and damages of the Buckeye; I refused to settle in- this way, and made them two propositions : first, to compromise on same basis as other companies; or, second, to have an appraisement by two or three disinterested competent persons; they said they would consult with Good. October 23d, in the evening, I met J. J. Hall and Jacob Good, in the office of the former, and we then entered into an agreement in writing. The following persons were selected as appraisers: Frank Lukesh, D. W. Thomas, and William H. Smith, architects, who were to appraise the damage by fire to the property insured under the policy. Before Good consented to sign said agreement he wanted me to pay our share of damages for not rebuilding; this I had first refused to do. We finally, agreed that the company would pay the sum of thirty-seven and 50-100 dollars as its proportion of the cost of the plans and specifications. Good then signed the agreement to leave it to appraisers. At Shelby, Ohio, Tuesday, October 29, 1878, report of appraisers on the Good loss came to hand from Akron. The appraisement was not satisfactory to me for several reasons, one of which was, they counted in plate-glass, not covered by our policy, and on which I understood Good had separate insurance. I ordered the secretary to say to Good that we would pay him ($834.83) eight hundred and thirty-four and 83-100 dollars, including thirty-seven and 50-100 dollars, the amount of damages for not rebuilding, as agreed upon; also, dis'count for ninety days at ten per cent per annum. Good refused to accept said draft.”</p> <p>[Above answer objected to by plaintiff’s attorney.]</p> <p>“Q. Before going to Akron, as stated above, on the 22d day of October, had you learned that Good had settled with the other companies, and did you also learn this fact after reaching there, from them ?</p> <p>A. I learned it before I left Shelby, and I talked it over with Good and his attorneys after reaching Akron.”</p> <p>The agreement for submission to arbitrators mentioned in the pleadings and referred to in Foust’s testimony, is as follows:</p> <p>“ Agreement for submission to appraisers.</p> <p>“ It is hereby agreed by Jacob Good, of the first part, and the Buckeye Mutual Fire Insurance Company, of Shelby, Ohio, of the second part, that David W. Thomas, William H. Smith, and Frank Lukesh, of Akron, Ohio, shall appraise and estimate at the true cash value the damage by fire to the property belonging to Jacob Good, as specified below, which appraisement and estimate by them or any two of them, in writing, as to the amount of such loss or damage, as per the accompanying schedule, shall be binding on both parties, so far as regards such appaisement; it being understood that this appointment is without reference to any other question or matters of difference within the terms and conditions of the insurance, and is of binding effect only so far as regards the actual cash value of or damage to such property as may be found to have been saved in a damaged condition, which was insured and covered by policy No. 20,451 of said company, issued at the Akron agency.</p> <p>“ The property on which damage is to be estimated and appraised is the threerstory brick and stone mansard and tin roof building, situate on north side of East Market street, between Main and High streets, Akron, Summit county, Ohio.</p> <p>“And it is expressly understood and agreed, that said appraisers are to take into consideration the age, condition, and location of said premises previous to the fire, and also the value of the walls, materials, or any portion of said building saved, and after making an estimate of the cost of replacing said building, a proper deduction shall be made by them for the difference (if any) between the value of a new or replaced building and the one insured; and in case the company shall be unable to reinstate or repair the building because of any provision, of law to the contrary, it shall be liable to pay only such sum as would be required to reinstate or repair the building, if the same could be lawfully rebuilt or repaired; and it is furthermore expressly understood and agreed that in estimating the damage to stock, machinery, or other property, the said appraisers are to take into consideration the age, condition, and location of said property previous to the fire, and also the cash value of said property or any portion thereof which may have been saved in a damaged condition, and after making an estimate of the cash cost of replacing said property, a proper deduction shall be made by them for the difference (if any) between the value of the said property replaced 'new and the said property insured. Said appraisers are hereby directed to exclude from the amount of damage any sum for previous depreciation from age, location, ordinary use, or cause whatever, and simply to arrive at the damage actually caused by said fire.</p> <p>“ Witness our hands at Akron, Ohio, this 28d day of October, 1878. Jacob Good.</p> <p>" D. I. Eoust, for company.”</p> <p>J. J. Hall, Esq., one of the attorneys for plaintiff, testifies as follows touching the negotiations for a compromise and the circumstances under which the agreement to arbitrate was signed:</p> <p>“ Q. You may state to the jury whether, as attorney for Good, you were present at the meeting with Good in your office.</p> <p>A. I was present.</p> <p>Q. Who was present beside yourself?</p> <p>A. Good, Eoust, and I think Mr. Motz.</p> <p>Q. State to the jury the conversation that occurred at that time.</p> <p>A. Eoust, I think had been to see Good before this; when Good came to the office Eoust was in there; Eoust said, 41 came to see about that loss, to see if it could be arranged ; ’ it is impossible for me to give you all the conversation ; he said to me he was very much dissatisfied with Mr. Pattison, because he had not settled as we wanted him to; I said, Mr. Eoust, we have no claim against you on the policy, our claim is against you for not rebuilding the building, after you served the notice upon us to rebuild;’ he then said, We can not put up that building;’ we had considerable conversation about it; then he said, We will not put up the building, but we will pay what these three men determine the damage is; whatever they find it to be we will pay;’ I said, There will be additional expense making out these plans and specifications;’ he said, We will pay our share of that, too.’ I am very certain that there was not one word said about $37.50. They agreed to pay whatever these three men agreed the damage was; if it was $10,000, they would pay it; if it was-$40,000, they would pay it. It was understood between us that this was to be the amount they were to pay.</p> <p>Q. You may state if any thing was said with reference to waiving the contract to rebuild.</p> <p>A. Nothing was said; nothing of that kind was thought. If they paid us the amount these men would find, we would be satisfied.</p> <p>Q. At any time, kso far as you know, was there any negotiation about waiving the contract to rebuild ?</p> <p>A. None, whatever.”</p> <p>Good, the plaintiff, on the same subject, testifies :</p> <p>“ Q. Were you present at the time referred to by Mr. Hall, when this agreement was signed ?</p> <p>A. Yes, sir.</p> <p>Q. You may state whether you talked the matter over with them or Mr. Hall, for you ?</p> <p>A. Mr. Hall did most all of the talking.</p> <p>Q. You may state whether at-that time, or any other, you have made any agreement with this company, or any of its agents, with regard to waiving the contract to rebuild.</p> <p>A. No, sir.”</p> <p>On cross-examination said witness further testified:</p> <p>“Q. Mr. Hall did the talking, did he?</p> <p>A. Yes, sir.</p> <p>Q. When he told you to sign that paper, you signed it ?</p> <p>A. Yes, sir.”</p> <p>Henry Motz, who was present with Foust in the office of Hall when this arbitration agreement was signed, and who was at the time an agent of the defendant, gave the following testimony upon this point:</p> <p>“Q. Do you recollect of going with Mr. Foust after the fire, and after the settlement with the other companies, to Mr. Hall’s office?</p> <p>A. Yes, sir.</p> <p><2. Who was present ?</p> <p>A. Mr. Hall, Mr. Good, Mr. Foust, and myself.</p> <p>Q. What was done and said by Mr. Foust to Mr. Hall and Good as to the notice they had given plaintiff as to rebuilding ?</p> <p>A. Mr. Foust of course came over here to pay his loss on the building.</p> <p>Q. What occurred there in regard to that question, as to the agreement to rebuild ?</p> <p>A. When they came together to make the agreement, Mr. Good said that he had additional expenses to get up the plans and specifications; Mr. Foust said that he would pay his share of the additional expense; we then agreed to have these appraisers estimate the loss and damage to the building by the fire, which amount we agreed to pay.</p> <p>Q. Hid they agree what the Buckeye Insurance Company’s expenses should be for the plans and specifications ?</p> <p>A. The full amount was $37.50.</p> <p>Q. After that agreement, did they agree upon the appraisers ?</p> <p>A. Yes, sir.</p> <p>Q. Do you know who the appraisers were ?</p> <p>A. Yes, sir; D. W. Thomas, Frank Lukesh, and W. H. Smith.”</p> <p>On cross-examination said witness further testified:</p> <p>“Q. At what time was that conversation had?</p> <p>A. In Mr. Hall’s office, the same fall after the fire.</p> <p>Q. At what date ?</p> <p>A. I think it was the latter part of October; it was the same day this agreement was signed for the appraisers.</p> <p>Q. Who did you say were present ?</p> <p>A. Mr. Hall, Mr. Foust, Mr. Good, and myself.”</p> <p>That part of the charge of the court to which plaintiff excepted, will be found stated in the opinion.</p> <p>So much of the policy as bears upon the questio'n involved is as follows:</p> <p>“ In case of loss, the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire, the occupancy of the building insured or containing the property insured, other insurance, if any, and copies of all policies,'the whole value and ownership of the property, and the amount of loss or damage, and shall produce the certificate, under seal of a magistrate, notary public, or commissioner of deeds nearest the place of the fire, and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the said assured. In no case shall the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire; nor shall the assured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insicred bears to the whole sum insured on said property, whether such' other insurance be by specific, or by general or floating policies, and without reference to the solvency or the liability of other insurance .”</p> <p>Also, “ damage to property not totally destroyed, unless the amount of said damage is agreed upon between the assured and the company, shall be appraised by disinterested and competent persons, mutually agreed upon by the parties.”</p>

January 10, 1880, the Jackson Iron Company, by writing, said to E. K. Chamberlain, that.the company “ will sell you one hundred (100) tons of No. 1, Stewart Bessemer iron, delivered in the yard of Rhodes & Co., 2240 lbs. per gross ton at $46 50, cash down, on delivery to you of Rhodes & Co.’s warehouse receipt, Rhodes & Co.’s dockage charges to be paid by you.

The Home Building and Loan Asssociation of Columbus, Ohio, being the owner of lot No. 36 in R. E. Neil’s addition to the city of Columbus, Ohio, on November 20, 1876, for the consideration of $2,000, sold and conveyed the same to Augustus Johns. On the same day Johns executed and delivered to such association his notes for $1,250, being for deferred payments of purchase-money, and a mortgage deed re-conveying the realty to the association to secure the payment of the notes.

This action was commence March 30, 1880, to quiet the plaintiff’s title, as against claims of the defendant, Bates, to certain described land. Bates for answer sets up that on March 1, 1878, one William H. Rolli was the owner of the land in controversy, and on that day executed and delivered to one John Zwald two promissory notes for $117.50 each, one due on October 1, 1879, and one October 1, 1880, with interest.

David J. Davis brought an action to recover damages for injuries to his person caused by his falling into an unguarded pit in the road-bed of Pine street, a public highway of the city of Warren, while he was walking along the street on the night of Eebruary 28,1881. In the petition there was no allegation that Davis, before commencing his suit, filed a claim for damages with the clerk of the city of Warren.

On October 24,1882, the plaintiff, the board of commissioners of Perry county, filed its petition in the court of common pleas of that county against the defendant, the Newark, Somerset and Straitsville Railroad Company, in which it was alleged (with other necessary formal averments) that, prior to the year 1871, it became necessary to build and it did build a bridge upon a county road within the village of Somerset, in that county, at the county expense, which, bridge…

<p>Municipal corporations — Assessments—Liability of property not bounding or abutting upon improvement.</p>

Mandamus. Thi^ is an action commenced in this court to compel the clerk of Richland county to certify a certain action therein ponding to Knox county, because the judges in the subdivision of which Richland is a part are disqualified from hearing the case. It is agreed by counsel to waive the issuance and service of an alternative writ, and that the case is to be heard upon issue joined on an application for a peremptory writ.

Samuel Gano died intestate June 11,1880. His property consisted of one hundred and forty-one acres of land in Morrow county, a few hundred dollars’ worth of live stock and farming implements, etc., and about $7,000.00 in promissory notes. There were thirty-eight notes, of various amounts, from $5.00 to $750.00, and interest, and bearing divers dates, from August 7, 1867, to July 20, 1830, as set forth.

On the 7th day of June, 1881, Emiline Miller made a complaint in bastardy against James M. Anderson, the defendant, before a justice of the peace, alleging that on the 10th day of November, 1865, she had been delivered of a bastard child, and that defendant was the father of the child. On this complaint, and an answer denying its truth, a trial was had in the court of common pleas, at the November term, 1882, which resulted in a verdict and judgment in favor of complainant.

<p>Corporation de facto— Collateral inquiry — Effect upon prior acts of subsequent judgment in quo warranto — Effect of such judgment upon third parties — Whether retro-active — Evidence of de facto existence of corporation — Admissibility.</p> <p>1. Where an attempt is made, in good faith, to organize a private corporation by colorable proceedings, approved by the attorney-general and the secretary of state, the paper intended for the certificate of incorporation admitted to record in the office of the latter, duly certified by him as the certificate of incorporation of such body; where these steps are followed by uninterrupted' and unchallenged user for a number of years, and valuable rights and interests have been in good faith acquired, enjoyed and disposed of by such organization, acting as-a body corporate, it is a corporation de facto, and its corporate capacity can not be questioned in a private suit to which it is a party.</p> <p>2. Such an organization has capacity to acquire, hold, enjoy, incumber, and convey the legal title to real estate; and rights acquired or liabilities incurred by it and by parties dealing with it in good faith,-will not be divested or defeated by a subsequent judgment in quo warranto proceedings, excluding it from, the use of corporate franchises by reason of some defect or omission in the original steps taken to assume corporate powers.</p> <p>3. It is not competent for this court, in a quo warranto proceeding ousting an acting corporation of the franchise to be a body corporate, to consider or determine the rights or liabilities of third parties, who have acquired such rights or incurred such liabilities in their dealings with such acting corporation.</p> <p>4. In such a proceeding, when the court has adjudged that such body be excluded from the right to exercise the franchises of a corporation, it has exhausted its jurisdiction over the subject-matter of the controversy before it.</p> <p>5. A judgment of ouster against a pretended corporation by reason of defect in the form of the certificate of incorporation, is not retro-active in its effect upon rights acquired and liabilities incurred in the course of transactions in good faith with such acting corporation, prior to such ouster.</p> <p>6. On the trial of an action to which such an organization is a party, evidence of an attempted and colorable incorporation, followed by user in good faith for a number of years, is admissible (as against a party not estopped to deny its corporate existence), to prove it a corporation de facto, though offered after judgment of ouster.</p>

<p>Husband and wife — Alimony—Modification of former decree — Changed circumstances of parties — Re-marriage of divorced wife — Pleading— Exhibit attached to petition without averment.</p> <p>1. A party to a decree for alimony may, by an original petition and suit, obtain a modification of such former decree, upon proper allegations of the changed condition and circumstances of the parties.</p> <p>2. Such allegations must not relate to circumstances and facts that existed and were, or might have been, pleaded in the former action, but to new facts, thereafter transpiring, which are of such a character as to make the modification necessary to suit such altered condition of the parties.</p> <p>3. Where alimony had been granted, in installments, to a divorced wife, and she is afterward re-married to a man financially able to, and who does, in fact, support her, these facts would prima facie be a good cause for modifying the former decree so as to reduce the amount to be paid for her support to a nominal sum, or such sum as, in the changed condition of the defendant, the court might deem just and reasonable.</p> <p>4. A transcript of a former decree attached to a petition and marked “A,” can not be considered in construing such petition and will notin any sense supply the place of direct and positive averments of the facts relied on.</p>

<p>Attachment — How interest of stockholder in corporation reached by— When corporation attaching creditor — Effect of attachment where stock has been pledged — Poioer of court to order sale — Application of surplus and dividends — Priority of attachment liens.</p> <p>1. The interest of a stockholder in the property of a private corporation represented by certificates of shares registered in his name, may be reached by garnishee process served upon' the corporation.</p> <p>2. If the corporation is the attaching creditor, it may by such process served upon itself, reach such interest.</p> <p>3. Where, prior to the service of such process, the shareholder has pledged the certificates as security for a debt and has delivered them to the pledgee, with an absolute power of sale and transfer upon the books of the corporation, indorsed thereon, upon default of payment of the debt thereby secured, the attachment reaches only the surplus after payment of the debt to the pledgee.</p> <p>4. If, after this interest in the corporation has been thus attached, the pledgee does not exercise the power of sale and transfer vested in him, and the stock remains in the name of the pledgor on the books of the corporation, the court may, proper parties being before it, order the sale of the stock, ascertain such surplus, and order its application to the satisfaction of the judgment in attachment.</p> <p>5. Such an attachment has precedence over a later one when it is sought to reach this surplus, by garnishee process served upon the pledgee, who has never exercised the power of sale and transfer.</p> <p>6. Dividends made by the corporation and remaining in its hands after process in attachment has been served, follow the stock, and are subject to the same order of distribution.</p>

<p>Injunction — Burden of establishing right to — When granted.</p> <p>1. The burden of establishing a right to a perpetual injunction, claimed by a party to an action, is upon such party.</p> <p>2. A court will grant a perpetual injunction only when a party shows a clear right thereto.</p>

<p>Corporation — Offer to subscribe to stock — Revocation by death.</p> <p>An offer in writing to subscribe to the capital stock of a railroad companj', conditioned upon the construction of its line of road along a designated route, is revocable at the option of the party making such offer at any time before its delivery to and acceptance by such company; and his death before such delivery and acceptance works such revocation.</p>

On November 30, 1885, Edward Daggett filed in this court a petition alleging that he was imprisoned and unlawfully restrained of his liberty by one Edwin Hudson, superintendent of police of the city… Held: and had in custody the said Daggett by virtue of a warrant duly issued by the police court of the city of Cincinnati, as follows : The State of Ohio,) Hamilton County,) City of - Cincinnati.) ss. The Police Court of the City of V. Cincinnati J Cincinnati.

Mayo was tried, convicted, and. sentenced to the penitentiary, in the court of common pleas of Franklin county, at the April term, 1885, upon an indictment framed under section 6825 of. the Revised States, which defines the crime of and prescribes the punishment for child stealing. This is a petition in error to reverse the judgment.

<p>Railroad companies — Common carriers — Remedy of shipper injured by discrimination— Contract to make rebate by reason of larger freightage, void — Remedy by injunction— Consolidated corporation through several states.</p> <p>1. A railroad company, organized under the statutes of Ohio, is a common carrier, and is subject to judical control to prevent the abuse of its powers and privileges.</p> <p>2. Where a lower rate is given by such corporation to a favored shipper, which is intended to give, and necessarily gives, an exclusive monopoly to the favored shipper, affecting the business and destroying the trade of other shippers, the latter have the right to require an equal rate for all under like circumstances.</p> <p>3. Where such a corporation, as a common carrier, in consideration of the fact that a shipper furnished a greater quantity of freights than other shippers during a given term,- agrees to make a rebate on the published tariff on such freights to the prejudice of the other shippers of like freights under the same ciroumstauces. Held: Such a contract is an unlawful discrimination in favor of the larger shipper, tending to create monopoly, destroy competition, injure, if not destroy, the business of smaller operators, contrary to public policy, and will be declared void at the instance of parties injured thereby.</p> <p>4. Such a contract of discrimination can not be upheld simply because the favored shipper may furnish for shipment during the year a larger freightage in the aggregate than any other shipper, or more than all others combined. A discrimination resting exclusively on such a basis will not be sustained.</p> <p>5. Although a court will ordinarily look to the interest of a common carrier as an element in the case when a contract with him relating to freight-age is attempted to be upheld or set aside, such a contract will not be sustained by the courts simply because the business to be done under it ia “ largely profitable ” to him.</p> <p>6. Where it appeared that the plaintiffs’ business was such as to make them frequent shippers, and that a continuous series of shipments was necessary in conducting their business, and that a remedy sought by actions at law would lead to a multiplicity of suits — Held: The court will intervene by injunction to prevent a multiplicity of suits, and it is not a prerequisite that the plaintiffs should have first established their rights by au action at law.</p> <p>1. Where a defendant railroad company is a corporation, consolidated under the statutes of several states, including this state, and its road extends into several states — Held: That its acts of injurious discrimination committed or threatened in this state to the business of shippers, either here or along the line of its railroad, may be enjoined by the courts of this state.-</p>

The original action was brought August 27,1881, in the court of common pleas, against the plaintiff in error, to recover damages the defendant in error claims he sustained through the diversion of the Cuyahoga river from its natural channel. Upon the land of the latter the river made a sharp bend in the form of an ox bow, the two sides of which were within one hundred and fifty feet of each other.

QUO WARRANTO. George S. Peters, W. L. Robinson, D. E. Eee, D. E. Rempel, and D. C. Coolman constitute the board of.directors of the Ohio penitentiary. The petition by the attorney-general charges that they, as such board, have since May 4, 1885, usurped and unlawfully assumed to hold and exercise the following franchises, powers, and privileges, to wit: 1.

Mandamus. With this case is considered and determined Dalton v. State ex rel. Amzi McGill, Dalton v. State ex rel. Frank Kirchner, and Dalton v. State ex rel. Geo. W. Hardacre. The relator in the 'reported case, James C. Richardson, was one of the four Republican candidates for senator, in the general assembly of Ohio from Hamilton county, at the October election, held on the 13th day of October, 1885.

<p>Practice— Criminal law — Suspension of sentence.</p> <p>1. In a criminal case pending on error in the circuit court, this court has no power, under the constitution, to hear and determine a motion to suspend the execution of sentence. Kent v. Mahaffy, 2 Ohio St. 498; P. Ft. W. & C. R. Co. v. Hurd, 11 Ohio St. 144</p> <p>2. The circuit court has such power.</p>