Volume 44 — Ohio State Reports, New Series

<p>Statutory construction — Meaning of term “ senior judge ” in act of April 7, 1882.</p> <p>1. The term “senior judge” in the act of April 7,1882 (79 Ohio L. 79), providing for the appointment of an assistant prosecuting attorney in Lucas county, is intended to designate the judge who, at the time of such appointment, has served the longest under his present commission.</p> <p>2. Hence, where an assistant prosecuting attorney had been appointed October 9, 1885, by a judge, resident of Lucas county, whose existing term of office commenced November 11, 1883, and had qualified and entered upon the discharge of the duties of the office, an appointment November 3, 1885, by a judge whose existing term of office commenced February 9, 1885, was inoperative, although the judge making the latter appointment had been judge under former commissions, and had been longest in continuous service.</p>

<p>Buie day — Filing demurrer aftei — Statute of limitations — Question raised by demurrer — Injury to animals by railroads — When action for barred.</p> <p>1. Where a demurrer is filed to a petition, after rule day for filing the same and the plaintiff makes no objection thereto, but submits the case to final judgment upon the demurrer, it is too late, on error, to object to such filing.</p> <p>2. Where the petition on its face shows a cause of action which is barred by the statute of limitations, no legal cause of action is stated, and a demurrer thereto, on the ground that the petition does not state facts sufficient to constitute a cause of action, raises the question of the statute of limitations as well as other defects in the petition, though the better practice undoubtedly is, to specifically state in the demurrer that the cause of action is barred.</p> <p>3. An action against a railroad company to recover damages for killing or injuring a domestic animal which had strayed upon its track, and was killed or injured without fault or negligence of the railroad company in operating its train, but solely by the neglect te fence the road as required by law, is founded upon “a liability created by statute, other than a forfeiture or penalty,” and is barred in six years.</p>

<p>Life insurance policy — Construction—TJntrue answers in application — Policy void ab initio— When premium may be recovered bach.</p> <p>1. Tlie provisions of a life insurance policy are construed and applied like the terms of any other contract, and such provisions may render the policy void, ab initio, by the terms of the same and the failure of warranty.</p> <p>2. When a life policy is issued and accepted upon the expressed condition that the answers and statements of the application are warranted true in all respects, and that if the policy be obtained by any untrue answer or statement, or by any fraud, misrepresentation, or concealment, “ the policy shall be absolutely null and void;” and, as to matters material to the risk, some of the answers and statements are untrue in fact, though made without actual fraud and under an innocent misapprehension of the purport of the questions and answers, no contract of insurance is thereby made, and the policy does not attach, but it is void ab initio.</p> <p>3. When, for such a policy, premium has been paid by the applicant to the insurance company, such payment may be recovered back.</p>

<p>Innkeeper — Liability for loss of money by person not guest— Who is guest.</p> <p>1. An innkeeper is not liable, as such, for the loss of money deposited with him for safe keeping by a person who is not a guest of the inn at the time such deposit is made, or at the time the loss occurs.</p> <p>2. The clerk of such innkeeper has no authority to bind the latter, either as innkeeper or special bailee, for the loss of money deposited for safe keeping with such clerk by a person who is not a guest of the inn at the time of such deposit.</p> <p>3. To entitle a person visiting an inn to be treated as a guest, and to hold the innkeeper responsible for money deposited with him for safe keeping, it must appear that such visit was for the-purposes which the common law recognizes as the purposes for which inns are kept; and where such visit is made by one who does not require the present entertainment or accommodations of such iun, but whose purpose is simply to deposit his money for safe keeping, he is not a guest of the inn and can not hold the proprietor to an innkeeper’s liability for the loss of his money,</p> <p>4. W., the keeper of a gambling house, closed his night’s business at two o'clock a. m., having a sum of money upon his person; and not being ready to retire for tho night, and not wishing to carry Ins money upon his person at that time of the night, visited an inn for the purpose of depositing his money for safe keeping; found the inn in charge of a night clerk; inquired if he could have lodgings for the night; was told that he could; stated that he did not desire to go to his room at that time, but wished to leave some money with the clerk, and would return in about half an hour. The clerk told him he would reserve a good room for him. He did not register his name. It was not upon any book of the inn. No room was assigned him. He left his package of money with the clerk, received a check for it, and departed. He returned in about three hours to have a room assigned him and retire for the balance of the morning. The clerk had absconded with the money.</p> <p>Held, W. was not a guest of the inn at th"e time he deposited his money with the clerk, and the innkeeper is not liable for its loss.</p>

<p>Error to the District Court of Cuyahoga county.</p> <p>The plaintiff below, Fred. C. Bemis, commenced his action in the court of common pleas, under sections 5848 and 5850 of the Revised Statutes, to recover back certain assessments upon his property that he had paid to the defendant as treasurer of the county. The petition, containing a cause of action for each payment (four in all),'was filed June 24, 1879. The averments of the first cause of action are as follows:</p> <p>“The plaintiff alleges:</p> <p>“ 1. That during the years 1876, 1877, and 1878, the defendant, Frederick W. Pelton, was treasurer of Cuyahoga county, and the plaintiff was and still is the owner of sub-lots 29, 30, and 31, of Nicola and Judson’s allotment of a part of original lot 328, all of which lots have a frontage and are situated on Kinsman street, in the city of Cleveland, county and state aforesaid.</p> <p>“ 2. That on the fifth day of September, a. d. 1876, the city of Cleveland, a municipal corporation under the laws of the State of Ohio, by the passage of a so-called ordinance by the city council of said city, caused a special as-' sessment for the grading, draining, paving, and improving of Kinsman street, in said city of Cleveland, to be made and levied upon all of the aforesaid lots, in the total sum of nine hundred and eighty-two dollars and five cents ($982.05), payable in five annual installments to the treasurer of Cuyahoga county, the first installment payable 'on or before the 20th day of December, a. d, 1876, and one installment annually thereafter until all should be paid; and that said city of Cleveland caused and procured said special assessment to be entered upon the general duplicate for the collection of taxes in and for said county of Cuyahoga.</p> <p>“And this plaintiff further alleges and avers that said special assessment, so made, levied, and entered upon said^ general duplicate as aforesaid, was and is wholly illegal and void.</p> <p>“3. This plaintiff further says that on the 8th day of November, a. d. 1876, the defendant, Frederick W. Pelton, then treasurer of Cuyahoga county, at his office in said city of Cleveland, refused to receive from said plaintiff the state, county, and city taxes, exclusive of said special assessment, charged on the duplicate against the aforesaid lots of this plaintiff, and thereby illegally and wrongfully forced and compelled this plaintiff to pay to said defendant, and this plaintiff did, then and there, under said force and compulsion, in order to save the aforesaid lots from being returned as delinquent and sold, pay to said defendant the sum of $98.20, the said sum being the first half of the first installment claimed to be due upon said special assessment, so as aforesaid made, levied and entered upon said duplicate.</p> <p>“And this plaintiff further says that at the time of making the aforesaid payment to said defendant ho entered his solemn protest against the payment of the same.”</p> <p>The second cause of action is substantially as the first, except that the payment was made June 15,1877.</p> <p>The third cause of action was substantially as the first, except that the assessment was for the sum of $1,309.40, and covered an additional lot, and the installment of $130.94 sought to be recovered back was paid January 18, 1878.</p> <p>The fourth cause was substantially as the last, except that the installment $98.20 was paid on the 24th of June, 1878, just within the year prior to the commencement of the action.</p> <p>The defendant demurred separately to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; and, finally, upon the same ground, to the entire petition.</p> <p>The court sustained the demurrer to the first, second, and third, and overruled it as to the fourth cause of action ; and there being neither amendment nor further pleading, judgment was rendered for the defendant upon the first three causes of action, and against him for the sum of $98.20 on the last one.</p> <p>On error, the district court of the county affirmed the judgment of the common pleas on each cause of action. And this proceeding is now prosecuted in this court on the petition of defendant below to reverse the judgment against him upon the fourth cause of action ; and by the plaintiff below upon a cross-petition to reverse the judgment against him upon the first three causes of action.</p> <p>The demurrer to the first three causes of action was sustained on the ground that each one was barred by the limitation contained in section 5848 of the Revised Statutes, to wit, one year from the payment of the assessment. And this is assigned for error by the plaintiff below upon his cross-petition.</p> <p>The plaintiff in error' claims that, (1) it does not sufficiently appear in the petition that .the assessment was illegal, and (2) the petition does not show an involuntary payment ; and for these reasons asks that the judgment against him be reversed.</p>

<p>jSill of Exceptions — Signed by but one of three judges— When court may dived verdict in contest of will.</p> <p>1. A paper purporting to be a bill of exceptions, signed by one judge - only of the three judges holding the district court, will not be.considered as part of the record, although the journal entry iu t,he case recites that a bill of exceptions is presented, which, being found by the court to be true, is allowed, signed, sealed, and made part of the record) and no other paper purporting to be a bill of exceptions appears in the files in the case. Shillito v. Thacker, 43 Ohio St. 63, approved and followed.</p> <p>2. In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiffs' testimony, to direct the jury to find a verdict sustaining the will.</p>

August 5, 1880, Gelhaus, who was plaintiff below, filed a petition, stating that about May 1, 1865, he and Davis entered into a partnership and engaged in the grocery business during such period as they might thereafter agree on, and so continued by mutual consent as such partners until February 9, 1880, when, by like consent, said firm was dissolved.

<p>Negligence — Remote andproximate cause — Fire spreading to other building.</p> <p>1. Where fire is negligently thrown from a mill smoke stack and carried to a building outside the mill property, and thence to another building of a third party, and thence to other property that is damaged by the fire; whether such negligence is the proximate cause of such damage, is a question of fact for the determination of the jury under the instructions of the court.</p> <p>2. In an action against a mill owner for damages to property caused by fire negligently or carelessly thrown by sparks from the smoke stack of the mill and carried to the property by a gale of wind blowing at the time in the direction of the property, by which fire the same was damaged; where the conditions continue the same as when the negligent and careless act was done, and no new cause intervenes, it is no defense that the fire first burned an intervening building and was thence communicated by sparks and cinders in the same manner to the building in which such fire consumed the property; though the buildings were separated by a space of two hundred feet.</p>

<p>Bill of exchange-— Contract of drawer — Presentation—Evidence of parol agreement.</p> <p>1. By the act of drawing and issuing a bill of exchange, the drawer contracts that it will be accepted and paid according to its terms, and that if it is not he will pay it.</p> <p>2. The liability of the drawer of a bill of exchange is fixed by the due presentation, demand, and notice of dishonor.</p> <p>3. Evidence of a parol agreement, prior to or contemporaneous with the drawing and delivery of a bill of exchange, that the drawer is not to b-liable as such, is inadmissible.</p> <p>4. Cummings was indebted to Kent. Chamberlain was indebted to Cummings in the same amount and more. Cummings drew bills of exchange upon Chamberlain in favor of Kent for the amount of his indebtedness to the latter, which were accepted hut not paid. There were due presentation, demand, and notice of dishonor. In an action by Kent upon the bills, Cummings answered that Kent agreed to take the acceptances in payment of his claim against Cummings, and that the latter drew the bills only for the purpose of assigning to Kent his claim against Chamberlain. Upon the trial Cummings offered to prove that prior to, and at the time of drawing the bills, there was a parol agreement that he was not to be liable thereon as drawer. Held: The evidence was properly excluded.</p>

<p>Constitutional law — Act of April 3, 1885 — Law of general nature — Power of mayor to remove superintendent of police.</p> <p>1. The act of April 3, 1885 (82 Ohio L. 101), providing for a police force in “cities of the first grade of the first class,” applies to all cities of that grade and class in the state, and is a law of a general nature, having a uniform operation throughout the state, and is constitutional.</p> <p>2. The mayor of the city of Cincinnati has no power to remove from office the superintendent of police of that city, though the hoard of police commissioners, that appointed such superintendent under the provisions of the act of April 3, 1885 (82 Ohio L. 101), has been removed from office.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>Habeas corpus.</p> <p>On the 11th day of February, 1886, the standing committee on privileges and elections of the house of represetatives of the general assembly of Ohio was, by authority of the house, regularly engaged (in a contest for membership) in an investigation, at the city of Columbus, affecting the election and qualifications of certain members of such house, and certain alleged frauds charged to have been committed in Hamilton county, in the election of such members, with power to send for persons and papers, and to examine the returns of such election, in order to the determination of the questions involved in such investigation. "While, so engaged, such committee duly caused a subpoena duces tecum to issue, commanding Daniel J. Dalton, clerk of the court of common pleas of Hamilton county, to appear as a witness and produce before such committee the poll-book and tally-sheet of the October election of 1885 for precinct A of the Fourth ward of Cincinnati; the same being pertinent to such investigation. The subpoena was duly served. Dalton appeared, but refused to produce the papers named in the subpoena. His refusal was reported to the house, at the bar of which he was called upon to answer for his refusal to obey the command of the subpoena, where he still refused, acting under the advice of his counsel, to produce such papers, without an order of the court of which'he was clerk. Thereupon, by the authority of a resolution of the house, and its warrant duly issued by its speaker, he was committed to the custody of the sergeant-at-arms of the house as for contempt of its authority, to be by such officer committed to the jail of Franklin county in such city of Columbus, for thirty days from and including the date of such commitment, or until the close of the present session of the general assembly, if the same should close within that period; unless he should sooner signify his willingness to produce the papers called for by the subpoena. Being in the custody of such officer, Dalton duly procured a writ of habeas corpus to issue out of the court of common pleas of Franklin county, commanding such sergeant-at-arms to show cause for the caption and detention of his prisoner. Upon the foregoing facts such court, Hon. Hawley J. Wylie presiding, adjudged the detention to be lawful, and remanded the prisoner to the custody of such officer.</p> <p>The judgment was affirmed on error by the circuit court, and to reverse this judgment of affirmance the present proceeding is prosecuted.</p>

<p>Life insurance — Notice to beneficiary of amount of premium due — When husband agent of wife — Attempt by husband to surrender policy — Tender.</p> <p>1. Where, by the terms of a contract of life insurance, the beneficiary named in the policy is entitled to participate in the profits, a portion of which, in the form of dividends, is to be applied each year in reduction of premiums, and it has been the uniform practice of the company to give timely notice of the amount of premium, amount of dividends, and of the balance to be paid in cash, and the company neglects to give such notice, having knowledge of the residence of the beneficiary, and by reason thereof a premium is not paid at the time specified in the policy, the company can not set up such failure to pay as a defense to a recovery upon the policj', although by its terms the same is to be forfeited in case of failure to pay a premium upon any of the dates stipulated therein.</p> <p>2. In such case, where the company has uniformly sent the notices to the insured (the husband of the beneficiary) and he has .made payment of premiums from year to year, the law will treat him, in making such payments, as agent for the wife; but where it is shown to the company, by letters from the husband, very shortly after notice sent, that he and' the wife have separated, she having commenced a proceeding for alimony against him, and that he is desirous of having the policy changed and made payable to his estate, the company is not justified in treating him as her agent, for the purpose either of receiving notice for her, or of malting a surrender of the policy.</p> <p>3. And, in such case, an attempt by the husband, without knowledge of the wife, to surrender the policy to the company, is inoperative, and the rights of the wife are not thereby impaired.</p> <p>4. Where, in such case, the company repudiates the contract, and by its course of conduct clearly indicates that a tender of the premium after the death of the insured, if made, would not be accepted, a failure to make such tender will not bar a recovery on the policy.</p>

In January, 1876, Frederick Schuler and his wife conveyed a certain lot in the town of Newark to Charles A. Clark, and at the same time the latter with his wife Sarah, to secure a part, $325, of the purchase-money, executed and delivered a mortgage on the property to the vendors.

Reserved in the District Court of Lake county. On December 28, 1872, Albert JB. Northrop was appointed guardian of Emily Belden, an imbecile, and gave bond, with C. Tice and A. N. Belden sureties.

<p>Section 6090, Revised Statutes — Liability of estate of married woman for funeral expenses and those of last sickness.</p> <p>1. Section 6090, Revised Statutes, which directs the payment of funeral expenses and those of last sickness, may apply to the estate of a deceased married woman, though such deceased left surviving her a husband having property.</p> <p>2. In such case, where it is shown that the physician, who attended the deceased in her last illness, was called at her request under such circumstances as to warrant a charge against her, and that the purchase of coffin and other nesessary articles for the funeral, being suitable to the station of the deceased, were made by the executor, such exe'cutor may properly allow such expenses, and pay them from the assets of the estate.</p>

<p>Husband and wife — Partnership.</p> <p>Prior to the legislation of 188é (81 Ohio L. 65,209), a married woman did not possess legal capacity to enter into a copartnership with her husband. (The effect of such legislation upon the legal capacity of married women is not involved in this case and not considered by the court.)</p>

<p>Constitutional law — Section 4715, Revised Statutes, void.</p> <p>There is no provision in the statutes whereby the owner of material taken by a supervisor for the repair of a public highway, under section 4715 of the Revised Statutes, can have his compensation assessed by a jury as required by section 19 of the bill of rights, and it is therefore invalid; and the owner, resisting a supervisor entering upon his lands under the provisions of said section, is not guilty of resisting an officer under the provisions of section 6908 of the Revised Statutes.</p>

<p>Deed intended as mortgage — Record—Sections 4133 and 4134 Revised Statutes.</p> <p>A deed, absolute in form, intended, however, to secure the paj'ment of money due from the maker to the grantee, and, upon the payment of which by a certain time, the grantee agreed to reconvey the property to the grantor, though in equity a mortgage, is not a legal one; and, to make . it available as against creditors of the grantor, it need not be recorded under section 4133 of the Revised Statutes, providing for the registration of mortgages; it is sufficient for such purpose, if it be recorded within the time prescribed by section 4134 of the Revised Statutes, making provision for the registration of all other deeds and instruments of writing for the conveyance or incumbrance of lands in this state, other than as provided in the previous section, 4133.</p>

On March 2,1880, Mildred E. Bascoe brought a suit in tbe court of common pleas of Hamilton county against John W. Bishop and Amanda H. Bishop, his wife, and Edward L. Bishop, May Bishop, Howard C. Bishop, and Daisy Bishop, heirs at law of James W. Bishop and Jane B. Bishop, widow of James. The object and prayer of the suit was to have an instrument, in form a deed, declared to be a mortgage, and for relief against the defendants therein.

<p>Master and servant — Remedy of servant for wrongful discharge.</p> <p>Where an employe, engaged under a contract for a specified time, the wages being payable in installments, is wrongfully discharged before the expiration of the period of hire, and all wages actually earned at the time of the discharge have been paid, an action will not lie to recover the future installments, as though actually earned, but the remedy is by ■ action for damages arising from the breach of the contract, and one recovery upon such claim is a bar to a future action.</p>

Ou the 1st clay of December, 1873, Barnard Dewitt, a resideut of Holmes county, died leaving a will by which he provided for the disposition of ¡all his property in the following language; “ Item 1st. I give and devise to my beloved wife the farm we now reside on, situate in'Knox township, Holmes county, Ohio, containing about one hundred and twenty acres, during her natural life-time, and all the stock, house-' hold goods, and chattels which may be thereon at the time of my…

These were actions brought by the city of Cincinnati for the use of Erank Kirschner and A. Ashman, contractors, .upon assessments made for the construction of a sewer in that city.

<p>Section 455 Revised Statutes — Reference—Issues of fact.</p> <p>1. Prior to the amendment of section 455 Revised Statutes, passed April 18, 1883 (80 Ohio L. 169), by virtue of which the district court was expressly required to find the facts upon the reservation of a cause to this court, only important and difficult questions of law were authorized to be reserved for disposition here, and such reservation was unauthorized until' the issues of fact were determined in the district court, or other court below.</p> <p>2. This cause was referred by the district court to a referee “ to hear and determine all the issues of fact in the cause.” Upon the coming in of his report, with the testimony, the plaintiffs moved for judgment thereon, while the defendants concurrently moved to set aside the report upon the alleged ground that it was against the weight of the evidence. Without passing upon these motions, the court reserved the cause for disposition here. Held, as such order of reservation would, if authorized, call upon this court first to dispose of these motions, and thereby weigh the evidence, and determine the issues of fact, it was without authority.</p>

<p>Constitutional law — Act of March, 26, 1886 — Local and special act</p> <p>The act of March 26, 1886, supplementary to section TT07 of the Revised Statutes (83 Ohio L. 43), is invalid, for the reason that the act is special and not general, inasmuch as the powers there conferred on cities having at the last federal census a population of 16,512, and no more, simply designates the city of Akron, and does not create a class, as Akron was the only city at that census having that population; and as the act confers corporate powers, it is in violation of section 1, article 13, of the constitution.</p>

<p>Section 1298, Revised Statutes — Prosecuting attorney — Commissions on costs.</p> <p>Section 1298, Revised Statutes, entitling a prosecuting attorney to a commission of ten per cent on all costs collected in criminal causes, embraces the costs collected by him of the defendant, in performance of the duty required of him by section 1273, and does not include the costs received from the state and paid to the order of the clerk of the court of common pleas, under the provisions of sections 7336 and 7337 of the Revised Statutes.</p>

July 9,1881, Eistel Meiss brought suit in the court of common pleas of Pickaway county against William Gill and I. Y. Cushing on a promissory note, of which the following is a copy, with the indorsements and credits thereon: “ $300.00. Cincinnati, January 21,1876. Eour years after date I promise to pay to the order of Lucy Gill, three hundred dollars, with interest at six per cent per annum. Yalue received (with interest at ten per cent per annum after maturity).

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

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

<p>Section Vt'l't, Revised Statutes — Bond for injunction — Contempt of court.</p>

<p> Right of one school district to recover from another taxes erroneously received by latter belonging to former. </p>

<p>. Riparian proprietors — Rights and duties — Embankments—Floods—Remedy of adjoining owner.</p> <p>1 The owner of land situate upon a river, or other running stream of water, has the right to construct embankments thereon for the purpose of protecting it from the currents of the stream, or otherwise benefiting it, subject to the duty of so constructing the same as not to occasion material injury to the lands of others situate upon the stream, where the same may be avoided by the exercise of ordinary care, intelligence, and foresight.</p> <p>2. It is his duty, in the first instance, to exercise such prudence and care as an ordinarily carefnl and intelligent man might have exercised, as to whether his proposed embankment would cause material injury to the lands of his neighbor at the time of such floods as might reasonably be anticipated at any season of the year.</p> <p>3. By material injury must be understood, an injury resulting in damages of a substantial nature; not merely nominal; and which are, in some cases, awarded to prevent a wrong from ripening into a right by lapse of time. The use of streams and their water is, among riparian proprietors, a matter of common right, and an invasion of the individual right of one, can not be appreciated until some act is done by another in excess of the common right.</p> <p>4. Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned. And where it appears from its subsequent action, though not at the time of its construction, that it does and will continue at ordinary floods to do injury to his neighbor’s lands, it then becomes his duty to abate or so modify it as to avoid such injury, and he is liable in damages for an omission to do so.</p> <p>5. Where an adequate remedy in the way of damages can not be had, the court may, in a proper case, order the abatement of an embankment that occasions substantial injury to the lands of another.</p>

<p>Buies of consiruption— Contract — Several writings.</p> <p>1. In construing a written agreement in which the parties claim the words and expressions contain their true intent and meaning, and there is no claim of fraud or mistake, there should be given to each word and expression that plain and obvious meaning which the context and the whole instrument require to make each part consistent with the whole and which will secure and carry into effect the object of the parties.</p> <p>2. When a written agreement consists of more than one dislinct writing or contract, the different provisions of all the parts should be given due weight in ascertaining the intended meaning of any portion of the same; butif the language is clear and distinct, and the plain and obvious meaning of the words is consistent with the whole instrument, such meaning must be taken as the intended meaning of the parties, unless other parts of the agreement not only admit of, but require, a different construction.</p>

<p>Corporations — Action to enforce statutory liability of stockholders — Appeal — Jurisdiction— Waivei — Parties— Continuance — Interest— Counsel fees — Liability of assignor of stock.</p> <p>1. In a suit to enforce liability of stockholders, brought prior to the enactment of section 3260, Revised Statutes, by the creditor of an insolvent corporation, organized under the act entitled, “An act to enable associations of persons for building hotels and for other purposes, to become bodies corporate, passed April 5, 1866, as amended April 16, 1861,” in a county where some of the stockholders reside and are summoned, but not in the county where the corporation is situate and has its principal office or place of business, where the stockholders served out of the county in which the action is pending interpose a plea to the jurisdiction as to their persons, which, upon demurrer is held against them, and they then consent to a reference of the case to a referee for trial; appear at trial; after report filed, except to same; give notice of appeal to the district court from a judgment rendered against them; perfect the appeal to that court, and there, after consenting to a reference of Ihe ease to a referee for trial, and after report made to tlie district court by the referee, file exceptions to such report, it is too late to question the jurisdiction of the appellate court.</p> <p>2. In such case (it having been shown that the indebtedness of the corporation is greatly in excess of the capital stock), where it is made to appear that a defendant, prior to the beginning of the action, had transferred his stock to a solvent holder within the jurisdiction, who owned it during the time a portion of the debts accrued, but who is not a party to the suit, it is not error to the prejudice of either stockholders or creditors for the court to adjudicate as between other stockholders who are parties and creditors, and continue the case for further proceedings as to liability of the vendor and vendee of the stock as between themselves, and as between them and creditors. Nor is the court’s jurisdiction to determine the liability of such vendor at a subsequent term ousted, although the order of continuance does not in terms provide that the case is continued as to him.</p> <p>3. In such case it is not error to include, in the judgment rendered, interest from the date of the beginning of the suit, although the amount of recovery may thereby exceed the stockholder’s original liability.</p> <p>4. In such case the court has power to order reasonable counsel fees to plaintiff’s attorneys to be paid out of the proceeds of the judgments.</p> <p>5. If, in such case, by reason of insolvency or residence without the jurisdiction, the amount due from any stockholder is not collectible, the assignor of the stock up to the time the liability attached, may be charged with the deficiency. Brown v. Hitchcock, 36 Ohio St. 667, followed.</p>

<p>Guardian and ward — Settlement in probate court— Conclusiveness of as against sureties.</p> <p>In an action upon a guardian’s bond for the recovery of the amount found due the wards upon a final settlement of the guardian’s accounts in the probate court, the sureties are concluded by the settlement, and will not be beard, in the absence of fraud and collusion, to question its correctness or to demand a rehearing of the accounts.</p>

<p>Corporation — Action to enforce statutory liability of stockholders — Consolidation of actions.</p>

<p>Error to the Circuit Court of Clermont county.</p>

<p>QUO WARRANTO.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the District Court of Portage county.</p> <p>The Pittsburg, Youngstown and Chicago Railroad Company is a corporation under the laws of Ohio, and it was building its road through the village of Kent, in Portage county, Ohio. It was commencing to grade and build its road on property claimed by Day, Williams & Co. as partners, when, October 1, 1881, they, the plaintiffs in error, commenced an action against the railroad company and others to enjoin the railroad company from entering upon their premises until the right of way was duly condemned and paid for. The property is what was once used as a part of the Pennsylvania and Ohio canal, and it is in the bed of the Cuyahoga river, between the east bank and the middle of the river. In their petition plaintiffs averred that they owned the premises on the east bank of the river, which premises extended to the middle of the river, and that they were extensively engaged in the manufacture of glass on the property; that the use of the water of the Cuyahoga river was indispensable to their business; that it was impossible to carry on the manufacture of glass without said water; that it was not practical to obtain water elsewhere, save at enormous expense; that the construction of the railroad, as proposed, would deprive them of the use of said water, and necessitate the abandonment of their business, or the carrying it on at a loss — damage them many thousand dollars, and .otherwise do them great and irreparable injury; and they prayed for an injunction and damages.</p> <p>A temporary injunction was allowed.</p> <p>On February 7, 1882, the railroad company set up in its amended answer:</p> <p>That it admits the copartnership of the plaintiffs ; that they are the owners of a glass factory property in the village of Kent, in Portage county, Ohio; that they pur-' chased the same from Marvin Kent, by contract in writing, dated the first day of July, 1864, and received a deed thereof from Marvin Kent and wife, dated March 8,1868, in pursuance of said contract and in fulfillment thereof; that the plaintiffs are engaged in the manufacture of glass, and that defendant is engaged in the construction of a line of railroad extending through said village of Kent.</p> <p>The defendant denies that the west boundary of plaintiffs’ glass works property is the center of the Cuyahoga river. Defendant further says that about the year 1840, a corporation duly created, organized, and then existing under the laws of Ohio by the corporate name of ‘‘ Pennsylvania and Ohio Canal Company,” and possessing under its charter full authority and right to construct, maintain, and operate a public canal and water highway for •the transportation of persons and property through the county of Portage, in the due and legal exercise of its rights and franchises in and about the acquisition of its right of way and the construction of its canal thereon, duly obtained the right and legal authority to construct its canal in the Cuyahoga river through a portion of the township of Franklin, in the county aforesaid, in which plaintiffs’ said premises are located, and did construct its canal in said river from a point several hundred feet northward of plaintiffs’ premises, to a point several 'hundred feet southward thereof; that in and about the construction of the canal, said canal company, between the points aforesaid and opposite plaintiffs’ premises, constructed its towing path in and along a portion of the original channel of said river and thereby diverted the stream so that all the waters thereof except that portion of the same used for the purposes of the canal ran and flowed along the channel of the river lying and being on the westerly side of the towing path, and the canal company constructed all and every part of the channel and bed of said river lying east of its said towing path and between the east line thereof and plaintiffs’ said premises into a canal, and maintained, used, and operated the canal so constructed from that time down to the year 1872; that the construction of said canal in the manner aforesaid permanently changed and diverted the flow of the waters of the river to the west side of said towing path; that by reason of the acquisition of the right of way and portion of said id ver by the canal company and the construction of its canal thereon as aforesaid, cut off and appropriated all the water rights, mill privileges, ana riparian rights and interests in, to, and connected with any and all lands lying on the eastern side of said river, including the premises of the plaintiffs between the points aforesaid</p> <p>Defendant further says : That by the terms and provisions of its charter, the canal company took the fee-simple title to all the lands, rights, and interests so acquired by it for the purposes of the canal, and that all of its rights and lands are now owned and held by the defendant as hereinafter stated.</p> <p>The defendant further says: That long after the construction of the canal as aforesaid, and while the same was being maintained and operated by the Pennsylvania and Ohio Canal Company under its rights, powers, and franchises, the plaintiff's purchased from one Marvin Kent all the lands and premises now owned by them, bounded and described as follows, to wit: Situate in Franklin township, Portage county, Ohio, and known as part of township lot No. 25, bounded and described as follows: Beginning at a point in the west line of Canal street, in said town of Kent, where a continuation west of the south side of Mill street crosses said Canal street; thence south 18° 15' west seven chains and thirty-one and one-third links to a post in the west line of Canal street; thence north 72° 30'west four chains and twenty-one links to the Pennsylvania and Ohio canal (the east bank of which is hereby understood to be what was formerly the east bank of the Cuyahoga river) ; thence northerly along the east bank of the Pennsylvania and Ohio canal to a point where the continuation west of said south line of Mill street intersects the east line of said Pennsylvania ánd Ohio canal; thence north 69° 45' east one chain and fifty-eight links to the place of beginning.</p> <p>That plaintiffs’ deed from Marvin Kent, containing the aforesaid description and boundaries, carried the west boundary line of their premises to the east line of said Pennsylvania and Ohio canal; that they never had or held any riparian or other rights in, to, or concerning said canal during the time the same was maintained and operated, or since; and they never took, by the terms of their deed or otherwise, any title or ownership to any portion of the bed of the canal, or to any of the land over which the same was constructed.</p> <p>The diagram on the following page shows the location of each part.</p> <p>Second. Eor further answer herein the defendant says : That it is the owner of all the lands lying west of said former east bank and line of said Pennsylvania and Ohio canal, adjoining plaintiffs’ premises on the west, that were formerly owned and occupied by said canal for the purposes of the construction, maintenance, and operation of the saíne by said canal company; that the defendant has the title thereto by virtue of a contract, in writing, between it and the New York, Pennsylvania and Ohio Railroad Company, dated the 19th day of July, a. d. 1881, said last named company having title thereto by virtue of conveyances from the trustees of said canal company, duly executed and of record in the county of Portage; that the east line of the premises so purchased and owned by defendant is the east line</p> <p> </p> <p>of the berme bauk of said canal on and along plaintiffs’ premises; that the line of defendant’s railroad is located and fixed entirely on its own land, lying west of said line, andvin no place or part does it touch any land of the plaintiffs, or in anywise interfere with or affect the same, or any buildings or structures thereon; and the defendant has the complete right to enter upon its said premises and construct its line of railroad in the legal exercise of its fran•chises and powers.</p> <p>In the reply the plaintiffs’ deny specifically many allegations of the answer, and aver that, prior to the construction of the Pennsylvania and Ohio canal, the canal company entered into a contract with the Erauklin Land Company, which last named company then owned the premises described in the petition and held the legal title thereto ; that in said contract it was provided that the canal company should construct its canal between two walls in the river, and that between the canal and the east bank of the river water should continuously flow from the pond created by the canal dam down to and past the premises now owned by plaintiffs for the express use, convenience, and enjoyment of the owners of said premises and their assigns, and for the propulsion of valuable mills and machinery located on said premises; that in the contract all riparian and other rights to the waters of said Cuyahoga river and the flow of the stream thereof were expressly reserved as an appurtenance of and to the premises now owned by plaintiffs and to said land company as the owners thereof and its assigns, and that said riparian rights, water privileges, and appurtenances, and mill powers, property and premises, by divers and sundry mesne grants, conveyances, and assignments, became and are the property and inheritance of the plaintiffs as appurtenant to the premises described in the petition; that such riparian rights and privileges were always recognized by the canal company as appurtenant to said premises, and were always exercised and asserted by plaintiffs and their grantors without let or hinderance from any body and under claim of right by them.</p> <p>Further replying, plaintiffs say that said Pennsylvania, and Ohio canal was substantially abandoned long previous to plaintiffs’ purchase of their properly and premises; that no repairs were done on the canal after 1862, and the same ■was suffered to get out of repair and become practically unnavigable before July 18, 1864, aud the evidences were then conclusive and plenty that the same would soon be completely and permanently abandoned, and that previous to March 3, 1868, the canal had been entirely abandoned by said canal company, and suffered to become entirely useless and out of repair for the purposes of a public highway by means of said canal as a water-way, and has ever since been abandoned as a canal or public highway by means of water navigation; that for a period of more than twelve months prior to March 8, 1869, said canal had been entirely abandoned and suffered to become entirely useless and out of repair, and had entirely fallen into disuse as a canal or public highway by means of water navigation by boats or other means of conveyance upon or through the waters thereof; and plaintiffs say that at the December term, A. d. 1872, of the supreme court of the state of Ohio, in a suit therein pending in the nature of quo ioar~ ranto, instituted by the state of Ohio on the 8th day of March, 1869, the said Pennsylvania and Ohio Canal Company was, by judgment, order, and decree of said court, dissolved and altogether ousted from its corporate rights, privileges, and franchises, and altogether ousted and excluded from being a body politic and corporate of and within said state, and from all and singular, and any and all rights, powers, privileges, and franchises appertaining or attaching to such corporation under the laws of said state, and that said corporation was and is to all intents and purposes dissolved and dead; that thereafter neither the Pennsylvania aud Ohio Canal Company, nor any other corporation or person, had any right to keep or maintain, in said Cuyahoga river, any of the artificial obstructions built and placed in said river by the canal company for the purposes of its canal; that these defendants can acquire no right by reason of such obstructions ; that the samo are unlawfully there, and unlawfully kept and maintained in the river; that if all such unlawful obstructions were removed the larger part of the waters of said river would naturally flow against the east bank, on which plaintiffs’ factories stand.</p> <p>The court of common pleas made the injunction perpetual, and the action was appealed to the district court.</p> <p>On trial, in the district court, it was agreed that formerly the Franklin Land Company owned both sides of the river from the dam above this property down to a point below this property upon the river to the south end of the disputed property and including it. “And the rights of the land company and their title, as it is conceded, was conveyed to the land company from the Franklin Silk Company. From the Franklin Land Company by sheriff to Zenas Kent, from Zenas Kent to II- A. and Marvin Kent, from H. A. Kent by quitclaim to Marvin Kent. And then comes the contract and deed from Marvin Kent to Day, Williams & Co. This is the subject of the agreement.”</p> <p>The deed from Marvin Kent to Day, Williams & Co. as to this part of the property, was a general warranty deed, except the right to abut a dam on part thereof. This deed bounded the property as set forth in defendant’s answer.</p> <p>The defendant claimed title to the property it had entered upon, by virtue of its purchase from the assigns of the trustees of the Pennsylvania and Ohio Canal Company, actingin the case of The State ex rel. Attorney-General v. The Pennsylvania and Ohio Canal Co., 23 Ohio St. 121, when that company in Ohio was dissolved and its property sold; and also by the verbal consent of Marvin Kent, given to it, to so use the property. The canal company obtained its rights in the property from the Franklin Land Company by a contract, granting to the company as follows:</p> <p>“ The canal company shall use the canal darn and waters therein for canal purposes, and the land company shall use the same dam and the water therein, as well as the water passing round the lock at that point for the propulsion of water wheels : and in consideration further that said canal company shall locate and construct their canal so as to lock down into said canal dam and pass out of the same by a lock in the dam thence to the south line of the lands purchased by said land company of Zenas Kent. Said canal shall be constructed between two walls in the river bed and so far from the east bank of the river as to leave a space between the said east bank and the walls of the canal of sufficient width for a convenient tail race for such wheels as said land company or their assigns may there construct, and this race shall be excavated by said canal company the whole length to a level with the apron under the wheels of the flouring mill bought by said land company of Zenas Kent and pass under the canal into the river channel by a culvert at or near said south line.”</p> <p>The contract also permitted the canal company to take and divert “ from said river such quantity of water as will be sufficient to keep said canal in a navigable state at all times when the same shall be navigated, and when the navigation of said canal shall be interrupted by frost or otherwise said canal company shall have the right to draw from said river so much water as shall be necessary for the purpose of sustaining the levels and preserving the canal, taking due care to keep the lock gates shut and to prevent any unnecessary leakage. Upon condition, however, that the lake reservoirs shall be constructed and used in the manner recommended iu the report of S. Dodge, Esq., made to the board of directors of said canal company on the 6th day of July, a. d. 1835, or in the manner recommended in the report of Alfred Kelley, Esq,, made to the executive committee of said board of directors July 29, 1835, reference to said reports being hereby had,” etc.</p> <p>On trial, the majority of the district court found that the plaintiffs were not entitled to the relief prayed for in their petition, and dismissed the same at plaintiffs’ costs, without prejudice to their right to bring an action at law to recover the possession of the premises described iu the petition, or such other action as may be necessary to determine their rignts.</p> <p>A bill of exceptions was taken, and plaintiffs seek a reversal of that judgment, and the injunction prayed for, and the establishment of their rights.</p>

<p>Mechanics’ liens — Revised Statutes, sections 3193, 3195, 3201, 3202 — Construction— Claim against contractor — Set-off.</p> <p>1. The statutes of this state upon the subject of mechanics’liens, being remedial in their nature, are to be liberally construed in order to carry out the purpose of the legislature in their enactment.</p> <p>2. Where a mechanic, who, under the employment of a contractor, and with the knowledge of the owner, has performed labor upon the construction of a building, and the account not being paid, takes all necessary steps, as provided by sections 3193, 3195, 3201, and 3202 of the Revised Statutes, to fix the liability of the owner and to obtain alien upon the premises, and brings his action against the owner to recover the amount due and have the same declared a lien, such account being less than the balance unpaid on the contract, such owner can not be allowed to set off a claim against the contractor, not growing out of the contract, acquired by him after the labor was performed, although such claim was acquired before notice that the mechanic’s demand had not been paid.</p>

June 1, 1878, C. M. Rider, principal, and Plory & Havens, sureties, all residing and being in Licking county, Ohio,' drew their joint note of that date for $326.58 to the order of Meriden Silver Plate Company, a corporation of the state of Connecticut, and doing business therein, due four months after date, and delivered it to the payee.

The district court of Ross county, at its September term, 1884, in a proceeding in error then pending, wherein Robert Larrick was plaintiff and Lauretta C. Halderman et al. were defendants in error, reversed the judgment of the court of common pleas, and remanded the cause for a new trial on the merits; and application is now made for leave to file a petition in error in this court to reverse the judgment of the district court.

<p>Revised Statutes, section 4162 — Meaning of term, “ any former deceased husband."</p>

The plaintiff below, the Kanawha Valley Bank, brought suit in the Superior Court of Cincinnati to recover against John A. Robinson as acceptor of the following bill of exchange : “ $265.87. Kanawha & Ohio Coal Co., “ Coalburo, W. Va., May 14,1874. “ Seventy-five days after date pay to the order of J. D. Moore two hundred and sixty-five and 87-100 dollars. “Kanawha & Ohio Coal Co., By W. IT. Edwards, Pres’t. “ To Jno.

Archibald Woods and Pauline V. Waddle were married August 22, 1872, at Wheeling, in West Virginia, the domicile of both, and where Archibald Woods has since resided. In the early part of 1874 they separated, and she went to the state of Tennessee, and on August 14, 1875, applied for divorce and alimony.

QUO WARRANTO. The action is brought to determine the right of the defendant to the office of fire engineer of the city of Columbus.

Spangler, the defendant in error, was a brakeman on a freight train of the Lake Shore and Michigan Southern Railway Company. While in the line of his duty he was injured, without his fault, and by reason of the negligence of the conductor of the train. He brought his action for damages for the injury so received.

This case is one of a class that was before this court in Tone v. Columbus, 39 Ohio St. 281. Held: that when the abnttiug lot-owners had caused a street to be improved under the act, and the bonds of the city to be negotiated to . pay for the improvement, all who had participated in causing the improvement to be made were estopped from denying the validity of an assesment, made in accordance with the act, to pay such bonds.

<p>Error to the Circuit Court of Franklin county.</p>

This case also arose out of the improvement of North High strSet, Columbus, under the invalid act of March 30, 1875 (72 Ohio L. 153). The facts distinguishing it from the case of City of Columbus v. Sohl, ante, p. 480, are stated in the opinion.

<p>Trial — Findings of fact — Section 455, Revised StatuUs, construed. '</p> <p>The finding of facts required on the reservation of a cause by section 455 of the Revised Statutes, as amended April 18, 1883 (80 Ohio L. 169), is a positive finding in which a final judgment may be rendered, and not a provisional one. *</p>

<p>Publication of exhibit of receipts and expenditures of county officers — ■ Section 852, Revised Statutes, construed.</p>

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

Reserved in the District Court of Wood county. The action below was a suit by the plaintiff, Rhoda Spoors, against the defendant 'to recover the possession of a certain tract of land, some two acres and a fraction, described in the petition. She derived title from her husband, John Spoors, who, on the 4th of March, 1879, conveyed all his real estate to his son, Jerome, who, on the same day with his wife, conveyed the land in question to the plaintiff.

Reserved in the District Court. The plaintiff commenced her action by filing in the court of common pleas of Cuyahoga county a petition which is, in substance, as follows : At all the times hereinafter mentioned the defendant was, from thence hitherto has been, and still 3s, a municipal coi’poration, being a city of the first cl,ass, and as such corporation it had and has custody, care, and supervision of all the public streets and highways within the corporate limits of…

On the first trial of the case in the superior court, the court found and held for Holbrook, which judgment the district court reversed as to the lien for $1,018.68, and it remanded the case for further proceedings.

Motion to dismiss petition in error to the Circuit Court of Lneas county. The defendant in error recovered a judgment against the plaintiff in error, The Columbus, Hocking Yalley and Toledo Railway Company, in the court of common pleas of Lucas county. To reverse this judgment the latter filed its petition in error in the district court.

The question in this case is as to the sufficiency of plaintiffs’ amended petition. Without copying the pleading at length, its substance may be stated. On the 21st day of September, 1865, John Hynton, a resident of Cuyahoga county, was the owner of a parcel of 184 acres of land in that county, worth $10,000, and 147 acres in Summit county, worth $9,000; also stock, farming utensils, and money at' interest of the value of $5,000.

<p>Constitutional law — Section 6946, Revised Statutes — Sale of liquors within two miles of fair.</p> <p>•The clause, “ whoever sells intoxicating liquors within two miles of the place where an agricultural fair is being held . . . shall be fined,” etc., contained in section 6946 of the Revised Statutes, as amended May 2, 1885 (82 Ohio L. 222), includes sales made by one whose place of business is permanently located within such distance, is not in conflict with any provision of the constitution, and is a valid law.</p>

<p>Gonsiiutional law — Intoxicating liquors — Power of legislature to tax business — Licence—Due course of law— Uniformity of operation — Act of May 14, 1886 — Dow law.</p> <p>J. It is competent to the general assembly of the state to impose a tax on the business of trafficking in intoxicating liquors as a means of providing against evils resulting therefrom.</p> <p>2. Neither the .tax so imposed, nor a provision that the same shall attach as a lien on the property in which it is conducted, constitutes a license within the meaning of section 9 of article 15 of the constitution.</p> <p>3. The statute imposing the tax may provide for its collection by the treasurer of the county, as other taxes are collected; may impose penalties for its non-payment, and, for the refusal of a person engaged in the business, on demand of the assessor, to sign and verify the statement of the return. And, for an injury done him in his property, such provisions do not deprive the citizen of the due course of law, secured to him by section 16 of the bill of rights, nor are they inhibited by the fourteenth amendment to the constitution of the United States.</p> <p>4. The legislature may, in providing against evils resulting from the traffic in intoxicating liquors, levy a tax upon such forms of the traffic as in its wisdom may seem best., without infringing the constitutional requirement (sec. 26, art. 2), that all laws of a general nature shall be uniform in their operation throughout the state.</p> <p>5. The act of the general assembly passed May 14, 1886, providing against the evils resulting from the traffic in intoxicating liquors (83 Ohio L. 157) is not, in any of these respects, in conflict with the constitution of the state nor of the United States and is a valid law.</p>

The original action was brought on the 7th day of June, 1886, by Mary E. Anderson, plaintiff in error, against Joseph W. Brewster, auditor of Hamilton county, and Erank Ratterman, treasurer of that county, defendants in error.

<p>Office and officer — Extension of term, by legislature — Sections 8, 1017, Revised Statutes.</p> <p>1. Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond the time so limited.</p> <p>2. At the October election of 1883 Brewster was elected auditor of Hamilton county for the term of three years, commencing on the second Monday of November next after his election. At the November election of'1886, Raine was elected auditor (pursuant to an amended provision of the constitution and section of the statute changing the time of elections) for a term of three years, beginning on the second Monday of September next after the election. The constitution provided, both before and after such amendment, that county officers should be elected for such term, not exceeding three years, as may be provided by law. Held, 1. At the expiration of Brewster’s term of office, to wit, on the second Monday of November, 1886, there was a vacancy in such office. 2. Section 8, Revised Statutes, which provides that “ any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws,” did not have the effect to continue Brewster in office beyond his term of three years. 3. Section 1017, Revised Statutes, which provides that “ when a vacancy happens in the office on county auditor from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill the vacancy," authorized the commissioners to fill the vacancy so created, and their appointee, having duly qualified, is entitled to fill such office until the commencement of Raine’s term of office — on the second Monday of September 1887; and the fact that Raine is such appointee does not constitute such appointment an- extension of his term of office beyond three years. 4. The approval of the board of control of Hamilton connty was not necessary to give vitality to such appointment.</p>

<p>Error to the Circuit Court of Hocking county.</p>

<p> Evidence of transactions with decedent. </p> <p>In an action by tbe indorsee of a promissory note against the maker, the executor of the maker may compel the payee and assignor of the note to testify to facts that occurred prior to the death of the testator.</p>

<p>Covenant running with land — Sale—hease.</p> <p>On August 20, 1866, Weare owned certain oil-producing lands subject only to the unexpired terms of leases theretofore given by his grantors. The Newburg Petroleum Company, by assignment, owned such leases, and on that day released and quitclaimed to W. all its right, title, ar.d interest in such lands without any reservation, and it put him into possession. In part consideration for this conveyance, W. covenanted and agreed for himself with the company to pay and deliver to the company, its successors and assigns, upon the leased premises, the one-sixth part of all the oil and other mineral substances produced or pumped thereon or therefrom, daily as produced during the remainder of the terms granted in the leases. On September 3, 1866, such conveyance and agreement were duly recorded, and on that day W. sold and conveyed to sundry parties all his interest in the different parts of such lands, and He put each grantee into possession of the part so conveyed. Thereafter and during the terms of the leases W.’s grantees produced large quantities of oil from the respective parts, but W. and his grantees failed and refused to account to the N. P. Co. for such production, or to pay and deliver the one-sixth part thereof, as W. agreed to do. The N. P. Co. brought its action against W. and his grantees on W.’s agreement with the N. P. Co., and it sought to hold these grantees liable for the covenant of W. To the petition alleging such facts these grantees demurred. Held, such agreement is personal to Weare, and did not run with the land so as to bind the grantees of Weare for his failure to perform such agreement.</p>

<p>Life insurance — Revised Statutes, section 3628 — Exemption of fund from execution — Foreign company — Foreign judgment — Interpleader.</p> <p>1. Section 3628 of the Revised Statutes, which provides that a person may effect insurance on his life for benefit of his widow or children, and the amount of insurance coming due shall be payable to such widow or children exempt from claims of the representatives and creditors of such person, but the amount of annual premiums shall not exceed §>150, and in case of excess there shall be paid to the beneficiaries such portion of the insurance as the sum of $150 will bear to the whole annual premium, and the residue to the representatives of the deceased, applies as well to a policy issued by a company organized and conducted outside the limits of Ohio as to a policy issued by a company of this state.</p> <p>2. In a suit brought against the company, by the widow of such insured person, upon a policy in which she is named as the beneficiary, in a court in the state where such company is located, and in which suit, by direction of the court, the company brings into court a sum of money sufficient to satisfy the amount due on the policy, and obtains an order requiring the administrator, resident of Ohio, to appear and interplead with such widow as to their respective claims under the policy, service in Ohio of copy of such order, and of citation upon such administrator, does not give the court jurisdiction of his person, and (there being no appearance nor other service on such administrator) a judgment in the action purporting to debar him from any claim or right as against such widow is, as to him, void.</p>

<p>Sheriff — How vacancy in office filled— Coroner — Revised Statutes, sections 11, 1202, 1208, 1219 — Elections—Canvassing hoard — Mandamus.</p> <p>1. Where the offices of sheriff and coroner both become vacant, the county-commissioners may, the court of common pleas not being in session, fill the vacancy in the office of sheriff, by the appointment of a suitable person to hold for the unexpired term of the sheriff, whose place the appointment is made to fill, although the vacancies should occur more than thirty days before the next November election; section 1208, and not section 11, of the Revised Statutes, applying to such case.</p> <p>2. Where a person, elected to the office of sheriff for a full term at a biennial election, as provided in section 1202.of the Revised Statutes, dies after he has qualified, but before the commencement of the term to which he had been elected, the term to which he had been elected is, in contemplation of section 1208, to be regarded as his place;” and this is so, although, for a part of the time, it was filled by the coroner under section 1219 of the Revised Statutes.</p> <p>3. The clerk of the court of common pleas and the justices called to his assistance to abstract the votes of an annual election, can not be required by mandamus to abstract votes cast for a person or persons for an office, unless the same is required to be filled by the electors at such election.</p>

<p>Arrest — Civil action — Fraxidulent obligation— Witness — Criminating ques‘ Hons — Revised Statutes, section 5492.</p>

<p>Administrator de bonis non — -Effects and assets recoverable — Acceptance of resignation — Jurisdiction of probate court — Bond—Breach—Revised Statutes, section G020.</p> <p>1. The language “ personal effects and assets of the estate unadministered,” used in section 6020 of the Revised Statutes, includes the indebtedness of an administrator, resigned, to the estate on account of assets received and converted to his own use, as well as such “effects” and “assets ” as remain in specie, and may be recovered by his successor in an action upon the administration bond.</p> <p>2. By accepting the resignation of an administrator, pending the settlement of his accounts, the probate court-does not thereby lose its jurisdiction over his person, or the settlement of his accounts, and may proceed to hear and determine exceptions thereto, and ascertain the amount due from him to the estate, in like manner, as if he had continued in the execution of his trust; and the amount so found due will, in the absence of fraud and collusion, be conclusive, not only upon him hut upon his sureties, in an action upon the administration bond, unless an appeal has been taken, or the judgment'has been reversed upon a proceeding in error.</p> <p>3. Where, upon the settlement of the accounts of an administrator or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the probate court, it is not error, in the court, to order its payment to his successor in the administration of the estate.</p> <p>4. The averment of a failure of an administrator or executor, who has resigned, to pay to his successor, the amount found due from him on the settlement of his accounts, is a sufficient assignment of a breach of the condition of his bond “to administer according to law” the assets of the estate.</p> <p>5. The omission of an administrator to give a bond with the requisite number of sureties upon it, will not affect his right to recover in an action where letters have been issued by the probate court upon the bond as given, and remain unrevoked.</p>

<p>Dow law liquor lax — Duly of county treasurer to pay funds to city treasurer — Act of May 14, 1886.</p> <p>In a suit brought by a city treasurer against a county treasurer to require him to pay over moneys collected by him as taxes under the act of May 14, 1886, entitled “An act providing against the evils resulting from the traffic in intoxicating liquors,” an answer which alleges that such “ money was paid under protest and to avoid the distraint provided by said law,” does not state a defense; and in such case it is the duty of such county treasurer to pay over money so collected, according to law.</p>

<p>Dower — Foreign divorce for aggression of husband — Subsequent marriage.</p> <p>/{. A woman divoreed a vinculo by reason of the aggression of her husband, within the meaning of the act entitled “an act concerning divorce and alimony,” passed March 11, 1853, who subsequently marries another man during the life of her first husband — if she survive the latter — will be entitled to dower in the real estate' of which the first husband was seized at any time during the coverture, f c- / ' . /A~</p> <p>2. Where husband and wife were actually domiciled in the state of California, and the wife, by reason of the aggression of her husband within the meaning of the act of March 11, 1853, was there divorced from him by a competent tribunal, having jurisdiction of both parties, and of the subject-matter of the action, upon surviving him she became entitled to dower in his real estate in Ohio, of which he was seized during the coverture, although, after the decree of divorce and during his life, she had by marriage become the wife of another man.</p> <p>ft. In an action brought by the wife for divorce in a cour.t in California, she alleged among other things in her complaint, that on account of ill-treatment by her husband she had been compelled to leave him, and had never since lived or cohabited with him; and that continuously, for more than three years ’last past, he had been and then was habitually intemperate. The court found as facts, that the wife by reason of the • husband’s intemperance and cruel treatment, had been compelled to leave him; that for more than two years immediately preceding the filing of her complaint, the husband had been guilty of habitual intemperance ; and it appearing to the court from the testimony in the case that all the material allegations in the complaint had been sustained and established, a divorce from the bonds of matrimony was decreed to the wife. Held, that the^wife was divorced by reason of the aggression of her husband, within the meaning of the Ohio statute of March 11, 1883.</p>

<p>Constitutional law — Act of May 14, 1886 — JDow law — Application to wholesale liquor dealers.</p> <p>1. Section 18 of the schedule to the constitution, which provides that “ no license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom,” applies as well to the wholesale as to the retail traffic in intoxicating liquors.</p> <p>2. "Wholesale dealers in intoxicating liquors, who are not manufacturers, are within the terms of the act of the general assembly passed May 14, 1886, entitled “An act to provide against the evils resulting from the traffic in intoxicating liquors,” and are liable to the tax therein imposed.</p> <p>3. Said act, as applied to wholesale dealers in such liquors, is not in conflict with section 2, of article 12, of the constitution, which provides that “ laws shall be passed taxing by a uniform rule all moneys,” etc., nor with section 26, of article 2, of the constitution, which provides that “ all laws of a general nature shall have a uniform operation throughout the state.”</p>

<p>Oriminal law — Failure of jury to agree — Discharge—Omission to show reason of discharge in journal entry — Correction at subsequent term by order nunc pro tunc — Attorney—Privileged communications.</p> <p>1. After the submission of a criminal case to a jury, their retirement to their room for deliberation, and their failure to agree upon a verdict, they were discharged by the court. The following entry was thereupon made by the court upon the trial docket: Jury impaneled and sworn. Trial had. Jury discharged for the reason that there was no probability of jurors agreeing. Recognizance fixed at $1,000. Continued.” At the second term of the court thereafter the defendant was again put upon his trial to a jury upon the same indictment. He moved the court to discharge him from further prosecution, offering in evidence in support of his motion the journal entry of the proceedings at the former trial, from which had been omitted the recital from the court docket of the reason of the discharge of the jury. Thereupon the state moved the court to supply such omission by an order nunc pro tunc, which was done, the motion to discharge the defendant overruled, and the trial allowed to proceed. Held, there was no error in such action of the court.</p> <p>2. The statements of one accused of crime made to one whose regular employment is, and for many years has been, practicing law before justices of the peace, an'd whose aid and counsel is sought as such attorney or counselor, such statements being made in answer to the inquiries of such adviser as to what the facts concerning the alleged offense were, are privileged communications, and it is error to allow such adviser to testify, upon the trial of the accused, to the statements so made, although the witness had not been admitted to practice in the courts of record of the state.</p>

<p>Evidence — Handwriting—Experts—Ancient documents.</p> <p>1. A family resemblance between tbe handwriting upon one paper and that upon another tends to prove that both were written by the same person. Hence, where the identity of a person is in issue, it is competent to introduce letters or receipts claimed to be in his handwriting, for the purpose of comparison with other writings, admitted or clearly proven to have been written by him; and such comparison may be made, and an opinion expressed, by experts in handwriting.</p> <p>2. It is not necessary to the admission of the papers claimed to be in the handwriting of the person whose identity is involved that they should be clearly proven to have been written by him. Any uncertainty as to this will affect the weight, but not the competency, of the evidence.</p> <p>3. A letter purporting to have been written more than thirty years ago belongs to the class of instruments known as ancient documents; and, where produced from the family papers of the person to whom it had been addressed, is presumed to have been written by the person by whom it purports to have been written; and the writer and the person addressed being dead, is admissible in evidence without further proof of its authenticity. And so as to a pay-roll of a military company in the war of 1812, on which is what purports to be the signature of a soldier to a receipt for pay due him, produced from the archives of the government in the war department at Washington city.</p> <p>4. The proper repository of an ancient document is the place where papers of its kind are usually deposited.</p>