Volume 45 — Ohio State Reports, New Series

<p>Deed — Challenge of certificate of acknowledgment — Evidence—Practice—Review of evidence by supreme court.</p> <p>1. Where it is claimed by the wife that a deed, signed by her husband and herself as a conveyance of her lands, had not been acknowledged by her as it purports to have been, the burthen is upon her to show the fact by clear and convincing proof; a mere preponderance of the evidence is not sufficient to support a finding contrary to the certificate of acknowledgment.</p> <p>2. Where the affirmative of the issue in a civil action requires clear and convincing proof to sustain it, and it is claimed that the rule has been disregarded, this court may, where it is all set forth in a bill of exceptions, review the evidence for the purpose of determining if the rule has been regarded.</p>

<p>Railroads — Acquiescence in public use of road — Negligence—Explosive torpedoes— Master and servant — Scope of employment — Remote and proximate cause.</p> <p>1; Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road.</p> <p>2. It is negligence for the servants of such railroad company, wantonly and needlessly, and without notice, warning, or other precaution, to place and leave exposed to observation, at such point or place on its railroad, where the public, including children, are and have been so permitted by the company to travel and pass, an apparently harmless, but in fact highly explosive and dangerous object, like a signal torpedo, easily picked up and handled by children and likely to attract them, and knov n to such servants to be such.</p> <p>S. Where a child of tender years was, without fault on his part, injured by the explosion of such torpedo, so negligently placed and left by the servants of the railroad company, at such point or place on its road, which was there picked up by a boy nine years .of age, while so passing on the road, and which exploded while being handled by him, in ignorance of its dangerous or harmful character, Meld: The negligence of such servants in so placing and leaving such torpedo on the road was the proximate cause of the injury.</p> <p>4. The railroad company, intrusting to its servants the management and control of a train of its cars, and the custody of such torpedoes, to be used by them in the management and operation of its trains, is responsible for their negligence in so placing and leaving such torpedoes on its track, at such point where the public, including children, were so permitted to pass over the same, and is liable for the injury So resulting from the explosion of such torpedo, so picked up and exploded, notwithstanding such negligent acts of the servant', were wanton, reckless, and needless.</p> <p>5. The petition alleged that the defendant, a railroad company, in operating its road, carried on its trains, signal torpedoes which, to all appearances, were harmless, but in reality highly explosive articles, easily exploded through handling, and dangerous to human life, which the defendant knew; that while running a train of cars on its road, carrying these torpedoes, it was stopped at a water station on its road in a thickly inhabited neighborhood, and the defendant’s servants took several torpedoes from the train, and while so ip the control and management of the train, wantonly placed them on its road, in an exposed place, where, if left unexploded, they would be likely to cause inj nry to others. There was no reason or necessity for using the torpedoes at that time or place; but the same were used in mere wantonness, and with a view that the train on being moved forward, would pass over and explode the same; that defendant negligently failed to explode all of such torpedoes, but negligently left exposed, unexploded and in full view, one of them at a point or place on its road, over which the inhabitants living along the line of the road, and other persons were for years daily accustomed to travel and pass, and over which children were accustomed to go, without objection or hindrance, of all which the defendant had knowledge; and defendant negligently, and in willful disregard of the safety of those whom the defendant knew were in the daily habit of using the road as a pathway, permitted such unexploded torpedo to remain upon its road undestroyed and unguarded from reach and observation by passers-by; and immediately after the train had moved on, a small boy about nine years old, who with the knowledge of the defendant was coming on the track behind the train, discovered the torpedo, picked it up and exhibited it to the plaintiff, a boy ten years old, and several other boys of about the same age, ail of whom were ignorant of its dangerous explosive character. While it was being so exhibited near where found, it exploded without plaintiff’s fault, with such force that it tore off plaintiff’s left arm and otherwie injured him — to his damage.</p> <p>Held: The petition states a cause of action, and sustaining a demurrer thereto was error.</p>

<p>Banking — Negotiable instruments — Lost certificate of deposit — Liability—■ Indemnity.</p> <p>1. A certificate of deposit issued by a national bank for SI,145, payable to tlie order of the depositor-, on the return of the certificate, in current funds is, in effect, a negotiable promissory note.</p> <p>2. Where such a certificate is lost by the payee, and the same has never been indorsed by him, he may maintain an action at law thereon against the maker, without tendering an indemnity against future liability.</p>

<p>Error to tbe District Court of Hamilton County.</p> <p>The plaintiff in error, Marmet, was convicted and fined in the police court of the city of Cincinnati, upon a charge founded on provisions of the act of April 16, 1883 (80 Ohio L. 129), amended March 25, 1884 (81 Ohio L. 78), entitled “ an act to provide a license on trades, business and professions carried on in cities of the first grade of the first class, and providing for the enforcement and collection of fines and penalties for carrying on business without license, and for other purposes,” the charge being that he had used vehicles upon the streets of the city of Cincinnati without first obtaining a license therefor. A petition in error was filed in the court of common pleas of Hamilton county to reverse the judgment of conviction. The last named court affirmed the judgment below, and petition is filed here to reverse both judgments.</p> <p>Each of the other plaintiffs in error brought suit to collect money claimed to have been illegally exacted by the officers of the city in compelling the taking out of license. The trial court below sustained demurrers to the several petitions, and dismissed the actions, and the district court affirmed those judgments.</p> <p>Hill is owner of a large number of drays and sprinkling carts used upon the streets of the city of Cincinnati.</p> <p>Iiayman is keeper of a livery stable, and runs vehicles.</p> <p>Fernberg is a dealer in second-hand articles.</p> <p>Hammerly is the proprietor of a concert hall.</p>

<p>Descent and distribution — Pules of construction — Deed of gift — Deaitals—Parol proof — Pev. Stats., secs. 4158, 4159.</p> <p>1. Under the statutes of descent and distribution, the. course of descent of real estate is to be controlled by the legal title.</p> <p>2. Where the intestate’s title to real estate is free from controversy, in determining its course of descent and whether it is ancestral or non-aneestral property, the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law.</p> <p>3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration wa3 in fact paid by him.</p> <p>4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She thereafter died intestate, and without issue, leaving her husband surviving her. Held: The title to the land did not come to her “ by deed of gift from an ancestor,” within the meaning of section 4158 of the Revised Statutes, and the land, upon the death of the wife, descended to the husband in fee-simple under section 4159 of the Revised Statues, which provides that if the estate came not by devise, descent, or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate.</p>

<p>Practice — Rev. Stats., sec. 5354 — Infant—Right to show cause against judgment on arriving at age.</p> <p>Where, in a proceeding in error, to which an infant is a party defendant, this court reverses a judgment that had been rendered in his favor, and remands the cause to the court in which it had been rendered, with direction to render a judgment against the infant in accordance with its rulings, which is done, the judgment so rendered is the judgment of the court to which the cause had been remanded for judgment. And where the infant, on arriving at full age, would avail himself of the right secured to him by the eighth paragraph of section 5354 of the Revised Statutes to show cause against the judgment, and have it vacated for error, he must commence the proceeding in the court below, where the 'judgment was in fact rendered; it cannot be commenced in the first instance in this court.</p>

<p>Municipal corporations — Street railroad — Ordinance—Duty to repair street — Rights of city.</p> <p>The city of Columbus, by ordinance, granted the privilege to a company to construct and operate a street railroad on one of its streets for a specified period. The ordinance provided that the company should make, construct, and keep in order and repair, all that part of the street included between the rails of its tracks and switches, in the same manner, and witlx like material, as the street is constructed and repaired, so long as it shall use the same for its railroad; and any failure to comply with the provisions of the ordinance, or with any general ordinance of the city, regulating the use of its streets, or the police regulations thereof, should render such railroad company liable to the city, in an action of damages for such failure; and the council after giving the company twenty days notice, should have the right to order any work to be done on the railroad, necessary to keep it in repair, and charge the cost and expense thereof upon the railroad company. Held :</p> <p>1. That the ordinance did not divest the city of its control of the street, or abridge its right to improve the same; and it might, during the period named, cause to bo made new improvements thereof, including the part occupied by the street railway, and determine the kind of improvements to bo so made.</p> <p>2. By constructing and operating its railway, the company accepted the burdens, with the privileges of the ordinance, and thereby incurred the continuing obligation, to make, construct and keep in order and repair, as long as it enjoyed those privileges, the portion of the street between the rails of its track, including such new improvement thereof as the city might determine and direct.</p> <p>3. When, after notice, the company fails to do the work so required of it, and the city then causes it to be done, its reasonable cost may be recovered by action against the company; and it is not essential to the liability of the company therefor, that the notice to make such improvement precede the letting of the contract by the city for the same. It is sufficient if such notice be given before the work is done, and while the company may still perform the same.</p> <p>4. Where the company, after receiving such notice, without attempt to perform any part of the work required of it, permitted the city, without objection or complaint, to commence and complete it, adjusted the track of its railway to conform thereto, as it progressed, and with knowledge that the city expected it to pay for the same, and of all the circumstances, received all the benefits thereof as fully as if it had been performed by the company, the city may recover the reasonable cost of the work so done, although the notice does not strictly conform to the requirements of the ordinance.</p>

<p>Gifts inter vivos — Delivery—Contract—Consideration—Trusts.</p> <p>A father set apart certain United States bqnds as a gift to his daughter. The bonds were never delivered to her, but remained in the possession and under the dominion and control of the father, with whom they were left at her request and with liis assent for safe keeping. lie collected and transmitted to her the accruing interest on the bonds tip to a certain date, but thereafter, and without her knowledge, authority or consent, invested the bonds in a business in which he had become interested. He then wrote to his daughter a letter, which by his direction was duly stamped as a contract, in which he promised, if she did not elect- to accept the investment in lieu of the bonds, ho would retain it himself and pay her two thousand dollars with interest. The daughter accepted the written promise in lieu of the bonds, and upon the death of her father, brought an action on the promise, against his representative, to recover the two thousand dollars and interest. Held :</p> <p>1. That there was no good and sufficient consideration to support the promise on which the suit was brought.</p> <p>2. That the transaction between the father and daughter was not a valid gift inter vivos.</p> <p>3. That there was no valid declaration of trust of the bonds in favor of the daughter.</p>

<p>Municipal corporations — Power to compel railroad company to maintain, watchman at street crossing.</p> <p>1. Municipal corporations, in their public capacity, possess such powers and suck only, as are expressly granted by statute, and suck as may be implied as essential to carry into effect tkose which are expressly granted.</p> <p>2. A municipal corporation has not the power, by ordinance, to compel a railroad company to maintain, at a street crossing within the corporate limits, a.watchman, for the purpose of giving warning to passers-by of the approach of trains.</p>

<p>Promissory note — Payment to bearer — Notice.</p> <p>1. Payment by the maker to the bearer of a note will not avail as against the owner, where upon the facts of which the maker had notice, the bearer had no right to receive payment, although the note was drawn payable to bearer.</p> <p>2. Whore a note was taken by a wife payable to herself or bearer, with the design that, in case of her death, it might be collected by her husband without the expense of administration, the fact that after her death it was presented by him to the maker, who paid it, supposing that the husband, by reason of the intention of the wife at the time the note was executed, was entitled to receive payment, will not constitute a defense as against the administrator of the wife's estate.</p>

<p>Principal and surety — Receiver—Appointment of- — Rev. Stats., secs. 5587, 5845— Interest — Recovery from national bank.</p> <p>1. S. was surety of an insolvent manufacturing corporation for the payment of a large amount of overdue indebtedness. The corporation was making no effort to pay its debts. Its business could not be continued without loss and wasting of its assets. The sale of its property and collection of its accounts were necessary to the payment of its debts. S. brought his action under section 5845 of the Revised Statutes, to compel it to pay the indebtedness upon which he was surety, by subjecting its property to such payment. Held: The appointment of a receiver of the property of thecorporation was authorized by section 5587 of the Revised Statutes.</p> <p>2. For the purpose of recovering back interest, paid by such corporation to a national bank, under section 5198, Rev. Stats, of U. S., providing for such recovery by “ the person to whom it has been paid, or his legal representative,” a receiver is a “ legal representative ” of such corporation, and authorized to prosecute an action for such recovery. National Bank v. Trimble, 40 Ohio St., 629, approved and followed.</p>

<p>Assignment for benefit of creditors — Sale of mortgaged property — -Jurisdiction of probate court.</p> <p>1. Where, after chattel mortgages given to secure separate indebtedness duo each of several creditors had been filed with the proper officer, the mortgagor assigned all his property for the benefit of creditors, and the assignee, having possession thereof, sold the mortgaged property under the order of the probate court in the administration of such assignment, and has the proceeds for distribution, the liens of the several mortgages are transferred from the property to the fund, and attach thereto in the order of their priority on the property ; and the rights of such mortgages to the fund must be worked out through the probate court.</p> <p>2. On application to that court by the morgagees, for the payment of their mortgages out of such fund, the unsecured creditors of the assignor may intervene,and contest their right to such payment.</p> <p>3. In such proceeding, the probate court has jurisdiction to order the payment of such liens by the assignee, out of such fund, according to their priority; and may, in the exercise of such jurisdiction, decide upon the validity of the mortgages, and determine to what extent, and in what order of priority, they are entitled to be so paid.</p> <p>4. From such order, decision and judgment of the probate court, appeals may be taken to the court of common pleas, and the cause so appealed, must therein be tried, heard and determined as though that court had original jurisdiction thereof.</p>

<p>Real property — Partition—Husband and wife — Conveyance to — Mortgage by husband — Possession—Notice—Tenants in common — National bank — Power to take mortgage. *</p> <p>1. W. and his wife were in possession of lands owned by her father at the time of the father’s death. After the father’s decease, the heirs at law of the decedent agreed to divide his lands among themselves, and for that purpose, in the year 1854, executed deeds of quit-claim to each other. Certain of the heirs, in their deeds to W.’s wife of their interest in the land of which she was in possession, inserted without her knowledge or consent, the name of W. as a joint grantee with his wife, and vested in him the legal title to one undivided half of the granted premises, which deeds were duly recorded. W. had not until the year 1803, and his wife had not until the year 1883, any knowledge that his name was inserted in the deeds. In 1883, W. being- indebted to a bank on notes past due, in consideration of an extension of time for the payment of his indebtedness, and of a reduction of the rate of interest, gave the bank new notes in place of the old ones surrendered and cancelled, and . to secure the payment of the same,- executed to the bank a mortgage on .- the lands conveyed to him and his wrife jointly. The bank had no knowledge or notice of any claim or interest of the wife in the lands mortgaged, adverse to the title of W. as shown by the deeds to himself and wdfe; nor of any fraud or mistake in the insertion of his name in the deeds; nor of the manner of the acquisition of' the lands by W. and his wife, other than w'as shown by the records of the deeds. Held, 1. That the bank was entitled to be protected as a bona fide purchaser, for a valuable consideration, without notice. 2. That the bank acquired a lien upon the one undivided half part of the lands embraced in the mortgage.</p> <p>2. Under the laws of Ohio, when lands are conveyed to husband and wdfe jointly, they take by moieties as tenants in common.</p> <p>3. A mortgage of real e.state executed to a national bank, to secure an in- . debtedness previously contracted for which new notes are given by the debtor, is not in violation of the national banking law.</p>

<p>Executors and administrators — Personal liability for rent of leasehold — Election of remedy.</p> <p>1. A lease for years, being a chattel interest, passes, at the death of the lessee, to the personal representative, who becomes, by virtue of his office, assignee of the term; and the law specifically appropriates the profits of such leased premises, to an amount equal to the rents reserved in the lease, to the benefit of the lessor. Hence, if such representative enters into possession of the leased promises and receives such profits, he becomes personally liable to the lessor for accruing rents to the extent of the profits of tiro premises during such occupancy.</p> <p>2. In such case the lessor has an election either to look to the estate of the deceased alone for such rents, or to hold the representative personally liable therefor.</p> <p>3. The giving by the lessor of receipts for a portion of the rents accruing during such occupancy to the representative as such, and the commencement by the lessor of a suit against him in his representativo capacity to recover a balance due, which is discontinued, do not constitute such au election as will bar the prosecution of a claim by the lessor to recover such balance of the representative in his individual capacity.</p>

<p>Assault and battery — Action for damages — Agreement to fight.</p> <p>In a suit to recover damages for an assault and battery, the fact that the parties fought by agreement, may be shown in mitigation of damages but is no bar to the action.</p>

<p>Corporations — Shares of stock — Interest.</p> <p>The plaintiff in error is a corporation organized under a special act passed in 1845. It was not organized for profit and has made none. Its object was the maintenance of a college for instruction in dental surgery. Its capital consists of §12,000 in real estate, derived from the proceeds of one hundred and twenty certificates of shares which certify that the holder of each share “ is entitled to one share of the real estate property of the college, drawing an interest of 6 per cent.” On the margin of-each certificate, and a part of it, is : “ Shares, §100 each.” At this sum each certificate was valued and sold. All the shareholders are dentists and members of the corporation. Its capital — the real estate above mentioned — has always constituted its entire property. During its existence (a period of about forty years) no interest ‘has been collected or paid on any share. It is still a going corporation, and its capital — the real estate — is indispensable to its existence. The plaintiff below, a shareholder, brought his action, in 1882, to recover a money judgment for interest on his share. Held: The action is not maintainable.</p>

<p>Practice in supreme court — Judgment—Findings of fad.</p>

<p>Quo warranto — Practice — -Presidency of city council a public office — Municipal corporations — Organization of council — Revised Statutes, sections 1676, 6760.</p> <p>1. The attorney-general may, on his own relation, without being directed by the governor, supreme court, or general assembly, bring a civil action in quo warranto, against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.</p> <p>2. The presidency of a city council is a public office, within the purview of section 6760 of the Revised Statutes, authorizing an action in quo warranto to be brought against a person who usurps, intrudes into, or unlawfully holds, or exercises, a public office.</p> <p>S. In choosing the officers necessary to effect the organization of a city council, as required by section 1676 of the Revised Statutes, the members being present and voting for candidates therefor, a plurality of the votes cast is sufficient to elect.</p> <p>4. The council of the city of Urbana (a city of the second-class) consisted of six members who were duly qualified. They met with the mayor to organize as required by section 1676 of the Revised Statutes, and proceeded to vote for a president, which resulted in A. receiving three votes, C. two votes, and II. one vote for that office. Whereupon the mayor declared A. elected. Held: A. was legally elected to the office.</p>

<p>Dower — Devise in lieu of — Election.</p> <p>A widow electing to take the provision made for her in the .will of her husband, will be barred of dower in land of which he was seized as an estate of inheritance during coverture, and which was sold and conveyed on foreclosure of a mortgage executed by him in which she did not join, unless it plainly appears by the will that she should have such provision in addition to her dower.</p>

<p>Taxation of foreign insurance companies — Retaliatory laws — Rev. Stats, secs. 279, 282, 2745.</p> <p>1. Section 2745 of the Revised Statutes, which provides that every agency of an insurance company organized out of this state, shall return to the auditor of the county where such agency is located, in the month of May annually, the amount of gross receipts of such agency, which shall be entered upon the tax list and be subject to the same rate of taxation as other personal property, prescribes the rate of taxation upon every foreign insurance company doing business in this state. Section 282 of the Revised Statutes, which provides that when, by the laws of any other state, any taxes are imposed on insurance companies of this state doing business in such state, the same obligations shall be imposed upon all insurance companies of such other state doing business in this state, is operative only when it is shown that the law of the state where such company is organized taxes Ohio companies doing business there at a rate higher than foreign companies are taxed by the mode provided by section 2745. And in such case the superintendent of insurance is authorized to assess and collect, from such foreign company, in addition to such tax on the gross receipts, such sum as will be sufficient to make the total equal to the amount that would be realized were the rule of taxation of the state under whose laws the foreign company is organized applied to such company’s business transacted in this state, but no more.</p> <p>2. Where a foreign insurance company has furnished to the superintendent of insurance a certificate of the valuation of its policies in force on the 31st day of December preceding, upon the lives of citizens of this state, made by the proper state officer of the state under whose laws such company is organized, and such valuation is according to the standard provided in section 279 of the Revised Statutes, such superintendent is not authorized to require compensation for valuation of such policies, notwithstanding such company has paid a like charge in former years, and has furnished to such superintendent, at his request, the data from which such valuation was made.</p>

<p>Attachment — Sufficiency of levy — Return of officer — Revised Statutes, section 5529.</p> <p>1. In order to constitute the levy of an attachment on personal property, it must be taken into the custody of the officer levying the writ, so as to be held subject to the order of the court from which the writ issued. After the seizure has been effected, the property may be placed by the officer in the possession of a person acting for him as keeper, but cannot be left in the possession of the debtor, and subject to his control, unless upon the execution of a forthcoming undertaking as provided in section 5529 of the Revised Statutes.</p> <p>2. In the absence of a levy so made, the court acquires no jurisdiction over the property sought to be attached, and it may be taken in execution or attachment by any other creditor as if no previous writ had been issued.</p> <p>3. Where, as a matter of fact, personal property is for the first time seized by an officer and taken into his custody under a writ of execution, the return of the officer that he had levied the same upon certain property, subject to a former attachment, does not preclude the execution creditor from showing that, from an omission of the officer to take the property into his custody, no such attachment had in fact been made.</p>

<p>Taxation — Loan of money — “Credits”—Mortgage.</p> <p>A loan of money, secured by mortgage on real estate, is a credit within the meaning of the statutes of this state providing for the taxation of property ; and, where the creditor resides in another state, is not subject to taxation in this, although the securities are in the hands of an agent residing here, intrusted by the terms of his agency with the collection of the interest and principal when due, and its transmission to the creditor when collected.</p>

<p> What constitutes a guaranty of a promissory note. </p>

<p>Promissory Note — Patent right note.</p>

In June, 1883, Christina Crawford was tbe owner of certain lots in tbe village of Lorain. Sbe and ber bnsband, J. S. Crawford, then contracted with Joseph Smith, for the construction of a store building on the lots, for the sum of four thousand two hundred and fifty dollars; a part to be paid as the work progressed, and the balance when the building was completed.

<p>Criminal law — Rape—Declarations of injured person — Rev. Stats., sec. 6816.</p> <p>1. On the trial of one indicted under section 6816 of the Devised Statutes, for carnally knowing and abusing a female child under ten years of age, with her consent, the declarations made by the injured person, in reference to the offense, several days after its perpetration, are not admissible in evidence to the jury, unless the del'ay in making such declarations is first explained and excused by proof of sufficient cause therefor.</p> <p>2. Such declarations are not admissible as evidence in chief to prove the commission of the offense, but only to corroborate the testimony of the injured person given in court.</p> <p>8. D., over seventeen years of age, was indicted for carnally knowing and abusing C., a female child under ten years of age, with her consent, on ‘ the 20th day of December, 1886. On the evening of that day, and on the next succeeding day, O. made complaint to her mother of the alleged injury. After a delay until the 30th day of December, 1886, C., in response to inquiries by her mother, made a statement to her in detail of the particulars of the offense. The statement was admitted in evidence on the trial of the accused, but the delay in making it to the mother was not explained and excused by proof of sufficient cause therefor. Held, that- it was error to permit such statement to be given . in evidence to the jury.</p>

Mandamus. To the facts stated in the syllabus, maybe added the following, which appear by the petition. The bill in question provided for the publication of fifteen thousand copies of the several chapters that had been prepared by the state geologist and his assistants, to be entitled, Geology of Ohio, vol. 6.

Bill of Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Franklin County. Held: canvassed and returned as aforesaid in precinct “ A,” thirteenth ward, city of Columbus aforesaid, as follows, to-wit: The number of tallies so entered and ballots cast and returned for George Hoadly for governor of said state, to-wit, two hundred and three, were so changed and altered, erased and tampered with as to read five…

<p>Municipal corporations — Negligence—Officer—Agency.</p> <p>By a special act of the general assembly the commissioners of Hamilton county were authorized to levy a tax upon the properly of the county, to be expended under the direction of the board of public works of the city of Cincinnati in opening, grading and completing an uncompleted public highway wholly within the city limits and already under the control of the city. By the neglect of the board in the prosecution of the improvement, the premises of an abutting owner were injured. Meld : The board was acting as an agent of the city, and the latter is liable for damages resulting from such injury.</p>

Kent, the plaintiff in error, purchased of the ticket agent of the Baltimore & Ohio Railroad Company what is called a “ commercial traveler’s mileage ticket.” This ticket expressly showed upon its face that D. V. Kent had the right to travel one thousand miles on the Baltimore & Ohio Railroad upon the conditions named in the contract attached and made a part thereof.

The questions in this proceeding arise between the plaintiff in error and a cross-petitioner, The Mansfield Machine Works on the one hand, and Hogue & Donaldson and The Farmers’ and Mechanics’ National Bank on the other.

Quo Warranto. The Toledo Electric Company is an Ohio corporation, having by the laws of its organization a board of nine directors, a president, vice president, secretary, treasurer, and manager. At the regular meeting for the election of directors in January, 1887, Leander S. Baumgardner, Frederick B. Dodge, James S. Rodgers, John J. Barber, Wm. P. Heston, John S. Barker and Wm.

The Ohio & West Virginia Railway Company, afterward merged into the Columbus, Hocking Valley & Toledo Railway Company, plaintiff in error, by agreement with the city council of the city of Gallipolis, laid its railroad track in and along the center of Spruce street near to and in front of the property of the defendants in error, operating its locomotives and cars thereon. The railway company does not claim to have acquired any right of way from the defendants in error.

The original action was commenced by the defendant in error, Peter S. Miller, against the plaintiff in error, Louis Schuler, in the court of common pleas of Stark county. The plaintiff in his petition alleged, that he — Miller—was then seized of the legal title and estate of certain land in the petition described, situate in Stark county.

<p>Promissory notes — Overdue—• Presentment for payment — Peasonable time for — When question for court, when for jury — Insolvency of maker — Pemand and notice — Waiver.</p> <p>1. A promissory note negotiable in form, though over-due, is still capable of being transferred by indorsement, and when so transferred the indorser is, in the absence of anything to the contrary, liable upon his indorsement, if, - in a reasonable time thereafter, the note is presented to the maker for payment and notice given in ease it is not paid.</p> <p>2. In such case a reasonable time for its presentment is the lapse of such a period after the indorsement as, under all the circumstances, will enable the holder, in the exercise of reasonable diligence, to present the note for payment.</p> <p>3. What is a reasonable time is generally a mixed question of law and fact-Where the facts are in dispute, it should be submitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and cannot properly be submitted to the jury.</p> <p>4. The known insolvency of the maker, and that he himself can not pay, does not dispense with the necessity of presentment for payment in order to fix the liability of the indorser.</p> <p>5. B., the payee of a negotiable promissory note over-due, transferred it by indorsement to W. for a valuable consideration on the 30th of July, 1883 ; the makers were, to the knowledge of the parties, insolvent at the time of the transfer and had made an assignment for the benefit of their creditors; and it was known that, by reason of certain litigation between the general and certain secured creditors, the note would not be paid immediately from the funds in the hands of the 'assignee; all the parties resided in the same city, and nothing was said at the time of the indorsement as to whether the note should be presented to the makers for payment or not; upon the determination of the litigation in favor of the secured creditors, the note was, on the 21st of November, 1883, presented to the makers for payment and immediate notice of non-payment given the indorser. Held: (1) That there is nothing in the facts of the transaction from which' an inference can be drawn that presentment for payment had been waived by the indorser; (2) that the note was not presented to the makers for payment within a reasonable time; and (3) that the indorser was discharged.</p>

<p>Act of March 21, 1887 — -Construction of.</p> <p>The act of March 21,1887 (84 Ohio L. 240) creating a new eighth judicial circuit, and providing for three additional circuit judges, one for the . new eighth and two for the old sixth circuit, contained a provision that such additional judges should be elected “on the first Tuesday of November next,” but provided no machinery for holding such election, nor is there any adequate machinery therefor to be found in any general provision of the statutes. Held: The clause fixing the time for the election of the new judges is surplusage, should be disregarded, and the general provisions of the statutes for the election of circuit judges, on the first Tuesday after the first Monday of November, applies to such new judgeships.</p>

Mandamus. On the 30th. of September, 1887, the relator filed his petition in this court alleging, in substance, that he is an elector, and the defendant is sheriff, of Franklin county ; that the act of February 24th, 1868 (65 Ohio L. 11), authorized the election of an additional judge of the court of common pleas in the third subdivision of the fifth judicial district, comprising the counties of Franklin, Madison and Pickaway, under which, at the election held on the first…

Suit was brought in the court of common pleas of Lucas county by the defendants in error against the plaintiffs in error, and Albert J. Miller and The Lake Shore & Michigan Southern Railway Company, by the filing of a petition of which the following is the substance : In the year 1879, the plaintiffs, who were partners in the practice of law, entered into a contract in writing with the defendant Albert J. Miller, whereby the plaintiffs were to prosecute an action for him…

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

<p>Arbitration— Waiver of oath of arbitrator— Power of unsworn arbitrator to administer oaths — Presumption as to what matters considered by arbitrator— Interest— Usury.</p> <p>1. Where parties to an arbitration proceed to a hearing of the controversy before an unsworn arbitrator without objection, and without being misled into the belief that he has been duly sworn, they thereby waive the oath of the arbitrator and all objections to the award based on that Emission.</p> <p>2. It is not necessary that an arbitrator himself administer the oath to the witnesses before him; and when he is a justice of the peace, he is authorized (by section 5606. of the Revised Statutes) to administer a valid ■ oath to the witnesses, although he is himself unsworn as arbitrator.</p> <p>3. Where the written submission is of all differences, damages and claims whatsoever existing between the parties, and the award purports to have been made “ as per submission in writing,” the presumption is authorized that all claims and matters of difference presented by the parties were considered.</p> <p>4. Where the parties to such submission stipulate, as one of its terms, that the arbitrator in calculating whatever may be due on a matured promissory note calling for interest at ten per cent, shall compute interest thereon at that rate, such submission is not a usurious contract, and an award rendered in pursuance of it is valid.</p>

Jacob Miller brought his action in the court of common pleas of Stark countv against Lewis J. Wise upon the following agreement: “ We, the undersigned, stockholders in John Ball & Co., of Canton, O., in consideration of the mutual benefit derived by the stockholders of said company by reason of the indorsement of said company’s paper by the individual stockholders thereof, do hereby jointly and severally bind and pledge ourselves to each and all of said indorsers and…

This .action was commenced by the filing, in the court of common pleas, of a petition by plaintiffs, in which it is, in substance, alleged that they, by law, have the charge, control and care of the bridges in the county of Mahoning across the Mahoning River, and it is their duty to maintain, for the benefit of the public, bridges across such streams as may, in their judgment, be deemed necessary;, that in the discharge of their said duty they have paused to be erected and…

The original actions were brought in the superior court of Cincinnati; by the city of Cincinnati, for the use of Frank Enrchner and Alfred B. Ashman, to enforce an assessment for the improvement, by sewering, of Eggelston Avenue and other streets in Sewerage Division No. 8, of the city of Cincinnati. At special term, the superior court held the assessment void, on the ground that no proposal or bid had been advertised or received for board sheeting.

Tbe original suit was begun in tbe common pleas to obtain tbe rescission of an exchange of lands tbat bad been made between tbe parties, on tbe ground tbat tbe defendant bad made fraudulent representations as to the location, character and value of the lands given by him in exchange for those of the plaintiff. Judgment was rendered in favor of the defendant on the issue as to fraud, and the plaintiff appealed to the district court, then in existence.

The plaintiff in error was indicted, tried and convicted for an offense alleged to have been committed against the prohibitions of section 7075 of the Revised Statutes.

<p>Practice — Proceeding in error — IAmiiation within which must he commenced.</p>

<p>Criminal law — Officer interested in rmmioipal contract.</p> <p>1. A person duly elected to, and holding the office of member of the hoard of public works of the city of Cincinnati, is “ an officer elected to an office of trust or profit in this state,” within the meaning of section 6969 of the Devised Statutes, which makes it a crime for such officer to become “ directly or indirectly interested in any contract for the purchase of any property or fire insurance, for the use of the state, county, township, city, town or village,” and is amenable to the provisions of that section, if, while acting as such officer, he becomes interested in a contract for the purchase of property for the use of the city.</p> <p>2. To become so interested in the contract, it is not necessary that he make profits on the same. But it is sufficient, if while acting as such officer, he sell the property to the city for its use, or is personally interested in the proceeds of the contract of sale, and receives the same or part thereof, or has some pecuniary interest or share in the contract.</p> <p>3. In a prosecution against such member of the board of public works, for having become so interested in a contract for the purchase of property for the use of the city, while acting as such officer, it is no defense that, when the contract was made, the proper officer had not certified that the money required for the contract was in the treasury to the credit of the proper fund, or specifically set apart to meet such expenditure.</p>

The original action was commenced in February 1881, in the court of common pleas of Montgomery county by Izora Pretzinger, the defendant in error, against Jacob Pretzinger, the plaintiff in error.

Morris Cope, as executor of Joshua Cope, deceased, commenced an action in the court of common pleas to obtain a construction of the will of his testator, making the necessary parties. The case was appealed to the district court, which made and entered in the record of its judgment a finding of facts. From this finding it appears that the will was made March 25, 1875, and that, after the death of the testator, it was probated December 13, 1878.

Nicola Guarnieri, administrator of the estate of Angela Guarnieri, deceased, brought his action against the plaintiff in error, ’William P. Davis, in the court of common pleas of Summit county, wherein, by his second amended petition, he alleged that: “ On the 9th day of January, A. D. 1882, at Akron, Ohio, the said Nicola Guarnieri applied to the defendant, who was then and there engaged in the business, of selling drugs and medicines and filling prescriptions, which…

Fuller commenced his action in tbe court of common pleas of Sandusky county, against Haff and others, to enjoin tbe construction of a ditch, ordered by tbe trustees of Townsend township in that county, on the ground that the trustees had not jurisdiction to establish the ditch, because: (1) the petition for the ditch does not state that it will be conducive to the public health, convenience or welfare; (2) the trustees made no finding that the petitioners filed a bond or…

<p>Promissory notes — Demand and notice — Waiver.</p> <p>On the 16th of-January, 1877, G-. executed to B., or order, his promissory note payable one day after date, with interest. On the 9th of March, 1877, B. indorsed and delivered the note to M. At the time of indorsement, it was mutually agreed between the indorser, indorsee, and maker, that Jhe maker should have an extension of time in which to pay the note, “ to about the first of April, 1877.” Held: That the indorser waived demand, and notice of the non-payment of the note.</p>

The plaintiff below sued the defendant for money paid by him upon the purchase of a certain stock of drugs of the decedent, the plaintiff being a minor at the time of the purchase, and having elected on becoming of age to rescind the contract. On the trial of the case in the common pleas the defendant excepted to a part of the charge of the court, and took a bill of exceptions setting forth the evidence and the charge to which exception was taken.

The jdaintiff brought his action in the court of common pleas of Crawford county to compel Alexander J. Caldwell, administrator with the will annexed, of the estate of Samuel S. Caldwell, deceased, to sell at administrator’s sale certain lands of the testator. The defendant had been ordered to sell them by the probate court of the county; had made a sale to John Scott, who soon thereafter deeded them to the administrator individually.

<p>Constitutional Law — Appropriation of money — Act of March 21, 1887.</p>

<p>Error to tbe District Court of Stark County.</p> <p>The original action 'was commenced on an administrators’ bond in the court of common pleas of'Stark county, by Harmon W. Landrock, one of the defendants in error, against his co-defendants in error, Henry Engle, William G. Myers, administrator of Samuel Engle, deceased, and the plaintiff in error, Francis Eckert, to recover the amount of a claim for work and labor, done and performed by Harmon W. Land-rock, for Daniel Engle, deceased, as a partner in the firm of Engle & Brother. Henry Engle and Samuel Engle, on the decease of Daniel Engle, were duly appointed and qualified as administrators of his estate. The administrators’ bond contained, among other conditions, the following, to-wit:</p> <p>“ Know all men by these presents, That we, Samuel Engle and Henry Engle as principals, and Francis Eckert as surety, are held and firmly bound to pay the state of Ohio the full sum of six thousand dollars if default be made in the condition following: The condition hereof is such that, whereas, letters of administration on the estate of Daniel.Engle, deceased, were granted the said Samuel Engle and Henry Engle, by the probate court of Stark county, state of Ohio, on the 22nd day of January, A. D. 1867. Now, if the said Samuel Engle and Henry Engle, as administrators of the said Daniel Engle, deceased, shall administer according to law, all the moneys, goods, chattels, rights and credits of the said deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the possession of the said administrators, or to the possession of any other person for them; shall pay any balance remaining in their hands, upon the settlement of their accounts, to such persons as said court or the law shall direct; then, but not otherwise, shall this obligation be null and void.”</p> <p>A jury having been waived by all the parties, the cause was submitted to the court, and the court, upon the request of the defendant, William G, Myers, administrator of Samuel Engle, deceased, that its conclusions of fact be separately stated from its conclusions of law, finds, as its conclusions of fact, as follows, viz.:</p> <p>“1st. That Daniel Engle died January sixth, A. D. 1876; that on the 22nd day of January, 1876, the defendant, Henry Engle and Samuel Engle, were duly appointed and qualified as administrators of the estate of said Daniel Engle, deceased, by the probate court of Stark county, Ohio, and executed their joint and several bond, with Francis Eckert, their surety, and filed the same in said probate court, which bond was on the same day approved by the judge of said court, and recorded.</p> <p>“ 2nd. That the property and estate of the said Daniel Engle, deceased, consisted of his undivided one-half of a planing-mill at Canal Fulton, and certain live stock and other chattels upon the farm of said Samuel Engle, which were his undivided property at the time of his death. Said planing-mill was owned by said Daniel and Henry Engle, partners, doing business in the firm name of Daniel Engle & Bro.; that said live stock and other chattels had been upon said farm for some time prior to the death of Daniel; that all of said property remained as it was before Daniel’s death up to the time of appraisement March 1, 1876, and was in the joint possession of said Henry and Samuel Engle; that on the morning of the appraisement, to-wit, March 1, 1876, Samuel Engle was rendered unconscious from a stroke of paralysis, and took no part in said appraisement; remained unconscious and died in about two days thereafter, and said property was inventoried and appraised by said Henry, and return thereof made by him, in his own name, to the probate court. Said Samuel Engle had joined said Henry Engle in giving notice of the appraisal of said estate of Daniel Engle & Bro. Henry Engle, surviving administrator, after the death of said Samuel, proceeded to, and did, administer and settle said estate in his own name as sole administrator.</p> <p>“ 4th. That no waste or default of the assets of said estate occurred during the lifetime of Samuel Engle, and that all of said assets were taken in possession by said Henry Engle as such surviving administrator.</p> <p>“ 5th. That the claim of the said plaintiff was duly presented to said Henry Engle as such administrator after the death of Samuel, aud allowed by him as a valid claim against said estate, and that there is now due and unpaid thereon the sum of four hundred and eighty-seven dollars and twenty-nine cents ($487.29), and interest from October 15, 1883, and that prior to the beginning of this action said plaintiff demanded payment of his said claim of William G. Myers, administrator of the estate of Samuel Engle, deceased, which was by said Myers refused.</p> <p>“ 6th. That the said Henry Engle is insolvent, and has failed to pay over according to law, and in pursuance of an order of the probate court, heretofore made, the sum of $943.41, then found in his hands, in a hearing upon exceptions to his final account as such administrator in said court, which order and finding were made in said court August 23, 1879; that there are no other unpaid claims due creditors of said Daniel Engle, deceased; that said plaintiff, after the order of said probate court, and in pursuance thereof, was entitled to the payment of his said claim against said estate of Daniel Engle, deceased, out of said fund so found in the hands of said Henry Engle, as administrator aforesaid. That more than thirty days after said order, to-wit, September 23, 1879, the said plaintiff demanded payment of his said claim of Henry Engle as administrator aforesaid, which was refused.”</p> <p>And as conclusions of law “ the court finds that said plaintiff is entitled to recover a judgment against said Henry Engle, and the administrator of Samuel Engle, deceased, for said sum of $487.29, as principal debtors, and against said Francis Eckert as surety for said sum, together with costs, to which finding of law from the facts above stated, said administrator of Samuel Engle, deceased, excepts and files his motion for a new trial, which the court overrules, and said defendant excepts. It is therefore considered by the court that said plaintiff recover of said Henry Engle and William G. Myers, as administrator of Samuel Engle, deceased, as principal debtors, and said Francis Eckert as surety only, the sum of four hundred and eighty-seven dollars and twenty-nine cents ($487.29), with interest from October 15, 1883 (the first day of this term), and costs of suit, taxed at $-; said judgment against said Myers as administrator aforesaid, to be levied of the goods, chattels and estate in the hands of said administrator to be administered. To which said defendant, Myers, administrator aforesaid, excepts.”</p> <p>Myers, administrator, filed his petition in error in the district court, which court reversed so much of the judgment of the court of common pleas as was against him, and adjudged that, as administrator of Samuel Engle, deceased, he was not liable on the bond in suit, to the action of Harmon W. Land-rock, the devastavit complained of having taken place after the-death of Samuel Engle, as appears in the special finding of fact ; but that Landrock recover of Henry Engle, as principal, and Francis Eckert as surety.</p> <p>Francis Eckert now seeks to reverse the judgment of the district court.</p>

<p>Criminal Law — Embezzlement by cashier and owner of stock in unincorporated banking association.</p> <p>An agent and cashier of an unincorporated banking association, whose capital is divided into shares evidenced by certificates thereof, having, by virtue of his employment by a board of directors pursuant to articles of association, the exclusive custody of its assets, who fraudulently converts its property to his own use, is guilty of embezzlement; although he is one of its shareholders.</p>

The original action was commenced before a justice of the peace, where Croswell recovered a judgment against Myers, from which, the latter appealed to the court of common pleas.

The original action was a proceeding in mandamus by which the relator sought to compel the board of education of the village of Oxford, to admit his children to a common school within the district where he resided, from which, as he averred, they had been wrongfully excluded by the board.

In the year 1876, the Toledo & Grand Rapids Railroad Company) a corporation organized under the laws of Ohio, was constructing a line of railroad from Toledo to Grand Rapids in Wood County, Ohio. George P. Hinsdale, the defendant in error, and other parties residing along the line of railroad, subscribed to its capital stock.

On the 2nd day of January, 1882, Goshoru A. Jones, receiver of the Cleveland, Mt. Vernon & Delaware Railroad Company, filed his petition in the court of common pleas of Knox county against the Baltimore & Ohio Railroad Company, alleging “that the said Cleveland, Mt. Vernon & Delaware Railroad Company is a corporation, created and organized under the laws of the state of Ohio, and under said corporate name, built, constructed and operated a line of road extending from Hudson…

Reserved in the District Court of Lucas County. This was an action commenced in the court of common pleas of Lucas county by James Compton, asking that certain bonds of which ho claimed to be the owner, with the unpaid interest coupons thereon, should be declared a lien upon so much of the road of the Wabash, St. Louis & Pacific Railway Company, as formerly belonged to the Toledo & Wabash Railway Company, by whom the bonds had been issued, and for the finding of the amount…

On June 28, 1879, Charles Saunders and others duly executed and delivered a chattel mortgage on certain personal property to C. & G. Cooper & Co., to secure a certain indebtedness therein described. On July 4, 1879, the mortgage, duly verified, was filed in the office of the clerk of the proper township. With the purpose of continuing the security, this mortgage was re-filed on July 8, 1880 — more than one year from the original filing.

The original action was commenced in the court of common pleas of Harrison county, by Albert J. Harrison, as treasurer of Harrison county, against Stewart B. Shotwell, the plaintiff in error. The original petition reads as follows: “The plaintiff, Albert J. Harrison, says he is the duly elected, commissioned, qualified, and acting treasurer of Harrison county, Ohio.

Bill of Exceptions by the prosecuting attorney to the decision of the court of common pleas of Coshocton county. At the January term, 1888, of the court of common pleas of Coshocton county, John D. Elson, Jr., and four others were jointly indicted for an assault and battery with felonious intent, upon the person of Enoch A. Randles.

Tbe judgment sought to be reversed was one dismissing an appeal taken by Alsdorf from a judgment of the court of common pleas. The action in which the judgment of the common pleas was rendered was begun in that court by Alsdorf against John Reed, Isaac Vanatta, Florence Vanatta, his wife, Joseph Conrad and Joseph II. Conrad.

Error, to the Circuit Court of Paulding County. The original action was in replevin. The plaintiff alleged in the usual form that he was the owner and entitled to the immediate possession of the chattels described in the petition, and that the defendant unlawfully detained them from his possession, to his damage. An order was issued, bond given,^ property taken and delivered to the plaintiff. In his answer the defendant denied all the allegations contained in the petition.

<p>Constitutional Law — Sec. 26, Article 2 — Act of April 12, 1876, void.</p>

On the seventh day of October, 1882, the plaintiff in error, the Citizens’ Building Association of Galion, Ohio, filed its petition in the court of common pleas of Crawford county, against J. G Meuser et al., which petition reads as follows: “ And now comes the said plaintiff and says: That it is incorporated under the laws of the state of Ohio, under said name of the Citizens’ Building Association of Galion, Ohio, and as such association, under said name, is doing business…

On the 10th of September, 1881, Henry Schneider, while driving his team over the railroad tracks across Freeman street in the city of Cincinnati, was killed by a locomotive run, managed, and operated, by the Cleveland, Columbus, Cincinnati and Indianapolis railway company.

The plaintiff in error was convicted before the mayor of Hillsboro on a complaint under oath charging him with keeping a place in said village where intoxicating liquors, to-wit, beer, are sold, contrary to the ordinance of said village.

<p>Practice — Appeals.</p>