Volume 46 — Ohio State Reports, New Series

Reserved from the District Court of Stark County. The action below was commenced by Lewis, one of the defendants in error, against the Alliance Rolling Mill Company and other defendants alleged to be stockholders in, or creditors of, the company, for the purpose of enforcing the statutory liability of the stockholders to contribute to the payment of the debts of the corporation, which was alleged to be insolvent, and to have assigned its property and ceased to do business.

The original action was commenced in the court of common pleas of Hamilton county, by the defendant in error, James W. Sibley, against Helen A. Handy, Mariette B. Handy, Charles E. Handy, Jennie A. Handy (now Jennie A. Rhodes), Anna W. Handy and Eugene F. Williams, plaintiffs in error, and Truman B. Handy, to foreclose a mortgage, as hereinafter set forth.

<p>Executor — Conversión by, of assets of estate — Subsequent execution of new bond by— When sureties on new bond liable for assets so converted — Section 6020, Revised Statutes, construed.</p> <p>1. Tlie sureties on an administration bond, given by an executor who-has been removed, are liable thereon to the administrator appointed in his place for the indebtedness of such executor to the estate for assets received by him and converted to his own use; and a recovery may be had therefor by the successor in a suit on the administration bond. Slagel v. Entrekin, 44 Ohio St. 637, approved and followed.</p> <p>2. An executor gave a new bond as required by the probate court, on the motion of his sureties on the prior bond to be relieved under section 6204 of the Revised Statutes. Subsequently the executor was removed by the court, and an administrator with the will annexed was appointed in his place. Prior to giving the new bond, which was in the form required by section 5996 of the Revised Statutes, the executor had collected and converted to his own use all the assets of the estate. Held: That the sureties on the new bond are liable for the indebtedness of the executor to the estate for all the assets so collected and converted to his own use.</p>

<p>Jury — Right of tried by — Appeal—Practice.</p> <p>The right to trial by jury does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. If the relief sought is a judgment for money only, the fact that before the adoption of our reformed system of procedure,- the proper remedy would have been by a suit in equity, does not affect the right of either party to a trial by jury upon any issue of fact made by the pleadings.</p>

<p>Error to the Circuit Court of Crawford County.</p> <p>The plaintiff in error, who was plaintiff below, on the 20th day of May, 1882, commenced his action in the Court of Common Pleas of Crawford County, against the administrators of the estate of Abraham Monnett, deceased, upon the following written instrument:</p> <p>“ Bucyrus, Ohio, February 22, 1877.</p> <p>“The Woolen Mill Company of Bucyrus, Ohio, having sold to A. Monnett, of Marion County, Ohio, one-half of Woolen Mill Property, for the sum of seven thousand five hundred dollars ($7,500.00), two thousand five hundred dollars ($2,500.00) to be paid April 1st, 1877, the other five thousand dollars ($5,000.00) with the following provisions:</p> <p>“After the above A. Monnett receives dividends to the amount of ten per cent, on the money he puts into mill and manufactures, T. J. Monnett is to receive dividends, as interest on the five thousand dollars ($5,000.00) above named, pro rata with the firm, for the term of five years, and if the mills do not pay dividends up to ten per cent, on the money put in by A. Monnett above-named, at the expiration of the five years, he ■may continue the same conditions until they do.</p> <p>“A. Monnett.”</p> <p>Endorsed — “ Received on the within article two thousand five hundred dollars. April 1st, 1877.”</p> <p>The case made by the petition with the amendments is, that the Woolen Mill Company mentioned in the writing, was at its date the name of a co.-partnership, consisting of the plaintiff and James G. Frazier, who were the owners of the Woolen Mill property. The plaintiff sold his undivided interest in the property, to Abraham Monnett, for the sum of seven thous- and five hundred dollars, and Abraham Monnett executed and delivered to him the written instrument sued on. . About the same time, Frazier’s undivided interest in the property was sold to Quincy A. Rouse and William Rouse; and afterwards on the 2nd day of April, 1877, the plaintiff and Frazier, by their joint deed, conveyed the whole of the property to the purchasers, the consideration therein named being fifteen thousand dollars. The Rouses paid seven thousand five hundred dollars, their half of the purchase-price, and Abraham Monnett, in pursuance of his written obligation, paid the plaintiff the two thousand five hundred dollars, which by its terms, became due April 1st, 1877, and which is credited thereon. In April, 1878, Abi-aham Monnett sold and conveyed his undivided half of the property, to Horace Rouse, whereby, it is claimed, ho put it out of his power to further comply with the stipulations of his written agreement, and, after the expiration of five years from its date,- the plaintiff brought his action against Abraham Monnett’s administrators (he in the meantime having died), to recover the five thousand dollars alleged to be due, together with interest from April 1st, 1877. Before the commencement of the action, a claim therefor, duly authenticated, was presented to the administrators for allowance, which was by them rejected.</p> <p>Four answers were filed by the defendants, but the real defense, and the only one made at the trial, was that contained in the second paragraph of the amended answer, which avers that the written instrument sued on “is ambiguous and uncertain, and does not clearly set out the true agreement made by said parties; that the true agreement made by said parties and intended to be expressed by said written memorandum, was as follows: Plaintiff sold to said Abraham Monnett his interest in the Woolen Mill property, for the sum of twenty-five hundred dollars, to be paid, and which was, in fact, paid by said Abraham Monnett on April 1st, 1877, which sum was in full of the purchase-price thereof; but plaintiff retained a conditional interest in the earnings of said Woolen Mill as follows: It was agreed that said Abraham Monnett was first to receive dividends out of the net earnings and profits of said Woolen Mills, equal to ten per cent, on the amount of money by him put into said ■ mill and manufactures; after which plaintiff was to receive as his interest in the net earnings and profits thereof, a pro rata dividend thereof with the firm for five years (to the amount of five thousand dollars), provided said Woolen Mills earbed that amount in excess bf the ten per cent, first to be paid to said Abraham Monnett, but if said W oolen Mill did not earn an excess over said ten per cent, to be paid to said Abraham Monnett, then plaintiff was to receive nothing, nor have no other or further interest therein.”</p> <p>The plaintiff replied, controverting the allegations of the answer, and without objection by either party the case was tried to a jury. A verdict was returned for the defendant, and a motion for a. new trial having been overruled, a bill of exceptions was taken, purporting to set out all of the evidence and charge of the court, from which it appears, that the evidence offered by the defendant on the trial in support of his defense, consisted of conversations the witnesses claimed to have had with the plaintiff, concerning the terms of the sale to Abraham Monnett, and some testimony relating to the financial condition and business habits of Abraham and the plaintiff. This evidence was permitted to be given over the plaintiff’s objection, and he duly excepted.</p> <p>The court in its charge, after stating the issues made by the pleadings, said to the jury :</p> <p>“ The court finds that the said written memorandum attached to the plaintiff’s petition, marked ‘ Exhibit A,’ is ambiguous and uncertain in its terms and conditions, and submits the construction thereof to the jury. In giving construction to the same the intention of the parties will govern. The contract is what Abraham Monnett and • Thomas J. Monnett agreed and intended it to be.”</p> <p>To this the plaintiff excepted.</p> <p>The court further charged the jury, “ that the plaintiff must make out his case by a fair preponderance of the evidence,” and also that “ the defendants must make out their case by a fair preponderance of the evidence;” and “ if the contract is as claimed by the plaintiff the verdict must be for the plaintiff,” and “ if the contract is as claimed by the defendants the verdict must be for the defendants.”</p>

<p>Summons — When person privileged from senice of.</p> <p>A person attending the hearing of an application for an injunction in a ease in which he is interested as a party, in a county other than that of his residence, is privileged from the service of summons while going to, attending, and returning from, the place of such hearing.</p>

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>The original suit was brought into the court of common pleas in the county where instituted on appeal from a justice of the peace.</p> <p>From the petition filed in the common pleas, it appears that The Lake Erie Iron Company, plaintiff, and The Valley Railway Company, defendant, below, are each incorporated companies under the laws of this state; and that the plaintiff asked to recover of tbe defendant on an account for goods sold and delivered, tbe sum of $253.30. The account consisted of iron and iron forgings, amounting to the sum claimed.</p> <p>The defendant answered, denying, first, any indebtedness upon the account; and added, as a second defense, and by way of counter-claim, — “that the plaintiff is now and has been for the last twelve years and over, a large manufacturer of such iron goods as are named in the account attached to the petition and of other iron goods used in the construction and the operation of the railroads, and consumes in the manufacturing of such goods daily, a large amount of coal; that said Iron Company is now, and has been for the last ten years and over, largely interested in the matter of reducing the price of coal in the city of Cleveland.</p> <p>“ That the construction of railroads from the said city of Cleveland to the coal fields in said state, south of said city, tends to reduce the price of coal in said city. That the said plaintiff, to bring about and aid in the construction of the railroad of the defendant, from said city to said coal fields, and in order to effect a sale of iron goods by it manufactured, entered into a written contract with the defendant on or about the 1st day of February, 1873, a copy of which contract, marked “ Exhibit A,” is hereto attached and made a part of this answer. That in said contract the said plaintiff agreed to manufacture for and deliver to the defendant, iron and forgings of the value of two thousand dollars ($2,000), and to take in pay therefor forty shares of the capital stock of the defendant at its par value : to the entering into and making said contract by the plaintiff, each and every one of its members and stockholders at the time thereof assented to and requested. That under said contract, and in accordance therewith, the defendant did on or about the 1st day of January, 1881, apply to the plaintiff for the articles described and charged in the account, a copy of which is attached to the petition, and received from the plaintiff, on or about the date last mentioned, said goods under and in pursuance of said contract. That all the provisions of said contract that were to be performed and carried out by the defendant have been by it performed and carried out, excepting only the delivery by it of the certificate of said forty shares to the plaintiff, which has not been done for the reason that the plaintiff wholly refuses to manufacture for and deliver to the defendant any more iron and forgings. That the defendant is, and has been ever ready to receive, from the plaintiff, iron and forgings in payment for the balance due for said forty shares of stock from the plaintiff, and has so repeatedly notified and duly demanded the same of the plaintiff, but the plaintiff did, prior to, and has ever since the commencement of this action, utterly refused and still refuses to carry out its said contract;” — and asked judgment for the balance, $1,746.70, due on the subscription.</p> <p>The plaintiff demurred to the pleading on the ground that it is insufficient as a defense, or counter-claim. The court sustained the demurrer, to which the defendant excepted; and,, proceeding “to take the account, hear the proofs, and assess the damages,” found for the plaintiff in the sum of $295.04, and rendered judgment accordingly.</p> <p>The defendant, The Valley Railway Company, prosecuted error to the district court, claiming that the court erred in sustaining the demurrer of the plaintiff to its answer. The judgment was affirmed by the circuit court, and this proceeding is prosecuted to reverse the judgment in both of the lower courts.</p> <p>The principal questions arising upon the record are (1) whether the facts pleaded in the answer constitute a defense, and (2) whether they constitute a counter-claim in favor of the defendant against the plaintiff.</p>

<p>Attachment proceedings before justices of the peace — When may be reviewed on error.</p> <p>1. An order of a justice of the peace discharging or refusing to discharge au attachment, may be reviewed by petition in error in the court of common pleas, and for that purpose a bill of exceptions may be taken, embodying all the evidence upon the hearing of the motion to discharge, together with the ruling of the justice, and the exceptions thereto.</p> <p>2. Where the weight of the evidence is the only question presented by such bill of exceptions, this court will not enter upon its review, or disturb the judgment of the court below thereon; but when the party against whom an order of attachment is obtained, in support of his motion to discharge the same, by his affidavit denies the ground of the attachment stated in the affidavit therefor, it devolves upon the party procuring the attachment, to establish such ground by proper ■evidence ; and whether there is any evidence tending to sustain it, is a ■question of law, which the parties may have determined by this court.</p>

<p>Assignment for benefit of creditors — Jurisdiction of probate court in — Reconveyance by assignee to assignor — Inability of sureties on assignee’s bond.</p> <p>1. Where one makes a voluntary assignment under the statute, in trust for the benefit of creditors, it is within the jurisdiction of the probate court, at the request of the creditors, the assignor, and the assignee, to terminate the trust, and require the assignee to re-convey the property left in his hands to the assignor, for the purpose of enabling the latter to effect an adj ustment with his creditor’s.</p> <p>2. Where by the decree of the probate court upon the final account of the assignee, he is ordered to pay over a balance remaining in his hands to the assignor, who thereupon assigns the same to a creditor in satisfaction of his claim, the sureties on the assignee’s bond will be liable for his default of payment; and, in an action by the creditor against the sureties to recover the balance so assigned to him, the sureties will be concluded by the decree, although in executing the assignment, there may have been collusion between the assignor and assignee to defraud the creditors, unless an appeal has been taken, or the j udgment has been reversed upon a proceeding in error.</p> <p>3. Upon a proceeding to vacate the trust, and procure a re-conveyance to the assignor of the property assigned, the probate court will not, in rendering a decree that the assignee file his final report and that the trust be ended by complying with the terms of the decree, lose its jurisdiction over the person of the assignee for the settlement of his final account; nor will the sureties on his bond, by such a termination of the trust, be released from liability for the assignee’s failure to pay over, when ordered by the court, a balance found remaining in his hands.</p>

<p>Rents and profits— When tenant in common.liable for— When not liable for interest— Section 5774, Revised Statutes, construed.</p> <p>1. By virtue of section 5774 (Bevised Statutes), which provides that one tenant jn common may recover from another his share of rents and profits received by such tenant in common from the estate, “ according to the justice and equity of the case,” a tenant in common who uses the common estate simply to pasture his cattle, is liable to ac- . count to his co-tenants for their share of the value of such use as for rents and profits received.</p> <p>2. Where no demand has been made upon such tenant in common, either for the possession of the premises or for the value of their use, before the commencement of the action, he is not liable to account for interest upon the amount found due his co-tenants for such use.</p>

<p>Assignment of dower to former divorced wife of decedent — Application of the rule, caveat emptor, to purchasers at executor’s sale, where dower has not been assigned— When executor cannot bind decedent’s estate, by a promise of indemnity against incumbrances.</p> <p>An executor, under an order issued by the probate court in a suit to sell lands to pay the debts of the decedent, sold the same without making the former wife of the decedent, who had obtained a divorce from him on account of his aggressions, a party to the suit. The purchaser being advised by counsel that the title to the lands was clear and unincum.bered, and that the wife had no dower-estate therein, bought the lands at their full value in money, paid over the money to the executor, and entered into possession of the premises. The court of common pleas afterwards adjudged, that the divorced wife was dowable of the lands, and dower therein was accordingly assigned and set off to her. Held .• That the purchaser can not maintain an action to recover back sufficient of the purchase-money, to compensate him for the loss he has sustained, by reason of the assignment of dower, and that the rule, caveat emptor, is applicable.</p> <p>2. In the absence of authority derived from the.will, or from the order issued by the court for the sale of the lands, the executor can not bind the estate of his decedent, by a verbal promise to indemnify the purchaser against incumbrances or defects in title.</p>

<p>Statutory duty of railroad company to fence its track, secs. 3324, 3325 and 3329, JBev. Stats. — Agreement of land-owner to fence— Whether it runs with the land as a burthen — Purchaser without notice — Constructive notice, what is.</p> <p>1. A written agreement by the grantor of the right-of-way to a railroad company, to fence it on each side through his lands, will not affect the right of a subsequent purchaser to require the company to fence its road, under the provisions of Sections 3324 and 3325, Revised Statutes, where ■ the purchase was made without actual or constructive notice of the existence of such agreement.</p> <p>2. Such agreement not being recorded, the mere use and occupation of the right-of-way by the company and its successors for the purpose of a railroad, will not constitute constructive notice of the existence of such agreement.</p>

John Moore died March 22, 1884, leaving surviving him his widow, aged seventy-six years, the plaintiff in error. On June 5, 1884, the appraisers of said decedent’s estate set off to the widow for her year’s support, in addition to provisions on hand, the sum.of $162.50. The widow filed her petition in the probate court, October 20, 1884, for review and increase of allowance, which application was refused and no appeal taken, or other proceedings had to vacate the same.

The plaintiff, Rebecca J. Dunn, commenced her action in the Court of Common Pleas of Brown County, against the Brown County Agricultural Society, by filing the following ■ petition: “ The plaintiff says : “ That the defendant is a corporation duly incorporated under the laws of the state of Ohio, and in its corporate capacity held its regular annual fair on its fair grounds at Georgetown, Brown county, Ohio, on the 5th, 6th, 7th and 8th days of October, A. D. 1880, to which…

<p>Finding of facts — Circuit court not required to make, wider sec. 6710 Rev. Stats.</p>

This cause comes to this court by a proceeding in error to reverse the judgment of the district court upon, the following findings of fact and conclusions of law: I. That in the year 1833, the defendant, John B. Purcell, was appointed bishop of the Roman Catholic diocese, which includes the city of Cincinnati, in this state; that afterwards, in the year 1855, he was appointed the archbishop of said diocese, and continued as such bishop or ai-chbishop from the time of his…

Reserved in the District Court. Error to the Superior Court of Cincinnati. The plaintiff in error, Lee, was, at the commencement of -the action, treasurer of Richland county.

<p>Validity of Act of March 19, 1887, amending ? 550, Rev. Stats. — Amendment of remedial statute — Construction of the language “ unless so expressed," contained in § 79, Rev. Stats.</p> <p>1. The act passed March 19, 1887 (84 Laws, 129), amending 550, Revised Statutes, was duly adopted by the General Assembly, and is a valid law.</p> <p>2. The statute relates to the remedy, and must be construed in connection-with § 79, Revised Statutes; sp that, the language therein contained, “That in every instance where a judge of the court of common pleas is-interested in the event of a cause * * pending before the court in any county of his district,” it may, “unless there is a judge residing in the county not so interested,” be removed to another county, does not, though general in form and expressed in the present tense, apply to a pending action, where the state of facts, constituting such ground of removal, existed at the adoption of the statute. No generality of language used in an amendment relating to the remedy, will, under § 79-Revised Statutes, make it applicable to a pending action, prosecution or proceeding; to make it so applicable the intention must be expressed in a provision to that effect.</p>

On December 2nd, 1880, the defendant John Mye^s was indebted to the plaintiff Ezra A. Hill, in the sum of nine hundred dollars. His wife Tabitha Myers, the other defendant, was the owner at that time of an undivided two-tenths of a tract of land in Hamilton county, Ohio, held in common by her and her husband’s brothers and sisters.

On the 15th day of February, 1882, Moses A. Walton commenced his action in the Court of Common Pleas of Greene County, against the plaintiff in error Charles Kahn, Jr., and The Citizens’ National Bank, of Xenia, to enjoin the bank from paying two checks, one for fifteen hundred dollars and the other for five hundred dollars, drawn by him upon the bank in favor of Kahn.

The Knox County Savings Bank — the defendant in error-filed in the Court of Common Pleas of Knox County its amended petition, which reads as follows: “The plaintiff, by leave of the court first had, files its amended petition, and avers that it is a corporation duly organized under the laws of Ohio, under the name of The Knox ■County Savings Bank, and fully authorized to loan money, and receive the notes hereinafter described. “ That the defendant is a corporation duly…

The solution of this case depends upon the construction of section 38 of an act relating to wills, passed May 3, 1852, S. & C. Stat. 1622, which provides : “ If the testator had no children at the time of executing his will, but shall after-wards have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in…

In September, 1882, William H. Easterday was a warehouseman, at Big Praire, in Holmes county; and on the 29th day of that month, George W. Leyda, the plaintiff in the action below, stored one hundred and seventy-three bushels of wheat in Easterday’s warehouse, and took from him a receipt in the following words: “Bio Prairie, Sept. 9, ’82. “ Rec’d of George Leyda 173 bu. 20-60 one hundred & seventy three bus twenty lbs of No 2 Wheat.

This action was brought to recover the sum of eighteen hundred and thirty-seven dollars, being the value of seventy-live barrels of whisky alleged to be the property of plaintiff, which defendants had converted to their own use. At the trial in the superior court, judgment was given for defendants.

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

<p>Attorney appointed to assist prosecution — Compensation—No appeal from allowance by commissioners.</p> <p>There is no appeal from the amount allowed by the commissioners to an attorney appointed by the court to assist the prosecution in a criminal ease.</p>

The original action was one in replevin brought by the plaintiff to recover a horse from the defendant. The plaintiff alleged in his petition, in the usual form, his ownership of the horse, his right to the immediate possession of it, and its unlawful detention from him by the defendant.

Quo Warranto. The proceeding is instituted for the purpose of ousting the defendants from the exercise of the duties and functions of a board of education.

The plaintiff below, John Corrigan, an infant under the age ■of fourteen years, by his guardian Thomas Corrigan, commenced his action in the Court of Common Pleas of Cuyahoga County, .against The Cleveland Rolling Mill Company, to recover ■damages for a personal injury, which he suffered while cmployed by the company in its mill, and which, he charges was. caused by the company’s negligence.

Adolph J. Seasongood and Louis Seasongood, executors of Jacob Seasongood, and Louis Heidelbach, executor of Phillip Heidelbach, the defendants in error, brought their action in the court of common picas, against the city of Cincinnati, -and E. O. Eshelby, Comptroller of Cincinnati, to enjoin the collection of an assessment for a street improvement claimed to be excessive.

<p>Devise to children as a class, one or more of whom predecease testator — Construction of ? 5971 B. S.</p> <p>1. The provision of the statute of wills providing against the failure of a devise to a child or other relative of a testator by the death of the devisee in the life of the testator, (£ 5971 Rev. Stat.) applies to a devise to “children” as a class.</p> <p>2. P. executed his will in 1868 and died in 1884. Among other objects of his bounty, there were living at the date of the will, his wife, his son Isaac and four children of the latter, James, Michael, Almira (intermarried with W.) and Nancy (intermarried with C.), all of whom were adults. He devised all his estate to his wife for life, and directed that, at her death, the land should be converted into money arid, with other funds arising from his estate, divided into four equal parts, one of which he directed to be invested in lands and conveyed to his son Isaac for life, remainder to his children in fee-simple. The wife, his son Isaac and the latter’s two daughters, Almira and Nancy, died before the testator — the daughters intestate, but each leaving issue surviving the testator. Held: That under the provisions of the statute then in ' force relating to a devise to a child or other relative of the testator (63 Laws, 47 § 56), incorporated in § 5971 Revised Statutes, the surviving issue of each of the two daughters of Isaac take the share of the devise to Isaac’s children, which the deceased mother would have taken, had she survived the testator.</p>

The plaintiff in error, Richard Hurley, was, at the January term, 1887, of the Court of Common Pleas of Hamilton County, indicted for the murder of John Keating. He was tried at the following May term of that court, and convicted of manslaughter. A motion for a new trial filed by him was overruled, and sentence was passed upon him.

On May 9th, 1885, defendants in error began an action against plaintiffs in error, in the Court of Common Pleas of Preble County, on a promissory note secured by mortgage, a copy of which note, with the indorsements thereon, was set. forth in the petition as follows : “ $2,600.00, Eaton, O., March 13th, 1880. “ Three years after date we or either of us promise to pay to the order of H. C. Hiestand & Co. the sum of Twenty-six hundred dollars for value received, with 8 per…

The suit below was for the recovery of money collected by the defendant’s testator as attorney for the plaintiff.

<p> Transfer of goods fraudulently obtained, inpayment of a pre-existing debt. </p> <p>1. Where a purchaser fraudulently obtains goods from the owner, and transfers them to another in payment of a pre-existing debt, such pre-existing debt alone will not be a sufficient consideration to constitute the transferee a bona fide purchaser for value, as against the owner from whom the goods were thus obtained by fraud.</p> <p>2. D. by false and fraudulent representations, purchased and obtained goods on credit from E. Shortly after the purchase, to-wit: on August 7,1884, D. was insolvent, and on that day transferred the goods with other goods and merchandise to W. who, as a consideration for the transfer, cancelled and surrendered to D. an interest bearing note for $3,000, made by D. himself to W., dated October 8, 1883, and due in one year from date.</p> <p>Held: That W. was not a bona fide purchaser for a valuable consideration as against E.</p>

<p>Malicious prosecution of civil action— When actionable.</p> <p>An action may be maintained for maliciously, and without probable cause-instituting and prosecuting an action in forcible entry and detainer.</p>

<p>Error— When considered — Evidence—Rejection of— When error — Adjoining landowners — Boundary lines — Uncertainty of — Petition in real actions — Amendment of after statute of limitations has run, not allowed.</p> <p>1. - Where the error complained of in this court is that the trial court omitted to charge the jury a proposition of law involved in' the case, and the court’s attention was not directed to it except by one of a series of propositions, all of which the court refused to give, and the alleged error was not included in the motion for a new trial, or assigned in the circuit court for error, it will not be considered here, unless for some special or peculiar reasons, affirmatively appearing upon the record.</p> <p>2. Where evidence, if admissible at all, is evidence in chief, and the party omits to offer it then, but, without explanation of the omission, offers it in rebuttal and it is then rejected by the trial court, this court will not pass upon its competency.</p> <p>3. The acts and admissions of the grantor of lands, respecting a disputed boundary line, done or made by him after he has parted with his title, are not admissible against his grantee; and the rule is not changed, although he retains the ownership of other lands affected by the same disputed boundary line, and his acts and admissions relate to his own lands.</p> <p>4. Where the adjoining proprietors of lands adjust and settle a disputed boundary line between them, the agreement for that purpose need not be such as would of itself transfer title or right of possession to lands.</p> <p>5. To enable adjoining proprietors to adjust and settle a boundary line between their lands, it is not nce.ssary that the line should be so uncertain as to be incapable of exact ascertainment; it is sufficient if there is such uncertainty as leads to a bona fide dispute respecting its location.</p> <p>6. Where the plaintiff in a real action omits to describe in his petition al] the lands detained from him by the defendant, he can not by an amendment to his petition, made after the statute of limitations has run as to the land omitted, include such omitted land and have the amendment relate to the filing of the petition, so as to defeat the plea of the statute as to the lands brought in by the amendment.</p>

<p>-Check given for money lost at gaming — Absolutely void in hands of innocent holder for value — Sec. 4269 Rev. Stats, construed.</p> <p>The indorsee of a check given for money lost at a game of cards can not recover upon it against the drawer, though a bona fide holder for value without notice of the vice in the consideration. A check so drawn is within the provisions of § 4269, Revised Statutes, and “absolutely void and of no effect.”</p>

<p>Explosion of steam boilei — Burden of proof.</p> <p>The plaintiff as an employe of F. & Co., was at work on the premises of the defendants, in helping to set up a saw-mill which the defendants had purchased of F. & Co. While so at work, a steam boiler, owned and used by the defendants on the premises to run the saw-mill, exploded and injured the plaintiff. Held,: That in an action for damages, the mere fact of the explosion did not raise a prima facie presumption of negligence on the part of the defendants.</p>

<p>Will — Devise of personalty 1o wife, with unconsumed remainder to heirs — •Estate of widow therein — Duty of executor under the will.</p> <p>A testator bequeathed all his personal estate, after the payment of his debts and funeral expenses, to his wife, and at her death, “said personal estate, or so much as shall be unconsumed, to be equally divided between ” his heirs, naming them. The wife survived the testator, and accepted the provision made for her in the will. The executor paid the debts and funeral expenses, and delivered the balance of the personal estate to the widow, and settled his accounts accordingly. The will did not require or direct the executor to collect or distribute the personal estate that might be left unconsumed at the death of the widow, or enjoin upon him any duty with respect thereto. Held:</p> <p>1. After the debts and funeral expenses were paid, the widow became entitled to the possession, use and enjoyment of the personal estate, with the right to consume the whole or any part of it; and it was the duty of the executor to deliver possession thereof to her.</p> <p>2. When the executor performed that duty, he administered the estate and executed his trust, and can not be held responsible for any use or disposition made by the widow, of such personal estate after it so lawfully came to her possession ; nor, can he thereafter be required to account therefor in the probate court.</p>

This proceeding in error is brought by Peter Harpold, W. A. Roberts, Daniel Bibbee, the executors of Moses E. Sayre, and John A. Williamson, to reverse judgments rendered against them in the Circuit Court of Meigs County.

<p>Dower — Contingent right of — Mortgages—Foreclosure.</p> <p>1. The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively.</p> <p>% Where the wife has joined in a mortgage of the husband’s lands to secure his debt, upon a judicial sale of the premises, she may have the value of her contingent right of dower in the entire proceeds ascertained and the husband’s entire interest therein shall be exhausted to pay the debt before resorting to the interest of the wife therein.</p> <p>3. The release, in such mortgage, of her contingent right of dower does not inure to the benefit of the husband’s subsequent judgment creditors, and, as against them, the ascertained value of her contingent right of dower in the entire proceeds of the sale will be paid to her out of the balance left when the mortgage debt is paid, before any part thereof will be distributed to them on their judgment.</p>

<p>Oownty ditch — Evidence on appeal.</p> <p>■On an appeal to the probate court from the order and finding of a joint board of county commissioners, determining that a proposed ditch is necessary, and will be conducive to the public health, convenience and welfare, the jury, in examining and determining the matter appealed from, may, under section 4467 of the Revised Statutes, consider in., evidence, facts ptade known to them personally from an actual view of the premises.</p>

The suit below was upon a policy of life insurance ; and the errors assigned arise upon the sustaining of a demurrer to the amended petition of the plaintiffs.

The action below was by the Treasurer of Hamilton County against the First National Bank of Cincinnati. The questions arise upon a demurrer to the petition on the grounds, (1), that there is a want of proper parties, and (2), that the petition does not state facts sufficient to constitute a cause of action.

The defendant in error, Andrew Emerine., to whom a sealed note, payable to E. S. Clark, or bearer, had been transferred by delivery, took a judgment thereon against the maker, John Spence, plaintiff in error, by confession, under a warrant of attorney attached thereto, at the September Term, 1887, of the Court of Common Pleas of Sandusky County. The following is a copy of the note and warrant of attorney. “$250.00.

Mary J. H. Fredericks commenced an action against the Incorporated Village of Cardington, in the Court of Common Pleas of Morrow County. After answer filed the plaintiff deceased, and, by leave of court, her administrator became party plaintiff, and filed petition.

<p>Conditional sales of personal property — Constitutional law.</p> <p>1. The act passed May 4, 1 885 (82 O. L. 238), entitled “ an act to regulate conditional rates and sales of personal property, and to provide for filing instruments pertaining to the same with certain officers, and making a violation thereof a misdemeanor,” is not in conflict with either section sixteen or nineteen of article one, or section sixteen or twenty-eight of article two, of the constitution of this state.</p> <p>2. The second section of the act, which makes it unlawful for the vendor of persona] property sold as therein specified, to take possession of such property, without tendering or refunding to the purchaser, the sum paid by him, “ after deducting therefrom a reasonable compensation for the use of such property,” is not invalid on the ground-that the amount of such compensation is uncertain, and no method is provided by the act for determining the same.</p>

At the April term, A. D. 1888, of the Allen County Court of Common Pleas, William Goins, the plaintiff in error,-was jointly indicted with three others for aiding and abetting one Frederick Harrison in the deliberate and premeditated murder of Patrick Hughes, on the night of April 2, 1888. At a later period of the term the principal was tried for murder in the first degree, but convicted and sentenced to the penitentiary for manslaughter only.

The plaintiff in error was tried at the April term, 1888, of the Court of Common Pleas of Franklin County, upon a charge of contempt, which offense consisted in the writing of a certain article, and causing it to be published in a daily newspaper published in the city of Cincinnati.

The T. J. Nottingham Manufacturing and Supply Company, a corporation organized under the laws of this state, and located in Cincinnati, being unable to meet its liabilities, on the 25th day of June, 1884, made an assignment to F. W. Browne for the benefit of its creditors. The assignment was duly filed in the probate court, and thereafter, Browne was removed, and George L. Rouse appointed trustee to administer the assignment.

<p>Error to the Circuit Court of Lorain County.</p>

<p>Motion for leave to file petition in error to the Court of Common Pleas of Stark County.</p>

The original action was a suit by Kate S. D. Armstrong against The Pomeroy National Bank to recover of the bank the sum of $450.00, due her upon a deposit she had made with the bank.

<p>Error to the Circuit Court of Union County.</p>

The plaintiff in error commenced his action against the defendant in error, and Adam Seymour, in the Court of Common Pleas of Lorain county, by-filing therein… Held: one piece by one Ann Robinson, another by one Nick Pitts, another by this plaintiff, and two other pieces by the defendant, Daniel Titus. That when said pieces of land were first severally sold by said Miller, there was and still is no public highway by which ingress and egress can be had to or Rom said land.

The action below was commenced by the defendant in error against the plaintiff in error, in the year 1884, to recover for damages to the lands of the Furnace company lying within the City of Ironton, by reason of the construction and operation of a tram? railway on a public road within said city, upon which the lands abutted. One of the defenses interposed was that the alleged road was not such at the time of the building •of the railway, but had been abandoned.

This action was brought by defendant in error in the Rich-land Court of Common Pleas to recover damages that she avers were sustained by her from a fall caused by an unsafe and dangerous sidewalk,-within the village of Shelby, plaintiff in error.

<p>Attachment — Property held by one officer under writ of, not subject to levy under a writ held by another officer — Garnishment.</p> <p>Different attachments of the same property may be made by the same officer (Revised Statutes, sec. 5535). But personal property held on attachment by one officer, is not subject to levy and seizure under writs in the hands of another officer. In order to attach property in the custody of an officer under legal process, unless the writ is placed in his hands,' he must be proceeded against as a garnishee. (Locke v. Butler, 19 Ohio St. 587). And this rule is not changed by the assent of the officer holding the property, to the subsequent so-called levy.</p>

<p>Findings of facts — Section 6710, Rev. Stats., conslmed.\</p>

<p>Motion for a stay of execution in cause No. 2018, on the General Docket.</p>

The action below was replevin for a horse. It was commenced in a justice’s court, and appealed to the common pleas. The petition averred a special ownership in the plaintiff by virtue of a lien for feeding the horse and paying the expense of shoeing for more than ten days before the commencement of the action. The answer is in substance a general denial of the petition.

<p> Change of judicial subdivisions. </p> <p>The act of March 21,1887 (84 O. L. 229), to'repeal sec. 1 of “an act to change the sub-divisions in the second judicial district, and to provide for the election of an additional judge in the first sub-division,” passed March 13, 1868 (65 O. L. 25), not having been passed by a concurrence of two-thirds of the members elected to each house, is invalid, and ineffectual to change Montgomery county from the first sub-division to the second sub-division of the second judicial district.</p>

The original action was brought in the Court of Common Pleas of Seneca County by Edward J. Cunningham v. The National Exchange Bank of Tiffin, Ohio, and William H. ■Grapes. The petition charges that the bank, which is a corporation ■organized under the National Bank Act, became the owner of a lot sixty feet square at the corner of Washington and Market streets in the city of Tiffin, and erected thereon a three story brick building covering the whole of the lot.

The plaintiff in error and the defendant in error were tenants in common of a parcel of land situate in the City of Cincinnati, which the defendant occupied for six months beginning ’ January 1, 1881. The plaintiffs brought two suits against defendant before a justice of the peace, one to recover .$250.00 for a quarter’s rent from January 1, to April 1, and another for a like amount from April 1, to July 1.

‘ This action was brought by the plaintiff in error, in the Court of Common Pleas of Carroll County, to recover from the defendant in error possession of a school house and the lot of land upon which it stands. The pleadings, as made up, put in issue both the title and the right of possession of the plaintiff to the property in dispute. The action was tried by the court, without the intervention of a jury, and resulted in a judgment for the defendant.

The suit below was brought by the holder against the maker of a promissory note, the holder averring that he became the owner of it for a valuable consideration before it became due. The note is as follows : “ $400. December 9, 1884. Thirteen months after date I promise to pay to T. J. McElroy or bearer, four hundred dollors, value received, 6 per cent, interest.

The plaintiffs in error, Basil A. Gordon and Dominico Santoro, were severally indicted under the act entitled, “ An act to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township in the state of Ohio,” passed March 3, 1888. That act provides as follows : “ Section 1.

<p>Error to the Circuit of Hamilton County.</p>

Action was brought by Voss Hoffhines against the Cincinnati, Washington & Baltimore Railroad Company in the Court of Common Picas of Vinton County, to recover for the killing of two horses by a train of cars, July 24, 1885, on the line of the company’s road.- The alleged negligence consisted in the failure of the company to fence its road through the lands of the plaintiff, whereby the horses got upon the track.

James W. Gray, the plaintiff in error, on the 24th of April, 1878, commenced his action in the Court of Common Pleas of Belmont county to obtain the settlement of the accounts of a co-partnership theretofore existing between the parties, and to-recover whatever balance, might be found due him thereon.

The plaintiffs set forth in their petition as grounds for relief certain alleged irregularities that appeared upon the face of the proceedings instituted and carried on before the county commissioners to secure the projiosed improvement, as well as certain others which did not so appeal’, and which, if denied, must have been established, if at all, by proof.

<p>Constitutional amendment — Number of votes necessary for adoption.</p> <p>.An amendment to the constitution, submitted by the legislature under the provisions of section 1, article 16 of that instrument, requires, for its adoption, a majority of all the votes cast at the election for senators and representatives at which it is submitted to the electors of the state for their approval or rejection.</p>

<p>Motion to dismiss the cause, on the ground that it was not commenced in time.</p>