Volume 48 — Ohio State Reports, New Series

<p>Error to the Circuit Court of Hamilton county.</p> <p>The original action was brought in the Court of Common Pleas of Hamilton county, by Joseph N. Kinney against Warren Durham, defendant in error, and his wife, and Robert Kernohan, the plaintiff in error, to foreclose a mortgage on 27f acres of land in Anderson township, Hamilton county, executed November 9, 1868, by Durham and his wife to William R. McGill, to secure the payment of two certain promissory notes of that date, for $1,000 each, signed by Durham, and made payable respectively to McGill or order, in one and two years after date, Kinney claiming to hold and own the notes and mortgage, through indorsement and assignment by McGill the payee and mortgagee.</p> <p>Stephen Coddington, defendant in error, who was made a party defendant, and Robert Kernohan, each filed an answer and cross-petition, setting up his interest in the real estate described in the petition, and denying that the plaintiff had any lien on said real estate by mortgage or otherwise. Answers of Durham and his wife, and other pleadings were filed, and the action was tried to the court upon the following agreed statement of facts:</p> <p>“ The parties to this action agree that the following are all the facts of this case, and all the evidence of the parties to the action, viz.</p> <p>“ Warren Durham was indebted to W. R. McGill on notes and mortgage executed November 9, 1868, for $2,000, payable one and two years after date respectively. In November, 1879, Durham had a settlement with McGill of said mortgage debt, then amounting to $8,250, and on the 26th day of November, 1879, Durham gave to McGill a new note for that amount payable one year after date, and to secure the payment of said last note of $3,250, Durham at the same time executed and delivered his mortgage deed of the real estate, described in the petition, to said McGill. The old notes and mortgage paid by the execution of the new were not present at the place of settlement, but were to be returned by McGill to Durham as soon as he, McGill, returned to his home in Newton, the new note and mortgage being made in Cincinnati.</p> <p>“ In 1884 McGill gave to the plaintiff, Kinney, the paid notes and mortgage (never having returned them to Durham) as collateral security for a loan then made from Kinney, and were so received by said Kinney who was ignorant of the transactions between Durham and McGill.</p> <p>“ The said McGill being also indebted to the defendant, Kernohan, as a collateral, he, McGill, assigned and transferred to Kernohan, before the maturity of the $3,250 note, the mortgage given to secure said note, and also a note for $3,250, or what purported to be Durham’s note. The assignment on the mortgage is ‘ For value received I assign and transfer the within mortgage and the note secured thereby to Robert Kernohan, his representatives and assigns. July 21,1880.’ ‘ Wm. R. McGill.’ ‘ Entered April 5,1884, George W. Rabenstein, Recorder.’ Afterwards, on the 22d of February, 1881, McGill being also indebted to the defendant, Coddington, in the sum of $1,250 and interest, as a collateral indorsed and delivered to Coddington the genuine note for $3,250, aforesaid, secured by the mortgage aforesaid for that amount. Coddington received said note and relied upon McGill’s promise to deliver the mortgage in good faith and for value, and without any knowledge or information as to the previous assignment of the mortgage until proved on the trial. It is agreed the note given to Kernohan of $3,250 is a forgery, and that the mortgage given to him was the genuine mortgage, and that the note held by Coddington is the genuine note for $3,250, secured by the mortgage. Me- ' Gill promised Coddington to deliver him the mortgage also, which he never did do, but that Kernohan received said note and mortgage and contract of assignment thereof in good faith and for value and without any knowledge or information as to said forgery until proven on said trial.</p> <p>“Durham, the maker of the note, had no knowledge of these transactions by McGill, and afterwards as McGill called upon him from time to time for payments on his note stating to Durham he would credit the payments upon his note when he went to the Safe Deposit where the note was kept for safety. These payments made in good faith were as follows: March 1, 1880, $200; October 2, 1880, $200; December 27, 1881, $165; October 10, 1882, $150; December 25, 1882, $50; in all $765.”</p> <p>Upon this state of facts, the court found for the defendants as to the plaintiff, and ordered that the plaintiffs’ petition be dismissed, and as to him, that the defendants go hence without day, and that the mortgage sued on by the plaintiff be canceled; and as to Coddington, the court found for the defendants as to his cross-petition, and ordered that his cross-petition be dismissed, and that the defendants thereto go hence without day; and as to Kernohan, the court found for him, that the allegations in his cross-petition were true, that the equity of the case was with him, that by assignment he became entitled to and the owner before maturity, and in good faith, and for value, of the promissory note for $3,250, described in his cross-petition and the mortgage given November 26, 1879, to secure payment of the same; that said mortgage was duly recorded, and was the first and best lien on the real estate described in the plaintiffs’ petition, and in the cross-petition of Kernohan; that Durham was not, as against Kernohan, entitled to credits for the sums paid by him to McGill; and that there was due to Kernohan from Warren Durham on the note for $3,250, and the mortgage to secure payment of the same, with eight per cent, interest from November 26, 1879, the sum of $4,741.75.</p> <p>Judgment was entered for Kernohan in accordance with the above findings, to which Warren Durham and Stephen Coddington duly excepted.</p> <p>On petition in error by Durham and Coddington, the circuit court held, that the court of common pleas erred in finding that Durham was not entitled to credits for the payments made by him upon the mortgage note; that said court erred in finding that the lien of Coddington was a junior lien to that of Robert Kernohan; and that said court erred in finding that Kernohan was entitled to be first paid his claim out of the proceeds of the mortgaged premises. It was therefore ordered and adjudged, that the findings, judgment and decree, and orders of the court of common pleas be set aside, reversed and held for naught; that the cause be remanded to the'court of common pleas for a new trial, with instructions to said court to allow to Durham, upon such new trial, a credit for all the payments upon the note and mortgage made to McGill, and that the liens as between Coddington and Kernohan upon the mortgaged premises be found as follows, viz.: Coddington’s debt to be a valid lien, and the first lien thereon, and Kernohan’s debt to be a valid lien, and the second lien thereon. To which judgment of the circuit court Kernohan excepted, and asks this court to reverse the same.</p>

The defendant in error, by an action brought by her in the Court of Common Pleas of Knox county, Ohio, sought to have herself adjudged to be “ the owner and entitled to the possession of the property, real and personal, coming from', and belonging to, the estate of” James E. Woolbridge, deceased.

For an understanding of the points decided, the following statement of facts will be found sufficient. On April 24,1886, John H. Tucker, defendant in error, commenced an action in the Court of Common Pleas of Hocking county against The Columbus & Hocking Coal & Iron Company, seeking to recover damages for injury to his lands by reason of the acts of the company.

<p>Bank check — Draft—When not an equitable assignment — Priority of assignment for benefit of creditors of drawer, made before presentation and acceptance of check or draft.</p> <p>1. A bank check or draft for a part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn.</p> <p>2. When, after the drawing of such check or draft, the drawer makes an assignment of all his property for the benefit of his creditors, and notice of the assignment is received by the drawee before the check or draft is presented for acceptance or payment, the title to the whole amount standing to the credit of the drawer at the time of the assignment, passes to the assignee for the equal benefit of all the creditors. The holder of the check or draft is not entitled to priority over the other creditors.</p>

<p>Sureties — Subrogation—Section 5836, Bevised Statutes, Construed.</p> <p>1. Where a surety pays a judgment rendered against him and his principal, he has the right, though not certified as such in the record of the judgment, to be subrogated to the place of the judgment creditor’, against the principal and all others standing in his shoes.</p> <p>2. This right is not affected by the provisions of section 5836 Revised Statutes. The object of this section is to enlarge, not to limit, the rights the surety had for his indemnity against his principal, on payment of the debt.</p>

<p>Assessments for street improvements — School property not liable to.</p> <p>School property is not liable to assessment for a street improvement; nor can a judgment be rendered against the Board of Education for the payment of the assessment out of its contingent fund.</p>

<p>Sidewalk — School property not assessable for.</p>

<p>Constitutional law — Retrospective laws — Section 2781, Revised Statutes, construed — Taxation—Correction of false returns — Proceedings by County ■Auditors.</p> <p>1. A retrospective statute, remedial in nature, that is, giving a new remedy for the enforcement of an existing right, is not repugnant to the provision in our constitution inhibiting the passage of retroactive laws. Rairden v. Holden, Adm’r, 15 Ohio St. 207.</p> <p>2. Section 2781, Revised Statutes, as amended April 14, 1886, in so far as it authorizes the county auditor to make additions of taxable property, omitted by the owner in his returns for previous years, being simply remedial, is not invalid. As to the penalty required to be added for such years, it is otherwise, but being separable from the other provision, and in no way essential to it, may be disregarded without affecting the validity of the statute in other respects.</p> <p>8. Proceedings before a county auditor for the correction of false returns made by the owner of taxable property, are not governed by the precise rules of the Code of Civil Procedure, regulating the commencement and prosecution of civil actions. No particular style for the proceeding, or form of notice, is prescribed, and it is sufficient if the notice fairly informs the parLy of the nature of the proceeding and the capacity in which he is required to appear and answer.</p> <p>4. A certified copy of the inventory of the estate of a deceased person filed by the executor in the probate court, is competent evidence to show omissions in the returns of the deceased, and, in the absence of anything to the contrary, may warrant the auditor, in making additions.</p> <p>5. Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provisions of sections 2781 and 2782, Revised Statutes.</p> <p>6. Where additions have been made to the returns of a deceased person, on notice to üie executor, the treasurer is not required to formally present the amount of the taxes for allowance, before bringing suit for the same.</p>

<p>Natural gas works — Municipal cm-porations — Constitutional law.</p> <p>The act passed January 22, 1889 (86 Ohio Laws, 7), authorizes cities of the third grade of the first class to borrow money and issue bonds therefor, for the purpose of procuring territory and right of way, sinking wells for natural gas, purchasing wells and natural gas works, purchasing and laying pipes, and supplying such cities and the citizens thereof with natural gas for public and private use and consumption. Before such bonds, or any of them can be issued by any such city, the question of issuing the same is required to be submitted to a vote of the qualified electors of such city at the next general or municipal election after the passage of the act. And the council of any sucli municipality is authorized by the act to levy a tax annually, not exceeding one and one half mills on the dollar valuation, on the taxable property within any city, affected by the act, in addition to the tax by law authorized to be levied therein, in such amount as will each year be sufficient with the net income of such gas-works, to pay the principal and interest then falling due upon such bonds, and provide a sinking fund for the gradual redemption of such bonds. Held :</p> <p>1. The act is not a special act.</p> <p>2. The supplying of municipal corporations and their citizens with natural gas, is a public use or purpose, for which the taxing power may be constitutionally exercised.</p>

<p>Mandamus — Practice in — Taxation—Correction of false returns — Duty of county auditors, in relation thereto — Sections 27S1 and. 27S2, Revised Statutes, construed.</p> <p>1. In mandamus, as in civil actions, a general demurrer to the reply will search the record and put in issue the sufficiency of the petition.</p> <p>2. The act of April 10,1888, (85 Ohio Laws, 170,) entitled an act “ To secure a fuller and better return of property for taxation and to prevent omissions of property from the tax duplicate,” is constitutional, and a contract made pursuant to its provisions is legal and valid. One who is employed under it to furnish facts and evidence necessary to authorize the county auditor to subject to taxation property improperly omitted from the tax duplicate, who is to receive for his services a percentage of the tax collected on the restored property, has an interest in the matter sufficient to entitle him to maintain a proceeding in mandamus against the county auditor to compel him to act upon the facts and evidence furnished by the relator.</p> <p>3. It is the duty of a county auditor to act under sections 2781 and 2782, Eevised Statutes, whenever he is “informed or has reason to believe” that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon reasonable information, a petition in mandamus, by a relator who seeks to compel him to act, is sufficient, if it state facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate.</p> <p>4. Where, upon a petition in mandamus, an alternative writ is issued commanding a number of acts, either separate or connected, to bo done by the defendant, the relator is entitled to a peremptory writ for such distinct acts, or parts of connected acts, as he may show a right to have performed, where there is not such mutual dependence between the several acts, or parts of acts, that they cannot be separated or divided.</p>

<p>Promissory notes — Purchaser before due, for value, Who is — Good faith— Practice.</p> <p>1. A judgment will not be reversed for error in sustaining a demurrer to a defense, where the defendant does not stand upon such defense, but so amends his answer that upon the trial he has the benefit of all the averments of the original defense.</p> <p>2. If, in the absence of a bill of exceptions setting out the evidence, any state of the evidence, consistent with the pleadings, would justify the verdict and the judgment of the court rendered thereon, a reviewing court will presume, in support of the judgment, that such evidence was given.</p> <p>3. In an action on a negotiable promissory note, when it appears that the plaintiff is a purchaser before due, for value, in the usual course of trade, it is not sufficient as a defense to show that he took the note under circumstances that ought to have excited suspicion in the mind of a prudent and reasonable man. To constitute a defense the proof must show that, in purchasing the note, he acted in bad faith, or with a want of honesty. Johnson v. Way, 27 Ohio St. 374, approved and followed.</p> <p>4. The indorsee of a negotiable promissory note, who purchases it before maturity, for a valuable consideration, without knowledge of facts Which impeach its validity, may recover the amount due by the terms of the note, although the amount paid was less than the face of it, and although the note was obtained by the payee of the maker by illegal and fraudulent means, unless it appears that there was not power to issue the note, or the circumstances of its inception were such as to make it absolutely void by statute.</p>

<p>Statute of limitations — Action to reform written instrument — When barred — Statute may be pleaded in bar when reformation sought by answer— When statute begins to run.</p> <p>1. An action to reform a written instrument on the ground of mistake, comes -within the class provided for by section 4985 of the Revised Statutes, which limits the time within which the same may be commenced, to ten years after the cause of action accrues.</p> <p>2. Where such reformation is sought by answer filed in an action brought to enforce th? instrument, the plaintiif may set up the statute in bar, when the cause of action for the reformation accrued more than ten years before the commencement of the action in which the answer is filed.</p> <p>3. In such case, the cause of action accrues upon the execution of the instrument, and the time when the statute begins to run is not postponed to the discovery of the mistake, as it is to the discovery of the fraud, in cases where relief is sought on that ground.</p>

<p>ERROR to the Circuit Court of Cuyahoga county.</p>

<p>Wills — Revocation—Probate.</p>

<p>Constitutional Law — Special Legislation.</p> <p>A statute applicable only to a particular city in the grade and class to which it belongs, and which cannot by reason of its provisions, be adapted to any other city in the same grade and class, is special in its nature and not general and where corporate power is conferred thereby, is invalid.</p>

<p>Corporations — Stockholder’s Liability — lief erases — Statute of Limitations:</p>

<p>Indictment — How may be found — Grand jury — Indorsement by foreman of — Practice—Criminal Pleading — Larceny—Receiving stolen goods— When may be joined in indictment — Instructions to jury — When verdict of. jury conclusive.</p> <p>1. Where witnesses have been duly sworn and sent to a grand jury, and there examined, and an indictment found and presented, it is not necessary that they should be recalled and re-examined, to warrant the grand jury in finding another indictment against the same person, and before the former one has been nollied.</p> <p>2. Though the better practice, it is not necessary as a matter of law, that the foreman of a grand jury, in indorsing an indictment, “ a true bill,” should describe himself as foreman; for, being appointed by the court, it is presumed to know who the foreman is.</p> <p>3. It is an established rule of pleading that facts, and not conclusions of law, should be pleaded. Therefore, an indictment under section 6858, Revised Statutes, which charges that the accused did unlawfully and fraudulently receive certain personal property — describing il and giving its value and ownership — knowing the same to have been stolen, sufficiently charges an offense under that section, without an averment as to the character of the offense he is thereby deemed to have committed.</p> <p>4. Where, in an indictment for larceny, a count is added under the provisions of section 7227, Revised Statutes, for receiving stolen property, knowing it to have been stolen, without an averment that it is the same property, the state cannot be required to elect on which count it will proceed, where it appears from the description to be the same property, and no motion has been made to quash upon that specific ground.</p> <p>5. In instructing a jury that, the evidence of an accomplice should be cautiously received and closely scrutinized, it is not error for the court, in introducing this caution, to say, that the witness “ admits her complicity in the crime.”</p> <p>6. Whether the proof shows that the accused is guilty as a principal in the larceny, or simply of receiving the goods knowing them to have been stolen, is a question of fact, and where there is room for doubt, the finding of the jury should be accepted as conclusive.</p>

Joseph H. Colopy and Levi F. Colopy the defendants in error, brought their action of replevin in the court of common pleas, against John Gr. Stevenson, sheriff of Knox county, the plaintiff in error, for the recovery of specific personal property, and for damages for its detention. The answer to the petition was a general denial.

The plaintiff in error brought an action in the Court of Common Pleas of Marion county to enjoin the collection of a tax levied by virtue of the one mile assessment pike law on a railroad under its control as the lessee thereof. The action was appealed to the circuit court, where it was tried, and a decree rendered for the defendants at the January term, 1889, of said court, to reverse which the proceedings in this court were instituted.

The defendant in error brought his action in the Court of Common Pleas of Logan county to recover the value of a quantity of wheat, which, in his petition, he alleged was sold by him as executor, on or about the 18th day of August, 1886, to the plaintiffs in error, who were partners in trade engaged in the business of purchasing, shipping and selling wheat. Issue was joined by answer and reply.

The defendants in error, Paxton & Warrington, holding part of the proceeds of a policy of insurance on the life of Ferdinand Brown, deceased, brought the same into court, and required his executrix, his creditors, and his children by a deceased wife (Sophia), to interplead. The money was claimed by the plaintiffs in error and others, who were creditors. The executrix (the widow) made default.

On the 30th of September, 1881, The Cincinnati, Sandusky & Cleveland Railroad Company, Edward Mains, and J. C. Mains, commenced their action in the Court of Common Pleas of Logan county, against the Village of Belle Centre, to enjoin the defendant from taking possession of certain real estate within its limits, under a proceeding theretofore had in the probate court, for the appropriation of the premises for the purposes of public offices and a prison for the village.

The suit below was upon a promissory note for the sum of $2,100, claimed by the plaintiff to have been made and delivered him by the decedent D. M. Baker in his lifetime, on April 5, 1882. Credits amounting to $1,100 were allowed, leaving a balance of $1,000, for which with interest judgment was asked — the claim having been rejected by the executor. The defendant in his answer denied the execution and delivery of the note by the testator.

<p>Order of Judge at Chambers — Review on error.</p> <p>1, The appellate jurisdiction of the circuit court is such only as is expressly conferred upon it by statute.</p> <p>2. Under section 6109 of the Revised Statutes, enacting that a judgment rendered, or final order made by the common pleas court, may be reversed, vacated, or modified by the circuit court, for errors appearing on the record, an order of a judge of the court of common pleas at chambers, overruling a motion to dissolve a temporary injunction, is not reviewable on error by the circuit court.</p>

The defendant in error recovered a judgment against the plaintiff in error, in the Court of Common Pleas of Lucas county, for damages resulting from an injury received by him while rescuing a child of tender years, who had fallen in front of an advancing freight train of the plaintiff in error. This judgment was affirmed by the circuit court, and thereupon these proceedings were brought to obtain a reversal of the judgments of both courts.

Ekkob to the Circuit Court of Hamilton county. Action was brought in the court of common pleas by the gas company against the plaintiff in error to obtain an injunction. In its petition the company alleged the execution of the following contract: “ This contract, entered into this 16th day of March, 1886 by and between The Cincinnati Gas-Light & Coke Company and Chas.

The defendant, J. H. Hardy, on the 1st day of April, 1873, was the owner in fee-simple, of a parcel of land known as lot No. 2 of James H. Hardy’s subdivision of part of lot… Held: that upon this state of facts, the plaintiff was not entitled to a decree of foreclosure; his petition was dismissed, and judgment was rendered against him for the costs. His motion for a new trial was overruled, to which he duly excepted, and he prosecutes error here, to reverse that judgment.

<p>Eminent Domain — Right of landowner to compensation for soil of an adjacent highway, taken by a railroad company — May compel company to condemn and pay for — Sections 32S3 and 6448, Revised Statutes, construed — Limitation, of actions thereunder — Proceedings^ in Probate Court — Right of Jury Trial, etc.</p> <p>1. The owner of the soil of a highway, taken by a railroad company for its roadway, under an agreement between the company and the commissioners of the county as to the terms and manner of its use, as provided in § 3283, Revised Statutes, is entitled to compensation for its appropriation, and may compel the company under the provisions of § 6448, Revised Statutes, to condemn and pay for the same; and such right is not barred by the lapse of less than twenty-one years from the time of such occupation by the company: The limitation of two years contained in § 3283, applies only to incidental injuries to property on and adjacent to the roadway, occasioned by the location and construction of the railroad, and does not include the remedy for injuries to, or the taking of, the land itself.</p> <p>2. In a proceeding in the probate court , under § 6448, Revised Statutes, by a landowner to compel a railroad company to condemn and pay for land of his, which it has taken and appropriated to its own use, either pai’ty is, on demand, entitled to trial by jury on an issue of fact as to the ownership of the land. But where no demand is made, the question may be heard and determined by the court.</p> <p>3. In such proceeding the jurisdiction of the probate court is not defeated by a denial of the title of the plaintiff; and the court may on the demand of either party, proceed and empanel a jury for the trial of the issue, in any of the appropriate modes provided by statute for the empaneling of juries in the court of common pleas.</p>

These proceedings originated in the Probate Court of Summit county, in October, 1885, by the filing of a paper called a petition, in the following words and figures: “ To the Honorable C. R. Grant, Judge of the Probate Court in and for Summit county, Ohio.

At the January term, 1890, of the Court of Common Pleas of Hancock county, the plaintiff in error was jointly indicted with nine others, for the crime of robbery charged to have been committed February 7, 1889, by forcibly taking from the person of one Wesley Oman one hundred and fifty dollars. Being arraigned, the defendants pleaded not guilty. At the March term, 1890, the plaintiff in error was tried separately.

Irwin M. Gilruth, and his sister, Alice R. Pixley, inherited from their father, William Gilruth, deceased, each the undivided, one ninth of certain lands situated in Scioto county, including lots Nos. 1 and 4 of the French Grant, containing about four hundred acres.

The original action was commenced in the Superior Court of Cincinnati, by The City and Suburban Telegraph Association, defendant in error, against The Cincinnati Inclined Plane Railway Company, plaintiff in error.

<p>Decennial Apportionment of the State for members of the General Assert bly — Action of Board — When may be directed by mandamus — When not — Appoi-tionment of April 13, 1891, a valid one.</p> <p>1. Where the governor, auditor and secretary of state, or a majority of them, as the board created by section 11, of article 11, of the constitution, for the decennial apportionment of the state for members of the general assembly, have made an apportionment, they cannot be required by mandamus, or otherwise, to make another apportionment, unless the apportionment as made so far disregards the principles prescribed by the constitution, as to warrant the court in saying that it is no apportionment, and should be treated as a nullity.</p> <p>2. The apportionment made by the board, concurred in by the auditor and secretary of state, at the session of the board held April 13, 1891, does not violate any of the principles prescribed by the constitution, and is a valid apportionment.</p>

<p>New party and answer after judgment — Final Order.</p> <p>1. Where a stockholder in a railway company, after the entry of a judgment against the company, but at the same term is, upon his motion and good cause shown, made a party defendant with leave to file answer, and thereupon answers to the merits, gives notice of appeal, and perfects his appeal to the circuit court, it is error in the appellate court to strike from the files and suppress such answer because of its having been filed after judgment.</p> <p>2. The order of the appellate court striking out and suppressing such answer, is a final order reviewable on error, although the appellant, subsequently to the order of the court, makes application for leave to file his proposed answer, and the application is continued to the next term.</p>

<p>Mandamus — Office of return to writ of— Return of respondent not conclusive — May be attached for contempt — When—Mandamus will not control judicial discretion.</p> <p>1. The office of a return to a peremptory writ of mandamus, by tlie respondent therein, is to show a compliance by him with the order of the court.</p> <p>2. This return, however, is not conclusive, and the relator may controvert its truthfulness by a motion to require the respondent to show cause why he should not be attached for contempt for disobeying the order of the court in the particulars set forth in the motion.</p> <p>3. The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion.</p>

Action was brought June 80, 1887, by the plaintiff in error, in the Superior Court, to recover taxes charged by the auditor of Hamilton county for the years 1881 to 1886, inclusive, with penalty of fifty per centum for the year 1886, by reason of the omission by the defendant of his holdings of stock of The Cincinnati, Indianapolis, St. Louis & Chicago Railway Company from his tax statements to the assessor in each of these years.

. Error to the Circuit Court of Columbiana county. Held: that, as the mortgage was not filed for record until after the deed of assignment was filed in the probate court, it was invalid as against the assignee, and not entitled to preference over the general creditors. Whether there was error in that judgment, is the question presented to this court.

<p>County Boards of Elections — TP7¿o eligible to appointment on — Duty of Probate Judge in respect of.</p> <p>Where, under the provisions of section three of the act to provide for the mode of conducting elections, etc., passed April 30,1891, the executive committee of the political party casting the highest, or the next highest number of votes in the state, at the last November election, recommend, before the first Monday of July, to the probate judge of any county which does not contain a city of the first class,the appointment on the board of elections of such county of two persons who are qualified electors of the county, and members of the political party represented by the committee, it is the duty of such probate judge to appoint the persons so recommended on the board of election of the county. And any appointment by the probate judge prior to the first Monday of July, in the absence of such recommendation, is premature and inoperative.</p>

<p> Defacto officers. </p> <p>Members of the board of city affairs, before law declared unconstitutional, were defacto members of the administrative board of Cincinnati, and tbeir acts valid.</p>

<p>Intoxicating Liquors — Sale of within two miles of Agricultural Fair— Section 6946, Bevised Statutes, construed.</p> <p>A place where the industrial products of a people, in agriculture, manufacturing and the arts, are received and placed on exhibition, for the purpose of displaying them and awarding premiums as a reward for excellence, is an agricultural fair, and, although organized for profit under the provisions of §§ 3235 and 3236, Revised Statutes, is within the provisions of § 6946, Revised Statutes, making it an offense for anyone to sell.intoxicating liquors within two miles of the place where any agricultural fair is being held.</p>

<p> Contribution among partners for indebtedness created by one partner without consent of the other partners. </p> <p>1. An unincorporated association was formed under a specific name, for the purpose of erecting a building and carrying on the business of slaughtering hogs. The capital stock was fixed at $10,000 (afterwards increased), consisting of one thousand shares, of ten dollars each. All the original, but none of the increased stock, was subscribed or guaranteed, and the company was then organized with the adoption of a constitution and by-laws. The officers of the company consisted of five directors, a president, secretary and treasurer. The constitution made it the duty of the directors to have charge of the business of the company, to carry out the objects for which it was organized, and to see that the interests of the stockholders and company were protected; but, by one of the by-laws, the directors were forbidden to adopt plans of buildings, or make contracts, or create indebtedness, beyond the available capital of the company. By the constitution, each stockholder was to have one vote for each share of stock, and the shares were made transferable on the books of the company. The by-laws provided for the holding of regular meetings, and the calling of extra meetings of the stockholders.</p> <p>Held: That the association was a copartnership.</p> <p>2. Where the directors, in violation of the above mentioned article of the by-laws, incurred an indebtedness beyond the available capital of the company, they were not entitled to indemnity or contribution from other stockholders who did not assent, expressly or by necessary implication, to the creation or payment of any of such indebtedness.</p> <p>3: Stockholders, who were notified to attend meetings called by the directors to consider the matter of paying off such unauthorized indebtedness, cannot be held to have assented to the creation or payment of any of the indebtedness, because they failed to attend such meetings.</p>

<p>Policy — Clause in that transfer shall forfeit — Taking in of partner does not forfeit — Assured may recover for loss of his interest, after partnership formed.</p> <p>1. A provision in a policy of fire insurance, to the effect that a sale or transfer of the property insured shall forfeit the policy, does not become operative to avoid the policy, unless the entire interest of the assured • in the property insured is sold or transferred.</p> <p>2. If the property insured consists of the stock of goods of a merchant doing business alone, the taking in-by him of a partner in the business is not such a sale or transfer by him of his entire interest in the property as will avoid the policy.</p> <p>3. Where the policy has not been assigned or transferred, and the property thus insured is destroyed or damaged by fire, after the partnership had been formed and had assumed the management of the business,' the assured may maintain an action on the policy in his own name to recover the damages sustained by him on account of the injury done to his share of the property. .</p>

<p>Motion by defendant to dismiss petition in error filed by plaintiff to the judgment of tbe Circuit Court of Franklin County.</p> <p>The facts are sufficiently stated in the syllabus.</p>

<p>Executors and administrators — When, and how authority of to represent the estate terminated — Duties of, as to unadministered assets.</p> <p>1. The authority of an executor or administrator to represent the estate, unless terminated in one of the modes provided by statute, continues until the estate is fully settled.</p> <p>2. The probate court, for good cause, may remove an executor or administrator, or accept his resignation. But while choses in action, or other assets belonging to the estate, remain in his hands unadministered, his authority to administer the same is not extinguished by an order, made upon what purports to be the settlement of his final account, directing that he be discharged from his trust.</p>

<p>Mandamus — Quo Warranto — Duties of Attorney General in — Australian Ballot Law.</p>

<p>Fraudulent Purchaser at Assignee’s Salé — Conveyance to, may be set aside — How—Proper jurisdiction in which to proceed — Agreement to abstain from bidding — When renders sale fraudulent.</p> <p>1. An agreement between one who becomes a purchaser at the sale of an assignee, and a third person, whereby the latter is for a consideration to abstain from bidding, is, when carried out and the purchaser thereby gets the property for less than he otherwise would, a fraud on the creditors ; and a conveyance thereunder may be set aside at the suit of the creditors, or of one or more suing for the benefit of all, where the as- ' signee, on being requested, refuses to bring the action.</p> <p>2. In such case the court of common pleas is the proper jurisdiction in which to commence the action.</p> <p>3. Before the conveyance can be set aside the purchaser must be restored to his former condition ; but it is not essential that there should be a tender of any specific amount before tbe commencement of the action. All that is required is that the plaintiff should offer in his petition to pay into court for the use of the defendant, such sum as may be ordered as a condition to granting the relief.</p>

<p>Sealed instrument — Adequacy of consideration.</p> <p>1. In an action by the payee upon a specialty, the defendant, may, under section 5071 of the Revised Statutes, allege the want or failure of consideration, and such allegation will constitute a good ground of defense.</p> <p>2. While it is necessary that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising ; and the law will not enter into an inquiry as to the adequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition. 3. The plaintiff was the owner and holder of a promissory note for $269.52, signed by J., dated January 18, 1873, payable to the plaintiff or order, in six months after date, for value received, with interest. On the 5th day of October, 1882 — J. then being dead — the plaintiff surrendered the note to’H., the father of J., who, in consideration of such surrender, by a written obligation bearing date of that day, agreed that the plaintiff should be paid from his personal estate, at his decease, the amount of the note, and the sum to be paid was by the terms of the obligation made a charge and advancement to the heirs of J. By reason of the insolvency of the estate of J., the note at the time it was surrendered to H. was deemed uncollectible. .</p> <p>Held: That the surrender of the note was a sufficient consideration for the execution and delivery of the written obligation.</p>

<p>Poor laws — Paupers—Belief furnished to by physicians — Section 1494, Bevised Statutes, construed.</p> <p>Physicians affording relief to a person in condition requiring relief under section 1494, Revised Statutes, which provides that the township shall be liable for relief afforded “ only in such amount as the trustee’s determine to be just and reasonable,” have a claim against the township wherein such relief is afforded for no greater amount than the trustees determine to be just and reasonable. And where the trustees have considered a claim, and, acting in good faith, have rejected it, no action can be maintained against the township.</p>

<p>Extradition — Bights of prisoner under— Can only be tried for the crime for which he is extradited — When privilege not waived — Rabeas corpus— Office of writ of — When proper remedy to obtain discharge of prisoner.</p> <p>1. A person surrendered to the authorities of this state by another state or territory on extradition proceedings, cannot, while held in custody thereunder, be lawfully tried for a different crime than the one upon which his extradition was obtained, unless he voluntarily waives his privilege.</p> <p>2. The privilege is not waived by failure to plead it in abatement of the indictment for such different crime, nor by entering a plea of not guilty thereto, when, before the trial, the accused asserts his privilege and objects to the trial on that ground.</p> <p>3. While the writ of habeas corpus cannot properly be employed to review and correct errors committed by courts when acting within the sphere of their authority, it is the appropriate remedy to obtain discharge from imprisonment under an order or process of a court, which it was without jurisdiction to make or issue.</p>

<p>Justices of the peace, in cities of the second grade of the first class, during term of office, may maintain a civil action to collect fees, under sections 615 and 621, Revised Statutes.</p> <p>1. The act entitled “ An act supplementary to section 621 of the Revised Statutes of Ohio,” passed May 15,1886 (83 Ohio L., 168), is local in its character, and is not in violation of section 26, of article 2, of the constitution, which requires that all laws of a general nature shall have a uniform operation throughout the state.</p> <p>2. Under the above mentioned act, a justice of the peace, in a city of the second grade of the first class, may, during the term of his office, maintain a civil acción to collect the fees as provided in sections 615 and 621 of the Revised Statutes, such fees when collected by him being payable into the city treasury.</p>

The defendant in error recovered a judgment against the plaintiff in error in the Court-of Common Pleas of Mahoning county, on account of injuries sustained by him in coupling freight cars while employed by the plaintiff in error as brakeman in one of its yards. This judgment was affirmed by the circuit court, and thereupon these proceedings were brought to obtain a reversal thereof.

Ebbob to the Circuit Court of Mahoning county. This action was brought in the Court of Common Pleas of Mahoning county by the plaintiff in error, to recover against the defendant in error damages for injuries sustained by him while in its employment.

<p>Eminent domain — Compensation—Dedication—What is not.</p> <p>1. Where, in an action for compensation for land unlawfully taken by a municipal corporation without knowledge of the owners, and devoted to public uses by constructing thereon a street, it appears that the owners, upon learning that the land has been so taken, acquiesced in the appropriation as an accomplished fact, and ratified it by tendering a sufficient deed of the premises conveying title to the corporation, and . by offering to allow judgment that, upon the valde of the premises being fixed and payment of tlie same, plaintiffs should be ordered to convey to the corporation, a case is made entitling the plaintiffs to recover the value of the land. Railroad v. Robbins, 35 Ohio St. 531, distinguished.</p> <p>2. Such acquiescence and ratification, taken alone, are not sufficient to imply a dedication of the land to public uses by the owner in such sense as to deprive him of the right of compensation.</p>

The original action was commenced in the Court of Common Pleas of Butler county, by W. M. Boyd, as treasurer of that county, against David Sommers as guardian of John McCleary, an imbecile, to recover the amount of the taxes charged against the defendant on the tax duplicate of Butler county, for the year 1889.

<p>Motion to dismiss the ease of John N. Edwards v. John S. Griffiths, a proceeding in error to the Circuit Court of Jackson county.</p>

<p>Service on partnership — Usual place of doing business.</p> <p>1. The sheriff’s service of a summons upon the defendant, may, for good cause, be set aside on motion supported by affidavit. If the summons is served by leaving a copy thereof at the wrong place, the defendant, on motion to set the service aside made before answering to the merits of the action, may be allowed to disprove the officer’s return.</p> <p>2. Where the defendant is a partnership sued by its company name, the summons may be served by leaving a copy thereof with the indorsements thereon, 'at the defendant’s usual place of doing business within the county where the action is commenced.</p>

The action below'was brought by the plaintiff in error against the defendants in error to enjoin them from establishing a township cemetery. The material allegations of the petition are that the plaintiff is a resident tax-payer in Perry township, Shelby county, and seized of a life estate in a parcel of land situate therein; that the defendants as township trustees, have undertaken to purchase and accept of one Win.