Volume 49 — Ohio State Reports, New Series

<p>Champerty— When does not affect plaintiff.</p> <p>Whilst a champertous agreement between a plaintiff and his attorney for the prosecution of a certain suit, is against public policy and void, it does not affect the right of the plaintiff to prosecute his action against the defendent in the suit, for the prosecution of which, the champertous agreement was made.</p>

<p>Sale of intoxicating liquors at retail — Construction of. section 1862, Revised Statutes.</p> <p>By virtue of the 11th section of the act of March 14, 1886 (83 Ohio Laws, 157), known as the’“Dow Law,” the council of the city of Alliance, in July, 1888, passed an ordinance, to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail. Section 3 of the ordinance provided as follows :</p> <p>“Any person, or persons, violating any of the provisions of this ordinance, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars nor more than two hundred dollars, and for each subsequent offense, not less than two hundred dollars nor more than five hundred dollars.” Held:</p> <p>1. That the above section of the ordinance is not in conflict with section 1862 of the Revised Statutes.</p> <p>2. That under section 1862 of the Revised Statutes, a fine prescribed in a municipal ordinance, of more than fifty dollars for any specific offense, or more than double that sum for each repetition of such offense, is not to be deemed in all cases unreasonable; but, the ordinance may, in some cases, be enforced by a fine greater than is specified in section 1862, it being lawful for the court or magistrate, in any suit or prosecution for the recovery of the increased fine, to reduce the same to such amount as may be deemed reasonable and proper by the court or magistrate.</p>

<p>Negligence — Evidence—Competency of declarations of plaintiff— Competency of declarations of strangers to the record.</p> <p>1. Where,in an action against a railway company to recover damages for injuries received at one of its stations, by being struck by all incoming train, the plaintiff claimed to have been misled by information that the train which struck him was late, whereas in fact it was on time, or nearly so, and that, acting upon such information, he was crossing its track when it suddenly ran upon and struck him, it is competent, to rebut any inference of contributory negligence that might arise from the circumstances of the accident, to introduce to the jury declarations of strangers to the record, made in his presence, that the train was late.</p> <p>2. Where, in such case, it became material to establish that the plaintiff was at the station to take passage on one of its trains, a declaration, made by him as he left his house on his way to the station, that he was going to another station on the same railway, is competent evidence, to establish his character as a passenger.</p> <p>3. In such case the condition of the crossing at the time of the accident, whether thronged with people or otherwise, is a material circumstance, and evidence tending to prove its condition, in this respect, is competent.</p>

<p>County Offices — How created — How filled — Constitutional law.</p> <p>1. The act of March 14, 1890 (87 Ohio T- 439), which makes provision for the appointment by the clerk of the court of common pleas of a stationery storekeeper for Hamilton county, and devolves upon such storekeeper the duty to purchase and have charge of all blank books, stationery, printing and office appliances for the offices of that county, fixing an annual salary of $1,500, to be paid by the county treasurer from the general fund of the county, and requiring a bond in the sum of $5,000, for the faithful performance of his duties, is an attempt to constitute a county office and provide for the filling of the same, for a full term by appointment.</p> <p>2. The act is in conflict with sections 1 and 2 of article 10 of the constitution, which require that all county officers shall he elected, and is, therefore, void.</p>

<p>Sales — When on credit, duty of buyer to keep his credit good — Giving note or bill does not vary rule — Rights of seller on discovery of buyer’s insolvency — Stoppage in transitu. — Resale by vendor— When action for breach of contract of sale may be maintained— When not.</p> <p>1. Where goods are sold on credit, it is an implied condition of the contract, that the buyer shall keep his credit good; and the seller is not bound to deliver the goods if the buyer be insolvent. The fact that the buyer has given his note or bill for the price, payable at the expiration of the credit, does not vary the rule.</p> <p>2. If the insolvency of the buyer is discovered by the seller, while he yet has the goods, or while they are in transit, and he retakes them, he may elect to treat the agreement for credit as at an end, and resell the goods, unless the buyer pay or tender the price agreed on.</p> <p>3. A party to a contract of sale cannot sue for its breach, unless he is himself able to perform on his part; it is, therefore, a good defense to an action by the vendee for damages for the failure to deliver the property sold, that at the time fixed by the agreement for the delivery, he was insolvent, and on that account unable to perform his part of the contract.</p>

<p>Creditor's bill to subject interest in a claim for unliquidated damages — Dormancy of judgment during pendency of creditor's bill.</p> <p>1. Where a judgment debtor lias commenced an action against another, for unliquidated damages arising out of an injury to his real estate, and the judgment creditor of such debtor, thereafter, and while his judgment is alive, commences a suit under section 5464 of the Revised Statutes, in the nature of a creditor’s bill, against such debtor and the wrongdoer, to subject to the payment of his judgment, the debtor’s interest in the chose in action or claim for damages, the judgment creditor may acquire a lien in equity upon such interest of the debtor, from the commencement of his suit, where the demand of the judgment debtor for unliquidated damages is reduced to judgment during the pen-dency of the creditor’s bill.</p> <p>2. Such judgment creditor, by permitting his original judgment to become dormant, through failure to issue execution thereon during the pendency of his suit in the nature of a creditor’s bill, will not, thereby, lose the lien in equity, which he may have acquired by reason of his having commenced such suit.</p>

<p> Practice in Civil Cases. </p>

<p>Negligence — Excavation in Public Sidewalk — Liability of lot owner, when injury occurs through negligence of independent contractor.</p> <p>1. Where the owners of a city lot, in the course of constructing thereon a building abutting on a street, make, by their own employees, an excavation in the adjacent sidewalk for coal vaults and an area to be used in connection with the building, a duty 1 devolves upon them to guard it with ordinary care, and this duty is not shifted from them by letting the work of building the area walls and constructing the coal vaults to an independent contractor, who is to furnish all the material as well as perform the labor necessary therefor.</p> <p>2. In such case if the excavation is not guarded, or covered, with ordinary care, one who, without fault on his part, falls into it and is injured, may maintain an action against the owner of the premises, to recover damages therefor, although the defective covering had been put over it by the contractor or his servants.</p>

<p>Municipal Corporations — Streets—License to use public street, by private individual, creates no right by prescription against city— No right by prescription, as to percolating water — Contracts by municipal corporations, involving expenditure of money, made before money is in the treasury — Purpose of the statute, prohibiting — Section 2702, Revised Statutes, construed — Construction of sewers — Contract for, without funds being provided, does not make city liable for negligence in its constmction, where not otherwise liable — Nor, where law by which money was being raised, was unconstitutional — When error in charge to jury, not grotmds for reversal,</p> <p>E brought an action against the city of Springfield to recover for the destruction of certain water pipes which, by virtue of a license and grant from the city, had been placed under the surface of Center street for the purpose of conveying water from a spring owned by plaintiff, and located within twenty feet of the west margin of Center street, to a manufactory on the same street owned by plaintiff, and for destruction of the spring by . means of the unlawful and negligent construction of a sewer "built by the city in Center street. It was shown that the pipes had been in place as they were when taken up by the city, for more than twenty-one years. The water thus conveyed to the factory was valuable, and the destruction of the pipes, and the cutting oif of the water proved a serious damage to the plaintiff in the running of the factory.</p> <p>The city had been laid off into sewer districts before the proceeding, and a general system of sewerage, and plans and specifications therefor, had been prepared by experts and adopted according to law, and this sewer was one of those provided for in the general system. It was admitted that the city authorities had taken all proper and necessary steps to authorize the building of this sewer excepting that at the time of entering into the contract for the building of it, the city did not have the money in the treasury to pay the cost, and that all the money for the payment of the cost the city proposed to raise, and did raise by loan, under an act that was unconstitutional. The pipes were taken up by the city with care, after notice to the plaintiff, at the commencement of the work of excavating for the sewer, and the spring was destroyed by the cutting off of a portion of the water which supplied it, by excavating the trench in which the sewer was built, the trench being lower than the spring. The walls of the sewer were not made water tight, and the water of the spring, and water from sources which had supplied the spring, were carried off in part under the walls of the sewer, and in part by seeping through the walls into .the sewer. It did not appear that the spring was supplied other than by water percolating through the earth.</p> <p>The trial court gave an incorrect rule of law to the jury, which was excepted to by plaintiff.</p> <p>Held • 1. Section 1692, Revised Statutes, gives to cities the power to build sewers, and Center street being a public street, and sewerage being one of the legitimate uses to which a public street may be devoted, the construction therein of a sewer, if done in a lawful manner, was an authorized use by the city of that street.</p> <p>2. The use of the street by the plaintiff, for his water pipes being allowed by license, there was no enjoyment adverse to the city. Nor had the city power by grant, to give plaintiff any right in the street inconsistent with the future legitimate uses of the street by the city. Hence, no right by prescription to maintain the pipes in the street would vest in the plaintiff, although he had enjoyed the use more than twenty-one years, and any damage accruing to plaintiff by removing the pipes, and thus interrupting the flow of water through them, would be damnum absque injuria.</p> <p>3. No right by prescription can exist as to percolating water, nor is one prevented from making any lawful and legitimate use of his own huid, by digging or otherwise, even though the effect is to drain a spring on the land of an adjoining proprietor. Injury to the spring, therefore, by draining it, or cutting off water supplied to it by percolation, would not be, per se, actionable.</p> <p>4. Section 2702, Revised Statutes, which provides that no contract involving the expenditure of money can be entered into unless the clerk shall certify that the money required by the contract is in the treasury to the credit of the fund, is intended for the protection of tax-payers by checking municipal extravagance and the incurring of indebtedness, and is not intended to attach liability to a city for negligence where the city would not otherwise be liable. Hence, the mere fact that there was no money in the treasury to pay the cost of the sewer at the time of making the contract, would not make the city liable even though there was negligence in its construction. Nor would the fact that the act under which the city was proceeding to raise the money was unconstitutional give a right of action to plaintiff on the ground of negligence in the construction of the sewer.</p> <p>5. A judgment will not be reversed for error in the charge to the jury where, upon the most favorable construction of the evidence of the complaining party, he had shown no right of recovery</p>

<p>Railroad. Companies — Overcharges by, for freight — Acts of February 11, 1848, and March 30, 1875, construed — Penalty for overcharges, does not bear interest.</p> <p>1. By the phrase “its capital,” in the proviso of section 12 of the act of February 11,1848, (1 S. & C. 271) is meant the capital stock of the. company; and railroad companies, incorporated under that act, or by special act which confers upon the company the powers, and makes it subject to the restrictions and provisions of that act, whose net profits on an average of the ten years next previous to the passage of the act of March 30, 1875, (72 O. L. 143) amounted to a sum equal to ten per centum per annum upon the actual capital stock of the company, are bound by the provisions of the last named act, reducing the rates which may be charged for the transportation of persons or property upon the road of such company.</p> <p>Z. An issue of additional stock by such company, while the act of March 30, 1875, was in force, for amounts ascertained by computing interest on the original subscriptions, will not take the company out of the operation of the statute, although, for the year in which it was issued, the net profits óf the company were not equal to ten per cent, of the aggregate amount of the capital stock and such new issue.</p> <p>3. The provision of the act of 1848, that the reduction of the rates shall not be such “as to reduce the future probable profits below said per centum,” does not make it a condition to the validity of the reduction that' the future profits shall in fact equal that sum. While that provision enjoins upon the legislative body, the duty of exercising its deliberate judgment upon the facts before it, in regard to the probable future profits, it will be presumed, that in the enactment of legislation on the subject, that body has properly and in good faith performed the duty, and regulated the rates accordingly.</p> <p>4. Before judgment, the penalty allowed by the act of March 30,1875, for overcharges for carrying freight or passengers, does not bear interest.</p>

<p>Prize-fighting — What is a good indictment for — Agreement to engage in a prize-fight, a conspiracy to commit crime— When declarations of either party, admissible against the other — • What is a prize-fight — Expert testimony, not admissible, to determine —How must be determined.</p> <p>1. An indictment which, with proper averments of time and place, charges that the accused did unlawfully engage as principal in an unlawful and premeditated fight and contention, commonly called a prize-fight, with another person named, and in said fight, the accused and such other person, did each the other unlawfully strike and hruise, and attempt to strike and bruise, for and in consideration of prize and reward, is a good indictment under section 6888, of the Revised Statutes, which provides, that “whoever engages as principal in any prize-fight,” shall be punished as therein prescribed.</p> <p>2. It is not necessary that the indictment aver that the fight took place in Ipublic; nor, that it contain averments which negative the existence of the matters mentioned, in the proviso of section 0890, of the Revised Statutes.</p> <p>3. An agreement to engage in a prize-fight, is a conspiracy to commit a crime; and the declarations of either party with reference to the common object, or in furtherance of the criminal design, while engaged in its prosecution, are competent evidence against the other, though the agreement was made by or through backers or other representatives of the principals, and the latter were unknown to each other.</p> <p>4. Tetters written by one of the principals, while in training for the-fight, describing what the fight is to be, stating when and where it is to occur, and requesting the presence of his friends and others thereat, are in furtherance of the unlawful enterprise, and admissible in evidence against the other.</p> <p>5. On the trial of an indictment for engaging in a prize-fight, it is not error to exclude as evidence, a license issued by the mayor of the municipality where the encounter occurred, to an athletic club, to have a glove contest therein on the same day; nor, to exclude the articles of association of such club.</p> <p>0. Whether a pugilistic encounter is a fight, or a boxing exhibition,, is not a question upon which expert testimony is admissible, on the trial of an indictment for engaging in a prize-fight. The question must be decided by the jury upon the evidence of what actually took place, under proper instructions from the court, and not upon the opinions of professional pugilists, and others experienced in such combats, or the rules adopted by associations for conducting such contests.</p>

<p>Corporations — Legal entity of, a fiction — For what purpose introduced— When may be disregarded — Acts of all, or a majority of, the stockholders— When regarded as the acts of the corporation— When may be challenged in qtio warranto — Trusts—Combines— What acts of corporations, or their stockholders, create — Such acts against public policy — Quo warranto — Limitation of actions in, as to corporations.</p> <p>1. That a corporation is a legal entity, apart from the natural persons who compose it, i's a mere fiction, introduced for convenience in the transaction of its business, and of those who dc business with it.; but like every other fiction of the law, whet urged to an intent and purpose not within its reason and policy, may be disregarded.</p> <p>2. Where all, or a majority of the stockholders composing a corporation, do an act which is designed to affect the property and ' business of the company, and which, through the control their numbers give them over the selection and conduct of the corporate agencies, does affect the property and business of the company, in the same manner as if it had been a formal resolution of its board of directors; and, the act so done is ultra vires of the corporation and against public policy, and was dope in tlieir individual capacities for the purpose of concealing their real purpose and object, the act should he regarded as the act of the corporation; and, to prevent the abuse of corporate power, may be challenged as such by the state in a proceeding in quo warranto. '</p> <p>3. An agreement by which all, or a majority of the stockholders of a corporation, transfer their stocks to Certain trustees, in consideration of the agreement of the stockholders of other companies and of the members of limited partnerships, engaged in the same business, to do likewise; and by which all are to receive in lieu of their stocks and interests so transferred, trust certificates to be issued by the trustees, equal at par to the par value of their stocks and interests; and by which the trustees are empowered as apparent owners of the stock to elect directors of the several companies, and thereby control their affairs in the interests of the trust so created; and are to receive all dividends made by the several companies and limited partnerships, from which, as 'a common fund, dividends are to be made by the trustees to the holders of the trust certificates, tends to the creation of a monopoly, to control production as well as prices, and is against public policy.</p> <p>4. A proceeding in quo warranto to forfeit the charter of a corporation must, under §6789, Revised Statutes, be commenced within five years after the act complained of was done, whether commenced by the state on relation of the Attorney General, or otherwise. But a corporation may be ousted by such proceeding from the exercise of a power or franchise, not conferred by law, where the same has not been exercised for a term of twenty years.</p>

<p>Railroads — “ One dollar per mile” fee — Act creating, construed— Constitutional law.</p> <p>The act of April 15, 1889 (Section 251a Revised Statutes), requiring “ every corporation or company operating a railroad or any part of a railroad within this state" to pay to the Commissioner of Railroads and Telegraphs a “ fee ” of one dollar per mile for each mile of track operated hy it within this state, contravenes sections two and five of article twelve of the constitution of this state.</p>

<p>Classification of villages — Constitutional law.</p> <p>1. A11 act providing that, in any village in any county containing a city of the first grade of the first class, in which no sidewalks have already been constructed under the provisions of sections 2334a, 2334b and 2334r, of the Revised Statutes, the council of such village may construct sidewalks wherever such sidewalks have not been already laid, and assess the costs and expense of such sidewalks upon the abutting lots and lands in the corporation, according to the front foot of the property bounding and abutting upon the improvement, does not furnish a proper classification for the purpose of legislation of a general nature designed to have a uniform operation throughout the state.</p> <p>2. The act, entitled “an act to authorize villages to levy special assessments, for the construction and improvement of sidewalks, and to be supplementary to section 2328 of the Revised Statutes, and known as section 2328#,” passed April 16, 1891 (88 Ohio T. 311), is in conflict with section 26, article II. of the con-stitirtion, which requires that all laws, of a general nature, shall have a uniform operation throughout the state.</p>

<p>Fire escapes — When must be provided by owner of building — Tenement house— What is — Sections 2573 and 2574, Revised Statutes, construed — Negligence of owner of buildings — Damages.</p> <p>1. Section 2573, Revised Statutes, as enacted April 19, 1883, which makes it the duty of any owner of any tenement house of more than two stories high, to provide a. convenient exit from the different upper stories which shall he easily accessible in case of fire, is intended, as a primary object, to secure means for safe egress by tenants occupying the upper stories of such buildings in case of fire, and applies as well to those who occupy the' second story as to occupants of the higher stories.</p> <p>2. The duty to provide convenient exits, prescribed by section 2573, is not confined to buildings within municipalities, but is of general application.</p> <p>;>. A tenant in a tenement house, situate within a city or village, who, without fault on his part, receives injury because of the neglect of the owner to comply with the requirements of section 2573, may maintain against such owner, a civil action for damages, and his right of recovery will not be affected by the fact that the mayor has not given to the owner the notice required by-section 2574.</p> <p>4. A four-story building, occupied by three families living in separate apartments on the second floor, and by two families living in separate apartments on the third floor, numbering in all sixteen persons, all tenants of one owner, is a “tenement house”’ within the meaning of section 2573.</p>

<p>Municipal Corporations — Council-yneh-at-llarge—Constitutional law..</p>

<p>Negligence — When party may recover notwithstanding his own negligence — Duty of railroad company to person who has fallen from train.</p> <p>1. It is a well settled rule of tlie law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary" care to avoid injuring him, and he was thereby injured.</p> <p>2. Where the employes of a railroad company, engaged in operating one of its trains, have notice, such as a person' of ordinary prudence would believe and act upon, that a passenger had stepped or fallen from the train while moving at a high rate of speed, onto the track, where he is exposed, in a helpless condition, to the danger of injury from another of its trains, the company owes him the duty of observing due care to prevent his being so injured, although he was guilty of negligence in so stepping or falling from the train, and that was known to the employes thereon; and in such case, the company should, in the exercise of proper care, stop the train from which the passenger fell, and remove him from the track; if that could be done without danger to the passengers or employes on the train, or notify those in charge of the train from which he was in danger of receiving injury, and cause it to be operated with a due regard for his safety, or adopt some other reasonable precaution to avoid injury to him. The omission to use such care, if injury in consequence ensue, is actionable negligence.</p> <p>3. The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.</p>

<p>Error to tlie Circuit Court of Cuyahoga county.</p> <p>The action below was commenced in the common pleas March 17,1883, by J. T. Tester against E. C. Buel and John Doe (whose real name was alleged to be unknown), upon an account attached to the petition. The allegations being, that at the times stated in the account, the plaintiff bought and sold for the defendants the kind and quantities of grain, and at the prices stated therein, on which by agreement he was to receive the commissions charged. The account is as follows:</p> <p>“E. C. Buee and JohN Doe,</p> <p> In account with </p> <p>J. T. Tester & Co., Dr.</p> <p>1882.</p> <p>Dec. 19, To 5,000'bushels Year Corn at 52 . $ 2,600 00</p> <p>“ 19, To Commission . . . 12 50</p> <p>“ 21, To Cash. 37 50</p> <p>1883.</p> <p>Jan. 3, To 15,000 bushels January Corn, 49f. 7,462 50</p> <p>“ 3, To Commision ..... 37 50</p> <p>“ 5, To Cash. 500 00</p> <p>“ 9, To 15,000 bushels February Wheat, 97$ 14,681 25</p> <p>“ 9, To 5,000 bushels February Wheat, 98 4,-900 00</p> <p>“ 9, To Commission. 50 00'</p> <p>“ 12, To 10,000 bushels May Corn, 55$ . 5,550 00</p> <p>“ 12, To Commission .... 25 00</p> <p>“ 15, To 10,000 bushels May Wheat, 104f 10,475 00</p> <p>■“ 15, To Commission .... '25 00</p> <p>“ 20, To 30,000 bushels February Wheat, 102$ 30,750 00</p> <p>“ 20, To Commission. 75 00</p> <p>“ 23, To 10,000 bushels May Wheat, 108f 10,875 00</p> <p>“ 23, To Commission .... 25 00</p> <p>“ 24, To 10,000 bushels May Wheat, 108$ 10,837 50</p> <p>“■ 24, To Commission. 25 00</p> <p>“ 31, To 50,000 bushels May Wheat, 110$ 55,187 50</p> <p>“ 31, To 15,000 bushels March- Corn, 55$ . 8,287 50</p> <p>“ 31, To 15,000 bushels May Corn, 57f . 8,662 50</p> <p>“ 31, To Commission. 200 00</p> <p>Feb. 2, To 20,000 bushels. May Wheat, 111 . 22,200 00</p> <p>“ 2, To Commission ...... 50 00</p> <p>“ 6, To 10,000 bushels May'Wheat, 111$ . 11,137 50</p> <p>" 6, To 15,000 bushels May Corn, 58$ . 8,737 50</p> <p>“ 6, To Commission.62 50</p> <p>“ 7, To 20,000 bushels March Corn, 57$ . 11,450 00</p> <p>“ 7, To 20,000 bushels May Wheat, 112$ . 22,575 00</p> <p>“ 7, To Commission..... 100 00</p> <p>“ 9, To 10,000 bushels May Wheat, . . 11,187 50</p> <p>“ 9, To Commission. 25 00</p> <p>“ 12, To 25,000 bushels May Wheat, 112$ . 28,031 25</p> <p>“ 12, To 25,000 bushels May Wheat, 112$ 28,062 50</p> <p>“ 12, To Commission ..... 125 00</p> <p>" 17, To 50,000 bushels May Wheat, 116$ 58,437 50</p> <p>“ 17, To Commission ..... 125 00</p> <p>“ 19, To 50,000 bushels May Wheat, 115$. 57,750 00</p> <p>“ 19, To Commission ..... 125 00</p> <p>“ 24, To 100,000 bushels May Wheat, 114# 114,875 00</p> <p>“ 24, To Commission .... 250 00</p> <p>$546,587 50</p> <p>1882. Cr..</p> <p>Dec. 16, By Cash ..... $ 150 00</p> <p>“ 16, By 5,000 bushels May Wheat, 99# „ 4,956 25</p> <p>“ 19, By Cash ..... 150 00</p> <p>“ 20, By 5,000 bushels Year Corn, 53 2,650 00</p> <p>“ 21, By 5,000 bushels Jan. Corn, 50# . . 2,53125</p> <p>“ 27, By 5,000 bushels May Wheat, 99f . 4,987 50</p> <p>“ 27, By Cash ..... 150 00</p> <p>1883.</p> <p>Jan. 5, By Cash ..... 150 00</p> <p>“ 5, By 10,000 bushels Jan. Corn . 5,200 0Ó</p> <p>“ 9, By Cash. 600 00</p> <p>“ 10, By 20,000 bushels Feb. Wheat, 98 . 19,600 00</p> <p>“ 12, By 10,000 bushels May Wheat, 105# 10,525 00</p> <p>“ 13, By 10,000 bushels May Corn, 56 5,600 00</p> <p>“ 16, By 20,000 bushels May Wheat, 104# . 20,950 00</p> <p>“ 17, By Cash. 300 00</p> <p>“ 17, By Cash ..... 500 00</p> <p>“ 3, By Cash ...... 300 00</p> <p>“ 19, By Cash . . . . 100,00</p> <p>“ 20, By Cash. 900,00</p> <p>" 22, By 30,000 bushels Feb. Wheat, 103# 81,050 00</p> <p>“ 23, By 10,000 bushels May Wheat, 109# 10,925 00</p> <p>' " 24, By 30,000 bushels May Wheat, 107# 32,212 50</p> <p>“ 31, By 10,000 bushels March Corn, 55# 5,550 00</p> <p>“ 31, By 5,000 bushels March Corn, 55# 2,781 25</p> <p>“ 31, By 15,000 bushels May Corn, 57# , 8,681 25</p> <p>Feb. 2, By 20,000 bushels May Wheat, 112 22,400 00</p> <p>“ 6, By 10,000 bushels May Wheat, 112# 11.250 00</p> <p>“ 6, By 15,000 bushels May Corn, 59# 8,887 50</p> <p>" 9, By 40,000 bushels May Wheat, lllf 44,700 00</p> <p>“ 9, By 40,000 bushels May Wheat, 111# . 44,650 00</p> <p>“ 9, By 20,000 bushels March Corn, 55f. 11,150 00</p> <p>“ 17, By 25,000 bushels May Wheat, 117 29.250 00</p> <p>“ 17, By 25,000 bushels May Wheat, 116# 29,187 50</p> <p>“ 21, By 100,000 bushels May Wheat, 114J 114,500 00</p> <p>“ 21, By Cash , . ' . . . 500 00</p> <p>“ 26, By 50,000 bushels May Wheat, 118 . 56,500 00</p> <p>Jan. 31, By Cash ..... 1,075 00</p> <p>$545,550 00</p> <p>Balance . '. . . . $1,037 50</p> <p>For the difference between the debit and credit side of the account, $1,037.50, the plaintiff asked judgment.</p> <p>F. C. Buel and Charles H. Watkins (the latter being as stated, the person designated as John Doe,) filed an answer,, and, as a first defense, denied that they, or either of them, ever requested the plaintiff to buy or sell any grain for them, or agreed to pay any commissions therefor.</p> <p>As a second defense they averred that at the times said transactions are said to have taken place, the plaintiff maintained on Water street in Cleveland, Ohio, certain devices by which wagers were entered into and determined between the plaintiff and others on the future prices of grain in the market at Chicago. The wagers were made by a person, called the “customer,” depositing with the plaintiff a certain amount of money, known as a “margin.” The wager, as averred, was effected as follows: Whenever on a particular day, a “customer” deposited with the plaintiff such “margins,” and notified him of his desire “to buy” a specified quantity of grain, a price was fixed as the price of the grain on that day, on the understanding of both, that if the price ofisuch grain should thereafter advance in the grain market at Chicago, in such event the plaintiff would account to the customer and pay over, a sum equal to the advance on the entire quantity bought, less one-fourth of one per cent, of the market value; and if the price should decline, in such event, the customer would account and pay over to the plaintiff such difference, with one-fourth of one per cent, added. Again, whenever the customer made a deposit and notified the plaintiff'“to sell” for him a certain quantity of grain, a price being fixed as the price of the grain on that day, it was understood by both that, if the price of the grain should thereafter decline in the Chicago’ market, the plaintiff would-account for and paj*- over to' the defendant the difference on the entire quantity bought, less one-fourth of one per cent., or if the price should thereafter advance, that the “customer” would pay to the plaintiff such difference with a like per cent, added. And it was understood, that so long as the customer kept his deposit good, the wager should be renewed and continued; but should he fail to do so, the plaintiff might terminate it at once and demand payment; it being no part of the understanding that any grain should actually be bought, sold or held for, or on account of, the “customer.” The. plaintiff had a private wire which he employed in the management of his “ system, ” by which he reported to his “ customers, ” the fluctuations in the grain market at Chicago; and a “ticker” by which was determined the winnings and losses under the wager so arranged.</p> <p>It is then averred, that each and every transaction mentioned in the account attached to the petition, took place in-conformity to the above system, and was a wager. That it was well understood that no actual sales or purchases of grain were to be made, and that none were in fact made; the losses being adjusted on either side as determined by the future changes of grain in the Chicago market.</p> <p>By way of counter-claim, the defendants say, that upon wagers made upon the price of grain in the Chicago market, they lost and paid to the plaintiff the sum of $3,887.50, not as separate wagers, but by a continuous series from about January 3, 1883, to February 23, 1883, as a series .of bets and losses are continuous at a single game of cards; and that the sums arise out of the transactions set forth in the plaintiff’s petition; wherefore they ask judgment for that amount.</p> <p>After the overruling of certain motions to make more definite and certain, and to strike out, the plaintiff replied, denying each and every allegation of the second defense and counter-claim, except that he had an office at the city of Cleveland, and a private wire to Chicago, by which early intelligence of the grain market was obtained, and was made intelligible by a telegraphic machine in his office; and that be required and received security from bis customers against sudden and unexpected fluctuations of the market; and charged and received a commission from bis customers of one-quarter of one per cent, on all purchases and sales made through him by them.</p> <p>The case was tried to a jury, which rendered a verdict in favor of the defendants for $3,685.18. A motion for a new trial was made and overruled'and judgment entered upon the verdict. The plaintiff took a hill of exceptions setting forth all the evidence, which was signed and made a part of the record by the court. On error the judgment was affirmed by the circuit court.</p> <p>The errors relied on in this court, are in the charge of the tourt and in its refusal to charge as requested, to which reference is made in the opinion. ,</p> <p>Assuming that the contracts made by Tester for the defendants were gambling transactions, (of which there is, however; not a scintilla of proof), the transaction would be made by section 6934a a gambling contract, and therefore void. This, however, is no more than is provided by section 4269 in relation to any other gambling contract, and ■does not in and of itself, without the help of section 4270, enable the defendants to recover from anybody the money which they have lost. This court held, as do the courts of most states in the union, and the English courts, that merely declaring a gambling contract void does not enable the loser to recover from the winner the amount which has been paid, because in such cases the doctrine that the courts would leave the parties to an illegal contract where it found them, would apply. y</p> <p>But section 6934a having declared such contracts to be gambling contracts, section 4270, probably, .enabled the defendants, proceeding in accordance with the provision of that section, to recover from the person named in that section the. money that they nray have lost by the gambling contract. It was under this section that the counter-claim was framed.</p> <p>It will be observed that this section says that if any person loses to any other person, and pays the winner, the action may be brought. Clearly the person to whom the plaintiff has lost is the “winner;” so that if the plaintiff loses to Smith, Smith is the winner within the meaning of the statute, and if the money is paid to Smith, then it is paid to the winner, and recovery may be had of Smith, because Smith is the winner, in the language of the statute. Hooker v. De Palos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195.</p> <p>Who, then, is the person to whom the loser loses? Who is the “winner,” the person who wins from the loser the money which is at stake? Is it the agent of the loser who makes for him the bet, who is entrusted by him with money to pay the winner, and who has paid the money to the winner, the order not having been countermanded, such a person in any just sense of the word the person to whom the loser has lost, the person who has won the stakes from the loser? ■</p> <p>Eet us go for a moment outside of the law of gambling, and consider what has been the rulings in cases of other contracts made illegal by statute, or which are malum in se. Wharton on Agency, sec., 250; Smiths. Bromley, Douglass’ Rep., 696, note; Tompkins v. Bernet, 1 Salk., 22; Bone v. Ekless, 5 H. & N., 925, 928.</p> <p>It is difficult to say wherein a broker who makes a gam-, bling contract for his principal is any more liable criminally than is a stake-holder in a regular bet, and yet it is the uniform ruling that where there is an illegal bet, coming within the prohibition of the statutes making betting a crime, and allowing the money to be recovered back, if the money is paid over by a stake-holder to the winner before the loser- notifies him not so to do, no recovery can be had by the loser against the stake-holder. Without saying anything about the English cases, such has been the constant ruling in the United States, Perkins v. Eaton, 3 N. H„ 152; Livingston v. Wootan, 1 Nott & Mc.C, 178; Okerson v. Chittenden, 62 la., 297; Riddle v. Perry, 19 Neb., 505, 509, and cases cited; 2 Pars., Cont., 627; Pettillon v. Hippie, 90 Ill., 420; Bucbnan v. Pitcher, 1 Comstock, 892.</p> <p>It certainly is very novel doctrine that if I give money to a man to go and play at faro .for me and he goes and loses, that I may recover this money from him. Such a doctrine makes gambling by proxy at once pleasant and profitable. If my proxy wins, then, I may certainly recover from him the money which he has in his hands arising from the gambling. Wharton on Agency, sec. 280.</p> <p>The exact question here involved was passed upon by the supreme court of the United States on much the same facts and the same evidence as this case. White v. Barber, 128 U. S., 392; Patterson v. Clark, 126 Mass., 531; Lon v. Harvey, 114 Mass., 80, 81; Roulstone v. Moore, 19 Weekl., U. Bull, 387-</p> <p>We are unable to see how the fact that the parties, as between themselves and the state in a criminal prosecution, are all principals, varies the relations which exist between themselves either by contract or the nature of the relation or transaction between them, if Smith in the transaction is in fact as between him and Jones the agent of Jones and working for Jones. We do not know of any rule of law which says that as between themselves, the man who is really agent and working for another is to be regarded as hostile to and acting against him.</p> <p>Our contention that the fact that the agent gambling for another is liable criminally as a principal, does not affect his relation and responsibility civiliter to his principal, seems to us confirmed by another line of reasoning. It is quite uniformly held that where an agent gets money into his hands because he has been agent in an illegal or criminal transaction, and as the results thereof, that he ’is liable for such money to his principal as agent. Wharton on Agency, § 250 ; Norton v. Blinn, 39 Ohio St, 145, 149: Brooks v. Martin, 2 Wall, 70; Pointers. Smith, 7 Hiesk. (Tenn.) 137.</p> <p>We further believe that under the rulings which have been made, and on the evidence which is given in this case, .and under the charge which the trial court made to the jury, wbicb we tbink is abundantly supported by authority, there was no gambling in the contracts which were made by Tester for defendants, nor was there any gambling as between Tester and the defendants; and that Tester had a right to do just what he did do. Thacker v. Hardy, T- Rep. 4 Q. B., 685; Lehman Bros. v. Strassburger, 2 Woods. 554; Sawyer v. Tagart, 14 Bush., 727; Ashton v. Dakin, 4 H. & N. 867,869; Ex parte Rogers, T- R. 15 Ch. Div., 207,212; Kent v. Miltenberger 13 Mo. App., 505, 507; Clark, Assignee, v. Foss, 7 Biss., 540, 544; Teasdale v. McPike, 25 Mo. App., 341; Cockrell v. Thompson, 85 Mo., 517, 518; Kingsbury v. Kirwan, 11 J. & S., 451; (Affirmed 77 N. Y., 612); 14 Abbots N. C., 474; Baldwin v. Flag, 36 N. J. Eq., 48, 55; Bangs v. Hornick, 30 F. R., 97; Warren, Lord & Co. v. Hewitt, 45 Ga., 501, 507; Jackson v. Foote, 12 Fed. R., 37, 39, 40.</p> <p>If the transactions between the parties were gambling transactions, then under the statute, section 4272, the defendants in error could recover from the plantiff in error all money that they had lost. There can be no doubt as to the right of these defendants to recover in this case, if the transactions were gambling transactions. Were these transactions gaming or waging transactions, or were they valid and legitimate contracts between the parties? • This was substantially the only question involved in the case.</p> <p>It must be conceded that in order to make the transactions legitimate and give validity to the contracts, it must have been understood by the parties that the grain was to be delivered and payment made at the agreed price. Did the parties expect to deliver the grain said to have been purchased? Manifestly not. That there was no such intention to deliver grain, or to receive pay for it, is clearly shown from the testimony. All the business was done in the bucket shop of the plantiff in Cleveland. Grisewood v. Blane, 73 EC. T. R-, 526.</p> <p>If settlements were to be'mlde by tire payment of differences between the contract price and the market price of the grain, at the date fixed for executing the contract, then the transaction is a gambling transaction and is null and void. On the face of it the contract may be regular, but, if under -the guise of such a contract, the intention was to speculate, merely,' in the rise and fall of the prices of. the goods, and there was no intention to deliver the goods, then-such a contract is a gambling one and null and void. This doctrine is fully sustained by the following authorities: Benjamin on Sales, vol. 2, 717; 6thAmer. ed. by Corbin, 828; Bigelow v. Benedict, 70 N. Y., 202, 206;. Story v. Salmon, 71 N. Y., 420, 422; Kingsbury v. Kirwan, 77 N. Y. 612; Irwin v. Williar, 110 U. S., 499; Embrey v. Jemison,-131 U. S., 836.</p>

The plaintiff in error, John G. Reinhard, on October 31, 1882, filed his petition in the court of common pleas which reads as follows: “The plaintiff says that the defendant, the city of Columbus, Ohio, is a city of the first grade of the second class, and is duly incorporated under the laws of said state.

EXCEPTIONS to the Court ‘of Common Pleas of Brown county. Tbe defendant bad been indicted by the grand jury of Brown county, and was put upon trial for the offence of assault with intent to kill, under section 6821, Revised Statutes. The other facts necessary to the decision of the questions raised by the exceptions, will be found in the opinion of the court. Section 7287, Revised Statutes, is in accord with public policy.

The action in the common pleas court was brought by defendant in error, a judgment creditor of The Fairwood Street Railroad Company, a corporation, to enforce on behalf of himself and all other creditors of the company, the statutory liability of stockholders.

<p><iContracts — Purchase of goods by insolvent vendee— When fraudulent ■ — Intentional fraud — Remedy of vendor.</p>

<p>Bill of exceptions — Due allowance, signing and filing of, imports, absolute verity.</p> <p>Where the record of the trial court shows the allowance of forty days after the term at which judgment was rendered for the presentation and filing of a bill of exceptions, and the due allowance, signing and filing of the same within the forty days is also shown by the record and by the bill itself, evidence will not be heard in this court to show that the bill was not presented to-the opposite counsel ten days before the expiration of the forty-days, or to the judges five days prior thereto.</p>

In an action brought in the court of common pleas by John Wells against Joseph Ralston and Christian P. Seibert, to recover damages for selling Wells’ property by Seibert, as constable, on an execution in favor of Ralston, by consent, at the February term, 1886, the issues were ordered referred to a referee.

ERROR, to the Circuit Court of Hamilton county. The case was appealed from the common pleas to the circuit court, and sought to compel the commissioners of Hamilton county by mandamus, to repair a certain bridge within the corporate limits of the village of College Hill.

<p> Petition in error by the state in a criminal case. </p> <p>Where a demurrer to an indictment is sustained, and the defendant discharged by the court of common pleas, the circuit court, under section 7356 of the Revised Statutes, has no jurisdiction, on a petition in error filed in behalf of the state, to review the action of the court of common pleas in sustaining the demurrer.</p>

The New Orleans Insurance Company, on the 17th day of November, 1882, issued to H. Coleman & Co., a policy of fire insurance, whereby the company insured Coleman & Co. against loss or damage by fire for the period of one year from the date of the policy, to the amount of four thousand dollars, as follows: “$200, on their one story frame shingle roof store-house. $3,800 on the general stock of merchandise, consisting principally of dry goods, groceries, clothing, boots and…

The facts are stated in the opinion, I. When a railroad company, having the right to acquire property by the power of the state, takes possession of land for its legitimate use, with the purpose of so -acquiring it, and the owner makes no objection thereto, we insist that such land is appropriated by the railroad company to its use at the time of taking possession, and that the only right in the other party is compensation.

The plaintiffs in error, J. Nelson Caldwell, Frank Caldwell, Fannie E. T. Caldwell, Marion E. Caldwell, and Cornelia A. Caldwell commenced the original action in the court of common pleas, against the defendant in error, The Village of Carthage, E. E. Ross, clerk of said village, and Fred Raine and John Zumstejn, respectively county auditor and county treasurer of Hamilton county, Ohio.

2. Where a promissory note, successively endorsed by more than one, is dishonored by the maker, the holder thereof may select any one of the endorsers whom he may wish to charge with liability and notify him only; but if he passes by one or more of the later endorsers, and gives notice to an earlier -one, he is not for that reason entitled to any longer time, within which to give the notice, than he would have had to -notify his immediate endorser. 3.

Eeros, to the Circuit Court of Holmes county. The plaintiff in error brought suit in the court of common pleas of Holmes county, against the defendant in error, to recover the sum of $1,351.22,' for services, boarding, lodging, articles furnished and money paid out for Samuel Tipton in his lifetime. Answer was filed by the defendant in error making issue with the petition, and setting up divers items of set-off.

The defendant in error, Rysander Parks, bid off certain land offered for sale by the sheriff under an order issued for that purpose in an action to foreclose a mortgage on the land.

<p>Petition in error — Waiver of process and entry of appearance upon, prior to filing— When takes ejfect — Effect of death of aefenaaut in error before filing.</p> <p>The waiver of process and entry of appearance upon a petition in error prior to the filing of. the same, by attorneys of record of the defendant in error, takes effect as of the filing of the petition. And where, after such indorsement of appearance is made and before ihe petition is filed, the defendant in error dies, the waiver" and entry oí appearance is of no legal effect. If no other service io had, or attempted, within six months after the rendition of the judgment of the court below, the petition in error will be dismissed for want of jurisdiction of this court to hear and determine the cause.</p>

<p>Error to the Court of Common Pleas of Jloss county.</p>

On November 4, 1887, the defendants in error filed in the court of common pleas of Erie county a petition for the partition of certain lands and tenements in the petition described, making the plaintiff in. error a defendant to the proceedings.

<p>Set-off — When right of debtor to, preserved against assignee — Right of surety of debtor to — Equitable set-off — When enforced — National Banks — Receivers of — When right of set-off will be enforced against — Section 624%, Revised Statutes of the United States, construed.</p> <p>1. When the holder of a claim not yet due, arising upon contract, becomes insolvent and transfers the same before maturity, and the debtor, at the time of the transfer, holds a similar claim then due against the assignor, his right of set-off is preserved against the assignee, when the latter’s cause of action arises. And a surety on the obligation so transferred, may enforce the set-off for his own protection, if the principal debtor be insolvent. The rule does not apply where the thing transferred is commercial paper and the assignee becomes the bona fide holder thereof for value.</p> <p>2. Equity will, in general, enforce the right of set-off, by decreeing the compensation of mutual demands, so far as they equal each other, where they have grown out of the same, or connected transactions, or the one has formed, in whole or in part, the consideration of the other,, and the party against whom the set-off is asserted, is insolvent.</p> <p>3. Section 5242, of the Revised Statutes of the United States, prohibits any National bank when insolvent, or in contemplation of insolvency, from so disposing of its assets as to prevent their proper application to the redemption of its circulating notes, and the ratable distribution of the remainder among its creditors. But it does not prohibit the allowance of any valid set-off, legal or equitable, which a debtor of the bank may have against any obligation owing by him to it, at the time of its insolvency.</p> <p>4. The allowance of such set-off, is not the creation of a preference by the bank, but an ascertainment merely of the just amount due on the debtor’s obligation, and may be enforced against a receiver of the bank. It is the balance due after deducting the set-off, which constitutes assets in the receiver’s hands for disposition in accordance with the provisions of the federal statutes.</p> <p>5. A National bank received on deposit, a check drawn by the plaintiff on another bank, and carried the amount to the credit of his agent, upon the agreement that he would take for part of the sum, a draft drawn on a distant bank, and would not immediately check out the balance. The draft was accordingly issued, but before presentment, the drawer bank, which was insolvent, passed into the hands of a receiver, without having provided any funds with which to pay the draft. The check, (payment of which had been stopped) came to the possession of the receiver, and the draft belonged to the plaintiff.</p> <p>Held: the plaintiff is entitled in equity to have the amount of the draft set-off against his liability on the check.</p> <p>6. The same National bank, at the time of its insolvency, held a draft which it had discounted for, and carried the proceeds to the credit of the drawer, for whose accommodation it had been accepted by the plaintiff The draft was protested for non-payment, and the liability of the drawer made absolute. As between the drawer and the plaintiff, the former was the principal debtor, and the latter his surety, only. When the bank passed into the control of the receiver, the drawer of the draft, who afterwards became insolvent, had standing to his credit on his deposit account-with the bank, a sum less than the amount of the draft.</p> <p>Held: the plaintiff, as surety, is entitled in equity to have set-off against his liability as acceptor of the draft, the amount due his principal on the deposit account with the bank.</p>

<p>Real estate — Deed to, from the state — Character of title purchaser takes — Remedy where title fails.</p> <p>One who purchases and receives a deed of land from the state, after it has been sold and conveyed to another, though the purchase was made in good faith and without actual notice, takes no title to the land against the former purchaser, although the deed of the latter is not at the time on record in the county where the laud is situate. A purchaser from the state takes such title as the agents of the state are authorized to convey; and, by way of indemnity, the justice of the state has, through its legislature, provided for the return of the purchase money to the subsequent purchaser with interest from the time of the illegal sale; he has no title to, and cannot recover, the land.</p>

<p>Insolvent banking company — Draft delivered for collection — Payment in full out of company’s assets — Jurisdiction—Res judicata.</p> <p>P. the owner, on or about August 20, 1857, delivered for collection to a banking company a draft dated August 14,1857, payable in thirty days after date. On August 24, 1857, the banking company failed, and on that day credited P. with the amount of the draft. On the 26th of September, 1857, the banking company made an assignment of all its property, in trust for the benefit of its creditors. On the day of its failure, one of its creditors attached the draft and other property in the possession of the banking company. At maturity the draft was paid, and the proceeds were accounted for by the sheriff to the attaching creditor. Several months after the assignment, the trustee under the assignment had an adjustment with the attaching creditor, of his claim against the banking company, whereby, the company was credited on its indebtedness to the attaching creditor, with the proceeds of the draft, and the attachment of the draft and other property was released. In an action in the Superior Court of Cincinnati by the Trustee against F. for money alleged to be due on account, F. set up, by the way of cross petition, an indebtedness of the trust estate to him, on the draft, and recovered judgment for the amount claimed. By the terms of the judgment, it was “considered by the court, that'the defendant recover of the plaintiff, as trustee, the sum of $-” being the full amount, with interest, of the draft. An execution was issued on the judgment, and levied on the individual property of the trustee. On motion the court quashed the execution. An action was brought in the court of common pleas against the trustee, to recover the full amount of the judgment, out of the money and other assets in his hands as trustee.</p> <p>Held: 1. The court of common pleas had jurisdiction of the subject-matter of the action.</p> <p>2. The banking company, could not, by crediting, on the day of its failure, the owner with the amount of the draft before its maturity and collection, place him in the position of a general creditor of the company, entitled to receive only dividends out of its assets in the hands of the trustee.</p> <p>3. The relation between the owner of the draft and the banking company with which it was lodged for collection, was that of principal and agent; and a trust character was impressed upon the draft and its proceeds, which forbade their application, with the company’s or trustee’s acquiescence, as a credit in payment of a debt of the company.</p> <p>4. The judgment rendered for the owner of the draft in the Superior Court was not an adjudication that estopped him from obtaining equitable relief in the court of common pleas.</p>

At the October term, 1890, of the Court of Common Pleas of Hamilton county an indictment was found by the grand jury charging the plaintiff in error with the crime of murder in the first degree.

<p>Action on an administration bond — Equitable set-off by a surety against the claim of a distributee, who is also a distributee of the estate of a co-surety.</p>

<p>Real Contract— What is a marketable title— When specific performance will be decreed. -</p> <p>1. Where, in a contract for the sale of real estate, there is no stipulation to the eifect that the premises shall be free from any in-cumbrance or cloud, the vendor is only bound to tender a marketable title.</p> <p>2. If the vendor has a perfect chain of title from the United States, it should be regarded prima facie as marketable, where the only cloud upon it is an uncancelled mortgage made contemporaneously with, and to secure, a series of promissory notes, which notes are all barred by the statute of limitations, and which mortgage, the mortgagee being dead, his estate solvent and finally settled, his widow and heirs at law released by a quit-claim deed of the premises, made to the vendor for that express purpose. And, in such case, where, upon the trial of an action brought by the vendor to specifically enforce the contract, no evidence was introduced from which it could be inferred or presumed that either the mortgage or any of the notes had been assigned, and it was shown that the vendor had offered to leave in the hands of the vendees, until this alleged cloud could be removed, an amount of the purchase money sufficient to indemnify them against any claim that might be made by some possible but unknown as-signee, and the contract in other respects was fair, its specific performance should be decreed; the decree to provide for and render effectual the proposed indemnity.</p>

Eeros, to the Circuit Court of Cuyahoga county. The plaintiff in error, defendants below, were appointed by the Governor of .the State, Commissioners, under the act passed April 16, 1888, (85 Ohio Raws, 564), for the erection of a monument to the soldiers and sailors of Cuyahoga county in the late war; and, in pursuance of the power conferred on them by that act,. have selected the southeast corner of the public square in the city of Cleveland, as the site for the monument,…

The action below was commenced on the 7th day of July,. 1885, by Calvin Bronson, a creditor of the Toledo Stove' Company, which is a corporation organized under the laws of this state, against George Schneider and others, the stockholders of the corporation, for the enforcement of their statutory liability for the payment of the debt ■ due the plaintiff, from the corporation, it being insolvent.

<p>In Quo Warranto.</p>

The original action was commenced by Margaret Mullen, against Rebecca J. Peck, Alanson Peck and Mary J. Peck, in the Court of Common… Held: that to entitle the plaintiff to maintain her action, she must establish, “ either that the premises in question were leased by defendants for the purpose of selling liquor thereon contrary to law, or, that having been leased for a lawful purpose, the defendants knowingly permitted and suffered them to be used to sell liquor thereon…

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

The only objection to the improvement assessment is that the improvement ordinance was not legally passed, but the objections are the same as to both the ordinances, and they are urged on two points: 1. In suspending the statutory rule (R. S. 1694) requiring ordinances to be read on three different days, as to several ordinances in a lump, and not separately as to each ordinance. 2.

Eeror to the'Circuit Court of Greene county. The action below was by the defendant in error, as as-signee for the benefit of creditors, of one Janies C. McMillan, .against the plaintiff in error, brought to procure the cancellation of an assignment, executed by McMillan to Reece, of ,a judgment in favor of the former, against The West Hamilton Hydraulic Company, and to enjoin the prosecution of an action then pending in the court of common pleas of Hamilton county, which had…

The action below was brought in the Court of Common Pleas of Ricking county, by James O’Donnell, against The Baltimore & Ohio Railroad Company, to recover damages for the conversion, by the defendant, ot certain property of the plaintiff.

<p>Corporations — Fees for incorporation and consolidation of — Foreign and domestic — Constitutional law.</p> <p>Section 148a, Revised Statutes, as amended February 12,1889, (86 Ohio Laws, 33), requiring the payment of a fee to the Secretary of State for the filing of articles of agreement of incorporation, and, also, of consolidation, proportioned to the authorized capital stock of the company, is a valid law; and applies to articles of agreement of consolidation between an Ohio company and a company or companies of another state, as well as to articles of consolidation between Ohio companies only.</p>

<p>Justices of the peace — Jurisdiction—Covenants running with the land — Common pleas courts — Appellate jurisdiction of — Practice in civil actions — When may substitute cause of action.</p> <p>1. A covenant against incumbrances, contained in a conveyance of real estate, runs -with, tlie laud, and an action founded on a breach of such covenant is, by the sixth clause of section 591, Revised Statutes, withdrawn from the jurisdiction of a justice of .the peace, for it necessarily draws in question the title of the' real estate to which the covenant is attached.</p> <p>2. Where an action, begun before a justice of the peace, is appéaled to the court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the jurisdiction of the justice of the peace, though it is within the original jurisdiction of the court of common pleas, unless the defendant consents to the substitution, or waives his right to object to the action of the court.</p>

<p>Municipal Corporations — License to sell at auction, goods imported into the corporation for that purpose — Validity of ordinance.</p> <p>1. Under the authority given to cities hy section 1692 of the Revised Statutes, to regulate auctioneering, and to regulate, license or prohibit the sale at auction of goods, wares and merchandise imported into the corporation for the purpose of being sold at auction, city councils may, if no discrimination is made .against goods imported for that purpose and in favor of goods of the same class, lcind and quality already within the corporation, provide by ordinance, for licensing the sale at auction within the corporation of .such imported goods; and may, when necessary for the protection of the public health, safety, or morals, prohibit the sale at auction of goods imported into the corporation for the purpose of being so sold.</p> <p>2 .A city ordinance which provides that, it shall be unlawful for any person, by himself, or by any agent, within the corporate limits of such city, to sell or offer for sale at auction, any goods, wares or merchandise which have been imported into such city for the purpose of being sold or offered for sale at auction, unless such person shall pay or cause to be paid a license fee of twenty-five dollars for each day and part of day he may desire to sell and offer for sale such goods, wares or merchandise at auction, is an unreasonable exercise of the power granted to municipalities, as above stated, under section 1692 of the Revised Statutes, and is invalid.</p>

<p>Insolvent debtors— When and how may prefer creditors — Must be in good faith — Section 6343, Revised Statutes, construed — Chattel Mortgages — How to be filed— What verification of required— Section 4151, Revised Statutes, construed — How copies of to be verified.</p> <p>1. A failing debtor, knowing his insolvency, and in contemplation of making an assignment for the benefit of creditors, may prefer one or more creditors to others, provided he does so in good faith, and by means calculated to hinder other creditors no more than is incidental to the preference, and this he may do by a chattel mortgage delivered to the mortgagee before the deed of assignment is delivered to the probate judge. Such transaction is not within the operation of section 6343, Revised Statutes, which provides that “ all assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in porportion to the amount of their respective claims.”</p> <p>2. Where, in order to comply with section 4151, Revised Statutes, it is necessary to deposit a chattel mortgage, or a true copy, at the office of a county recorder, and also with the clerk of the township of the residence within the state of one of the mortgagors, the statute is not satisfied by depositing in one place the mortgage duly verified by the sworn statement of the mortgagee, and at the other a copy of the mortgage, with a copy of such statement indorsed thereon, but it is necessary that on each instrument so deposited, there should be an original sworn statement.</p>

<p>Insane persons — Admission to county infirmary — Sale of property.</p> <p>A probate judge has ao authority, by virtue of sections 707 and 708, Revised Statutes, to order an insane person to be admitted to the county infirmary, except while such insane person is awaiting admission to an insane asylum, or it is dangerous to permit him to be at large. And when so admitted his property is not subject to sale and application by tbe board of infirmary directors, under the provisions of section 981, Revised Statutes, though the person is being supported at the public charge.</p>

The court of common pleas sustained a demurrer to the petition; the cause was then appealed to the circuit court where the same ruling was made, and the petition dismissed. Thereupon the plaintiff instituted the present proceedings to obtain a reversal of the judgment of the circuit court.

<p>Indictment for obtaining property under false pretenses — Requisites of.</p>

<p>Nuisances — Indictment for — Requisites of — Corrupting ninning-streams.</p>

Prior to the year 1887, portions of territory that composed the townships of Marion and Tiberty, in Hancock county, were detached from those townships, united and organized into the township of Findlay, in which the village of Find-lay was located.

Walter S. Biteley, as administrator with'the will annexed, of the estate of John M. Pomeroy, deceased, on the 24th day of February, 1888, commenced an action in the probate court of Lorain county, by which he had been appointed administrator, for the sale of certain specifically described real estate, of which, as was alleged, Pomeroy died seized, to pay the debts of the estate, and a legacy of three hundred dollars bequeathed by his will to Nancy P. Biteley.

The plaintiff below, as administratrix of Henry Norman, deceased, brought suit against the defendant, The Chicago and Ohio Coal and Car Company, to recover damages for negligently causing the death of the deceased, while in its employment as a servant on the 8tb day of March, 1890. A demurrer to the petition having been overruled, the cause was tried to a jury upon issues of fact made by the answer of the defendant.

The original petition was filed December 15,1887, by The American Express Company, the defendant in error, in the Superior Court of Cincinnati, and reads as follows: “The plaintiff is a joint stock association duly organized and existing under the laws of the state of New York.

ÜKR.OR. to the Circuit Court of Wayne county. Held: to provide a location or site for a state institution is not a corporate purpose such as would authorize the authorities, such as municipalities, to impose upon property taxes to pay the expense thereof.

In his suit below, George Rice recovered of the defendants $1,823.75, money claimed to have been unlawfully exacted of him as freight by The Cleveland & Marietta Railroad Company, on crude petroleum shipped by him over the road of the company from Macksburg to Marietta, Ohio.

<p>Proceedings in aid of execution — Exemption of personal earnings, from attachment — Head of family.</p> <p>A debtor residing with his widowed mother and invalid brother who, are supported by him, is not thereby entitled, under either section 5430 or section 5483 of the Revised Statutes, as the head of a family, to hold exempt from execution or attachment his personal earnings for three months.</p>

Action for breach of promise of marriage was prosecuted by the plaintiff against the defendant, in the court ,of common pleas. It was shown that the parties were first cousins; that the contract was entered into in Ohio, but to be performed in Pennsylvania, and that, at the instance of defendant, plaintiff went to Pittsburg, Pa., where defendant agreed to meet her, to marry, but he failed to perform his agreement.

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

<p>Elections — Board of deputy supervisors of — Duties of, defined— Mandamus— When may be instituted, to compel board to act— By whom.</p> <p>1. The duties of the board of-deputy supervisors of elections, in making the abstracts of the votes returned by the officers of the election precincts of the county, are purely ministerial, -and are limited to compiling the votes shown by the tally-sheets so returned, and setting down to each candidate the aggregate number of votes so appearing to have been cast for him, and to certifying and transmitting the abstract so made, to the proper officer.</p> <p>2. The board is -without authority to hear evidence to contradict or explain the tally-sheets, or act upon information not appearing on their face, or to open or count ballots returned by the precinct officers, as uncounted ballots, concerning the legality of which, doubt or difference of opinion existed in the minds of' the judges of election.</p> <p>3. An action in mandamus, to compel the board to make, certify, and transmit to the proper officers as required by law, the several abstracts o! the votes shown by the tally-sheets returned from the various election precincts of the county, may be instituted on the • relation of any elector of the county.</p>

Eeror to the Circuit Court of Cuyahoga county. The action below was brought by M. C. Younglove against The Kelly Island Rime Company, an Ohio corporation, and its stockholders, to enforce the statutory liability of the stockholders; the corporation being, as the petition alleged, insolvent.

Ereor to the Circuit Court of Hamilton county. The suit below was a proceeding in quo warranto on the relation of the prosecuting attorney of the county against The Ohio & Mississippi Railway Co„ and James H. Smith, Edwards Whitaker and Edward H. R. Green, and sought to oust the company from the right and franchise of recognizing Smith, Whitaker and Green as directors of the company, — the averments being in substance that at an election for directors of the company, duly…

The Western Railway Construction Company commenced an action August 31, 1876, in the Court of Common Pleas of Ross county, against The Springfield, Jackson & Pom-eroy Railroad Company to recover $322,650.00 damages for an alleged breach of a written agreement entered into between the parties, October 22, 1875, under which the construction company had agreed to construct the road of the railroad company from Springfield, in Clark county, to Jackson, in Jackson county, Ohio.