Volume 9 — Ohio State Reports, New Series

<p>In an action by a holder of a bill of exchange against the other parties thereon, it is competent to prove declarations made by a prior holder, before the transfer and after the dishonor of the bill, showing that the parties were discharged from liability.</p> <p>But the substance of the declarations, or sufficient of them to show their tendency and effect, should appear in the bill of exceptions taken to the ruling of the court below excluding proof of such declarations, so that the reviewing court may be advised that the party may have been prejudiced by such ruling. And, therefore, where a witness is produced on the part of the defense in such action, to prove certain conversations touching the liability of the parties to the bill, and the court sustain an objection to the competency of the proof offered.\, but not to the competency of the witness, and the bill of exceptions does not disclose^what the conversations were, which were offered to be proved, nor their tendency and effect, the reviewing court will not reverse.</p>

<p>in a suit against a surety upon an injunction bond conditioned to pay all moneys due or to become due upon a judgment “for the sum of $2,300 and costs,” in favor of the obligee, against the principal, in case the injunction should be dissolved, under a plea of the general issue — Held,</p> <p>1. That the surety was only liable according to the express terms of the bond.</p> <p>.2. That it was incompetent for the plaintiffoto give in evidence an exemplification of a record showing a judgment for $2,346.06 and costs, although in other respects answering to the judgment mentioned in the condition of the bond.</p> <p>*3. That it was incompetent for the plaintiff to give in evidence a copy of the petition for the injunction.</p>

<p>Banks organized under the “ act to incorporate the State Bank of Ohio and other banking companies,” passed February 24, 1845, have no power, by reason of the restriction of the 64th section of said act to discount negotiable notes, unless their negotiability be restricted by special indorsement.</p> <p>When a branch bank assumes to discount a promissory note made payable, by its terms, to such bank, or order, no action can be maintained on such discounted note, either by such branch bank, or, in case of its insolvency, by the State Bank of Ohio. •</p> <p>But where a loan of money is effected by the supposed discounting of such paper, an action may be maintained to recover the money so loaned. The-security, being in an unauthorized form, is simply void, and does not discharge the indebtedness arising from the loan which the bank had full power to make.</p>

<p>1. Although an indorsed note in the hands of the maker, after due, is presumed, in law, to have performed its office, and to have been paid off and taken up by the maker, yet no such presumption arises in the case of such note before due; but, on the contrary, in such case, it is a matter of legal presumption that the note is unsatisfied, and is indorsed and placed in the hands of the maker for his accommodation.</p> <p>2. Where, under the code of civil procedure, and after verdict, or a finding by the court of all the issues in favor of the plaintiff, a petition states facts which, if proved on the trial, would make a good prima facie case for the plaintiff, such petition will be held good on error.</p> <p>3. Where a petition is defective for want of a material averment, and such averment is supplied by the answer, and is not inconsistent with the averments and claims of the petition, the defects of the petition will thereby be cured.</p> <p>4. The presumption of law prescribed by the 127th section of the code, as to the traverse of facts stated in the answer, and the finding of court or jury upon those facts, must be held to apply only to such facts stated in the answer as are inconsistent with the petition.</p> <p>6. House v. Elliott, 6 Ohio St. 497, and Gest v. Kenner, 7 Ohio St. 75, reaffirmed.</p>

<p>'The gift of the maker’s own note is the delivery of a promise only, and not of the thing promised; and upon the death of the maker, leaving the promise unfulfilled, the gift fails.</p> <p>■Such gift being without consideration, no recovery can be had on the note against the executor of the maker.</p> <p>'The ease of Hamor v. Moore’s Adm’rs, 8 Ohio St. 239, followed and approved.</p>

<p>1. The provisions of article 4, section 2, of the constitution of the United States, that “ no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due,” guarantees to the owner of an escaped slave the right of reclamation.</p> <p>'2. A citizen who knowingly and intentionally interferes with, for the purpose of rescue, or rescues from the owner an escaped slave, is guilty of a violation of the constitution of the United States, whether the acts of 1193 and 1850, commonly called the fugitive slave laws, are unconstitutional or not.</p> <p>•3. The question in this case is not whether the fugitive act of 1850, is unconstitutional in respect to the appointment and powers of commissioners, the allowance of a writ of habeas corpus, the mode of reclamation etc., but whether Congress has any power to pass any law whatever, however just and proper in its provisions, for the reclamation of slaves, or to protect the owner of an escaped slave from interference, when duly asserting his constitutional rights of reclamation.</p> <p>-4. Congress, from the earliest period of the government, has, bjr legislative penalties, vindicated the constitutional right of the owner of slaves against unlawful interference.</p> <p>¡5. Such legislation was adopted iu 1793, by the second Congress elected under the constitution, composed of many of the members of the convention who *framed the constitution; has, from that day to this been in active operation, and has been acquiesced in by all departments of the government, national and state; and the legislative power of Congress on this subject has been recognized by the general assembly of the State of Ohio in their statutes; bjr the Supreme Court of the United States, and by the Supreme Courts of Massachusetts, New York, Pennsylvania, Indiana, Illinois, California; by the Supreme Court of Ohio on the circuit, and, indeed, by the Supreme Courts of every state in the Union where the question has been made, and has never been denied by the Supreme Court of any state — the courts of Wisconsin, notwithstanding the popular impression, not forming an exception.</p> <p>■6. The right to rescue escaped slaves from their owners being denied to all citizens of the United States by the constitution; Congress having prohibited it, and enforced the prohibition by penalties; the Supreme Court of the United States and courts of the free states having recognized and acquiesced in such legislative prohibition and punishment — if the question is not thus put beyond the reach of the private personal views of judges; and if they possess judicial discretion or power to overrule, on the authority of their individual opinions, this unbroken current of decisions and this acquiescence of the states of the Union, und change the settled interpretation of the constitution of the United States; then there is no limit, and no restraint upon judges making at any time, and under any circumstances, their own individual opinions the arbitrary interpreters "of the constitution.</p> <p>7. Whatever differences of opinion may now exist in^the public mind as to the power of Congress to punish rescuers, as provided in the acts of 1793 and 1850, no such vital blow is given either to constitutional rights or state sovereignty, by Congress thus enacting a law to punish a violation of the constitution of the United States, as to demand of this court the organization of resistance. If, after more than sixty years of acquiescence by all departments of the national and state governments in the power of Congress to provide for the punishment of rescuers of escaped slaves, that power is to be disregarded, and all laws which may be passed by Congress on this subject from henceforth are to be persistently resisted and nullified, the work of revolution should not be begun by the conservators of the public peace.'</p>

<p>1. By the provisions of the 10th section of the act regulating descents, passed Eebruary 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or ■ niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by the 5th, 6th, 7th, and 8th sections of the present act regulating descents. The effect of the present act is to extend, not to limit, the rule prescribed in the 10th section of the act of 1831.</p> <p>2. H. died intestate, without issue, and nev?r having been married, seized of an estate acquired by purchase, leaving no brothers nor sisters, but three children of one brother, four children of another brother, eight children of one sister, and two children and two grandchildren of another sister. Held, that partition should be made by dividing the estate into eighteen shares, each nephew and niece taking one, and the two children of the deceased nephew one.</p>

Petition for dower. Eeserved in Stark coupty. The petitioner claims dower as the widow of Osee Welch.

<p>An executor or administrator has the power, at common law, to submit to arbitration a disputed claim against the estate which he represents.</p> <p>This power is not affected by the provisions of the statute which authorize the submission of such disputed claims to referees.</p>

This is a writ of error prosecuted here to reverse the judgment of the district court of Montgomery county, affirming on error a judgment of the common pleas of that county, by which the plaintiff in error was adjudged to pay a fine of twenty-five dollars for an alleged contempt of court.

<p>1. An assignee of a reversion, having also assigned to him, by the terms of his contract of conveyance, the benefit of the covenants in a lease, may bring an action in his own name for a breach of such covenants, as the party beneficially interested, under the code of civil procedure, which, in this respect, supplies the statute 32 H. 8, cap. 34.</p> <p>2. A covenant to insure, when the money realized, in case of loss, is to be ex- - pended in rebuilding or repair, is such a covenant as may run with the land.</p> <p>3. When such a covenant to insure has for its object a building to be erected after the date of the lease, but which, when erected, is to be used by the lessee, and is an essential ingredient in the agreement of the parties for the creation of the estate, it is not indispensable to make such a covenant run with the land, that “assignees” should be expressly named; but the covenant being *one which may be annexed to the estate, and run with the land, equivalent words, or a clear intent shown by the whole instrument, may suffice.</p>

<p>1. In describing a bank-bill, in an indictment for uttering and publishing it as true and genuine, when it was false and forged, it is not improper to set out the names and residence of the engravers, as the same appear upon the margin of the bill.</p> <p>2. The first section of the act of May 1, 1854, to prohibit the circulation of foreign bank-bills, etc. (Swan’s Rev. Stat. 116), did not exclude such bank-bills from the operation of section 22 of the act of July 1,1835, for the punishment of crimes, but the uttering and publishing false, forged, and counterfeit bank-bills of less denomination than ten dollars upon foreign banks, as true and genuine, was within the provisions of said section 22.</p>

<p>Where a contract is made for the sale of a lot of sheep for a stipulated price per hundred pounds, to be weighed and delivered by the vendor at a specified time and place, fifty dollars of the price to be paid in hand and the residue upon the delivery.of the property, and the vendee, after payment of the fifty dollars in hand, voluntarily and without excuse refuses further compliance with the stipulation? of the contract, and the vendor, not being in default ^previously, sells the sheep to other persons, after the time fixed for their delivery, such resale does not, per se, give the vendee a right to regard the contract as rescinded by the consent of the parties, so as to enable him to recover back the sum paid by him' on the contract.</p>

<p>Where a decree in chancery, made by the Supreme Court of a county, under the constitution of 1802, for the sale of lands by the sheriff as upon executions at law, “ upon receiving an order for that purpose," was remanded to the common pleas for execution; and thereupon the clerk of the common pleas issued merely a certified copy of the decree of the Supreme Court, and containing no description of the land, except by reference to other parts of the record, a sale thereupon made, though not void, was irregular and rightfully set aside.</p>

<p>In 18-42, the Bank of Hamilton assigned all its effects to three trustees, McC., M., and C., among which was a joint and several note of McC. & J. as principals, and R. as surety, for §900. After its maturity, the makers gave a new note of like character, and by way of renewal, to assignees, at ninety days. The last note was not paid at maturity, and was retained by the assignees for several years, ¿luring which period the principals became insolvent. The assignees then transferred it to F., fo^collection merely. F. brought suit thereon against R., and on the trial R. offered to prove that the bank made the assignment with intent to prevent the bank commissioners from closing up its affairs, under the acts of February 25, 1839, and March 23, 1840, which testimony was ruled out by the court. Held—</p> <p>1. That such proof -was properly excluded by the court.</p> <p>2. That an action might be maintained on said note, in the names of the assignees, against R., although one of them was also a maker of the note.</p> <p>3. That there was no such suspension of a right of action upon the note in the hands of the assignees as authorizes the court to hold the note assets in the hands of the trustees, or either of them.</p> <p>The case of Bigelows. Bigelow, 4 Ohio, 138, does not apply to cases of joint and several notes, where only one of the makers becomes trustee to a payee.</p>

<p>Where a testatrix, having no child, made her will, and afterward had- a living child, which she survived; Held, under the 40th section of the act of March 25, 1840, relating to wills (Curwen, 690)—</p> <p>1. That the birth of the child revoked the will.</p> <p>2. That the fact that the testatrix survived the child did not revive'the will.</p>

<p>1. While good practice requires that, upon an application for an order of attachment to a court or judge in an action for a debt not due, the affidavit should set forth the facts and circumstances, and not merely the words of the statute, yet, if a court or judge think proper to act upon an affidavit stating the ground for an attachment, substantially in the language of the statute, it is a matter of form or practice not affecting any substantial right of the defendant, and not a proper cause for reversal upon a petition in error.</p> <p>2. Upon like principle would stand any variation from • the language of the statute which did not affect the substance of the particular ground upon which the order of attachment was granted.</p> <p>3. The affidavit and order of attachment constitute no part of ,the pleadings in the action, and the grounds for an attachment should not be stated in the petition. This rule applies as well in case of an action for a debt not due as in other actions.</p> <p>4. The proper mode for the defendant to meet the charge made in an affidavit for an attachment is by motion. In a like mode, a subsequent attaching creditor should be heard as to any question of priority between him and the plaintiff. He can not properly be made a party in the action on the ground of an interest acquired by the levy of his order of attachment upon the same property upon which the attachment of the plaintiff has been levied. If he be improperly made a defendant, there is no error in dismissing him from the action.</p> <p>5. A court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment, should be satisfied that it was clearly erroneous.</p>

<p>1. The ground for an attachment maybe stated in the affidavit in the language of the statute, without specifying more particularly the facts intended to be alleged.</p> <p>2. The charge thus made, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court; upon the plaintiff, by the denial, is thrown the burden of proof.</p>

<p>Under the act of February 24, 184.8, amendatory of the “act to regulate the practice of the judicial courts,” passed March 12, 1845, it is error for the court, upon the trial of a cause to a jury, to refuse, on the application of a party, to reduce to writing the charge of the court upon points of law involved in the case, before the jury retire to consider of their verdict.</p>

<p>On the trial of the issue prescribed, by the act of February 2, 1824, 11 for the maintenance and support of illegitimate children,” the defendant, by virtue of the provisions of section 310 of the code of civil procedure, is a competent witness in his own behalf.</p>

<p>1. The statute of March 14, 1853, “to provide for the reorgnization, supervis ion, and maintenance of common schools,” is a law of classification and not of exclusion, providing for the education of all youths within the prescribed ages, and the words “white” and “colored,” as used in said act, are used in their popular and ordinary signification.</p> <p>2. Children of three-eighths African and five-eighth white blood, but who are distinctly colored, and generally treated and regarded as colored children by the community where they reside, are not, as of right, entitled to admission into the common schools set apart under said act for the instruction of white youths.</p>

<p>The benefits of the 8th section of the act of March 23, 1850, “ to exempt the homestead of families from forced sale on execution,” etc., extend and are confined to a “resident of Ohio, being the head of a family, and not the owner of a homestead,” and who is the owner of one or more of three classes of chattels, to wit, mechanical tools, a team, and farming utensils, and who is holding such articles of property, whether belonging to one or-more of these classes, in good faith, for use as instruments of labor, and means of support for himself and family.</p>

<p>A, being in embarrassed circumstances, and having received advancements occasionally from B, his mother, voluntarily executed his note to her for the amount, and secured its payment -by a mortgage on his real estate. A afterward paid off all his creditors except the mortgagee, and some years thereafter died insolvent. The mortgagee assigned the note and mortgage to A’s children, in consideration of love and affection. On petition by A's administrator to set aside the mortgage as fraudulent, and to sell the lands to pay debts: Held—</p> <p>1. That a mortgage is a conveyance within the statute of frauds and perjuries of 1810.</p> <p>:2 That a conveyance, within the meaning of the statute, is void only as against • creditors.</p> <p>3 That a conveyance made without consideration, by one indebted at the time, can not be avoided by subsequent creditors, without showing actual fraud or a secret trust for the benefit of the grantor.</p>

<p>In error to the court of common pleas of Stark county.</p> <p>The city council of the city of Canton, on the 28th July, 1854,. made and published “ an ordinance to preserve order on the Sabbath,” the second section of which is in the following terms:</p> <p>“ That if any person, being the owner or occupant of any shop, store, grocery, saloon, or other place of business shall, by himself or agent, open the same for the purpose of business, or shall open the shutters of such shop, store, grocery, saloon, or other place of busi-, ness within this city, on the first day of the week, commonly called Sunday, every such person so offending shall, on conviction thereof, be fined in any sum not exceeding twenty dollars, nor less than ten. dollars for every offense $ provided, that this section and the preceding section of this ordinance shall not be so construed as to render it unlawful for tavern-keepers to entertain travelers, or for druggists to make up prescriptions, and receive pay therefor on that day.”</p> <p>The defendant, Nist, was, on complaint made before the mayor, ^arrested, tried, and found guilty of having opened his grocery on Sunday for the purpose of business, contrary to the provisions of said second section, and was thereupon adjudged to pay a fine of ten dollars. Upon petition in error, the court of common pleas reversed the judgment, and dismissed the cause for want of further jurisdiction. This reversal the city of Canton now assigns for error, and asks to have the judgment of the mayor affirmed.</p> <p>The only question presented in the case is as to the power of the city council to enact the ordinance in question.</p>

<p>When a note, payable generally, is made and indorsed in blank for the accommodation of the maker, and at the time of its discount is altered without the knowledge or consent of the indorser, by the .interlineation of a particular place of payment, such alteration is material and discharges the indorser.</p>

<p>In attachment proceedings, the garnishee is not, during the pendency of the same, thereby necessarily exempted from an existing liability to pay interest upon his indebtedness to the defendant in attachment.</p> <p>A cause of exemption, in suck case, will not be presumed in favor of tke gar- ' niskee, but must be skown to exist like any otker defense.</p>

<p>Ar. answer stating a defense under the 5th section of the act to restrain banks from taking usury, which omits to disclose the facts and circumstances showing a reason to believe that the drawers of a bill of exchange discounted would not be prepared to pay the same at the time of payment, is not defective upon general demurrer. If the purpose of justice should so .require, the court would have a discretion, upon a motion for the purpose, to require the facts and circumstances relied on to be disclosed in the pleading.</p> <p>'When an answer to an action on a bill of exchange, brought by an indorser, relies on an illegality in the contract between the original parties, ordinarily some statement affecting the title of the plaintiff is required; but when the petition itself discloses facts from which it might be inferred that the plaintiff was not a holder for value in the usual course of trade, the defendant is entitled to the benefit of the admissions in the petition, to sustain his answer against a general demurrer.</p>

<p>Where S., a retiring member of a firm, took from bis late partner, T., a bond, with W. as surety thereon, conditioned that T. would pay all the debts of the late firm, which condition was broken: Held—</p> <p>1. That S., without having first paid any of said debts, or been otherwise specifically damnified, is entitled to recover on said bond, against, the obligors therein, to the amount of such debts remaining unpaid.</p> <p>2. In such action, it is proper that the creditors of the firm should be made parties, and that the court should, in the judgment, authorize the application of the amount recovered to the payment of the debts of the firm in discharge of the judgment.</p>

<p>Where, prior to the school law of March 14, 1853 (Swan’s Stat. 836), a school-district had been duly organized, consisting of parts of two adjoining townships, such district was not severed by the operation of section one of that law, but still continued a sub-district under that act, until thereafter dissolved, altered, or changed, as provided in the 16th section of the same law.</p> <p>Whether such sub-district could thereafter be dissolved, altered, or changed, prior to the amendatory and supplemental act of April 17, 1857 (54 Ohio-L. 236, sec. 10), by the board of education of one township, without the-concurrence of the board of education for the other township — qucere.</p> <p>Prior to the passage of said amendatory and supplemental act, no tax could be imposed upon the portion of the sub-district lying without the township in which the school-house was located, for the purpose of purchasing the site- or erecting such school-house.</p> <p>The board of education, in certifying the amount to be paid or borne exclusively by the sub-district, under section 23, of the estimated cost of purchasing the *site and erecting the school-house, may impose the entire estimate and not merely a “portion” of it, if, in their opinion, the entire amount is no more than its reasonable share of the burden of taxation for such purposes, in comparison with the other sub-districts of the township..</p>

<p>Where P., pursuant to contract, furnished J. R. a team, to be used in the farming of lands of P., for the joint benefit of the parties; and J. R., whilst using the team accordingly, carelessly left it unfastened, whilst he engaged in a noisy affray with C. R., near to the horses, by which they were frightened and ran off, and one of them was killed: Seld, that the want of ordinary care of the team on the part of J. R., being a proximate cause of the injury, will prevent a recovery therefor, in an action brought by P., the owner, against C. R.</p>

<p>“Virginia military district school-lands, held under a lease for ninety-nine years, renewable forever, are subject to the operation of the statute of limitations during the continuance of the leasehold estate, as well as after the same has been merged in an estate in fee under the act of January 28, 1828, “to provide for the sale of lands granted by Congress for the use of schools within the *'Virginia military district, and to authorize the lessees of said land to surrender their leases and receive certificates of purchase.”</p> <p>“Where a judgment debtor holds turn sections of said lands under leases, and assigns the same in fraud of his judgment creditor, who has the fraud declared in chancery so far as regards the amount of such creditor’s judgment, and one of the sections is sold under a decree, and satisfies the judgment and costs, such decree and declaration of fraud do not prevent the statute of limitations from running in favor of such assignee of the two sections, and those claiming under him, as it regards the section not sold under the decree, and not needed to satisfy such judgment.</p>

The defendant in error is the supervisor of a road which passes through the land of the plaintiff in error. A stream of water flows through the land, upon which the plaintiff in error and those under whom he claims had, as early as 1806, erected a mill. A county road, which was laid' out in 1813, crosses this stream. This crossing, from the time of the laying out of the road up to the commencement of the action, was by means ■of a ford.

At the September term, 1855, of the Morrow common pleas, the plaintiff in error recovered a judgment upon warrant of attorney against S. Doty, M. B. Doty, David Loyd, and Robert Thompson, for $670.20 and costs. No service of process was made upon any of the defendants.

Reserved in the district court of Wood county. This case was reserved to -the Supreme Court, from the district ■court of Wood county, upon the following agreed statement of facts: “ On December’25, 1838, Henry Zeigler, by'article of agreement under seal, sold tract 11, Maumee and Western Reserve road-lands, Wood county, Ohio, to Elijah N. Knight for $1,800, payable in installments extending to December 25,1843.

<p>Error to the district court of Lorain county.</p>

Petition in error to the court of common pleas of Delaware •county.

Petition in error to the court of common pleas of Delaware county. Deserved in the district court. On the 28th of June, 1855, Stejihen Doty, Morgan B. Doty, and Smith Goodin, gave their bill of exchange to J. D. Eigour & Co., for $1,020, on Butler & Winter, of New York, payable in thirty days (no grace), at the office of the drawees, waiving acceptance, demand of payment, protest, and notice pf non-payment, and authorizing a confession of judgment and release of errors.

In chancery. Reserved in the district court of Brown county. Oi the 24th day of June, 1853, the complainant filed an original bill in chancery, in the court of common pleas of Brown county, to impeach and set aside a decree of divorce from the bonds of matrimony, rendered by said court at its previous March term, 1853, against the present complainant, and in favor of the present defendant, upon his petition charging her with adultery, fraudulent contract, and extreme cruelty.

Deserved in the district court of Wood county. This case was reserved in the district court of Wood county for decision in this court, and is presented on the following agreed statement of facts : “ It is agreed, that on the 23d day of March, a. d. 1850, the legislature of Ohio passed an act, 48 Ohio L. L. 183, entitled an act to incorporate the Wood County and Western Deserve Free Turnpike Doad, which said act in detail, is referred to and made a part of thi3 agreed…

■ In error to the district court of Holmes county. On the 17th day of February, 1855, Christian Smith filed his petition, in the court of common pleas of Holmes county, against Elyzur J. Loveland, stating that on the 14th of February, 1855, said Loveland had, without leave, wrongfully taken certain of his goods, wares, and merchandise, particularly described, to his damage, for which he asked judgment.

<p>Where the separate property of a wife, which is protected by statute against the claims of her husband’s creditors, is lost or destroyed by the wrongful act of a third party, the same protection is to be extended, for her benefit, to any judgment which she may recover against the wrong-doer for the value of the property so lost or destroyed.</p> <p>The fact that such judgment has been obtained in the name of the husband is not conclusive evidence of a reduction to possession by the husband. The presumption arising therefrom may be rebutted by proof that the action was prosecuted at the instance of the wife, and for her sole benefit; the name of the husband having been used merely as that of trustee, holding the legal title for the benefit of his wife, without any intention on his part to appropriate the chose in action to his own use.</p> <p>A controlling effect will be given, in such cases, to the clear intention of the parties.</p>

This was a civil action under the code, brought by Myres against Walker’s administrator, upon a note which, *the petition states, was made by Walker about the 15th of June, 1833, for fifty-five dollars, at ninety days, payable to one John E. Adams, and which was accidentally destroyed by fire, some time in the year 1844.

Petition in error to the court of common pleas of TrumbulL county. The case is sufficiently stated in the opinion of the court.

<p>1. Persons having a mixture of African blood, ¿ut a preponderance of white blood, or being more white than black, and being otherwise qualified, were, by the settled construction of the section of the constitution of 1802, regulating the exercise of the elective franchise, entitled to enjoy the right of an elector. No change was made in this respect by the corresponding section of the constitution of 1851. The same persons being otherwise qualified, are not to be excluded on account of color, but are entitled, under the present constitution, to vote at all elections.</p> <p>2. The plaintiff being one of the description of persons so entitled to vote, having only one-eighth of African blood, and his vote having been refused for that reason only at the election, in 1856, for electors of president and vice-president of the United States, bjr the judges of the election, against whom he brought an action for such refusal: Held, that he was entitled to recover for the violation of a right secured by the constitution.</p>

<p>Error to the district court of Stark county.</p> <p>*The defendants in error, who were plaintiffs below, filed their petition against the plaintiff, together with the board of education of Canton township, and the treasurer of Stark county, seeking to enjoin the collection of certain taxes which had been assessed upon their property severally, for school purposes, at a rate of taxation determined by the board of education of the Canton union school. The only question in this case, as shown by the record, was whether the property in question was within the limits of the- Canton union school district at the time said taxes were-assessed thereon.</p> <p>The record shows the following state of facts:</p> <p>The Canton union school was organized July 21,1849, under the act of February, 1849, entitled “an act for the better regulation, of the public schools, in cities, towns,” etc. Swan’s R. S. 858.</p> <p>The board of education of Canton township was organized under the act of March, 1853, entitled “ An act to provide for the reorganization, supervision, and maintenance of common schools.” Swan’s R. S. 836.</p> <p>At the regular session of the township board, held pursuant to the requirements of the twelfth section of the last-mentioned act, on the 17th and 18th days of April, 1854, said township board of education resolved, by a vote of six in the affirmative to three in the negative, to annex to the said Canton union school district certain territory within the same township, and adjacent to the district as it before existed, which territory, so ordered to be annexed, •embraced the lands and property of the plaintiffs below, upon which the tax in quesion was subsequently assessed.</p> <p>This order of annexation was duly certified by the clerk of the township board, to the board of education of the Canton union ¡school, and said territory was accepted by the latter board, on the 24th of April, 1854. On the 28th of the same month the township board met and voted to rescind their previous order of annexation; but the union-*school board refused to agree to or .acquiesce in this rescinding resolution.</p> <p>Taxes, for school purposes, were subsequently assessed by the •county auditor, for the year 1855, upon this disputed territory, as .an integral part of the said union school district- according to the •estimates of its board of education, at the rate of three and one-half mills on the dollar.</p> <p>Under the act of 1849, the union school board was authorized, .annually, to determine on a rate of taxation for general school purposes, not exceeding four mills on the dollar, upon the taxable property of the district, while the rate of taxation for similar purpose by the township board is limited, by the act of 1853, to two mills on the dollar.</p> <p>The plaintiffs below obtained a judgment in their favor, in the' -court of common pleas, and also in the district court, to which the •case was taken by appeal. The district court found that the property described in the plaintiffs’ petition “ is neither situated within, nor is part of said Canton union school district, and that the tax sought to be imposed on said property, and assessed, .and attempted to be collected by said county treasurer, is illegal and void ; ” and thereupon ordered that the provisional injunction ■which'had been previously allowed to restrain the collection of the tax should be made perpetual.</p> <p>The plaintiff in error now seeks to reverse this order.</p> <p>The bill of exceptions, taken on the hearing, shows that the dis•iriet court “ held, and so decided, that the said boards of education of Canton township, and the Canton union school, respectively, •did not possess the legal power to make any alterations of the territory of the Canton union school, because the Canton union school was organized under the act of February 21, 1849, and had not accepted the provisions of the act of 1853; and the township board of education, acting under and by virtue of tbe act of' March 14, 1853, had no power to make any agreement with the-board of education of any city or village with *the terri-v tory thereto annexed, to make transfers of territory, not within, the limits of such corporation, to or from such district, unless the same had been previously organized under the said act of March. 14, 1853.”</p>

<p>1. The act of April 17, 1857, “ securing to married women such personal property as may be exempt from execution,” etc., prohibits the husband from the sale, without the wife’s consent, of any property which would be exempt if an execution had been levied thereon, and he, in good faith, had asserted' the exemptions secured to him by the statute.</p> <p>2. Where the property thus sold is not in itself specifically exempt, but may become so upon a selection to be made by the debtor, the husband is still-prohibited from such sale, if his entire property, sold and unsold, is insufficient to satisfy the exemption secured by the act.</p> <p>3. The said act of April 17, 1857, confers upon the wife, where property thus, exempted has been sold without her consent, an election to maintain an action against the purchaser for the specific property sold, or a suit to recover its value.</p>

This is an action of covenant. Reserved in the district court of Licking county. *The case stands upon demurrer to rejoinder.

<p>Mandamus. Motion to quash reply to answer.</p>

*In error to the district court of Scioto county. In September, 1855, Charles W. Higgins filed his petition in the court of common pleas of Scioto county, stating that he had “ the legal title to, and was entitled to the possession of, the following-described tract of land, situate in said Scioto county, to wit: Part of French Grant, lot No. 66, being in the northeast corner of said lot, known and described as Folen’s farm, containing seventy-two acres, be the same more or…

The facts of this case bearing on the decision of the court, are these: The plaintiff in error was treasurer of Jefferson county. Under an act of the legislature, passed on the 13th of April, 1852, the property of the defendant in error was assessed for taxation.

This is a petition in error to the court of common pleas of Seneca county, to reverse an order of that court dismissing an appeal taken from the judgment of a justice of the peace. •