Causes not reported in full.
WARDWELL, RECEIVER, v. DAFFERNER.
(Decided January 31, 1899.)
ERROR to the Circuit Court of Stark county. Baldwin & Shields, for plaintiff in error. J. A. Ambler and Clark, Ambler & Clark, for de fendant in error.
ASHEY v. CITY OF TOLEDO.
(Decided February 3, 1899.)
ERROR to the Circuit court of Lucas county.
Clayton W. Everett and Noah H. Swayne, for plaintiff in error.
William A. Mills, City Solicitor, and C. F. Watts, for defendant in error.
YOCUM, ADMR., v. SCOTT ET AL.
(Decided February 3, 1899.)
ERROR to the Circuit Court of Wayne county.
Rouch & Yocum, for plaintiff in error.
Benjamin Eason and A. D. Metz, for defendants in error.
Judgment reversed and modified judgment entered.
FARMERS BANK OF LOUDONVILLE v. PHIFER ET AL.
(Decided February 3, 1899.)
ERROR to the Circuit Court of Ashland county.
J. C. Laser, for plaintiff in error.
F. V. Owens; Campbell, Semple and J. R. Hissem, for defendants in error.
Moss, ADMR., v. RAILWAY COMPANY.
(Decided February 3, 1899.)
ERROR to the Circuit Court of Fairfield county.
Brasee & Brasee and John G. Reeves, for plaintiff in error.
C. O. Hunter, for defendant in error.
Judgment affirmed.
SALMONS v. MILTON COAL COMPANY.
(Decided February 3, 1899.)
ERROR to the Circuit Court of Jackson county.
E. C. Powell, for plaintiff in error.
J. M. McGillivray, for defendants in error.
Judgment affirmed.
ACCOUNTING BETWEEN PARTNERS-See PARTNERSHIP.
ACTION AGAINST RAILROAD COMPANY FOR KILLING
STOCK-
Action against receivers of railroad company-For killing stock-
Allegation of negligence-Erroneous admission of evidence-
Wherein an action against receivers of the property of a railroad
company to recover for the killing of stock, the only allegation
of negligence in the petition is that the defendants had neglected
to maintain a fence sufficient to turn stock, it is error to admit
evidence that the stock got upon the track through a gate at a
farm crossing carelessly left open, there being no claim that the
gate itself was out of repair. And in such case, it is also error
to overrule a motion to arrest the evidence from the jury, inter-
posed at the conclusion of the plaintiff 's testimony, where there
is no evidence bearing upon the negligence of the defendants
except that so erroneously admitted. Megrue v. Lennox, 479.
ACTION TO RECOVER MONEY-
1. Paid by executor under mistake of law--An action to recover
back money paid out by an executor upon distribution, by mis-
take, is properly brought in the name of such executor in his
official capacity. Phillips, Exr. v. McConica, 1.
2. Money cannot be recovered back-Money voluntarily paid by an
executor, upon distribution to one not entitled to receive the
same, under a mistake of his rights and duties as executor,
there being no mist ke of fact, can not be recovered back. Id.
3. Adopted child cannot save a legacy from lapsing – Section 5971
-When a legatee dies before the testator, the legacy lapses un-
less such legatee was a child or other relative of the testator, and
left issue surviving the testator as provided in section 5971,
Revised Statutes. An adopted child is not such issue. Id.
4. Adopted child can inherit by section 3140-An adopted child is
enabled by section 3140, Revised Statutes, to inherit from its
adopter, but not through him, from his ancestors. Id.
ADOPTED CHILD CANNOT INHERIT, WHEN-See ACTION TO
RECOVER MONEY.
Advancement of Cities-Agency.
ADVANCEMENT OF CITIES-See CLASSIFICATION OF CITIES.
AFFIDAVIT FOR ATTACHMENT THAT PROPERTY IS NOT
EXEMPT-
1. Affidavit for attachment that property not exempt-Traversed by
affidavit of defendant-Burden of proof-Where the averment in
an affidavit for attachment before a justice of the peace that the
property about to be attached is not exempt from execution
is traversed by the affidavit of defendant, and it is shown cir-
cumstantially by such affidavit that the property is exempt, the
burden is on the plaintiff to maintain the truth of the state-
ment by other evidence, and where no such additional evidence
is offered the attachment should be discharged, Kirk v. Steven-
son, 556.
2. Motion to discharge attachment-Section 6522, Revised Statutes
-Notice of a motion to discharge an attachment given the plain-
tiff by the defendant the day after the attachment is levied, and
before judgment is reasonable notice within the meaning of
section 6522, Revised Statutes. And it is error, in such case,
for the justice to overrule the motion for want of sufficient
notice. Id.
1. Agency-Authority of alleged agent assumed from circumstan-
ces-Evidence to show previous authority or ratification not com-
petent, when-On the trial of issues involving the authority of
an alleged agent to make purchases on account of the defendant,
evidence that the defendant became guarantor to others than
the plaintiff for the payment of the price of similar articles
purchased by the alleged agent upon his own account is not
competent for the purpose of showing either a previous authority
or a ratification. Williams v. Stearns, 28.
2. Promissory note-Shares of stock as security-Contemporaneous
agreement for conditional sale of security to holder-Authcrity
of payee as agent-Contract law-Agency-One who executes a
negotiable promissory note and contemporaneously therewith
an instrument by which he transfers to the payee of the note
and his assigns shares of the stock in an incorporated company
as security for the payment of the note, and designating a price
in excess of the amount to become due on the note at its maturity,
upon the payment of which the holder may become the absolute
owner of the stock, and delivers such note and instrument to
the payee with knowledge that he does not furnish the con-
sideration for the note, and with the intent that he shall obtain
the same from another, thereby vests such payee with authority
Appellate Jurisdiction of Supreme Court-Assignee's Fees.
to receive such original consideration, but not with authority to
receive from the holder at the maturity of the note a tender of
the difference between the price of the stock and the amount
due upon the note. Rumsey v. Lentz et al., 189.
APPELLATE JURISDICTION OF SUPREME COURT-See JUR-
ISDICTION OF SUPREME COURT-
1. Appellate jurisdiction of Supreme Court--Limitaiion of--Review
of judgments involving more than three hundred dollars-Effect
of claim for more but recovery of less than that amount in lower
court-Act of April 25, 1898–Under section 6710, Revised Stat-
utes, as amended April 28, 1898, (93 Laws, 255), limiting the ap-
pellate jurisdiction of this court, except as therein expressly
provided to the review of judgment in which is involved the
sum or value of more than three hundred dollars, the effect of
the judgment complained of on the claim of the plaintiff in
error must be considered in determining the amount involved.
Draper et al. v Clark, 336.
2. Plaintiff recovers less than three hundred dollars--Supreme
Court no jurisdiction-Where plaintiff in the court of common
pleas claims more than three hundred dollars, but recovers less,
and is content with the judgment, this court has no jurisdiction
in a proceeding in error prosecuted in this court by the defend-
ant below; for the amount involved as to him is less than three
hundred dollars. Id.
3. Where plaintiff recovers less and circuit court remands for a
new trial-May prosecute to Supreme Court-Where, however,
the plaintiff claims more than three hundred dollars, but re-
covers less, and prosecutes error to the circuit court, where the
judgment is reversed and cause remanded for a new trial, in
such cases, as to the defendant, the judgment of reversal in-
volves the full amount of the plaintiff's claim; and he may
prosecute error to this court for the reversal of the judgment
of the circuit court. Id.
APPROPRIATION OF LAND FOR CANALS-See PRIVATE LANDS
TAKEN FOR CANAL Purposes.
ASSESSMENT FOR COUNTY ROADS-See CONSTITUTIONAL
LAW, 3.
1. Assignee's fees-Term "proceeds of real estate sold" defined-Sec-
tion 6357 Revised Statutes-The term "proceeds of real estate
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