ized to receive the same, either by the parties entitled thereto, or b order of court.

3. Such liability may be enforced by the parties in interest in a joint action against such person, when no objection is made for misjoinder; nor will the fact that the person sued is designated as **late sheriff of H. county," make any difference. Judgment of the district court affirmed.

21. Thomas Lovell v. Stephen M. Wentworth. Error to the District Court of Hamilton county.

OKEY, J.

1. If no reply is filed to an answer of new matter constituting a defense, but the cause is tried without objection as though such allegations had been denied, a demand for judgment on the pleadings, after each party has introduced his evidence, is too late.

2. Where a statement of facts alleged to have occurred a year previously, is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matters so stated, and while the suit is pending, the book becoming worn, he copies the statement into another book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection be made, to use such copy while testifying as a witness in the cause.

Judgment reversed and cause remanded to the court of common pleas for a new trial.

60. Asa S. Hudson v. S. P. Wolcott et al. Error to District Court of Cuyahoga County.

McILVAINE, J.

Held: 1. In an action by an endorsee against his endorser, the question whether a blank endorsement was made in the usual course of trade for the purpose of transferring title and as evidence of a contract of endorsement, is issuable; and under such issue the endorser may prove that his name was written on the back of the instrument at a different time and for a different purpose; also, he may prove as part of the res gesta the declarations and conversation of the parties at the time of the transfer.

2. In the transfer of an instrument by endorsement, demand and notice may be waived, and such waiver may be shown by the oncumstances. Where, at the time of the trausfer of a past due note, both endorser and endorsee are informed by the maker that he is not then able on demand to pay it, but thinks he may be able to pay it in thirty days, and the note is then delivered, it will be presumed the parties acquiesced in the delay, and that demand and notice of nonpayment were waived.

Judgment reversed.

50. Cyrus H. Baldwin v. Andrew Sheets and others. Error to the District Court of Montgomery County.

BY THE COURT.

Action by A. against B., C. and D. Judgment for defendants. Petition by A. under civil code (2 S. & C. 1112), setting forth the issue in the

action, and alleging that the defendants entered into a conspiracy to, and did testify falsely, and thereby obtained the judgment, evidence to sustain such allegations having been discovered since the trial: Held, that the petition is sufficient under the civil code of 1853, 2534, subdivision 4, which authorizes the court in which the judg ment was rendered to set the same aside “for fraud practiced by the successful party in obtaining the judgment or order." See 74 Ohio L. 115; 75 Ohio L. 673; Rev. Stats. 5354-5365.

Judgment reversed and cause remanded for new trial.

58. Preston et al v. Horn, administrator, etc. Error to the District Court of Licking County. Dismissed for want of preparation.

61. P. C. & St. L. Railway Co. v. Rombach et al. Error to the District Court of Clinton County. Dismissed for want of preparation under rule four.

65. Zeller v. Marquardt et al. Error to the District Court of Cuyahoga County. Dismissed for want of preparation.

287. P. C. & St. L. Railway Co. v. Cahill,administratrix, etc. Error to the District Court of Muskingum County. Settled and dismissed as per agréement on file.

451. Knickerbocker Casualty Ins. Co. v. Jordan, administrator, etc' Error to the District Court of Hamilton County. Settled and dismissed at plaintiff's costs.

470. Lowe v. Redgate. Error to the District Court of Montgomery County. Death of Mary J. Redgate suggested. Revivor by consent in the name of William H. Young, administrator of Mary J. Redgate, deceased.

481. In the matter of the assignment of C. Newkirk v. Schneider, assignee etc. Error to the District Court of Cuyahoga County. Settled. Plaintiff in error to pay all unpaid costs.

MOTION DOCKET.

No. 13. Leggett, admr. v. McClelland. Motion for leave to file a petition in error to the District Court of Tuscarawas County.

JOHNSON, C. J., Held:

1. The rule that when a principal indemnifies one of several sureties, each is entitled to share therein, does not apply where such indemnity is furnished by a stranger for the sole and exclusive benefit of

one.

2. When the wife of the principal, mortgages her separate real estate for the exclusive use and benefit of one of her husband's sureties, such mortgage does not insure to the benefit of his co-sureties.

3. By existing statutes a husband has no estate or interest in the separate property of his wife during coverture; hence by uniting with her in such mortgage, he contributes no part of the indemnity; his estate by the curtesy is that of a surviving husband in the real estate of which his wife was the owner at her death.

Motion overruled.

1. Coleman v. The State. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion granted.

3. Morton v. The State. Motion for leave to file a petition in error to the Court of Common Pleas of Morrow county. Motion stricken from the docket.

4. Biehn v. Morgan. Motion for leave to file a petition in error to the District Court of Brown County. Dismissed for want of preparation. 5. Moore et al. v. Lovelaco. Motion to dismiss cause No. 1038 General

Docket of 1883. Motion granted.

6. Anderson v. Sharp. Motion for leave to file a petition in error to the District Court of Franklin County. Motion granted.

8. Egbert v. The Pleasant Ridge Cemetery. Motion to reinstate cause No. 749 General Docket of 1883. Motion overruled.

9. Arrowsmith, by next friend, v. Harmening. Motion for leave to file a petition in error to the District Court of Defiance County. Motion granted.

10. Spangler et al. v. City of Cleveland et al. Motion for temporary injunction in cause No. 741, General Docket. Motion granted on the execution of a bond in the sum of $500, etc.

11. Francis v. The State. Motion for leave to file a petition in error to the District Court of Montgomery County. Plaintiff ordered to file a complete record in the common pleas of Montgomery County, up to the time of change of venue, within thirty days, otherwise the case will be dismissed.

12. Cook v. Cleveland Boiler Plate Company et al. Motion for leave to file a petition in error to the District Court of Cuyahoga County. Motion granted.

14. Jackson v. Brashear ot al. Motion for an order of revivor in cause No. 130, General Docket. Conditional order granted.

15. Durgin et al. v. Brashear et al. Death of Adaline L. Brashear suggested, and on motion a conditional order granted that Herman F. Brashear, her executor, be made party defendant in her place.

17. James v. Board of Commissioners of Allen County. Motion for leave to file a petition in error to the District Count of Allen County. Motion granted.

18. Barber v. The State. Motion to take cause No. 810, General Docket, out of its order for hearing. Motion granted.

20. Brayton et al v. Carr. Motion to reinstate cause No. 531, General Docket of 1883. Motion granted.

21. Farmer's Mutual Relief Association of Seneca County v. Harpster. Motion for leave to file a petition in error to the District Court of Seneca County. Motion overruled.

ASSIGNMENTS FOR ORAL ARGUMENT.

Fiday, January 25.

71. Harvey P. Platt et al. v. The Pennsylvania Co. Error to the District Court of Lucas County.

96. Owen Lynch v. The Lake Shore & Michigan Southern R. R. Co. Error to the District Court of Lucas County.

Friday, February 1.

175. The Cleveland, Columbus, Cincinnati & Indianapolis R. R. Co. v. John Paramore. Error to the District Court of Richland County. 315. The Pittsburgh, Cincinnati & St. Louis R. R. Co. v. Charles E. McDonald by n. f. Error to the District Court of Franklin County. Friday, February 15.

349. Windisch, Muhlhauser & Co. v. Henry Hildebrant. Error to the District Court of Hamilton County.

367. Jabez Jones v. William G. Jones. Error to the District Court of Williams County.

Friday, February 22.

371. The Little Miami R. R. Co. v. John Fitzpatrick. Error to the District Court of Franklin County.

389. The National Gas Manufacturing Co. v. Jacob Heatherington. Error to the District Court of Belmont County.

Friday, February 29.

439. Edward Martin v. John Alter et al. Error to the District Court of Muskingum County.

453. William Williams v. William F. Schatz and wife. Error to the District Court of Franklin County.

N. B.-Court meets for the hearing of oral arguments at nine o'clock A. M., local time.

This being published previous to the making up of the docket for the January term, 1884, the numbers of the cases are those of the January term, 1883.

No. 35. Carran v. Little. Error to the District Court of Cuyahoga County. MCCLAULEY, J.

B., an officer of the city of Cleveland, having a salary payable quarterly, made a draft on E., the treasurer of the city, for eleven hundred and twenty-five dollars, payable to the order of C., on the eighth day of April, 1874,and directed therein that the amount of the draft be charged to his salary for the quarter then ending, and waived demand and protest. The draft was endorsed by C. to L.

Held: The draft was negotiable and created between B. and C. the relaof drawer and endorser.

Judgment affirmed.

125. Tilden v. Barker. Error to District Court of Portage County.

MARTIN, J.

Where a woman, having no children by her surviving husband, died leaving issue by a former marriage and an estate which did not come to her from her surviving husband or his ancestors: Held, That under section 17 of the Act of March 14, 1853 (S. & C. 504), as amended Ma. ch 1, 1869, (66 Ohio L., 21 Rev. Statș. § 4176), the surviving husband is not entitled to curtesy in her estate, not withstanding she had devised the same to her grandchildren.

Judgment reversed.

138. Nathaniel Wilson v. George W. Hicks.

Court of Lucas County.

DICKMAN, J.

Error to the District

1. Where a grantee obtains a deed of land by the fraud of his confederate, E., upon the grantor H., and does not have the same recorded, and the land is afterwards sold by the grantee for a valuable consideration to a bona fide purchaser, W., who has no knowledge of the fraud; and where instead of a deed from the grantee to W., the grantor H., without a reconveyance to him of the land, cancels the unrecorded deed made by him, and with knowledge of the fraud which had been practiced on him, makes a new deed to W., signed and sealed in the presence of but one witness and not acknowledged, and delivers the same to the confederate, E., to be by him delivered to W., who on the faith thereof parts with the consideration, he will be estopped from disputing the title or ciaim of W. to the land. 2. Where a loss has happened which must fall on one of two innocent persons, it must be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the loss.

3. The maxim, "he who is first in time is stronger in right," does not prevail when the equity, junior in date, is superior in merit. Judgment of the district court reversed.

46. Householder v. Granby et al. Error to the District Court of Williams County.

NASH, J.

In the trial of a case to a jury it is error for the court, after having been requested by either party, pursuant tó statute, to reduce the charge to writing, to give oral instructions upon matters material to the issue, in addition to a written charge.

Judgment of district court affirmed.

86. The First National Bank of Athens v. Milbury M. Green. Error to the District Court of Athens County.

GRANGER, C. J.

1. If the holder of the promissory note of a firm, after its dissolution, accepts the note of one of the partners, payable at a future date, retaining interest for said time by discount, and agrees to release the other partner, no action on the firm note can be maintained.