Boundary-Cases in Ohio Reports Cited, Examined, etc. BILLS OF EXCHANGE AND PROMISSORY NOTES-Continued. for the purchase price of the goods; but he can not have both remedies. 2. That where such creditor garnishecd the fraudulent vendee, but went no further with that proceeding, and also took an assignment of the note from his debtor after it became due, and then attached the goods for which the note was given, and received all the avails thereof not held by prior attachments, the creditor can hold the vendee to account only as the debtor of the vendor on the note for the goods. 3. The maker of the note may interpose the same defense against the assignee that he could against the payee, and may prove the fraudulent consideration of the note, and thus defeat a recovery thereon. Bradford v. Beyer et al. 388. 7. See CHECK. BOUNDARY. See PARTITION, 1; LIMITATION OF ACTIONS AND SUITS, 1. 1. The act of April 6, 1866, to provide for the payment of local bounties, pledged to volunteers under the calls of the president for volunteers, issued July 2 and August 4, 1862 (63 Ohio L. 155), is not repugnant to section 28, article 2, of the constitution of this state. Cass Township v. Dillon, 16 Ohio St. 39, approved and followed. The State ex rel. Anderson v. Harris et al. 608. 2. The performance of the duty enjoined, by the act, on the commissioners to levy the tax therein provided for, is not limited to the year 1866. In requiring the tax to be levied and the bounties to be paid, the act is imperative; in prescribing the time within which the levy is to be made, it is -directory; and the neglect of the commissioners to levy a tax, within the time required, will not deprive the volunteers, who are not responsible for the default, of the bounty the act was passed to confer. Ib. 3. The taxes levied under the act are to be placed on the tax duplicate and assessed as other taxes against the taxable property for the year in which the levy is made. Ib. 4. In determining whether the system of paying bounties, described in the act, had been adopted in any county, the commissioners act in a ministerial and not in a judicial capacity. If the facts existed which made the statute applicable to their county, they were bound to ascertain the facts correctly, and to perform the duty which the statute enjoined. Ib. 5. Mandamus is the proper remedy to compel the commissioners to proceed under the statute. Ib. BURDEN OF PROOF. See ABORTION. BURGLARY. See PARTNERS AND PARTNERSHIP. CASES IN OHIO REPORTS CITED, EXAMINED, ETC. 1. Boos v. Ewing, 17 Ohio, 500; Neil v. Kenney, 11 Ohio St. 66. Vendor's lien. Cited. Anketel v. Converse, 19. 2. Harmon v. Stockwell, 9 Ohio, 93; Lessee of Winder v. Starling, 7 Ohio, 539; Ward v. Barrows, 2 Ohio St. 241. Verification of delinquent tax list. Cited. Skinner v. Brown, 36, 37. 3. Ward's Heirs v. McIntosh, 12 Ohio St. 231; Browder v. Browder, 14 Ohio St. 589. Acknowledgment of deed by married woman. Cited. Carney v. Hopple's Heirs, 45, 46. 4. Goshorn v. Purcell, 11 Ohio St. 641. Correction of mistake in deed. Cited. Ib. 47. 5. Morrison v. Bailey and Burgess, 5 Ohio St. 18. Bank checks—their char acter-effect of laches of holder. Cited. Stewart v. Smith, 85; Anderton et al. v. Shoup, 128. 6. Nash v. Atherton, 10 Ohio, 164; Galloway v. Brown, 16 Ohio, 428. VOL. XVII-41 Call Calhoun v. Price, 102. Cases in Ohio Reports Cited, Examined, etc. CASES IN OHIO REPORTS CITED, EXAMINED, ETC.-Continued. 8. Fosdick v. Rich, 15 Ohio, 84. Sale of mortgaged premises on execution, for mortgage debt. Distinguished from Fithian v. Corwin et al. 124. 9. McAfferty v. Conover, 7 Ohio St. 99. Land line. Yetzer v. Thoman, 133. Distinguished from 10. Ide v. Churchill, 14 Ohio St. 139. Verdict reviewable on error. Cited Glancy v. Glancy, 139. 11. Carberry v. The State, 11 Ohio St. 410. Bynam v. The State, 143. Forgery indictment. Cned. 12. Ludlow's Heirs v. Kidd's Ex'rs, 3 Ohio, 547; Teaff v. Hewitt, 1 Ohio St. 519. Effect of appeal. Cited. P., Ft. W. & C. Railway Co. v. Hurd and Fair, 145. 13. Kent v. Mehaffy, 2 Ohio St. 147. Jurisdiction to grant injunction. Ib. 147. Cited. 14. State ex rel. Hills v. Burgoyne, 7 Ohio St. 154. Return of patients from Lunatic Asylum. Distinguished from State ex rel. etc. v. Jones, 150. 15. Collard's Adm'r v. Donaldson, 17 Ohio, 264. Presumption-legal fiction. Cited. Wilson v. Wilson et al. 156. 16. Jenkins v. Clarkson, 7 Ohio (pt. 1), 72. Extension of time-surety. Cited. Ward & Co. v. Wick Bros. & Co. et al. 165. 17. Hall et al. v. Ashly & Craven, 9 Ohio, 96; Baily v. Baily, 8 Ohio, 239; Mecse v. Keefe, 10 Ohio, 365; Manuel v. Manuel, 13 Ohio St. 458. Foreign wills. Cited. Jones et al. v. Robinson et al. 181, 182. 18. Kelly v. Hunter, 12 Ohio, 216, and 4 Ohio St. 483, 586, 354, and 3 Ib. 445 When error will lie. Cited. Schaeffer et al. v. Marienthal, Lehman & Co. 188. 19. Cressinger v. Welch, 15 Ohio, 156. Ruling on abstract proposition not subject to review on error. Cited. Gill & Son v. Sells, 197. 20. Little Miami R. R. Co. v. Stevenson, 20 Ohio, 415; C., C. &. C. R. R. Co. v. Keary, 3 Ohio St. 201; Whaalan v. M. R. &. L. E. R. R. Co., 8 Ohio St. 249. Respondeat superior-examined. P., Ft. W. & C. Railway Co. v. Devinney, 210. 21. Follett v. Hall, 16 Ohio, 11. Beginning of court-relative lien of judg ment and mortgage. Distinguished from Davis v. Messenger, 235. 22. Malone v. Stuart, 15 Ohio, 319. Words actionable in themselves. Alfele v. Wright, 242. Cited. 23. O'Conner v. The State, 18 Ohio, 225. Effect of judgment as evidence of indebtedness. Stiver v. Stiver, 8 Ohio, 221. Lien of decedent's debts on his real estate. Cited. Faran, Adm'r, v. Robinson et al. 252. 24. Westfall v. Dungan, 14 Ohio St. 213; Hoffman v. Gordon, 15 Ohio, 211. Presumption in favor of findings of court. Cited. Randall v. Turner, 268. 25. Howard v. Thomas, 12 Ohio St. 201. Written instrument-parol evidence. Examined. Ib. 269. 26. Davis v. Hines, 6 Ohio St. 473. considered. Cited. Ib. 270. 27. Ingerson v. Berry, 14 Ohio St. 315. 524. Validity of laws that are to Peck v. Weddell, 284, 288. Objections not assigned for error, not Contest of election, 5 Ohio St. 498, operate upon certain contingencies. 28. Dick v. The State, and Park v. The State, 3 Ohio St. 99, 101. Effect of general verdict of guilty. Cited. Barton v. The State, 18 Ohio, 221. Ver dict in larceny-value of property. Qualified. Schoonover v. The State, 299, 301. 29. Zanesville Canal and Manufacturing Co. v. City of Zanesville, 20 Ohio, 483. Meaning of "Town of Zanesville." Cited. McIntire's Adm'rs v. City of Zanesville, 362. 30. Prickett v. Parker, 3 Ohio St. 394; Curwen v. Taylor, 19 Ohio, 36; Brewster v. Benedict, 14 Ohio, 395. Ancestor. Followed. Clayton et al. v. Drake et al. 368. Cases in Ohio Reports Cited, Examined, etc. CASES IN OHIO REPORTS CITED, EXAMINED, ETC.-Continued. Effect of omitting jury in trial of con 31. Walker v. Walker, 14 Ohio St. 157. 32. Goudy v. Gebhart, 1 Ohio St. 262. Fraud may be proved by a particeps criminis to defeat a recovery. Cited. Bradford v. Beyer et al. 396. 33. Collier v. Collier, 3 Ohio St. 373. Testator not presumed to die intestate. Qualified. Gilpin and wife v. Williams et al. 412. 34 Sprague, Adm'r, v. Childs, 16 Ohio St. 116. Right to second trial. Cited Secrest et al. v. Barbee & Royston, 431. 35. Carroll v. Lessee of Olmstead, 16 Ohio, 251. Estates tail. Examined. Pollock et al. v. Speidel, 448. 36. Ide v. Churchill, 16 Ohio St. 372; Westfall v. Dugan et al., Ib. 276; Fortman v. Goepper et al., 14 Ohio St. 562; House v. Elliott, 6 Ohio St. 497; Gest v. Kenner, 7 Ohio St. 75; Erwin et al. v. Shaffer et al., 9 Ohio St. 48; The Little Miami R. R. Co. v. Allen, 12 Ohio St. 428. Review of decisions of questions of fact. Cited. Turner v. Turner et al. 451. 37. Hirn e. The State, 1 Ohio St. 461. Negative averment in an indictment. Rule approved. Stanglein v. The State, 461. 38. Hites. Enos, 13 Ohio St. 283. Stein v. Steamboat Prairie Rose, 475. 39. Larkin v. Buck, 11 Ohio St. 561. 40. Trimble v. Doty, 16 Ohio St. 118. son's Ex'r v. Robinson, 484. Former recovery. Cited. Entire contract. Cited. Ib. 476. 41. Massic's Heirs v. Donaldson, 8 Ohio, 377. Allegations of bill against infants must be proved, though admitted by guardian. Cited. Long et al. v. Mulford et a 1. 503. Cited. Reynolds v. 42. Wade v. Pett bone, 11 Ohio, 61. Equitable owner. Morris et al. 515. 43. Smith v. The State, 12 Ohio St. 466. There is no such crime known to our law, as an assault with intent to carnally know and abuse a female child under ten years of age with her consent. Cited. O'Meara v. The State, 515. 44. Loeffner v. The State, 10 Ohio St. 598; Breese v. The State, Ib. 146; Whit comb v. The State, 14 Ohio, 232. Review of fact on error in criminal cases. Cited and explained. Ib. 520. 45. O'Meara v. The State, 17 Ohio St. 525. Incapacity of female child under ten years of age, to consent to an act of carnal knowledge. Followed. Moore v. The State, 525. 46. Tabler v. Wiseman, 2 Ohio St. 212. Partition. Cited. Freeman and wife v. Allen et al. 530. 47. Perry's Lessce v. Brainard, 11 Ohio, 442. Expiration of guardianship. Cited. Favorite v. Booher's Adm'r, 555. 48. Pedan v. Robb's Adm'r, 8 Ohio, 229. Vacation of guardianship. Cited. Ib. 556. 49. Cochran et al. v. Taylor, 13 Ohio St. 385. Four years' limitation as against infant. Cited. Ib. 50. 19 Ohio, 418; 1 Ohio St. 127; 5 Ohio St. 243, 520; 8 Ohio St. 333. Assess ments for the improvement of streets or construction of roads constitutional. Cited. The State ex rel., etc. v. Comm'rs of Warren County, 562. 51. Clyde v. Simpson, 4 Ohio St. 445. Charge of legacy upon land. "Cited. Geiger v. Worth, 569. 52 The State ex rel. Goodin v. The Judges of Hamilton County, 7 Ohio, 35. Order of court, to be valid, must be entered and signed. Cited. Sheehan et al. v. Davis, 579. 53. King v. Kenney, 4 Ohio, 82. Copy of record is evidence, if record is. Cited. Ib. 580. 54. Hatch v. Barr, 1 Ohio, 390. Deeds of corporations. Cited. Ib. 581. 55. Doyle v. The State, 17 Ohio, 222. Mode of objecting to competency of jurors. Cited. Huling v. The State, 587. Challenge-Cities and Villages. CASES IN OHIO REPORTS CITED, EXAMINED, ETC.- Continued. 56. Williams v. Veach, 17 Ohio, 180; Beckwith v. Moore, 14 Ohio St. 129; Brasher v. Marsh, 15 Ohio St. 103. Mode of ascertaining testator's intention. Cited. Edwards et al. v. Rainer's Ex'rs, 603. 57. Cass Township v. Dillon, 16 Ohio St. 39. Constitutionality of local bounty acts. Approved and followed. The State ex rel. Anderson v. Harris et al. 608. 58. Lexington Ins. Co. v. Paver, 16 Ohio, 324. Crime must be proved by evidence excluding all reasonable doubt in civil as well as criminal cases. Cited, and distinguished from Strader et al. v. Mullane and Johnson, 626. 59. Gandolfo v. The State, 11 Ohio St. 114; Hollister and Smith v. Resnor, 9 Ib. 1. Alleged error must be prejudicial to plaintiff in error. Cited. Hummel v. The State, 632. 60. Coe v. The Knox County Bank et al., 10 Ohio St. 412; Coe v. Peacock, 14 Ohio St. 190; Coe v. C. P. & I. R. R. Co., 10 Ohio St. 403; Coe v. P. & I. R. R. Co., 10 Ohio St. 402. Lien and sale on execution of mortgaged property of railroad company. Examined. Lane et al. v. Baughman et al. 647. 61. Polly Gray v. The State, 4 Ohio, 353; Williams v. School Directors, Wright, 589; Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ohio, 376; Chalmers v. Stewart, 11 Ohio, 386; Lane v. Baker, 12 Ohio, 237; Stewart v. Southard, 17 Ohio, 402; Anderson v. Millikin et al., 9 Ohio St. 568. Meaning of "white male inhabitant," white male citizen," under the constitution. Cited and followed. Monroe et al. v. Collins, 685. CHALLENGE. See GRAND JURY, 2. CHAMBERS. See JURISDICTION, 1. CHARITY. See WILL, 12. CHECK แ 1. The drawer of a negotiable bank-check is not discharged from liability by the delay of the holder to make presentment and give notice of dishonor, unless he has suffered loss thereby, and then only pro tanto. If the drawee remains solvent, and the fund upon which the check is drawn is unaffected by the delay, the liability of the drawer continues, ordinarily, in full force. And a bona fide holder for value is not affected by secret equities existing between antecedent parties. Stewart v. Smith, 82. 2. Where an agent drew a post-dated negotiable check on a bank, and signed it with his own name, adding thereto the word " agent," but without indicating thereon the name of the principal, and the party to whom such check was delivered negotiated it to a third person, for a valuable consideration, before the day of its date: Held, that the principal is not bound by the check, and the holder can not maintain an action thereon against him. Anderton et al. v. Shoup, 125. CITIES AND VILLAGES 1. On the organization of a city of the second class divided into wards, the boundaries of which city are not coterminous with those of any township, the territory within such city does not cease to be a part of the township or townships within the limits of which it is situate. The State ex rel. Halsey et al. v. Ward et al. 543. 2. Under the statutes, cities of the second class are provided with assessors and supervisors of highways of their own; hence, by implication, electors of such city are not entitled to vote for those officers as oflicers of the township. Ib. 3. But in the offices of township trustees, clerk, treasurer, justice of the peace, and constables, electors and tax-payers of the city have, in some or in all respects, a like interest with electors of the townships outside the city limits, and are entitled to a vote in the choice of them. And it would seem that where the township has not been divided into election precincts, under the act of March 4, 1853 (2 S. & C. 1573), the electors of the city are en Code of Civil Procedure. CITIES AND VILLAGES-Continued. titled to vote for the township officers last above named only at the general township polls of the township in which they respectively reside; and in cases where the township has been divided into precincts covering territory within the city limits, the electors of the city are entitled to vote for the officers last aforesaid only at the township poll of the precinct in which they respectively reside. Ib. 4. Under the act above referred to, county commissioners have power to so subdivide a township into election precincts that the boundaries of the precinct shall correspond with those of the wards of a city within the limits of a township; and this, in quo warranto, will be presumed to have been done when nothing appears to the contrary, and it appears that the votes of city electors were cast for township trustees within the respective wards "at the places properly fixed and designated for holding said elec tion." Ib. CODE OF CIVIL PROCEDURE— 1. The provision of the code, that if no objection be taken on account of de fect of parties the defendant will be deemed to have waived the same, applies, by analogy, to proceedings in error. Cairnes v. Knight, Ex'r, 68. 2. In an action under section 557 of the code, by a party claiming the legal title and possession of real property, to determine the interest of a party claiming an estate therein adverse to him, and to enjoin such party from committing irreparable injury to the property by cutting timber thereonthere being no issue of fact arising in the pleadings “for the recovery of money, or of specific real or personal property"-neither party has a right, under section 263 of the code, to demand a trial by jury; but the issues are properly triable to the court, although the location of the boundary line between the adjoining lands of the respective parties is the matter in dispute. Ellithorpe v. Buck et al. 72. 3. Where, under the first clause of section 360 of the code, the plaintiff moves the court to compel the defendant to produce at the trial a writing claimed to be in his possession or power; and there is no admission, by the defendant in his pleadings, of the possession or control of such writing by him; and the defendant, by his affidavit submitted in response to the motion, de nies alike the existence, and his possession and control of such writing: it is error for the court to assume to decide in favor of the plaintiff, upon affidavits, the question of fact thus made, and thereupon to render judg ment as by default against the defendant. On the coming in of the defendant's affidavit aforesaid, the court ought to overrule the plaintiff's motion, and leave him to the resources afforded by the ordinary rules of evidence. Baggott v. Goodwin, 76. 4. Case in which the execution creditor was substantially substituted as the defendant instead of the constable, within the meaning of section 44 of the code. Leslie et al. v. Eastman, 158. 5. The service of a summons on the return day is not void, but only voidable; and if such service is, on motion of the defendant, set aside, the plaintiff may, under section 23 of the code, within the time therein limited, bring his action anew, notwithstanding the time allowed for commencing the ac tion may have expired between the time of instituting proceedings and the time of setting aside the service. Meisse v. McCoy's Adm'r, 225. 6. Section 100. Sufficiency of an answer of a guardian ad litem in Randall v. Turner, 270. 7. A decree against an infant may be impeached for error by original bill; and what would have been a good cause of action in an original bill, is a good cause of action under the code. Long et al. v. Mulford et al. 485. 8 The plaintiff, who was defendant in the original action, is a foreign cor poration, and the principal ground of error relied upon is the alleged in sufficiency of the service of the original summons. At the time of service, the company had a general “superintendent" for the state, residing at |