BAR-

Bar-Bills of Exchange and Promissory Notes.

1. A judgment in favor of the defendant heretofore rendered by the district
court of Hamilton county, upon an information in the nature of a quo war-
ranto, filed by the prosecuting attorney of that county, upon an individual
relation, is not a bar to a subsequent information of a similar character,
filed by the attorney-general, in the exercise of the discretion given him
by statute. The State, ex rel., etc. v. The Cincinnati Gas Light and Coke
Co. 262.

2. The use of the streets, etc., for the purpose of laying gas-pipes therein, by
the defendant, for twenty years prior to the filing of an information in quo
warranto, does not bar an inquiry into the right of the defendant to their
exclusive use. It is not inconsistent with the use of unoccupied portions
of the same streets by others for a like purpose; and the fact that others
have not so used the streets, does not make defendant's user the exercise of
a right to exclude others. Ib.

BIDDER. See MANDAMUS.

BILL OF EXCEPTIONS-

1. The only question made in the case is, whether the court erred in the find-
ing that the plaintiff had no authority to make the contract sued upon.
The bill of exceptions is insufficient to raise that question. It only sets
forth the evidence tending to prove the authority, and does not show
whether there was or was not evidence tending to its disproof. Farmers'
College v. Butler, 418.

2. In a prosecution under the code of criminal procedure, a judgment will
not be reversed, for error in overruling a motion for a new trial, on the
ground that the verdict is not sustained by sufficient evidence, unless the
record shows affirmatively that all the evidence is set forth in the bill of
exceptions. Cantwell v. The State, 477.

BILLS OF EXCHANGE AND PROMISSORY NOTES-

1. Where subscribers to the stock of a railroad company had given their notes
for the amounts of subscription, payable when the road should be completed,
but were subsequently induced to take up these notes, and to give new
ones, payable in four years, in order to enable the company to carry out a
contract for the completion of the road, and upon the confident but honest
expression of opinion by its officers, that if they would do so, the road would
be completed under such contract in less than four years: Held, that,
although the said contract for building the road was afterward, and before
anything had been done under it, abandoned by the contractor, and the
road has never been completed, yet the subscribers are liable upon their
said new notes. Four Mile Valley R. R. Co. v. Bailey, 208.

2. An accommodation drawer of a bill of exchange made payable to a
particular bank, for the purpose of being discounted by the bank named,
can not be held liable on the bill to a third person, who, after discount by
the bank had been refused, took the bill from the principal for value; nor
can he be held liable to the bank, where it subsequently discounts the bill
for such third person, with notice of the suretyship of the drawer. Knox
County Bank . Lloyd's Adm'rs, 353.

3. Where it is sought to charge a party as drawer of a bill of exchange, the
facts above stated constitute new matter, and to be made available to effect
his discharge from liability, ought to be pleaded. Ib.

4. In a suit brought by the holder of a promissory note against its indorser,
it is not necessary that the petition should, in terms, state that the note
was transferred for a valuable consideration. This is presumed from the
indorsement and delivery, and the want of consideration is matter of de-
fense, to be set up by answer. Dumont v. Williamson, 515.

5. The vendor of a promissory note who transfers it by indorsement impliedly
warrants that the signatures of the prior parties whose names appear

Bond-Cases in Ohio Reports Cited, Examined, etc.

BILLS OF EXCHANGE AND PROMISSORY NOTES- Continued.

thereon are genuine, notwithstanding the indorsement is expressed to be without recourse on him. Ib.

BOND. See ESTOPPEL, 1; ILLEGAL BOND; OFFICIAL BOND.

BOUNDARY. See MILL-DAM.

CANAL AND CANAL COMPANY. See RAILROADS AND RAILROAD COM. PANIES, 2-7, 9-12, 19.

CARE. See NEGLIGENCE.

CASES IN OHIO REPORTS CITED, EXAMINED, ETC.-
1. Miers et al. v. Z. & M. Turnpike Co., 13 Ohio, 197.
Dunbar v. Harrison et al. 38.

Creditor's lien. Cited.

2. Gliden, Murphin & Co. v. Taylor, 16 Ohio St. 517; Walden v. Walden, 7 Ohio St. 30. Wife's separate property. Cited. Quigley v. Graham, 45. 3. Treadwell v. Commissioners, 11 Ohio St. 190. Board of county commissioners their powers. Cited. Comm'rs of Delaware County v. Andrews, 64. 4. Evarts v. Adi'r of Strode et al., 11 Ohio, 480; Clayton and wife v. Freet et al., 10 Ohio St. 544. Mistake ground of relief in equity. Cited. Thompson v. Thompson, 83.

5. Sargent v. The State, 11 Ohio, 472; The State v. Engles, 13 Ohio, 490; Davis v. The State, 15 Ohio, 72. Separation of jury. Cited. Parker v. The State, 90.

6. Junction Railroad Co. v. Ruggles, 7 Ohio St. 1. Abandonment a question of intention. Cited. Hatch v. C. & I. R. R. Co. 121.

7. Jackson v. Jackson, 16 Ohio St. 16. Inconvenience in matter of ordinary travel. Cited. Ib. 123.

8. Crawford v. Delware, 7 Ohio St. 459. etc. Cited. Ib.

Change of grade of street-damage,

9. Gandolfo v. The State, 11 Ohio St. 114.

Exclusion of evidence merely

cumulative not prejudicial, etc. Cited. Whitman v. Keith, 149.

10. Chapman & Harkness v. Railroad Cos., 6 junction a@corded only to the vigilant, etc. Canal Co. 180.

Ohio St. 136. Remedy by in-
Followed. Goodin v. C. & W.

11. Armstrong v. Katterhorn, 11 Ohio, 265. Parol agreement-possession. Followed and approved. Crawford & Murray v. Wick, 190, 202.

12 Williams v. First Presbyterian Society, etc., 1 Ohio St. 478; Le Clercq v. Gallipolis, 7 Ohio (pt. 1), 217. Dedication to public use-reversion, etc. Cited. Board of Education v. Edson, 225, 226.

13. Hill v. Higdon, 5 Ohio St. 243; Reeves v. The Treasurer of Wood County, 8 Ohio, 333; Baker v. The City of Cincinnati, 11 Ohio St. 534. Levying taxes for general revenue, etc. Cited. Cincinnati Gas Light and Coke Co. v. The State, 242.

14. McAfferty v. Conover's Lessee, 7 Ohio St. 99. Nye, Benner & Co. v. Denny, 254.

15. C. C. & C. R. R. Co. v. Terry, 8 Ohio St. 570.

Estoppel in pais. Cited.

Degree of care required,

etc. Cited. Pendleton Street R. R. Co. v. Shires, 261. 16. Granville Alexandrian Society case, 11 Ohio, 8. Practice in quo warranto. Cited. The State, ex rel., etc. v. Cincinnati Gas Light and Cɔke Co. 285.

17. Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer, 8 Ohio St. 333; Zanesville v. Richards, 5 Ohio St. 589; 18 Ohio, 518; 1 Ohio St. 127. Power of local assessment. Cited. City of Cleveland v. Wick, 308. 18. Lessee of Little et al. v. Lake et al., 8 Ohio, 290. Distinction between heirs by right of blood and heirs by statute. Cited. Brower v. Hunt, 335. 19. Dutoit v. Doyle, 16 Ohio St. 405. Revision of statutes-change of con struction, etc. Cited. Ib. 338.

20. Brewster v. Benedict, 14 Ohio, 385; Penn v. Cox, 16 Ohio, 31; Birney v. Wilson et al., 11 Ohio St. 427. Devise or deed of gift from stranger, etc. OCited. lb. 341.

Challenge-Cities and Villages.

CASES IN OHIO REPORTS CITED, EXAMINED, ETC.- - Continued.

21. Clinton Bank v. Ayres & Neil, 16 Ohio, 282. When a surety is discharged.
Cited and followed. Knox County Bank v. Lloyd's Adm'rs, 362.

22. Sasser v. The State, 13 Ohio, 453; Reed v. The State, 15 Ohio, 217. Proof
of corporate existence. Followed. Calkins v. The State, 369.
23. Fike v. France, 12 Ohio St. 624. Offer to compromise, how to be made,
etc. Cited. Armstrong v. Spears, 375.

24. Brush v. Kinsley, 14 Ohio, 20. Rights of vendor and purchaser, etc.
Cited. McCombs v. Howard et al. 436.

25. Doyle v. The State, 17 Ohio, 225; Williams v. The State, 12 Ohio St. 222;
Goodwin v. The State, 16 Ohio St. 345. No waiver of statutory requisi
tions in criminal cases. Cited. Cantwell v. The State, 481.

26. Secrist v. Barbee and Royston, 17 Ohio St. 425. Undertaking for second
trial. Cited. Harter v. Morris, 496.

27. Nolan v. The State, 19 Ohio, 131; Allen v. The State, 10 Ohio St. 287.
Aiders and abettors are guilty of substantive crime, etc. Followed. Brown
v. The State, 508.

28. Allen v. The State, 10 Ohio St. 287. Separate trial of one jointly indicted
with another, etc. Cited. Ib. 509

29. The cases of Thompson v. The Steamer J. D. Morton, 2 Ohio St. 26,
and Keating v. Spink, 3 Ohio St. 105, arose under the act of Congress of
February 26, 1845. Steamboat General Buell v. Long, 528.
CHALLENGE. See PRACTICE IN CRIMINAL CASES, 9.

CHILD. See NEGLIGENCE, 5, 6.

CINCINNATI. See CITIES AND VILLAGES, 3-9, 14-17; QUO WARRANTO, 1, 2.
CITIES AND VILLAGES-

1. In the act of April 5, 1866 (63 Ohio L. 133), it is provided that when it
shall be deemed necessary by the council of any city embraced in that act,
to make the improvements therein mentioned, it shall be the duty of the
council to declare by resolution the necessity of such improvement, which
resolution shall be published as specified in the act, briefly describing the
character of such improvement, and referring to the plans, etc. The act
further provides that persons claiming damages on account of the proposed
improvement must file their claims with the city clerk within two weeks
after the publication is completed, or be taken to have waived them; and
that "it shall then be lawful for the city council, in their discretion, to pro-
vide by ordinance for such" improvements. Held, that the adoption of
the resolution declaring the improvements necessary, and the publication
of the same, as required in the act, are conditions precedent to the exercise
of the authority to pass a valid ordinance for the improvements, or make
an assessment on the adjoining property to pay for them. 2. The failure
to comply with such precedent conditions is not merely an irregularity or
defect in the proceedings, provided for in the curative portion of the act.
The irregularity or defect thus provided for is such as occurs in the exercise
of lawful authority by the council. Welker v. Potter, 85.
2. An act of the general assembly that operates only upon all cities in the
state of the first class, having, at the last Federal census, less than one
hundred thousand inhabitants, does not contravene section 26 of article 2
of the constitution, which requires all laws of a general nature to have a
uniform operation throughout the state. Ib.

3. The incorporated village of Van Wert was laid out in 1835, and the pro-
prietors, by plat duly acknowledged and recorded, dedicated two specified
lots therein "for school purposes, and on which to erect school-houses,'
By reason of the subsequent construction and continued operation of a
railroad, and the location of a depot in connection therewith, in close prox
imity to these lots, they were rendered unsuitable to be used as sites for
school-houses, and their use for that purpose became dangerous. A perition
was filed by the board of education of the incorporated village, praying,

Cities and Villages.

CITIES AND VILLAGES-Continued.

for the reason aforesaid, that the court of common pleas might order the lots to be sold, and the proceeds of sale to be applied to the purchase of suitable school-house sites, or to the erection of school-houses on suitable grounds to be procured by the board. Upon demurrer to the petition: Held, 1. That the dedication was for a specific use, and conferred no power of alienation so as to extinguish the use. 2. That if the use created by the dedication were abandoned, or should become impossible of execution, the premises would revert to the dedicators or their representatives, and that, without their consent, they could not be divested of their contingent right of reversion by an absolute alienation. 3. The principle upon which a trust may, under certain circumstances be, executed cy pres is not applicable to such a case. Board of Education v. Edson, 221.

4. The city council of the city of Cincinnati could not, without clear legisla tive authority, grant to any person or corporation an exclusive right to use the streets and alleys of the city for the purpose of laying down pipes for conveying gas to be used in lighting the city, for a term of twenty-five years, and thereafter, until the gas-works, pipes, fixtures, etc., of the grantee should be purchased by the city. To enable the city council to grant such an exclusive right, by ordinance in the nature of a contract, the power must be shown to have been expressly granted, or to be so far necessary to the proper execution of the powers which are expressly granted, as to make its existence free from doubt. No such grant of power to the city council is to be found either in the city charter of March 1, 1834 (32 Ohio L. L. 244), or in section 3 of the amendatory act of March 16, 1839. (37 Ohio L. L. 297.) The right to such use of the public streets of a city is a franchise, and must emanate, either directly or indirectly, from the legislature. The State, ex rel., etc. v. Cincinnati Gas Light and Coke Co. 262. 5. The use of the streets, etc., for the purpose aforesaid, by the defendant, for twenty years prior to the filing of the information, does not bar an inquiry into the right of the defendant to their exclusive use. It is not inconsistent with the use of unoccupied portions of the same streets by others for a like purpose; and the fact that others have not so used the streets does not make defendant's user the exercise of a right to exclude others. Ib.

6. In the enactment of sections 30, 31, and 32 of the act of March 11, 1853 (S. & C. 1534), which empowers city councils to regulate, by ordinance, from time to time, the price to be charged by gas-light, or gas-light and coke companies, for gas furnished by them, and also in the supplementary act of April 5, 1854 (S. & C. 1537), there is no evidence of an intention to exempt the defendant from the operation of those statutory provisions. And as the power to alter, modify, or repeal defendant's charter was expressly reserved therein, it was competent for the legislature to subject the defendant to such supervision and limitation of price. Ib. 263. 7. An ordinance of the city council, duly passed pursuant to the power given' as above, and fixing the maximum price to be charged by defendant for gas, for the period of one year from its date, is obligatory upon the defendant; and disobedience to its requirements can not be justified by the fact that by a decree of the circuit court of the United States within and for the Southern District of Ohio, in a case in which one S. D. was complainant, and the defendant and the city of Cincinnati were defendants, the present defendant was and still is enjoined from obeying such ordinance. The state was no party to that suit, and her right to assert the validity of the ordinance in a prosecution like the present, is unaffected by the decree rendered therein. Ib.

8. The supplementary act of 1854, before referred to, did not so modify the power given to the city council by the act of 1853, to regulate the price of gas, as to make the assent of the defendant necessary in order to give validity and effect to an ordinance passed for that purpose. Such assent, when prop

Cities and Villages.

CITIES AND VILLAGES-Continued.

erly evidenced, would give to the ordinance the character of a contract, and put an end to the power of the council to lower the price of gas during the time specified in the ordinance. But without such assent, the power to regulate prices from time to time would remain in full force. Ib. 9. The intention of the legislature in empowering city councils to regulate the price of gas, was to limit incorporated gas companies to fair and reasonable prices for the gas which they might furnish for public or private use. This discretionary power of regulation might have been vested elsewhere; but wherever vested, it must be exercised in good faith, for the purpose for which it was given. If, in the colorable exercise of this power, a majority of the members of the council, for a fraudulent purpose, combine to pass an ordinance fixing the price of gas at a rate which they well know it can not be manufactured and sold without loss, such an ordinance, so fraudulently passed, would impose no obligations on the gas company intended to be affected thereby. And in a proceeding like the present the good faith of the members of the city council who passed the ordinance may be inquired into. lb.

10. An assessment upon lands fronting on a street, to reimburse the amount of compensation paid the owner for his other land taken for the use of the street, is authorized by the statute (S. & S. 834, sec. 1), and is not in violation of the constitutional provision which guarantees to owners of land so taken, a full compensation" without deduction for benefits." City of Cleve land v. Wick, 303.

11. Under the municipal corporation act of 1852, as amended March 11, 1853, a city by ordinance determined to improve certain streets and to assess the expenses upon the abutting lots. A contractor agreed in writing to do the work, the city binding itself to pay him therefor certain specified prices "in the following manner." The contract then recited that when the work was done, the amount should be assessed by the city and the assessment assigned to the contractor. Held, that the city was not liable for any deficiency resulting from the fact that the assessment upon some of the lots exceeded their value. Creighton v. City of Toledo, 447.

12. Contracts by a city council to the effect that the stipulated price of work to be performed in the improvement of streets, etc., shall be paid for by assessing the amount upon the abutting lots, and assigning the assessment 'to the contractor, without recourse by him upon the city for any excess of the assessment above fifty per centum upon each lot, the maximum allowed by statute (vol. 63, p. 22, sec. 2), are an evasion of that statute, and in violation of the rights of lot-owners not so over-assessed; the effect of such contracts being to swell and render nominal the price of the work, and thus to cast upon such owners a burden which the statute declares shall fall upon the city. Welker v. City of Toledo, 452.

13. In such cases, however, the contractor himself can not, in violation of his own contract, recover the excess from the city. Ib.

14. The general power conferred upon cities to establish and regulate markets and market-places, is a continuing power; and its exercise at one period by establishing a market-place and erecting a market-house in a particular locality, will not prevent the city council from removing such building, or abandoning such locality for market purposes. Gall et al. v. Cincinnati et

al. 562.

15. An order for such removal or abandonment by the city, in the reasonable exercise of the discretion vested in it by law, constitutes no ground for taxpayers as such to prevent by injunction the execution of such order. Ib. 16. Where a municipal corporation acquired real estate by absolute title in fee, the fact that the property was purchased for the purpose of establishing a market-space, and of erecting thereon a market-house, and the further fact that the property was accordingly so used, will not make it trust property to be used only for market purposes. Ib. 563.