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the act of 1874 (71 Obio L. 85), passed since its incorporation,, to construct and maintain cattle-guards al places on its road where public highways aro or may be constructed across its track, is not entitled to compensation for making or maintaining such cattle-guards.

Judgment affirmed.

89. Joseph G. Gibbons et al v. Catholic Iustitute of Cincinnati. Error to the Superior Court of Cincinuati. Judgment affirmed. There will be no further report.

141. John C. Schnell v. J. Freeman Going. Error to the District Court of lIamilton County. Dismissed by plaintiff in error and at his cost.

1007. Merchants' Mutual Fire Ins. Co. v. August Gereke. Error to the District Court of Clermont County. Dismissed by agreement of parties, at the cost of plaintiff in error, as per papers on file.

MOTION DOCKET. No. 31. John T. Wilson v. Harvey Conner, Treasurer, &c. Motion to take cause No. 627 on the General Docket out of its order for hearing. Motion overruled.

71. Waldemir Otis v. Euclid Avenue Opera House. Motion to extend time for filing printed record in cause No. 1064 on the General Docket. Motion granted.

72. James T. Black et al. v. Asa Davis et al. Motion for stay of execution in cause No. 1035 on the General Docket. Motion granted, staying further proceedings in the court below when the plaintiffs in error give an Wdertaking to be approved by the Court of Coninion Pleas of Franklin County in the sum of $2.000, conditioned for the payment of the damages which said Asa Davis shall sustain by reason of the delay, and costs, in 'case the judgment of the district court shall be affirmed.

73. Henry P. Sabbert v. Antonius Zeivernick. Motion for leave to re-instate cause No. 994, on the General Docket, heretofore dismissed upon motion No. 58 for want of printed record. Motion overruled and former order modified so as to direct that the petition in error in said cause No. 994 be stricken from the tiles as improvidently filed without also tiling therewith the original papers, bill of exceptions, and transcript of journal entries in the cause.

74. Sarah K. Miller v. Wm. P. Hurlburt, Executor, &c. Motions to file petitions in error and to tile crosspetitions in error to Superior Court of Cincinnati. Motions overruled.

75. Nancy Pepple et al. v. Franklin Pierce et al. Motion for an order staying execution in cause No. 1133 on the General Docket. Motion granted, and undertaking fixed $600.

76. Josephus Martin et al. v. Orson Lapbam et al. Motion to advance cause No. 747 to its original position on the General Docket. Motion granted.

77. Nelson B. Stone et al. v. Henry C. Veile, Treasarer. Motion to take cause No. 1138 on the General Docket out of its order. Motion granted.

78. William F. Brown v. The State of Ohio. Motion for leave to file a petition in error to reverse the judgment of the District Court of Ashtabula County. Motion granted.

79. The State ex rel. Daniel Roth v. Wm. Rebbett, Treasuror of Crawford County. Application for mandamus. Motion to take out of order for hearing. Motion granted and cause set for hearing May 23, 1882.

80." The State ex rel. Daniel Roth v. Frederick Hipp, Probate Judge of Crawford County. Application for mandamus. Motion to take out of order for hearing. Motion granted and cause set for hearing May 23, 1882.

81. J. Addison Tenney et al v. Robert V. Pearson. Motion to dismiss cause No. 887, on the General Docket, for want of printing within rules. Motion overruled.

A. B. & H. M. Johnson, administrators &c. v. L. .Connoble et al. Motion for order of revivor in cause No. 1081, on the Gengral Docket, one of the defendants in error, Thomas R. Little, having died and Joseph N. Dean having been appointed administrator. Motion granted.

SUPREME COURT RECORD.

ett & Dellenbaugh for plaintiff; W. S. Kerruish for defendant.

1137. Robert C. Lindsay v. The State of Ohio. Error to the Court of Common Pleas of Jefferson County. Ong & Mansfield and J. F. Daton for plaintiff; W. 8. Bliss, Harris & Cook and General Nash for defendant.

1138. Nelson B. Stone et al. v. Henry C. Viele, Treasurer &c. Error to the District Court of Summit County. Hall, Watters & Stuart for plaintiffs; C. S. Cobbs and Ě. P. Green for defendant.

1139. Perry D. Veach v. Noah Karr et al. Error to the District Court of Perry County. P. D. Veach for plaintiif.

1140. Augustus Wilhelmi et al. v. The Michigan Mutual Life Insurance Co. et al. Error to the District Court of Guernsey County. Ferguson & Ferguson for plaintiffs; Taylor & Anderson for defendants.

1141. Nicholas Wagner et al v. Jobn F. Freeman. Er. ror to the District Court of Cuyaboga County. Jackson & Athey for plaintiffs; W. S. Kerruish for defendant.

1142. William McGuire v. The State of Ohio, Error to the District Court of Paulding, County. W. J. Beers for plaiutitt; General Geo. K. Nash for the State.

1143. Patrick Kelley v. The State of Ohio. Error to the District Court of Paulding County. W. J. Beers for plaintifts; General Gev. K. Nash for defendant.

1144. Philo Tilden v. S. O. Edison et al. Error to the District Court of Lorain County. Johnston & Leonard for plaintiff; P. H. Boynton for defendants.

1145. Morgan, Root & Co. v. Joseph B. Miller. Error to the District Court of Medina County. Bostwick & Barnard and Estep & Squire for plaintiffs.

1146. Francis McBride et al. v, Priscilla Morrow, Er. ror to the District Court of Carroll County. Hays & Black for defendant,

1147. John Spayth v. Commercial Bank of Tiffin, Error to the District Court of Seneca County. George E. Seney for plaintiff; Lutes & Lutes for defendant.

1148. Alfred G. Sneath v. Edward McCarty et al. Error to the District Court of Seneca County. George E. Seney for plaintiff; Lutes & Lutes for defendants.

1149. Eliza Dillenbach v. City of Xenia. Error to the District Court of Greene County. F. P. Cunninghanı for plaintiff.

1150. Jesse Kepner v. Mary Graham. Error to the District Court of Columbiană CountyW. A. Nichols and W. J. Jordan for plaintiff; J. W. & H. Morrison for defendant.

1151. Diantha Richards et al. v. Nancy May et al. Error to the District Court of Sandusky County, Bucklands & Zeigler for plaintiffs; Lemmon, Finch & Lemmon for defendants.

1152. Henrietta E. Armstrong v. Simon Garrett et al. Error to the District Court of Franklin County. R. D. Robinson for plaintiff; Lorenzo English and Jones & Jones for defendants.

1153. Jackson Holloway v. J. H. Bertram. Error to the District Court of Darke Couuty. Riffel, Otwell & Clark for plaintiffs.

1154. W. J. Kelley et al. v. The Woodstock Bank. Error to the District Court of Darke County. Riffel, Otwell & Clark for plaintiffs.

1155. William F. Brown v. The State of Ohio. Error to the District Court of Ashtabula County. Leonard, Cushing & Ruggles for plaintiff; General Nash for the State.

1156. Mark Bloomingdale v. S. Stein & Co. Error to the District Court of Franklin County. J. H. Bowman and 0. W. Aldrich for plaintiff.

SUPREME COURT ASSIGNMENT.

[New cases filed since last report, up to May 9, 1882.]

FOR ORAL ARGUMENT, May 11th-No. 1067. Wm, McHugh v. The State of Ohio.

May 24th-No. 1117. Charles Stoddard v. The State of Ohio. No. 1118. Jacob Ridenour v The State of Ohio.

May 25th-No. 111. Bundy v. Ophir Iron Co. No. 112 Simpson et al. v. Greenfield Building and Savings Association,

May 26th-No 114. Coffin v. The Greenlees and Ran. som Co.

1135. James T. Black et al. v. Asa Davis et al. Error to the District Court of Franklin County. P. B. Case and H. J. Booth for plaintiffs.

1136. Charles T. Norton v. Tabitha Dupp. Error to the District Court of Cuyahoga County. Gary, Ever

Ohio Law Journal.

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morbidly, foolishly and sensitively jealous of all created beings. We made personal mention of

a few excellent gentlemen who called in to see COLUMBUS, OHIO,

MAY 18, 1882. us and wish us success in the infancy of our un

dertaking—the Ohio LAW JOURNAL—but we The following is a summ y of the work done were obliged to quit it. So many of those who by the Supreme Court of the United States dur- did not get in to see us and get a notice in our ing the term just closed.

paper, got mad and discontinued, that we began Number of cases on the docket at the close of to fear the entire brotherhood would forsake us the October term of 1880 (May 2, 1881), 837;

if we did not forego the personals. Of course all number of cases filed since, 399; number if cases

the better class of lawyers were above such petty argued orally, 178; number of cases submitted, jealousy, but we can name a great many who 92; number of cases continued, 27; number of could not endure the sight of the name of a rival cases passed, 18; number of cases disposed of, 399, lawyer in print, and a well meant personalas follows: Affirmed, 161; reversed, 88; dis

harmless and well deserved—was like a red rag missed, 30; settled and dismissed, &c., by the

to a bull, and the bulls bellowed terribly, parties, 88; docketed and dismissed, 22 ; ques- We therefore say, drop the picture business. tions answered, 2; disniissed in vacation, 8; total, 399; number of original actions on the docket at the close of October term of 1880 (May

THE AMERICAN DECISIONS. 2, 1881 ), 6; number filed since, 12; number ar

Volume 32 of this valuable series has been regued orally, 10; number submitted, 5; number disposed of, 13.

ceived from the publishers, Messrs. A. L. Ban

croft & Co., San Francisco, California. NEW PUBLICATIONS.

The cases re-reported are the leading cases de

cided in 1837-8-9 and 1840, in all the then orWe have received the first and second num- ganized States, and which are still cited as unbers of a new legal periodical entitled, “The questioned authority by law writers, and recogJournal of Banking Law," published in New nized as such by all courts. York, with George H. Stever, Esq., as Editor.

All the authorities upon the questions inIt is announced as a Quarterly magazine, De

volved, running down to the present time, are voted to reporting Legal Decisions upon Bank

collected and systematically set forth in appending and Financial cases, and is a publication

ed notes to various cases as follows: that will be welcomed to the ranks of periodicals as a specialty in an entirely new field of

Unlauful Gaming;(State v. Smith, Meigs R., 99), profit and usefulness. Each number contains

pages 132-140. over one hundred pages and several hundred Liability of Infants for their Torts ; (Humphrey v. well digested cases printed in exceptionally Douglas, 10 Vt. 71), pages 177-185. good style, on good paper and in clear, beautiful Probate of Wills when void for want of jurisdiction; type. The terms are $5.00 per annum, and the (Fisher v. Bassett, 9 Leigh 119), pages 227–243. address of the publisher is Francis E. Fitch, 75

AlluvionTitle to; (Hagan v. Campbell, 8 PorFulton St. New York City

ter 9), pages 267–281. The Teens L: Journal has been purchased by

Power of Court to issue Mandamus against GovMuir & Armstrong, and transplanted to Austin,

error; (Hawkins v. Governor, 1 Ark. 570), pages Texas, from Tyler, Texas, and will be hereafter

346-368. The Terax Law Reporter. The first number of the new publication is in book form and contains a

Levy necessary to sustain Sale; (Walters 2. Du portrait of llon. Royall T. Wheeler, which we

vall, 11 G. & J. 37), 693-670. presume is a fair likeness of a worthy man. Voilable Sale--Reclamation of Goods; (Thuriton While we wish the publishers all kinds of good 0. Blanchard, 22 Pick. 18), 700-711. fortune and success, we are constrained to ven- These are but he most extensive collection of ture a word of advice and warning. Drop the authorities. There are very many more fully as portrait business Brother Muir. Lawyers, al- valuable cases and notes which are in keeping though the best men in the world, are the most with the plan and scope of this great work.

SURETY-STAY OF EXECUTION-EXTEN- When the stay expired, plaintiff caused exe SION OF TIME.

cution to issue against all the defendants to the

judgment, and for want of property of Brown to SUPREME COURT OF OHIO.

satisfy the same, the constable seized and was

about to sell the property of Jenkins, to save GEORGE W. BOLING

which, he paid to the constable $138.45, being

the judgment with interest and costs on the ANDREW J. YOUNG.

writ. He immediately brought suit in the

Knox Common Pleas against Young to recover

May 9th, 1882. back the same, on the ground that he had been 1. A surety on a judgment is discharged from liabil- discharged from all liability on the judgment, by ity thereon, by a valid contract for an extension of time the acts of Young and Brown, as before stated, for the payment thereof, made by the judgment creditor with the principal judgment debtor, without the knowl

and such proceedings were had that he recoverd edge or consent of the surety.

a judgment against Young, for the amount he 2. An undertaking for stay of execution of a judgment had paid the constable, with interest, and $10.20 on the docket of a justice of the peace, executed after the time allowed by law, in pursuance of an agreement of the

costs, making an aggregate of $154.41. parties is valid as a common law contract, if supported by a Young now seeks to recover this amount with suficient consideration, though it may not be effective interest, from the time judgment was rendered as a statutory undertaking. 3. Une who executes such an undertaking at the instanco

against him in favor of Jenkins. of the principal judgment debtor, without the knowledge Upon this state of facts the common pleas held or consent of the sureties thereon, knowing that they are there was no cause of action. The district court such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby

reversed this holding, and the case is here to rereleased from liability.

view the decision of the latter court. 4. Where, after stay of execution has expired on such JOHNSON, J. a judgment, a surety, who has been thus released, is com

More than ten days had elapsed after the judgpelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them

ment against Brown and Jenkins had been renon execution issued on said judgment, he may recover dered, before this undertaking for stay of exeback from the judgment creditor the amount so paid.

cution was given by Boling. It was done withSuch compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, out the knowledge or assent of Jenkins, who after recovery back against him, maintain an action on was known to Boling and Young as surety only, the undertaking, if the principal makes default.

and with the permission and consent of Young, Error to the District Court of Knox County. the judgment creditor, at the request of Brown,

The question involved arises on a demurrer the principal to the judgment. to an amended petition of defendant in error. If the same effect is to be given to this under

It is alleged by Young that on the 24th of taking, as if given within the ten days allowed April, 1874, he commenced an action before a by law for entering stay, then it follows, that, as justice of the peace, on a promissory note against between Boling, and Jenkins who was surety, Joseph Brown, principal, and, Joseph Jenkins only, the former was primarily liable on the and William King, sureties, and on the 2nd of judgment, the assent of the latter to giving such May, 1874, recovered a judgment thereon against undertaking being wanting. S. & S. 424. R. Brown and Jenkins for $108.75. The case was S. 6654. continued as to King until May 9th, 1874, when If this undertaking be regarded as a statutory a like judgment for the same amount was ren- obligation, then in case of compulsory payment dered against King:

of the judgment by Jenkins, he could have On the 18th of May, the plaintiff consented maintained an action, on the undertaking, by that Brown might stay the execution. Accord- reason of this primary liability of Boling. ingly he, without the knowledge or consent of The compulsory payment by Jenkins would Jenkins or King, procured Boling, the plaintiff not be a satisfaction of the condition of the stay in error, to execute the following undertaking: bail. It was so held in Dernier v. Jenkins, 20

I, G. W. Boling, resident of Knox County, as 0. St. 336. surety for stay of execution in the above cause of For equally cogent reasons, Jenkins had a Andrew Young against Jos. Brown, James Jen- right of action against Young, the judgment: kins and William King, do undertake to said creditor, to recover back the amount he was plaintiff that in default of payment by defend- compelled to pay to release his property. As to ants, I will pay the judgment, with interest and

Young, the compulsory payment was not a satcosts, and costs that may accrue.

isfaction of the judgment in his favor.

G. W. BOLING. But the undertaking was given after the time Approved by me and signed before me, this had elapsed, within which it could be taken. 18th day of May, A. D., 1874.

It was competent, however, for the parties to B. A. F. GREER, secure the extension of time for payment by a

Justice of the peace. contract valid at common law. If supported by Bail allowed by order of plaintiff

.

& sufficient consideraton, such a contract is muBoling executed this undertaking at the sole re- tually binding on the parties to it. quest of Brown, with full knowledge that Jen- In legal effect, Boling promised to become kins and King were sureties only, and after be- surety for the payment of this judgment if ing indemnified for so doing by Brown.

Young would wait eight months. Young agreed

v.

error.

to this and fully performed the promise on his

RAILROAD--CATTLE-GUARDS. part. Boling was therefore liable on this undertak

SUPREME COURT OF OHIO. ing as a common law contract unless he was discharged by the payment by Jenkins, under com

THE LAKE SHORE AND MICHIGAN SOUTHERN pulsory process to save his property. Duch wall

RAILWAY COMPANY 0. Rogers, 15 Ohio St. 544. It was a binding contract, between Young, as

Milo SHARPE AND JOSHUA M. NETTLETON. judgment creditor, and Brown, the principal debtor and Boling as his surety, that if Young

May 9th, 1882. would extend the time of payment eight months,

A railroad company exercising its powers subject to

the provisions of the present constitution, and required by Boling would pay the judgment in default of the act of 1874 (71 Ohio L. 85), passed since its incorporapayment by his principal.

tion, to construct and maintain cattle-guards al places

on its road where public highways are or may be conAs Jenkins, the surety in the judgment, was structed across its irack, is not entitled to compensation not a party to this contract, and did not assent for making or maintaining such cattle-guards. to it, he was discharged from all liability. Error to the District Court of Ashtabula Blazer, Corwin, Gregg & Co. v. Bundy, 15 ó. County. St. 57.

James Mason, Ashley Pond, Cyrus. D. Roys, It remains to inquire, what was the effect of and 0. G. Getzen--Danner, for the plaintiff in the compulsory payment by Jenkins ? It is claimed that this payment satisfied the

71 Ohio L. 86; Const. Art. 1, sec. 19; Railroad judgment, and therefore the condition of the un- Co. v. Bloomington, 76 Ill. 447; Stats. of Ill. dertaking was not broken.

Ed. of 1880, 1152; Railway Co. v. Maurer, That condition was, that in default of pay

21 Ohio St. 421; Potter v. Bunnell, 20 Ohio St. ment of the judgment by defendants, he would

150; Ferris v. Bramble, 5 Ohio St. 109; Railroad pay the same. The defendants were Joseph

Co. v. Clinton Co., 1 Ohio St. 77; Bridgeport v. Brown, James Jenkins and William King. The Railroad Co., 36 Conn. 255; Crossley v. O'Brien, two latter, Boling had aided to discharge

24 Ind., 325; Mills on Em. Dom. $ 33, 43, 214; from liability, so that in fact, Boling was surety

1 Redfield on Rail., 400 People v. Railroad Co., for Brown only.

67 Ill. 118; Reg. v. Ely, 69 É. C. L. 843; RailThe payment by Jenkins was made under du

road Co. v. Moffitt; 75 IIl. 524; Driver v. Railroad ress of goods and chattels, and gave him a right 108; State Railroad Tax cases, 92 U. S. 698;

Co., 32 Wis. 584; Welch v. Railroad Co., 27 Wis. of action to recover the amount, either on the undertaking, as was held in Dernier v. Jenkins, Railway Co. v. Ogilvy, 2 Maeg, 229; Metropol

Old Colony, etc. Co. v. Plymouth, 14 Gray, 155; supra, or against Young. Such a payment did not operate as a satisfaction of the judgment, as

itan Board Works, v. McCarty, L. R. 7 H. of L. between the parties to it, who had not been dis 256; Duke of Buccleuch v. Metropolitan Board charged by the extension of time, it was still in.

of Works, L. R. 5 H. of L. 418; Selbourne v. Fishfull force. Boling was liable to Young for the

monger's Co. L. R. 1 App. Cas. 662. They also

commented on Railroad Co. v. Railroad Co., 30 default of his principal. As Brown had made default he was liable to Young, and the compul

Ohio St. 604, and cases there cited.

Theodore Hall and Edward C. Wade for the sory payment by Jenkins, which he recovered back

defendants in error. in an action against Young was not a satisfaction

Railroad Co. v. Railroad Co., 30 Ohio St. 604; of the judgment, nor a performance of the condition of the undertaking. Boling remained liable

71 Ohio L. 86; Railway Co. v Dayton, 23 Ohio

St. 517; 27 N.'Y. 345, 21 O. S.586; 26 Vt. 717, thereon, to the extent of the judgment, interest 27 Vt. 140; 2 Redfield on Rail. sec. 232; 2 S. & and costs thereon, but not for costs adjudged C. 1289; 66 Ohio L. 68; 69 Ohio L. 187. against Young in the action against him by Jen

OKEY, C. J. kins to recover back the amount paid.

In 1878, the commissioners of Ashtabula Baker v. Cincinnati, 11 O. St. 534. Dernier

County, in pursuance of proper proceedings for o. Jenkins, 20 O. St. 336; Stephen, Treas. v. Dan- the purpose, made an order for the establishment iels, 27 O. St. 527.

and construction of a county road in that county, Judgment of the district court affirmed. which county road crosses the track of the

plaintiff in error, the Lake Shore and Michigan [This case will appear in 38 0. S.]

Southern Railway Company, on a level, and a further order was made awarding damages to the railway company, from which order the company appealed to the probate court. In that court the question was, whether the company was entitled to compensation for making and maintaining two cattle-guards across its track, one on each side of the county road. The probate court excluded evidence tending to show the cost to the company in furnishing material

V.

and constructing such guards, and also the cost ject to doubt or question. Railroad companies of maintaining the same, and the company ex

are clothed by the state with important powers cepted. On petition in error the court of com- and privileges. They employ locomotives which mon pleas reversed the judgment of the probate pass along their roads with great force and rapidcourt for excluding such evidence, the district ity, and this necessarily, to some extent, places court reversed the judgment of the court of com- the persons and property of others in peril. mon pleas, and affirmed that of the probate Hence, the requirement that companies shall furcourt, and this petition in error is prosecuted by nish and maintain such cattle-guards, is not to the company to reverse the judgment of the dis- be regarded, in any just sense, as an invasion of trict court.

their property rights, but a burden justly imThe proceeding for the establishment of this posed for "he public convenience and welfare. county road, and the assessment of damages to the Railroad Co. v. Railroad Co., 30 Ohio St. 604; owners of lands injured by the establishment of Pennsylvania Co. v. Wentz, 37 Ohio St. 333,338; the road, and the trial in the probate court, were Buckley v. Railroad Co., 27 Conn. 479; Pierce on regulated by the act of 1853 (2 S. & C. 1289), as Rail. (ed. of 1881), 456 et seq. Plaintiffs in eramended (S. & S. 671 ; 66 Ohio L. 68; 68 Ohio ror rely on Railway Co. v. Bloomington, 76 Ill. L. 111, § 10; 69 Ohio L. 186), which no doubt, 447, as opposed to this view. See also Morris in a proper case, extended the right to damages Canal, etc. v. The State, 24 N. J. L. 62. But it as well to a corporation as to a natural person. does not appear that the constitution of Illinois See Rev. Stats. § 4699 et seq.

or New Jersey, existing, when the questions The Lake Shore and Michigan Southern Rail- arose, contained any such provisions as those way Company is a corporation having a line of above quoted. railway in Ashtabula and other counties of this Judgment affirmed. State, and exercising its powers subject to the [This case will appear in 38 0. S.] provisions of the present constitution, and the laws relating to or affecting railways, enacted FIRE INSURANCE-OPEN POLICY. in pursuance

of the constitution. Among the provisions of the constitution are

SUPREME COURT OF OHIO. the following: "No special privileges or immunities shall ever be granted that may not be al

FARMERS' INSURANCE COMPANY tered, revoked or repealed by the general assembly," Art. 1, § 2. "Corporations may be formed

JOSEPH R. BUTLER. under general laws, but all such laws may, from time to time, be altered or repealed.” Art. 13,

May 9, 1882. § 2. The act of 1874 (71 Ohio L. 85), which re

A policy of insurance for $800.00 on a certain dwelling

house, which sum does not exceed two-thirds of the mained in force until 1880 when it was re-en- value of the house as appeurs from the application that acted in substantially the same form (Rev. Stats.

was made a part of the policy, which also contains a 3324), provided as follows: “That any railroad

stipulation that the company will pay to the assured "all

loss or damage," not exceeding the sum assured, withcompany, or other party having control or man- in ninety days after due notice and “proofs" of such agement of a railroad, the whole or a part of

loss or damage, is an open and not a valued policy. which is now or shall be in this State, is hereby Error to the District Court of Holmes County. required at their own expense, * *

The original action was brought by Joseph R. make and maintain safe and sufficient crossings Butler against The Farmers' Insurance Comof good width, at every point where any public pany, in the Court of Common Pleas of Holmes road, street, lane or highway may cross said rail. County, on a policy of insurance, wherein it road, that is, or may be used by the public, with was stipulated, among other things, as follows: the necessary cattle-guards on each side of said “The Farmers Insurance Company, by this polcrossings, to prevent cattle or other domestic an- icy of insurance, and in consideration of a cash imals from endangering themselves and the lives premium of twelve dollars received of J. R. of passengers by getting upon such railroads; Butler, do hereby insure unto the said J. R. and every such railroad company or party shall Butler the sum of twelve hundred dollars, on be liable for all damages sustained in person or the following property, situate in Killbuck property in any manner by reason of the want | Township, Holmes County, Ohio, and more paror insufficiency of any such * crossing ticularly described in application and survey or cattle-guard, or any carelessness or neglect of No. 11974, which is hereby made a part of this said company, their agent or agents, in construct- policy, to wit: On Dwelling House. $800.00; ing or keeping the same in repair.”

Barn, $400.00. And said Farmers' Insurance The provision that the company shall con- Company hereby agrees to make good unto the struct and maintain the cattle-guards at its own said assured, his heirs executors, administrators, expense, is too plain for construction, and, look- or assigns, all such loss or damage, not exceeding to the whole act, manifestly applies to publicing in amount the several sums insured, as shall roads thereafter, as well as to roads theretofore con- happen by fire or lightning to any of the aforestructed; and with respect to companies organ- said property, from the 28th day of March, one ized, as this is, under our present constitution, thousand, eight hundred and seventy-three, at the validity of such a provision is no longer sub- 12 o'clock at noon, to the 28th day of March,

* to

* *

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