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the act of 1874 (71 Ohio L. 85), passed since its incorporation,, to construct and maintain cattle-guards at places on its road where public highways are 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 Institute of Cincinnati. Error to the Superior Court of Cincinnati. Judgment affirmed. There will be no further report.

141. John C. Schnell v. J. Freeman Going. Error to the District Court of Hamilton 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 undertaking to be approved by the Court of Common 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 files as improvidently filed without also filing 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 file 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 at $600.

76. Josephus Martin et al. v. Orson Lapham 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, Treasurer. 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, Treasurer 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 General 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.

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

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 Dunn. Error to the District Court of Cuyahoga County. Gary, Ever

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. H. 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 E. 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 plaintiff.

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. John F. Freeman. Error to the District Court of Cuyahoga 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 plaintiff'; 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 plaintiffs; General Geo. 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. Error to the District Court of Carroll County. Hays & Black for defendants.

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. Cunningham for plaintiff.

1150. Jesse Kepner v. Mary Graham. Error to the District Court of Columbiana County. W. 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 O. W. Aldrich for plaintiff.

SUPREME COURT ASSIGNMENT.

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 Ransom Co.

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THE following is a summy of the work done by the Supreme Court of the United States during the term just closed.

Number of cases on the docket at the close of the October term of 1880 (May 2, 1881), 837; number of cases filed since, 399; number if cases argued orally, 178; number of cases submitted, 92; number of cases continued, 27; number of cases passed, 18; number of cases disposed of, 399, as follows: Affirmed, 161; reversed, 88; dis missed, 30; settled and dismissed, &c., by the parties, 88; docketed and dismissed, 22; questions answered, 2; dismissed in vacation, 8; total, 399; number of original actions on the docket at the close of October term of 1880 (May 2, 1881), 6; number filed since, 12; number argued orally, 10; number submitted, 5; number disposed of, 13.

NEW PUBLICATIONS.

We have received the first and second numbers of a a new legal periodical entitled, "The Journal of Banking Law," published in New York, with George H. Stever, Esq., as Editor. It is announced as a Quarterly magazine, Devoted to reporting Legal Decisions upon Banking and Financial cases, and is a publication that will be welcomed to the ranks of periodicals as a specialty in an entirely new field of profit and usefulness. Each number contains over one hundred pages and several hundred well digested cases printed in exceptionally good style, on good paper and in clear, beautiful type. The terms are $5.00 per annum, and the address of the publisher is Francis E. Fitch, 75 Fulton St. New York City

The Teras Lor Journal has been purchased by Muir & Armstrong, and transplanted to Austin, Texas, from Tyler, Texas, and will be hereafter The Texas Lon Reporter. The first number of the new publication is in book form and contains a portrait of Hon. Royall T. Wheeler, which we presume is a fair likeness of a worthy man. While we wish the publishers all kinds of good fortune and success, we are constrained to enture a word of advice and warning. Drop the portrait business Brother Muir. Lawyers, although the best men in the world, are the most

morbidly, foolishly and sensitively jealous of all created beings. We made personal mention of a few excellent gentlemen who called in to see us and wish us success in the infancy of our undertaking-the OHIO LAW JOURNAL-but we were obliged to quit it. So many of those who did not get in to see us and get a notice in our paper, got mad and discontinued, that we began to fear the entire brotherhood would forsake us if we did not forego the personals. Of course all the better class of lawyers were above such petty jealousy, but we can name a great many who could not endure the sight of the name of a rival lawyer in print, and a well meant personalharmless and well deserved-was like a red rag to a bull, and the bulls bellowed terribly.

We therefore say, drop the picture business.

THE AMERICAN DECISIONS.

Volume 32 of this valuable series has been received from the publishers, Messrs. A. L. Bancroft & Co., San Francisco, California.

The cases re-reported are the leading cases decided in 1837-8-9 and 1840, in all the then organized States, and which are still cited as unquestioned authority by law writers, and recognized as such by all courts.

All the authorities upon the questions involved, running down to the present time, are collected and systematically set forth in appended notes to various cases as follows:

Unlawful Gaming; (State v. Smith, Meigs R., 99), pages 132-140.

Liability of Infants for their Torts; (Humphrey v. Douglas, 10 Vt. 71), pages 177-185.

Probate of Wills when void for want of jurisdiction; (Fisher v. Bassett, 9 Leigh 119), pages 227-243. Alluvion-Title to; (Hagan v. Campbell, 8 Porter 9), pages 267-281.

Power of Court to issue Mandamus against Goverror; (Hawkins v. Governor, 1 Ark. 570), pages 346-368.

Levy necessary to sustain Sale; (Walters v. Duvall, 11 G. & J. 37), 693-670.

Voidable Sale-Reclamation of Goods; (Thur ton v. Blanchard, 22 Pick. 18), 700-711.

These are but the most extensive collection of authorities. There are very many more fully as valuable cases and notes which are in keeping with the plan and scope of this great work.

SURETY-STAY OF EXECUTION-EXTEN

SION OF TIME.

SUPREME COURT OF OHIO.

GEORGE W. BOLING

v.

ANDREW J. YOUNG.

May 9th, 1882.

1. A surety on a judgment is discharged from liability thereon, by a valid contract for an extension of time for the payment thereof, made by the judgment creditor with the principal judgment debtor, without the knowledge or consent of the surety.

2. An undertaking for stay of execution of a judgment on the docket of a justice of the peace, executed after the time allowed by law, in pursuance of an agreement of the parties is valid as a common law contract, if supported by a sufficient consideration, though it may not be effective as a statutory undertaking.

3. One who executes such an undertaking at the instance of the principal judgment debtor, without the knowledge or consent of the sureties thereon, knowing that they are such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby released from liability.

4. Where, after stay of execution has expired on such a judgment, a surety, who has been thus released, is compelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them on execution issued on said judgment, he may recover back from the judgment creditor the amount so paid. Such compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, after recovery back against him, maintain an action on the undertaking, if the principal makes default.

Error to the District Court of Knox County. The question involved arises on a demurrer to an amended petition of defendant in error. It is alleged by Young that on the 24th of April, 1874, he commenced an action before a justice of the peace, on a promissory note against Joseph Brown, principal, and, Joseph Jenkins and William King, sureties, and on the 2nd of May, 1874, recovered a judgment thereon against Brown and Jenkins for $108.75. The case was continued as to King until May 9th, 1874, when a like judgment for the same amount was rendered against King.

On the 18th of May, the plaintiff consented that Brown might stay the execution. Accordingly he, without the knowledge or consent of Jenkins or King, procured Boling, the plaintiff in error, to execute the following undertaking:

I, G. W. Boling, resident of Knox County, as surety for stay of execution in the above cause of Andrew Young against Jos. Brown, James Jenkins and William King, do undertake to said plaintiff that in default of payment by defendants, I will pay the judgment, with interest and costs, and costs that may accrue.

G. W. BOLING. Approved by me and signed before me, this 18th day of May, A. D., 1874.

B. A. F. GREER, Justice of the peace. Bail allowed by order of plaintiff. Boling executed this undertaking at the sole request of Brown, with full knowledge that Jenkins and King were sureties only, and after being indemnified for so doing by Brown.

When the stay expired, plaintiff caused execution to issue against all the defendants to the judgment, and for want of property of Brown to satisfy the same, the constable seized and was about to sell the property of Jenkins, to save which, he paid to the constable $138.45, being the judgment with interest and costs on the writ. He immediately brought suit in the Knox Common Pleas against Young to recover back the same, on the ground that he had been discharged from all liability on the judgment, by the acts of Young and Brown, as before stated, and such proceedings were had that he recoverd a judgment against Young, for the amount he had paid the constable, with interest, and $10.20 costs, making an aggregate of $154.41.

Young now seeks to recover this amount with interest, from the time judgment was rendered against him in favor of Jenkins.

Upon this state of facts the common pleas held there was no cause of action. The district court reversed this holding, and the case is here to review the decision of the latter court. JOHNSON, J.

More than ten days had elapsed after the judgment against Brown and Jenkins had been rendered, before this undertaking for stay of execution was given by Boling. It was done without the knowledge or assent of Jenkins, who was known to Boling and Young as surety only, and with the permission and consent of Young, the judgment creditor, at the request of Brown, the principal to the judgment.

If the same effect is to be given to this undertaking, as if given within the ten days allowed by law for entering stay, then it follows, that, as between Boling, and Jenkins who was surety, only, the former was primarily liable on the judgment, the assent of the latter to giving such undertaking being wanting. S. & S. 424. R. S. 6654.

If this undertaking be regarded as a statutory obligation, then in case of compulsory payment of the judgment by Jenkins, he could have maintained an action, on the undertaking, by reason of this primary liability of Boling.

The compulsory payment by Jenkins would not be a satisfaction of the condition of the stay bail. It was so held in Dernier v. Jenkins, 20 O. St. 336.

For equally cogent reasons, Jenkins had a right of action against Young, the judgment. creditor, to recover back the amount he was compelled to pay to release his property. As to Young, the compulsory payment was not a satisfaction of the judgment in his favor.

But the undertaking was given after the time had elapsed, within which it could be taken.

It was competent, however, for the parties to secure the extension of time for payment by a contract valid at common law. If supported by a sufficient consideraton, such a contract is mutually binding on the parties to it.

In legal effect, Boling promised to become surety for the payment of this judgment if Young would wait eight months. Young agreed

to this and fully performed the promise on his part.

Boling was therefore liable on this undertaking as a common law contract unless he was discharged by the payment by Jenkins, under compulsory process to save his property. Duchwall v. Rogers, 15 Ohio St. 544.

It was a binding contract, between Young, as judgment creditor, and Brown, the principal debtor and Boling as his surety, that if Young would extend the time of payment eight months, Boling would pay the judgment in default of payment by his principal.

As Jenkins, the surety in the judgment, was not a party to this contract, and did not assent to it, he was discharged from all liability. Blazer, Corwin, Gregg & Co. v. Bundy, 15 O. St. 57.

It remains to inquire, what was the effect of the compulsory payment by Jenkins?

It is claimed that this payment satisfied the judgment, and therefore the condition of the undertaking was not broken.

That condition was, that in default of payment of the judgment by defendants, he would pay the same. The defendants were Joseph Brown, James Jenkins and William King. The two latter, Boling had aided to discharge from liability, so that in fact, Boling was surety for Brown only.

The payment by Jenkins was made under duress of goods and chattels, and gave him a right of action to recover the amount, either on the undertaking, as was held in Dernier v. Jenkins, supra, or against Young. Such a payment did not operate as a satisfaction of the judgment, as between the parties to it, who had not been discharged by the extension of time, it was still in full force. Boling was liable to Young for the default of his principal. As Brown had made default he was liable to Young, and the compulsory payment by Jenkins, which he recovered back in an action against Young was not a satisfaction of the judgment, nor a performance of the condition of the undertaking. Boling remained liable thereon, to the extent of the judgment, interest and costs thereon, but not for costs adjudged against Young in the action against him by Jenkins to recover back the amount paid.

Baker v. Cincinnati, 11 O. St. 534. Dernier v. Jenkins, 20 O. St. 336; Stephen, Treas. v. Daniels, 27 O. St. 527.

Judgment of the district court affirmed.
[This case will appear in 38 O. S.]

RAILROAD--CATTLE-CUARDS.

SUPREME COURT OF OHIO.

THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY

v.

MILO SHARPE AND JOSHUA M. NETTLETON.

May 9th, 1882.

A railroad company exercising its powers subject to the provisions of the present constitution, and required by the act of 1874 (71 Ohio L. 85), passed since its incorporation, to construct and maintain cattle-guards at places on its road where public highways are or may be constructed across its track, is not entitled to compensation for making or maintaining such cattle-guards.

Error to the District Court of Ashtabula County.

James Mason, Ashley Pond, Cyrus D. Roys, and O. G. Getzen--Danner, for the plaintiff in

error.

71 Ohio L. 86; Const. Art. 1, sec. 19; Railroad Co. v. Bloomington, 76 Ill. 447; Stats. of Ill. Ed. of 1880, 1152; Railway Co. v. Maurer, 21 Ohio St. 421; Potter v. Bunnell, 20 Ohio St. 150; Ferris v. Bramble, 5 Ohio St. 109; Railroad Co. v. Clinton Co., 1 Ohio St. 77; Bridgeport v. Railroad Co., 36 Conn. 255; Crossley v. O'Brien, 24 Ind., 325; Mills on Em. Dom. § 33, 43, 214; 1 Redfield on Rail., 400 People v. Railroad Co., 67 Ill. 118; Reg. v. Ely, 69 E. C. L. 843; Railroad Co. v. Moffitt; 75 III. 524; Driver v. Railroad Co., 32 Wis. 584; Welch v. Railroad Co., 27 Wis. 108; State Railroad Tax cases, 92 U. S. 698; Old Colony, etc. Co. v. Plymouth, 14 Gray, 155 Railway Co. v. Ogilvy, 2 Maeg, 229; Metropolitan Board Works, v. McCarty, L. R. 7 H. of L. 256; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. of L. 418; Selbourne v. Fishmonger's Co. L. R. 1 App. Cas. 662. They also commented on Railroad Co. v. Railroad Co., 30 Ohio St. 604, and cases there cited. Theodore Hall and Edward C. Wade for the defendants in error.

Railroad Co. v. Railroad Co., 30 Ohio St. 604; 71 Ohio L. 86; Railway Co. v Dayton, 23 Ohio St. 517; 27 N. Y. 345; 21 O. S. 586; 26 Vt. 717, 27 Vt. 140; 2 Redfield on Rail. sec. 232; 2 S. & C. 1289; 66 Ohio L. 68; 69 Ohio L. 187. OKEY, C. J.

In 1878, the commissioners of Ashtabula County, in pursuance of proper proceedings for the purpose, made an order for the establishment and construction of a county road in that county, which county road crosses the track of the plaintiff in error, the Lake Shore and Michigan 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

and constructing such guards, and also the cost of maintaining the same, and the company excepted. On petition in error the court of common pleas reversed the judgment of the probate court for excluding such evidence, the district court reversed the judgment of the court of common pleas, and affirmed that of the probate court, and this petition in error is prosecuted by the company to reverse the judgment of the district court.

The proceeding for the establishment of this county road, and the assessment of damages to the owners of lands injured by the establishment of the road, and the trial in the probate court, were regulated by the act of 1853 (2 S. & C. 1289), as amended (S. & S. 671; 66 Ohio L. 68; 68 Ohio L. 111, § 10; 69 Ohio L. 186), which no doubt, in a proper case, extended the right to damages as well to a corporation as to a natural person. See Rev. Stats. § 4699 et seq.

The Lake Shore and Michigan Southern Railway Company is a corporation having a line of railway in Ashtabula and other counties of this State, and exercising its powers subject to the provisions of the present constitution, and the laws relating to or affecting railways, enacted in pursuance of the constitution.

Among the provisions of the constitution are the following: "No special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the general assembly." Art. 1, § 2. "Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed." Art. 13, § 2.

The act of 1874 (71 Ohio L. 85), which remained in force until 1880 when it was re-enacted in substantially the same form (Rev. Stats. § 3324), provided as follows: "That any railroad company, or other party having control or management of a railroad, the whole or a part of which is now or shall be in this State, is hereby required at their own expense, ** * to make and maintain safe and sufficient crossings of good width, at every point where any public road, street, lane or highway may cross said railroad, that is, or may be used by the public, with the necessary cattle-guards on each side of said crossings, to prevent cattle or other domestic animals from endangering themselves and the lives of passengers by getting upon such railroads; and every such railroad company or party shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such * * * crossing or cattle-guard, or any carelessness or neglect of said company, their agent or agents, in constructing or keeping the same in repair."

The provision that the company shall construct and maintain the cattle-guards at its own expense, is too plain for construction, and, looking to the whole act, manifestly applies to public roads thereafter, as well as to roads theretofore constructed; and with respect to companies organized, as this is, under our present constitution, the validity of such a provision is no longer sub

ject to doubt or question. Railroad companies are clothed by the state with important powers and privileges. They employ locomotives which pass along their roads with great force and rapidity, and this necessarily, to some extent, places the persons and property of others in peril. Hence, the requirement that companies shall furnish and maintain such cattle-guards, is not to be regarded, in any just sense, as an invasion of their property rights, but a burden justly imposed for he public convenience and welfare. Railroad Co. v. Railroad Co., 30 Ohio St. 604; Pennsylvania Co. v. Wentz, 37 Ohio St. 333,338; Buckley v. Railroad Co., 27 Conn. 479; Pierce on Rail. (ed. of 1881), 456 et seq. Plaintiffs in error rely on Railway Co. v. Bloomington, 76 Ill. 447, as opposed to this view. See also Morris Canal, etc. v. The State, 24 N. J. L. 62. But it does not appear that the constitution of Illinois or New Jersey, existing when the questions arose, contained any such provisions as those above quoted.

Judgment affirmed.

[This case will appear in 38 O. S.]

FIRE INSURANCE-OPEN POLICY.

SUPREME COURT OF OHIO.

FARMERS' INSURANCE COMPANY

บ.

JOSEPH R. BUTLER.

May 9, 1882.

A policy of insurance for $800.00 on a certain dwelling house, which sum does not exceed two-thirds of the value of the house as appeurs from the application that was made a part of the policy, which also contains a stipulation that the company will pay to the assured" all loss or damage," not exceeding the sum assured, within ninety days after due notice and "proofs" of such loss or damage, is an open and not a valued policy.

Error to the District Court of Holmes County. The original action was brought by Joseph R. Butler against The Farmers' Insurance Company, in the Court of Common Pleas of Holmes County, on a policy of insurance, wherein it was stipulated, among other things, as follows: "The Farmers' Insurance Company, by this policy of insurance, and in consideration of a cash premium of twelve dollars received of J. R. Butler, do hereby insure unto the said J. R. Butler the sum of twelve hundred dollars, on the following property, situate in Killbuck Township, Holmes County, Ohio, and more particularly described in application and survey No. 11974, which is hereby made a part of this policy, to wit: On Dwelling House. $800.00; Barn, $400.00. And said Farmers' Insurance Company hereby agrees to make good unto the said assured, his heirs executors, administrators, or assigns, all such loss or damage, not exceeding in amount the several sums insured, as shall happen by fire or lightning to any of the aforesaid property, from the 28th day of March, one thousand, eight hundred and seventy-three, at 12 o'clock at noon, to the 28th day of March,

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