684. Where defendant is to blame for disobedience, testimony excluded. 4 Mo. 214; 50 Ga. 5852 Phil. Ev. (5 Am. ed.) 742, N. 571. The declaration of Greaves was not admissible. Whar. Cr. Ev. $757; 64 Mo. 3, 58; 77 N. C. 473; 93 N. S. 365; 19 Ohio, 302, S. C. 1 Ohio St. 66.

OKEY, J.

Three questions are presented. 1. At the commencement of the trial, the court, on motion of the defendant, made a general order that the witnesses, as well for the defendant as the state, should be separated, and all the witnesses were directed to retire from the court-room. The prosecuting attorney furnished to the sheriff a list of the witnesses for the state, but the counsel for the prisoner said none of his witnesses were then present. At that time a sister of the prisoner was sitting at his side in court, but no subpoena had been issued for her. After several witnesses had been examined in such sister's presence, the state called as a witness Malvina Wagner and the sister then retired from the courtroom and remained absent therefrom until called to testify, as hereinafter stated. Malvina testified that the defendant was present in a house adjoining the saloon in which the homicide was committed, at 9 o'clock in the morning of the same Sunday, and then made a threat that he would kill Greaves that night. She had testified in the same way on the first trial. After the state had rested, the defendant called his father as a witnesɛ, who testified that the defendant was at the house of witness, several squares from the saloon and adjoining house, from early on that Sunday morning until five o'clock in the evening, and consequently could not have made such threat as stated by Malvina Wagner. The defendant then called his sister, above referred to, and stated that they had not expected to call her until, contrary to their expectation, Malvina Wagner was called; and that they only desired to prove by her the same fact to which defendant's father had testified. The state objected to the testimony of such sister, on the ground that she had disobeyed the order as to the separation of witnesses, the court sustained the objection, and the defendant excepted. Subsequently, the mother and another sister of the defendant, and the defendant himself, testified to the same fact to which his father had testified.

It is said, on behalf of the state, that Malvina Wagner was not believed, otherwise the defendant would have been convicted of murder, and hence the testimony of the excluded witness was immaterial and the fact that she was not permitted to testify affords no ground of reversal. But we do not take that view of the testimony of Malvina Wag

ner.

While it tended to show malice and even deliberation, it also tended to show that the fatal blow was given by the defendant and not by his brother, which was the principal contention on the trial. It does not necessarily follow because the conviction was of manslaughter, that the jury wholly disregarded the testimony of Malvina Wagner. Testimony, therefore, tending to show that her statement was untrue, tended to the acquittal of the defendant; and notwithstanding four witnesses, the defendant included, testified to the same fact which the excluded sister was called to testify, we are not prepared to say, under the circumstances, that the testimony of the excluded sister should be regarded as merely cumulative, in the sense that the error in excluding her, if it was an error, afforded no ground for reversal; for the state endeavored to show, by cross-examination as to character and otherwise, that the statements of the four witnesses were wholly unworthy of belief.

We are of opinion that the testimony of the excluded witness was important, in the sense that it was error to exclude it if she was competent, and that she was competent unless the court in view of what is claimed to be disobedience of the order for the separation of witnesses, was vested with power to prevent her examination. But we think the court was vested with no discretion to exclude the witness on the facts disclosed in the record. We do not think it appears she remained in court by collusion with or encouragement of the defendant or his counsel, or that she supposed she was in contempt of an order of court. Moreover, the important fact was whether she heard the testimony of her father, and we must say from the record she did not. Laughlin v The State, 18 Ohio, 99, is relied on as showing that the court is vested with discretion, in all cases where the order is not obeyed, to exclude the witness. There the witness was permitted to testify. The principal cases are cited by counsel and will appear in this report. Without attempting to reconcile them-that would be impossible-or to discuss them at length, I state as the result of our examination that this is the law: While the court is vested with discretion to refuse or permit the examination of a witness who has remained in court, by procurement or connivance of the party calling him, in violation of an order for the separation of witnesses, it is vested with no such discretion to prevent such examination where there has been no such procurement or connivance; but the order is to be enforced by the officers in attendance, and disobedience of it punished for contempt

2. It is doubtful whether such consent was

shown as would have justified the conviction of the defendant, unless he struck the fatal blow; and hence it was important to determine the real matter in dispute, that is, whether such blow was given by the defendant or his brother George. As already stated. the evidence on that question was in conflict and hence anything calculated to shed light upon it was competent. It is not disputed that on the Sunday evening named, Greaves, between 7 and 8 o'clock in the evening, approached George Dickson, brother of defendant, and asked him why he had made a pass at him in the alley. After angry words, Greaves struck him, and instantly afterward the defendant struck Greaves and a fight ensued between them. During this difficulty Greaves received a 'wound in the temple inflicted with a knife or similar implement, which wound caused his death at three o'clock next morning. There was plain and irreconcilable conflict in the evidence upon the question whether this wound was inflicted by the defendant or his brother George. The defendant offered to show that a few seconds before approaching George Dickson, Greaves said to Tom Collins that he was about to have a difficulty with " a fellow" and he wanted Collins to stand by him. Objection being made, the court excluded the evidence, and the defendant excepted. We think the evidence was clearly competent. It was part of the res gestæ, and it tended to support the theory of the defense.

3. Sheridan having given evidence tending to show that the defendant struck the blow which caused the death of Greaves, the counsel for defendant asked him, with a view to the contradiction of the witness, whether, at a time and place stated, he had not said to Stevens and Imwalle that it was George Dickson who had given the fatal blow. The witness admitted that he had held a conversation with the persons named, at the time and place stated, but that he did not say to them that it was George Dickson who had given such blow. The prosecuting attorney was then permitted, on re-examination of the witness, to show what he did say to those personsthat he said to them "it was one of the Dicksons." As the exception of the defendant is rather to the form than the substance of the inquiry, we might be unwilling to reverse for the admission of such testimony; but the evidence was clearly incompetent. If the defendant had called Stevens and Imwalle to contradict Sheridan, then Sheridan might have been recalled to state what he said; but until that was done the state could not prove such declarations.

Judgment reversed.

[To appear in 38 Ohio St.]

1. The power to receive special deposits is conferred by the national banking act, upon banks organized under that act.

2. Where a national bank has been accustomed to receive United States bonds, as special deposits, gratuitously, it is liable for any loss thereof occurring through the want of that degree of care which good business men would exercise in keeping property of such value.

3. A demand of said bonds, and a refusal by the bank to deliver the same, with no other explanation of such refusal than the statement that the bank has no such bonds in its possession, furnish sufficient proof of loss by such negligence as will render the bank liable therefor.

Judgment affirmed.

145. William A. Beer and another v. The Forest City Mutual Insurance Company. Error to the District Court of Ashland County.

OKEY, J.

Where a policy on the assured's "general stock of hardware and agricultural implements," in a village in this State, provided that "if the assured shall keep gunpowder [or] petroleum, without written permission in this policy, then this policy shall be void," and in an action on the policy the insurer relies on a breach of the condition, evidence is not admissible to show a custom among hardware dealers in the villages in Ohio to keep for sale such articles, in limited quantities, as part of the stock.

Judgment affirmed.

117. Smith Thomas, Executor of Sophia Snider v. C. H. Chamberlain, Administrator de bonis non of Benjamin P. Truex. Error to the District Court of Morrow County.

MCILVAINE, J. Held:

1. A creditor of the estate of a deceased person, whose claim has been duly allowed by the administrator, may prosecute an action thereon against the estate after the expiration of eighteen months from the date of the administrator's bond, and such further time as may be granted by the court for the collection of the assets of the estate.

2. Verbal notice to the administrator of an estate, by the widow of the deceased, not to allow a specified claim against the estate, is not sufficient proof of fraud on the part of the administrator for afterwards making such allowance.

3. In an action against an administrator on a note which matured more than fifteen years before the commencement of the suit, where it is alleged in the petition that before the expiration of fifteen years from its maturity, the note, duly verified, was presented to the administrator for allowance as a valid claim against the estate and the same was duly allowed, an answer which does not deny the fact of such allowance, but simply avers that the action was not commenced within fifteen years from the maturity of the note, is bad on demurrer.

4. Where a claim against an estate has been duly presented to and allowed by the administrator, no

further allowance by a succeeding administrator de bonis non, is required by the statute.

5. The allowance of a claim is not conclusive of its validity against the estate, but may afterwards be disputed and contested by the administrator who allowed it, or by an administrator de bonis non; but in such case, the statute limiting suits on rejected claims to six months, does not apply.

6. Where the same person is administrator of the creditor as well as the debtor estate, no formal presentation or allowance of the claim within four years from the date of the bond of the administrator of the debtor estate is necessary, but in such case the claim is extinguished as soon as funds applicable to its payment come into the hands of the administrator. 7. A payment of a part of a claim by an administrator, without disputing the balance is a sufficient allowance of the whole claim. Judgment of district court reversed, and that of the common pleas affirmed.

72. Christopher Klepstein v. Lake Shore & Michigan Southern Railroad Co. Error to the District Court of Lucas County. Judgment of the district court reversed, and that of the common pleas affirmed. There will be no further report.

131. Edward Davis v. Mary Beeze. Error to the District Court of Lorain County. Judgment affirmed without penalty. There will be no further report.

133. Thomas Newman, Administrator, &c. v. David C, Butler. Error. Reserved in the District Court of Cuyahoga County. Dismissed for want of prosecution, under Rule 4, at the costs of plaintiff in error.

139. John W. Ball v. Rufus A. White. Error to the District Court of Hocking County. Continued for want of proof of service of record and briefs of plaintiff on defendant in error.

141. Commissioners of Hardin County v. Edwin Sanford et al. Error to the District Court of Hardin County. Judgment affirmed without penalty and without further report.

143. Baltimore and Ohio Railroad Co. v. James Harbaugh. Error to the District Court of Perry County. Judgment affirmed without penalty and without further report.

157. D. N. Shade v. James A. Hoover. Error to the District Court of Allen County. Judgment reversed and cause remanded for further proceedings. There will be no further report.

159. Joshua B. Owely v. Michael W. Flanagan. Error to the District Court of Butler County. Dismissed for want of preparation.

163. Farmers' Insurance Co. v. First National Bank of Batesville. Error to the District Court of Noble County. Dismissed for want of preparation.

165. Joseph P. Lively v. John L. Ramsey, Guardian, etc. Error to the District Court of Jackson County. Dismissed for want of preparation.

167. Ambrose S. and Mary E. Flinn v. Pacific Building Association, No. 2, &c. Error to the District Court of Hamilton County. Dismissed for want of preparation.

173. J. N. McCullough et al. v. Sarah J. R. Tarr. Error to the District Court of Jefferson County. Dismissed for want of prosecution, under Rule 4, at the cost of plaintiff in error.

175. Cleveland, Columbus, & Cincinnati Railway Co. v. John Paramer. Error to the District Court of Richland County. Dismissed for want of prosecution, under Rule 4, at cost of plaintiff in error.

charges that defendant corruptly offered and promised to B, a member of the House of Representatives of the General Assembly of the State, with the intent to corruptly and feloniously influence his vote upon a certain bill then pending in such house, "a valuable thing, to wit: stock of the Cincinnati Union Railway Co., of the amount and value of $20,000, and a large amount of money, of great value," is not bad for uncertainty. It is not necessary, in addition to such allegation, to recite the facts which give the thing offered a value, nor to charge that a definite sum of money was offered.

2. A single count in such indictment, which charged that B was a member of the house, and also a member of a standing committee of such house to which the bill was referred, and that the offer or promise was made to influence his vote therefor in the house, and his vote for a favorable report thereon in the committee, is not bad for duplicity. The charge thus made constitutes but one offense under the statute. 3. To charge the jury, in a trial upon such indictment, that the thing offered or promised must have a value at the very time it is offered or promised, and while the bill is pending, is error, but not to the prejudice of the defendant. It is a crime, under Sec. 6900, to offer or promise a thing valuable at that time, or which will be valuable when, according to the promise, it is to be given or delivered.

4. Under the act of April 18, 1883, entitled "An act to amend sections 455, 6710, 6711 and 7356 of the Revised Statutes," this court cannot examine the bill of exceptions, for the purpose of determining whether the verdict is against the weight of the evidence. Motion overruled.

82. Amanda Burbeck v. Eliza Cutter et al. Motion to fix amount and condition of undertaking for stay of order of partition. Motion passed for a statement showing what questions are involved, how they arise and the merits of the motion.

84. William Hanselm v. Mary A. Ozias. Motion to dismiss for want of printed record. Motion granted. 85. Frank E. Bronson v. Village of Oberlin. Motion to take cause No. 1266 on the General Docket out of its order for hearing. Motion overruled.

86. John Holst, Treasurer, &c., v. George Roe. Motion to take cause No. 1270 on the General Docket out of its order for hearing. Motion granted.

The following cases are dismissed according to the provisions of section 6711 of the Revised Statutes as amended April 18, 1883:

No. 232. Howard et al. v. Trask. Error to the District Court of Putnam County.

291. Farmers Ins. Co. v. Bigelow. Error to the District Court of Auglaze County.

293. Heatherman v. Edwards et al. Error to the District Court of Brown County.

302. Piles v. Noel. Error to the District Court of Brown County.

307. Village of Middleport v. Denny et ux. Error to the District Court of Meigs County.

314. Russell et al. v. Smith. Court of Lucas County.

Error to the District

430. Plock v. Cincinnati, Hamilton & Dayton R. R. Co. Error to the District Court of Miami County.

436. Wilcox v. Flow et al. Error to the District Court of Ottawa County.

440. Lima Building and Loan Association v. East, Treasurer, &c. Error to the District Court of Allen County.

452. Synder & Son v. Mitchell. Error to the District Court of Pickaway County.

467. Bergman v. City of Cleveland. Error to the District Court of Cuyahoga County.

481. Tyler, by next friend v. Thornton et al. Error to the District Court of Washington County.

485. Dawson v. Abbott. Error to the District Court of Clermont County.

514. Brown v. Gault. Error to the District Court of Mahoning County.

523. Ulrich v. Ulrich. Error to the District Court of Hamilton County.

531. Brayton et al. v. Carr. Error to the District Court of Wyandot County.

541 Ohio ex rel. v. Jacob, Mayor, etc. Error to the District Court of Hamilton County.

572. Park et al. v. Drake et al. Error to the District Court of Mahoning County.

585. Barclay v. Norton. Error to the District Court of Jefferson County.

890. Ruffner v. Co-operation Land and Building Association No. 1. Error to the District Court of Hamilton County.

623. Neeld v. Walton, Jr. Error to the District Court of Green County.

668. Peckham Iron Co. v. Harper. Error to the Superior Court of Cincinnati.

672. Bartram v. McCracken. Error to the District Court of Logan County.

679. Cleveland & Mahoning Railway Co. v. Robbins et al. Error to the District Court of Cuyahoga County.

716. Springfield, Jackson & Pomeroy R. R. Co. v. Scott. Error to the District Court of Jackson County.

749. Egbert v. Pleasant Ridge Cemetery Association. Error to the District Court of Seneca County. 754. March et al. v. Albert. Error to the District Court of Knox County.

764. Tracewell et al. v. Dodge. Error to the District Court of Vinton County.

766. Maris v. Maris. Error to the District Court of Harrison County.

792. McBeth et al. v. Teasdale, Sheriff, &c. Error to the District Court of Clermont County.

793. McBeth v. Teasdale, Sheriff, &c. Error to the District Court of Clermont County.

825. Theis v. Ryan. Error to the District Court of Brown County.

862. Pfau, Jr., v. Bullen & Co. Error to the District Court of Hamilton County.

863. Lane v. Shotwell. Error to the District Court of Summit County.

872. Myers v. Myers. Error to the District Court of Wood County.

873. Kubns & Son v. Frank. Error to the District Court of Hamilton County.

910. Hecker et al. v. City of Cleveland et al. Error to the District Court of Cuyahoga County.

913. Norton v. Dunn. Error to the District Court of Cuyahoga County.

922. Spayth v. Commercial Bank. Error to the District Court of Seneca County.

923. Smith v. McCarty. Error to the District Court of Seneca County.

938. Brown v. Merchants National Bank. Error to the District Court of Lucas County.

945. Pope v. Bleasdale. Error to the District Court of Cuyahoga County.

948. P., C. & St. L. R. R. Co. v. Hedges. Error to the District Court of Green County.

960. Plumb et al. v. Dee. Error to the District Court of Hamilton County.

961. Young v. Brown, Eager & Co. Error to the District Court of Putnam County.

962. Harvey & Ulrey v. Webb. Error to the District Court of Darke County.

970. Otis v. Claflin. Error to the District Court of Cuyahoga County.

980. Treat et al. v. Cole. Error to the District Court of Summit County.

981. Nimisela Coal Co. v. McGuire. District Court of Summit County.

Error to the

1090. Grogan v. Kellar. Error to the District Court of Hocking County.

1162. Dunn v. Brown County Agricultural Society. Error to the District Court of Brown County.

1169. Jackson v. Dickson. Error to the District Court of Morrow County.

1171. Masters Assignee v. Rue et al. Error to the District Court of Morrow County.

1178. Lyons et al. v. Barry et al. Error to the District Court of Brown County.

1188. Becker v. Reibel. Error to the District Court of Hamilton County.

1. Whereto a petition against several defendants an armendment is filed, setting out new matter intended as another and different cause of action against one only of the defendants, and such new matter is not sufficient to constitute a cause of action, there is no misjoinder of causes of action, and such amendment should be stricken out as irrelevant.

2. An action by a creditor of a manufacturing company, organized under the act of May 1, 1852, to enforce the individual liability imposed by said statute on the stockholders of the company, must be commenced within ten years after the cause of action has accrued.

Judgment affirmed.

No. 120. McMillan et al. v. Boyd et al. Error to the District Court of Clinton County.

MCCAULEY, J.

The plaintiff, a bank, had moneys on deposit in one account to the credit of S. and in another account to the credit of S. as sheriff. The bank, after the expiration of the term of office of S., transferred the moneys standing to his credit as sheriff, to his private account; and afterwards with the assent of S., applied the moneys thus transferred, to the payment of the private debt of S. to the bank.

In an action by the bank upon the official bond of S., as sheriff, for moneys of the bank, received by him in his official capacity.

Held: That such transfer and application of the funds of S., as sheriff, to the amount for which such transfer was made, was a defense for the sureties on the official bond of S.

Judgment of district court affirmed.

101. Hawkins v. Lasley et al. Error to the District Court of Jackson County.

GRANGER, C. J.

The action authorized by section IV of the act entitled "An act in aid of the law regulating suits by and against companies and partners," passed Feb. 27, 1846, (S. & C. Stat. p. 1139) is "an action for relief described in Section XVIII of the "act to establish a

code of civil procedure' (S. & C., p. 949), and is barred in ten years after the right of action accrued. Judgment affirmed.

86. Jacob Himelright v. Cornelius Johnson. to the District Court of Summit County. BY THE COURT.

Error

September 23, 1876, the plaintiff in error executed and delivered to Steese & Co., his promissory note for the sum of $800.00, due in sixty days. This note was accommodation paper and given without consideration. Samuel Steese was a member of the firm of Steese & Co. On the 12th of October, 1876, Samuel Steese, having first endorsed said note with the firm name, delivered it to Cornelius Johnson, as collateral security for an individual debt of Samuel Steese to Johnson. On the failure of Samuel Steese to pay his debt, Johnson brought an action upon this note against Himelright, as maker, and the members of the firm of Steese & Co., as indorsers.

On the trial in the court of common pleas, the counsel for Himelright requested, among other things, that the court should charge the jury as follows:

"In order to have acquired title to the note, the plaintiff must establish, by testimony, that Samuel Steese had a right to transfer the title to secure his individual debt."

This proposition the court. gave to the jury, after adding thereto the following words:

"If he, as a member of the firm, held that note and transferred it to the plaintiff, then it is good as against the defendant.'

To the action of the court, in adding these words to

the request of the defendants' counsel, said counsel excepted.

Held: This proposition, as amended by the court and given to the jury, was misleading. Railway Co. v. Krouse, 30 Ohio St. 222; followed and approved. Judgment reversed.

114. Robert Clements v. Robert Noble. Error to the District Court of Morrow County.

BY THE COURT.

In 1867 M., in writing agreed to convey to C., in fee simple, a parcel of land for a price named. C. paid the price and instructed the scrivener to so draw the deed as to convey the land to C. for life, remainder to certain named children and grandchildren of C. in fee. The scrivener, by mistake, omitted the grant of a life estate to C.; M. executed the deed, and it was placed on record before C. learned of the mistake. C., meanwhile, entered into possession, claimed and exercised all the rights of a tenant for life, and the grantees named in M.'s deed acquiesced therein for ten years. After the ten years N., with actual notice of C.'s possession and claim, took quit claim deeds, for valuable considerations, from all of M.'s grantees except two; claimed title adverse to C., and began proceedings in partition looking to an eventual ouster of C. C., thereupon, sued N. and all the grantees of M. praying to be quieted in his possession; that the defendants should be enjoined from interfering with it; and also thac the mistake in the deed should be corrected.

The district court declined to hear evidence for the defense; found that C. was not entitled to any relief, and dismissed the action at his costs.

Held: Neither N., nor any of M.'s grantees,should be permitted to disturb C.'s possession as tenant for life. Although, technically, M. was a necessary party to a decree correcting the deed, he had no concern with a judgment forcing his grantees and N. to refrain from disturbing C.

Judgment of the district court reversed and new trial granted.

97. Smythe et al. v. Licking County Loan and Building Association. Error to the District Court of Licking County. Judgment affirmed, without penalty and without further report.

102. Hawkins v. Thompson et al. Error to the District Court of Jackson County. Judgment affirmed, without penalty and without further report.

103. Hawkins v. Lasley et al. Error to the District Court of Jackson County. Judgment affirmed, without penalty and without further report.

104. Hawkins v. Lasley et al. Error to the District Court of Jackson County. Judgment affirmed, without penalty and without further report.

106. Hawkins v. Iron Valley Furnace Co. et al. Error to the District Court of Jackson County. Judgment affirmed, without penalty and without further report.

108. Kosminsky v. Barrett. Error to the District Court of Montgomery County. Dismissed for want of preparation.

112. Weiant et al. v. Franklin et al. Error to the District Court of Licking County. Dismissed for want of preparation.

116. Mitchell, executor, &c., v. Thompson. Error to the District Court of Morrow County. Judgment affirmed without penalty and without further report.

118. Lanious v. Poland et al. Error to the District Court of Morrow county. Judgment affirmed without penalty and without further report.

122. Cook et al. v. Rendigs. Error to the District Court of Hamilton County. Dismissed for want of preparation.

172. Seymour v. Stephenson. Error to the District Court of Ross County. By agreement of parties the judgment of the District Court is reversed and that of the Common Pleas affirmed.