1. The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule. 2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counterclaim, or he may maintain an action thereon. Judgment reversed and cause remandedfor a new trial. Under Sec. 3944, R. S., the probate court has power to confirm the report of a commission, appointed under Sec. 3950, R. S., as amended April 12, 1880 (77 O. L., 186), to dissolve a joint sub-school-district. Judgment of district and common pleas court reversed and that of probate court affirmed. 129. Penn & Townsley v. Malcena Neely et al. ror to the District Court of Clermont County. missed for want of preparation, under Rule 4. ErDis 147. Ashland Mutual Fire Insurance Co. v. Abraham Powlson et al. Error to the District Court of Ashland County. Judgment affirmed on the ground that the record does not set out all the evidence offered to the jury. No penalty. No further report. 177. Robert T. Lloyd et al. v. John "". Lloyd et al. Error to the District Court of Lak County. Dismissed for want of preparation, und ile 4. 179. Lawrence Railroad Co. v. Goa ror to the District Court of Mahoni missed for want of preparation, und .་ Earne. ErCounty. DisRule 4. 189. Columbus & Hocking Valley Railway Co. v. John J. Stuart. Error to the District Court of Franklin County. Judgment affirmed. No further report. 195. Dailey, Russell & Williams v. Daniel McNamara. Error to the District Court of Richland County. Dismissed for want of preparation, under Rule 4. 198. Emma J. Myers v. Odd Fellows' Beneficial Association. Error to the District Court of Allen County. Dismissed for want of preparation under Rule 4. 201. Christian Deis v. Samuel Moul et al. Error to the District Court of Tuscarawas Countv. Time for filing brief for defendant extended to June 1. 203. Cleveland, Columbus, Cincinnati & Indiana Railway Co. v. Eli Scudder. Error to the District Court of Butler County. Passed for want of proof of service of record and plaintiff's brief. 207. City of Springfield v. George Spence. Error to the District Court of Clarke County. Dismissed for want of preparation under Rule 4. 209. Farmers' Insurance Co. v. John F. Moody. Error to the District Court of Morgan County. Dismissed for want of preparation under Rule 4. 211. Reuben H. Freshwater v. John Wenner, Guardian, &c. Error to the District Court of Carroll County. Passed for brief of defendant in error. 215. Henry Blake v. Hecla Iron and Mining Co. Error to the District Court of Lawrence County. Passed for brief of defendant in error. 217. The State of Ohio v. John J. Brower et al. Bill of Exceptions filed by prosecuting attorney. Dismissed for want of preparation under Rule 4. 219. John McCart v. Oliver Alger. Error to the District Court of Cuyahoga County. Death of John McCart suggested, also the_death of Maria McCart, sole heir of John McCart. Revived in the name of Patrick McCart, Executor and Devisee of Maria McCart by consent of defendant in error. 221. James R. Challen v. City of Cincinnati. Error to the District Court of Hamilton County. Passed for defendant's brief. 223. Cleveland, Brown & Co. v. Samuel Shoemen. Error to the District Court of Cuyahoga County. Passed for proof of service of briefs on defendant in error. 225. John Flanagan v. John Mason. Error to the District Court of Perry County. Passed for proof of service of plaintiff's brief on defendant in error. 226. Robert N. Mace v. Joseph Mace. Error to the District Court of Ross County. Dismissed for want of preparation, under Rule 4. 229. Ashford Paston et al. v. Johnson M. Welch. Error to the District Court of Athens County. Dismissed for want of preparation, under Rule 4. 230. Catharine Young v. Union Mutual Life Ins. Co. Error to the District Court of Ashland County. Dismissed for want of preparation, under Rule 4. 234. Robert S. Wilkins v. Royal Rogers. Error to the District Court of Trumbull County. Dismissed for want of preparation under Rule 4. 235. John White Brown et al. v. Margaret Alice Brown. Error to the District Court of Ross County. Dismissed for want of preparation, under Rule 4. 237. The Home Life Ins. Co. v. George Schmidt. Error to the District Court of Hamilton County. Passed for proof service of plaintiff's brief on defendant in error. 238. William M. Murdock v. Robert McCann. Error to the District Court of Clinton County. Judgment affirmed on authority of Irvin v. Longworth, 20 Ohio St. 581, without further report. Penalty, twentyfive dollars. Attorney's fee, twenty-five dollars. 339. Westly Pierce v. Mary Tiersch. Error to the District Court of Hardin County. Passed for proof of service of plaintiff's brief on defendant in error. 293. John Jacob Zeller v. John Marquardt et al. Error to the District Court of Cuyahoga County. Advanced to be heard with No. 169, involving the same question. 678. Farmers Ins. Co. v. Benjamin C. Zeigler. Error to the District Court of Ashland County. Dismissed for want of preparation, under Rule 4. MOTION DOCKET DECISIONS. No. 81. Stanton E. Stewart v. The State of Ohio. Motion for leave to file a petition in error to the Court of Common Pleas of Washington County. BY THE Court. A brother-in-law and sister-in-law are, within the meaning of the statute prescribing the punishment of incest, nearer of kin, by affinity, than cousins. Motion overruled. 87. Ohio ex rel. Attorney-General v. A. J. Frame, Auditor of Athens County. Motion for a writ of mandamus. Alternative writ ordered returnable on the tenth inst., and defendant to answer on or before the twenty-sixth inst. 88. C. C. C. & I R'y Co. v. John Paramore. Motion for an order of revivor in the name of administrator of defendant. Motion overruled because the petition in error has been dismissed for want of prosecution. 89. B. & O. & C. R. R. Co. v. Joseph Ralston et al. Motion to dispense with printed record in cause No. 1254, on the General Docket, and to advance the cause to be heard with No. 574 of the same docket. Motion granted. 90. Wm. T. West et al. v. A. H. Moss et al. Motion for leave to file a petition in error to the District Court of Erie County. Motion overruled because the case is pending in the district court for an order remanding it to the court of common pleas for new trial on the merits. 91. Henry C. Williams v. The Chicago and Atlantic Railway Co. Motion for leave to file a petition in error to the District Court of Van Wert County. Motion overruled on the ground that the case is not reviewable under section 6710 of the Revised Statutes, as amended April 18, 1883. The attention of attorneys is again called to the necessity of preparing their cases, in order to pre. vent their dismissal under Rule 4. Cases should be prepared before they are called on the docket, as they are liable to be dismissed for want of preparation any time after call; and they will not be reinstated, unless the court is well satisfied, by a showing that good reasons exist why preparation has not been made, as well as that the case is meritorious. No time should be lost in preparing all cases under No. 600. ASSIGNMENTS FOR ORAL ARGUMENT. Wednesday, May 16. 96. Owen Lynch v. L. S. & M. S. Railway Co. Error to the District Court of Lucas County. Friday, May 18. 151. Ohio ex. rel. Wm. H. Bunker v. Charles A. Miller. Error to the District Court of Hamilton County. 155. Patrick Hanley et al. v. Christian Sandau et al. Error to the District Court of Hamilton County. Tuesday, May 29. 125. Gilbert Kennedy v. Henry B. Kelley. Error In an action by a wife, under the seventh section of the act of May 1, 1854, to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, against two persons for injury to her means of support resulting from the habitual intoxication of her husband, caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appears that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that neither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit. Held: That the defendants are jointly liable. Judgment affirmed. 75. Joseph Donley v. Liberty Improvement Bank et al. Error to District Court of Coshocton County. MARTIN, J. D. and others executed a penal bond conditioned that they would pay to the obligee any sum or sums, which D. "may owe to or thereafter become indebted to the obligee, upon bond, bill, note, draft, check, account or otherwise;" and would indemnify the obligee and save him harmless "from all loss, and expense, by reason of said or any indebtedness incurred by D." Subsequently a promissory note was made and delivered to the obligee for value by a firm of which D. was a member, and for its use, and which was at its inception indorsed by D. in his individual name. Held: The note is not within the condition of the bond, and the action not maintainable. Judgment reversed and cause remanded. No. 93. Benjamin Weybright v. Zelora Fleming. Error to the District Court of Miami County. DICKMAN, J. 1. In an action to recover damages for an injury to the person through the alleged carelessness of another, it is error to use language in the charge from which the jury might reasonably infer that the court assumed the existence of material facts that were in dispute. 2. A special exception to the charge is not in all cases necessary, before à reviewing court will look to the charge, and reverse the judgment, and award a new trial. Baker v. Pendergast, 32 Ohio St. 494, approved and followed. Judgment reversed and cause remanded. 110. Cummings, Treasurer v. Fitch et al. Error. Reserved from the District Court of Lucas County. NASH, J. 1. In 1871 the city council of T. was authorized to levy, not to exceed fifteen mills on the dollar, for all municipal purposes. On the twenty-fourth of May, 1871, said council passed an ordinance making a levy of fifteen mills for such purposes. On the nineteenth of June following, said council passed another ordinance levying two mills additional for the purpose of creating a sinking fund, for the payment of bonds issued for the construction of the Toledo and Woodville railroad. Held: The ordinance of May twenty fourth, was valid, but, in passing it, council exhausted its power. The ordinance of June nineteenth was void, but this void act did not invalidate the previous ordinance which was within the power conferred by statute upon said council. 2. In 1874 the council of said city had the same power in levying taxes as in 1871. On June first, of said year, it passed an ordinance making levies for various purposes, authorized by law, amounting to ten and five tenth mills. On June eighth, having no longer power to levy exceeding four and one-half mills, it passed another ordinance levying sixteen mills additional. Held: The first ordinance was valid, and the second ordinance was entirely void. The levy made by it was in excess of the jurisdiction of the council, and was as deficient in legal competency as if made without any authority whatever. Judgment reversed. Where an undertaking for a second trial, provided by Section 691 of the Code of Civil Procedure (2. S. & Č. 1155). recites the amount of the judgment in the first trial, in addition to the parties, the court, the term and the person who recovered it, such matter is merely descriptive, and an omission, which does not affect the certain indentification of the case, is not material and does not invalidate the undertaking. Judgment of the district court reversed and that of the common pleas affirmed. 142. Thomason et ux, v. City of Dayton. Error to the District Court of Montgomery County. GRANGER, C. J. 1. A recital in a deed inade by one of two tenants in common, to a stranger, referring to the joint estate as a street bounding the land conveyed by said deed, cannot affect any right of the other tenant in common, although the grantor, afterwards, conveys her share of the joint estate to said co-tenant, who then sues to recover the entire joint estate. 2. Such recital will not estop the plaintiff in such suit. 3. A city, that, before the making of said first deed, had unlawfully seized said land and improved it as a street, can neither use said recital to estop the plaintiff, nor defeat her recovery because, for a time, inconvenience to the public will result therefrom. Judgment of the District Court reversed and that of the Superior Court affirmed. 126. Farmers' Insurance Company v. McCluckin. Error to the District Court of Morrow County. BY THE COurt. In an application for insurance, M covenanted and agreed that the insurance asked for on his dwelling did not exceed two-thirds of its actual cash value. The policy insured it for the sum asked for and made the application part of the contract. During the term a fire destroyed the building. In a suit on the policy issue was joinedupon an averment by the company that said covenant was untrue, as tne applicant well knew when he made it : At the trial conflicting evidence on this issue was before the jury, but the court directed a verdict for the plaintiff for "the value of the property destroyed by fire covered by the policy of insurance described in this case, not exceeding the amount of insurance upon the part thus destroyed," and refused to give any instruction applicable to the issue as to the covenant. Held: This was error. Judgments of the district and common pleas courts reversed and a new trial granted. 124. Meyers & Parrott v. The Central Building and Savings Association of Dayton. Error to the District Court of Montgomery County. Judgment affirmed by agreement of parties upon terms settled by the parties. 128. Wm. Hayes v. Warner Hayden. Error to the District Court of Morrow County. Judgment affirmed with penalty of twenty-five dollars. No further report. 132. John J. Dickson v. Chrity Shaffer. Error to the District Court of Richland County. Dismissed for want of preparation under Rule 4. 136. Jackson Hanover, administrator, &c., v. Jared Sperry et al. Error to the District Court of Licking County, pending on cross-petition in error. Dismissed for want of preparation under Rule 4. 140. Magdalena Zentner v. Joseph Vogel, Sr., et al. Error to the District Court of Hocking County. Dismissed for want of prosecution under Rule 4. 144. John T. Bradshaw v. Francis M. Bradshaw. Error to the District Court of Perry County. Passed for proof of service of record and of plaintiff's brief on defendant in error. 146. Minerva Dunlap v. Isaac Harvout et al. Error to the District Court of Ashland County. Dismissed for want of preparation under Rule 4. 148. Thomas Lepage et al. v. Margaret Lepage et al. Error to the District Court of Guernsey County. Dismissed for want of preparation under Rule 4. 150. Wm. M. Hutchison v. Jane Starr. Error to. the District Court of Guernsey County. Judgment affirmed with penalty of twenty-five dollars, and attorney fee twenty-five dollars. No further report. 156. Thomas Hoge v Ruth Austin et al. the District Court of Licking County. affirmed without penalty or attorney's fee. ther report Error to Judgment No fur 168. Eliza Mullen v. Annie L. Gaffey. Error to the District Court of Hamilton County. Dismissed for want of preparation under Rule 4. 174. Wm. Lipton v. J. W. Hamilton et al. Error to the District Court of Carroll County. Dismissed for want of preparation under Rule 4. 178. John A. Wright v. Mary Daugherty. Error to the District Court of Perry County. Dismissed for want of preparation under Rule 4. 180. Lawrence Railroad Co. v. Margaret Stacy. Error to the District Court of Mahoning County. Dismissed for want of preparation, under Rule 4. 184. Wilson Sewing Machine Co. v. F. M. Pelton. Error to the District Court of Cuyahoga County. Passed for proof of service of record and brief on defendant in error. The Ohio Law Journal. Columbus, O., May 19, 1883. In the list of successful applicants for admission to the bar, published two weeks ago, the type made us say that Mr. D. W. Bowman was from Green Hill, instead of Greenville. Mr. Bowman was a student of Judge elect J. W. Sater, of Greenville; and Patrick Gaynor, who was a student of A. M. Lewis, of Franklin, had his name misspelled, while the name of Horace McDermont of Dayton,, who passed a most creditable examination, was omitted from the list. To save time we clipped the list from a daily paper, and this is what comes of it. CROSBY ET AL. V. HILL. (Ohio Supreme Court. April 24, 1883.) A broker who was not intrusted with the possession of the property, contracted in his own name to sell the same to a vendee, who had no knowledge that the broker was not the real owner, but dealt with him as such. The broker notified his principals that he had sold for them, and directed where to ship the property to the purchaser. The owners, without any knowledge that the broker had contracted in his own name, and without any conduct on their part, clothing the broker with authority to receive payment for them, or any possession, actual or constructive, of the property, delivered the same to the vendee. Held: Payment by the purchaser to the broker, under such circumstances, is not a bar to the right of recovery by the owners. Motion for leave to file petition in error to Superior Court of Cincinnati. The plaintiffs, L. S. Crosby and W. W. Collins, filed their petition against the defend ant William H. Hill, alleging that on or about March 12, 1881, they were partners and engaged in the lumber business at Greenville, Mich. That one Roth, a lumber broker in Cincinnati, represented to them that he had, as such broker, sold for them to the defendant one carload of shingles at three dollars and fifty-five cents per thousand; that thereupon they shipped to their own order seventy thousand shingles to be delivered to Hill by the railroad company, upon payment by Hill of the freight thereon; that about March 31, 1881, Hill, or some one for him, paid the freight and received the shingles, but he has refused and failed to pay plaintiffs for them or to return them and prays for a judgment for one hundred and ninety-seven dollars and fifty cents, the value of the shingles after crediting the freight paid. The answer denies the conversion of the shingles, the ownership of the plaintiffs, and any indebtedness to the plaintiffs; and avers that defendant bought the shingles of Roth and paid him the full value thereof, and that when he made such payment he had no knowledge from whom Roth purchased the same, or that plaintiffs claimed any title or interest therein. The allegation of want of knowledge is denied by the reply. Upon the trial, the plaintiffs offered evidence that Roth, in advising them of the sale, directed them to ship the goods to Glendale and send the invoice to Cincinnati; that thereupon they shipped the goods to Glendale, to their own order, and mailed to defendant, at Cincinnati, an invoice and also an order on the railroad agent at Glendale to deliver the goods on payment of the freight. The defendant offered evidence that he dealt with Roth as a principal, not knowing that he was a broker; that he never received the invoice and delivery order; that from the time of making the contract with Roth until after the middle of April, he was a member of the legislature and living at Columbus attending its sessions; that he there received notice from Roth that the shingles were about to arrive; that he instructed his agent to receive them and pay the freight, which was done; that he paid Roth for the same on April 21, 1881, and that he never heard that plaintiffs claimed any interest in them until May 26, 1881, when they wrote demanding payment. It was admitted upon the trial, that the plaintiffs were in fact the owners of the shingles, notwithstanding the denial of such ownership in the answer. Part of the testimony of the plaintiffs consisted of a deposition of one of them, taken under a notice which omitted to state that such plaintiff would be examined. The court, by agreement of counsel, submitted to the jury the single question, whether the defendant, at the time he paid Roth, had notice of plaintiffs' rights or claim, and the jury having reported that they were unable to agree upon that question, the court directed them, that however that question might be determined, the plaintiffs were entitled to a verdict, and to return such verdict, leaving only the question of the value of the property for their determination. In response to such charge a verdict was returned for the plaintiffs. The charge was excepted to by the defendant, who also excepted to the refusal of the court to give certain instructions asked by him. A motion for a new trial was made and heard by the court in general term, over ruled, and judgment entered on the verdict. Leave is now asked to file a petition in error in this court to reverse that judgment. Cornell & Marsh, for the motion, cited Judson v. Stillwell, 26 Howard Pr. 513; 46 Iowa 181; Bordmanville Mch. Co. v. Dempster, 2 Canada S. C. R. 21; Boulton v. Jones, 2 H. & N. 564; 123 Mass 28. Wilby & Wald, contra, cited, Hamet v. Lecher, 37 Ohio St. 350; 2 Kent (12th ed.) 622; 1 Moody & Rob. 326; 2 Barn. & Ald. 137; 7 Best & Smith 515; 24 Mich. 36; 88 Ia 298; 15 Reporter 127; 105 U. S. 360. DOYLE, J. The allegations of the petition that Roth, a lumber broker in Cincinnati, represented to plaintiffs that, as such broker, he had sold for them to the defendant, the carload of shingles, and that such shingles were shipped by them, to their own order, to be delivered to the defendant by the railroad company upon the payment of the freight, are not denied in the answer. There is no aliegation in the answer, nor is there anything in the evidence tending to show, that the plaintiffs ever authorized the broker to receive payment for them, ever entrusted the broker with the possession of the property, or, by any conduct of theirs, enabled him to appear as owner of the goods, and thereby impose upon a third person who was without fault; or that the plaintiffs had any knowledge that Roth contracted in his own name and not in theirs, from which any ratification of such contract can be inferred, but the contrary affirmatively appears from the allegations of the petition. The case made by the defendant is that he dealt with Roth, believing him to be the owner, and paid him as such without knowledge of the rights of plaintiffs. The answer contained a denial of the ownership of plaintiffs, but that was withdrawn upon the trial and the title of plaintiffs admitted. Without such denial, the question now presented might well have been raised by a demurrer to the answer. In view of the peremptory charge of the court, all the proof offered by the defendant, pertinent to the iesue, must be taken as true, and as that proof tends to sustain the allegations of the answer (with the denial of ownership omitted) the question is substantially the same as would be presented by such a demurrer. The case presented, therefore, is this: A broker who is not entrusted with the possession of property, contracts in his own name to sell the same to a vendee, who has no knowledge that he is not the real owner, but deals with him as such. The broker notifies his principals that he has sold for them, and directs where to ship the property to the vendee. The owners, without any knowledge that the broker has contracted in his own name, and without any conduct on their part clothing the agent with authority, express or implied, to receive payment for them, or any possession actual or constructive of the property, delivers the same to the vendee: will payment by the vendee to the broker, under such circumstances, without knowledge of the rights of the owner, prevent the owners from recovery? In Baring v. Corrie, 2 B. & Ald. 137, this question is distinctly answered in the negative. "The broker has not the possession of the goods and so the vendee cannot be deceived by that circumstance; and besides, the employing of a person to sell goods, as a broker, does not authorize him to sell in his own name. If, therefore, he sells in his own name he acts beyond the scope of his authority and his principal is not bound. But, it is said that by these means the broker would be enabled by his principal to deceive innocent persons. The answer, however, is obvious, that he cannot do so, unless the principal delivers over to him the possession and indicia of property." Ibid. 148. In Drakeford v. Piercy, 7 Best & Smith 515, there was a declaration for goods sold and delivered; plea, that the plaintiff sold and delivered the goods by one Davies, his agent in that behalf; that defendant purchased of Davies, not as agent but as vendor on his own account; that Davies sold as actual vendor; that defendant had no notice or knowledge to the contrary until after payment; that he paid the whole price to Davies, bona fide believing that he was vendor on his own account and entitled to receive payment. A demurrer to the plea was sustained. After citing Barring v. Corrie, Blackburn J, says. "The defense of payment here must rest on the plaintiffs having, by improper conduct, enabled Davies to appear as proprietor of the goods, or having clothed him with real or apparent authority to receive payment. But the plea carefully avoids any statement to that effect." |