etc., a sum equal to five per cent. upon the total amount of such tax omissions paid into the county treasury. The additional compention provided for by the act was payable precisely as the general compensation provided for by the act (to which it is supplementary) of April 17, 1867, to wit: out of the county treasury upon the order of the county commissioners. The law authorizes the employment of local collectors, to collect delinquent personal taxes, under which the expenditures in the fourth enumeration were made, was passed March 20, 1866, 63 O. L. 43, S. & S. 780. Section one of that act provides as follows: "It shall be the duty of the several county commissioners in this state, semi-annually, at their first meeting after the return of the delinquent list of personal property, to cause the same to be read, and said commissioners may, at any time, direct said treasurer to proceed in the manner elsewhere provided in this act, to collect the whole or any portion of the delinquent taxes due their county. The said commissioners, if, upon careful examination, they are satisfied the said delinquent taxes or any part thereof, can be more easily and economically collected by personal application and efforts of local collectors, may empower their county treasurers to employ such collectors, and such number thereof, and for such compensation to be paid out of the county treasury, as will, in the opinion of said commissioners, insure the largest net proceeds from the collection of said delinquent taxes." แ It is claimed by the defendant that the provisions in this section that the compensation shall be paid out of the county treasury" is the designation of the place where the payment is to be made, and not the fund out of which it is to be made. The answer is that the state is not liable to contribute to the payment of county officers or their assistants, except where such liability is created by statute. The state can, no doubt, through its legislature, subject itself to the provisions of a general law, but it must be by express enactment. "The state is not bound by the terms of a general statute unless it be so expressly enacted." State ex rel. v. Board of Public Works, 36 O. S. 409. The state has the right to impose upon the counties the duty of collecting its portion of the public revenue; and of all of these statutes, it may be said that it (the state) is not liable for any of the fees, costs or expenses therein provided for, except where it is made so in terms. It is not a very material matter to the people of the state where this burden is placed, if it is made uniform and applicable alike to all the counties of the state. It these fees are collected for the sole use of the county as public moneys belonging to its treasury. It matters not whether those moneys are collected by the treasurer by the voluntary payment of the citizen, by distraint under the provisions of Sec. 38 S. & C. 1454, or the act under consideration. In either case he is entitled to his percentage on the collection, and to subject the state, or county, to any additional charge must be by authority of some express enactment. The act of March 20, 1866, authorized the commissioners to empower the treasurer to employ local collectors, but requires that they be paid out of the county treasury. out of the county treasury. Instead of being an authority to charge any part of such expense to the state, we think it must be held to expressly impose such liability upon the county. This is equally true of Sec. 38 S. & C., 1454, under which the item of $1,996,49 arose. There is neither express nor implied authority found therein to deduct from the amount of taxes due the state, any expenses which may be incurred by the treasurer in making the collection through the means furnished by that law. The balance of the claim made by the county must be allowed. It is conceded by the relator that the first item in the third enumeration above, is correct, and that the state is properly chargeable with its share thereof. The expenditure was made under the authority of Sec. 58 of S. & C. 1460, which expressly provides that the state shall be charged with its pro rata share thereof. When the expenditures, named in the second enumeration above, were made there was no statute expressly authorizing them. Whether the county commissioners had authority to bindthe county or not by such contracts, it is clear that their action imposed no liability upon the state. The contracts, however, were made the services rendered and paid for. Thereafter to wit: April 14, 1880, the legislature passed an act entitled "an act to more fully secure the taxatian of real and personal property in the state of Ohio, and for levying taxes thereon according to its true value." Sec. 1 provides "that whenever the board of county commissioners of any county in this state containing a city of the first grade of the first class shall have employed any person or persons to ascertain and furnish to the county auditor the facts and evidence neces sary to authorize him to subject to taxation any property improperly omitted therefrom, no payment for such services shall be made to such person or persons, except in accordance with the terms of the agreement between the county commissioners and such person or persons, and such payment shall be made to such person or persons only out of the money actually paid into the county treasury as taxes on such omitted property. And such compensation shall be apportioned ratably, by the county auditor, among all the funds entitled to share in the distribution of such taxes, including the state itself as well as the counties, townships, cities, villages, school districts, and other organizations entitled thereto; provided, however, that such employment shall only be authorized as to any omissions occurring previous to the passage of this act." So far as this case and the rights of the state are concerned, this section of the act is to be treated, and indeed it might as well have been so expressed, as legalizing the contracts already referred to, and authorizing the authorities of Hamilton County to direct a ratable proportion of the expenses incurred, from the moneys due the state from that county. The subject matter of it is, therefore, of a local and temporary nature, and the act valid within the rule established in State ex rel v. The Judges, 21 Ohio St. 1; State ex rel. v. Davis et al., 23 Ohio St. 434; State ex rel v. Covington, 29 Ohio St. 102; State ex rel. v. Hoffman, 35 Ohio St. 435; State v. Board of Education, 38 Ohio St. 6. The objection that its provisions are retroactive is not well made. Art. 2, Sec. 28. "The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion." Kumler v. Silsbee, 38 Ohio St. 445; 95 U. S. 644; Burgett et al. v. Norris, 25 Ohio St. 308. Whethe the provisions of Sec. 29, Art. 2, of the constitution (Fordyce v. Godman, Auditor, 21 Ohio St. 1) have been complied with, or whether the act is governed by such provision are questions not raised by the record and not involved herein. To raise such question it would be necessary to allege and prove that the act in question did not receive, on its passage the vote of two-thirds of the members elected to each branch of the general assembly. In the absence of such allegation and proof, the presumptien is that the law was properly passed. Judgment accordingly. 1. The state is not liable for any part of the fees or expenses of the county treasurer or county auditor, or their assistants, except where such liability is created by statute. The state is not bound by the terms of a general statute unless it be so expressly enacted. 2. No such liability was imposed upon the state by the provisions of the acts of March 20, 1866, S. & S. 780; May 6, 1869, 66 O. L. 122; or section 38 of the act of April 5, 1859, S. & C. 1454 (R. S., 2858, 1071, 1097.) 3. Section 1 of the act of April 14, 1880, (77 O. L. 205,) is not in conflict with either section 26 or 28, article 2 of the constitution. Peremptory writ allowed. No. 1296. Solomon Walters v. The State of Ohio. Error to the Court of Common Pleas of Richland County. OKEY, J. 1. Where the evidence tends to prove the commission, by the defendant, of the crime charged in the indictment, at a particular time and place, and the defendant offers evidence tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tending to show such alibi was not to be considered, unless it established the fact by a preponderance of evidence. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant's guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved. Judgment reversed and cause remanded for a new trial. 1286. The State ex rel. v. A. J. Frame, Auditor. Mandamus. And, 1291. Samuel Benner v. Levi F. Bander et al. Error to Court of Common Pleas of Cuyahoga County. Reversed in district court. MCILVAINE, J. 1. The statute of April 17, 1883, entitled "an act further to provide against evils resulting from the traffic in intoxicating liquors," authorizing annual assessments upon the business of trafficing in intoxicating liquors is a valid and constitutional enactment. 2. The provisions of the second section of the statute do not operate where the real property, on aud in which the business is conducted by a tenant, is held by such tenant under a lease for a term executed before the passage of the statute. Judgment for relator in mandamus, and judgment affirmed in Benner v. Bauder et al. Okey, J. dissented as to the first point in syllabus, and also from the judgments rendered. 43. James Secor et al. v, Samuel B. Witter et al. Error. Reserved in the District Court of Lucas County. JOHNSON, C. J., Held: 1. Where the name of one of several partners against whom a joint judgment was rendered on the ground that their petition did not state a cause of action, was by mistake omitted in a petition in error filed by his co-plaintiffs below, on behalf of all, to reverse such judgment, the reviewing court in which the petition is filed, or this court on reservation, may allow the omitted partner to become a co-plaintiff in error, though the time has elapsed for filing a petition in error. Smetters v. Rainey, 14 Ohio St. 287 distinguished and limited. 2. In an action before a justice of the peace a garnishee who is summoned to answer is not a party, nor has he his day in court in that action. His duty is to appear and answer all questions touching the property and credits of defendant in his possession or under his control, and truly disclose the amount owing by him to defendant, whether due or not, and whether upon a negotiable instrument or otherwise. 3. If by such answer it appears that he is owing defendant on a negotiable instrument not yet due, it is the duty of the justice after judgment against defendant, to order him to pay the amount when due to the justice to be applied in satisfaction of such judg ment. 4. The order of a justice is not a judgment charging the garnishee. It does not determine the ultimate rights of the parties. It can only be enforced by actions as in other cases. In legal effect it is an assignment of defendant's right in the claim to the plaintiff, and authorizes him to sue thereon in his own name, if the order is not complied with. 5. In such an action the garnishee may interpose any offset or defense he may have against the action, notwithstanding the order of the justice, and no judgment should be rendered against him that will not be a protection against the rights of third persons. 6. A negotiable instrument before maturity is subject to garnishment in the hands of defendant, and as against him and those claiming through him with actual notice of the proceedings in attachment, the right of the plaintiff in attachment is paramount, but such right is liable to be defeated by one who, before due, without such notice, becomes the bona fide holder. The pendency of the proceedings, without actual notice thereof, will not defeat such holder. 7. In an action for failure to obey the order of the justice, the fact that the instrument had, since it was seized in attachment, and before its maturity, become the property of such a bona fide holder, will defeat a under letters patent issued by the United States, con stitutes no defense to an information or indictment for violating the provisions of this section. 2. For the purpose of promoting the public welfare the legislature has power to regulate, or forbid the sale of patented articles, to the same extent as articles not patented, if no discrimination is made. Motion overruled. 171. The National Life Insurance Company v. Alfred Tullidge and others. Motion for leave to file a petition in error to reverse the judgment of the District Court of Hamilton County. OKEY, J. 1. Where an insurance company refuses to receive from the assured a premium on a life policy, on the ground that the policy has lapsed by reason of the non-payment of such premium on the day stipulated for its payment, and the assured claims that the company has waived the right to assert such forfeiture, equity has jurisdiction to determine, on the petition of the assured, the rights of the parties under such policy, and, if the policy is found to be in force, to compel the company to receive the premiums thereon and issue renewal receipts. 2. Although a life policy and the renewal receipts may contain a stipulation or notice that agents of the company shall not have authority to waive forfeitures where premiums have not been paid on or before the day designated for their payment, yet the course of business between the agent, the assured and the company, in giving effect to payments made when overdue, may be such that the company will be precluded from objecting to a payment tendered when overdue, where no notice had been given the assured that in the future such overdue payments would not be received, and where no part of the last eight premiums, all of which had been received by the agent when overdue, had been returned by the company. Motion overruled. 172. Houk v. The State. Motion for leave to file a petition in error to the Court of Common Pleas of Delaware County. Motion overruled. Motion for 174. Spangler v. City of Clevelaud. leave to file a petition in error to the District Court of Cuyahoga County. Motion granted, and case advanced to be heard with No. 401 on the General Docket. 182. Home Building and Loan Association v. Clark. Motion for leave to file a petition in error to the District Court of Franklin County. Motion granted. 183. Dummick v. Howit. Motion to take cause No. 565 on the General Docket out of its order. Motion overruled. 184. Society Perun v. City of Cleveland et al. Motion for leave to file a petition in error to the District Court of Cuyahoga County. Motion granted. 185. Society Perun v. Hay et al. Motion for leave to file a petition in error to the District Court of Cuyahoga County. Motion granted. 186. Ross v. McLeod. Motion for leave to file a pe tition in error to the District Court of Athens County Motion granted. Judgment reversed, and cause remanded to the district court to hear case on record, including bill of exceptions. 188. Walters v. The State. Motion to take cause No. 1296 on the General Docket out of order. Motion granted. 189. Kirk v. The State. Motion for leave to file a petition in error to Common Pleas Court of Muskingum County. Motion withdrawn. 190. Raymond, Lowe & Co. v. Hoffman et al. Motion for leave to file a petitien in error to the District Court of Cuyahoga County. Motion overruled. Motion to dismiss cause 191. McCafferty v. Larey. No. 506 on the General Docket. Motion overruled. 193. Snyder & Son v. Mitchell. Motion to reinstate cause No. 452 on the General Docket. Motion overruled. 194. Pincomb v. Herold. Motion for leave to file a petition in error to the District Court of Cuyahoga County. Motion overruled. 195. Jackson v. Pickins. Motion to reinstate cause No. 1169 on the General Docket. Motion granted. 196. Masters v. Rice. Motion to reinstate cause No. 1171 on the General Docket. Motion granted. 197. McBeth v. Teasdale. Motion to reinstate cause No. 793 on the General Docket. Motion granted. 198. McBeth v. Teasdale. Motion to reinstate cause No. 792 on the General Docket. Motion granted. 199. The Ohio Farmers' Ins. Co. v. Campbell. Motion to file a petition in error to the District Court of Columbiana County. Motion granted. 200. Henderson v. Taylor. Motion for leave to file a petition in error to the District Court of Muskingum County. Motion overruled. 201. Dunn v. Brown County Agricultural Society. Motion to reinstate cause No. 1162 on the General Docket. Motton overruled. 202. Pope v. Bleasdale. Motion to reinstate cause No. 945 on the General Docket. Motion overruled. 204. Ashland Mutual Fire Ins. Co. v. Poulson. Motion to reinstate cause No. 147 on the general docket. Motion overruled. 205. Valley Railway Co. v. Boody. Motion for leave to file a petition in error to the District Court of Summit County. Motion overruled. Friday, June 29, 1883. GENERAL DOCKET DECISIONS. No. 457. Winchell v. Frost. Error to the District Court of Portage County. Death of plaintiff in error suggested and C. D. Ingell, his administrator, on his own motion, made plaintiff in error. 687. Winchell v. Frost. Error to the District Court of Portage County. Same entry as above. MOTION DOCKET DECISIONS. 187. Neil v. Neil. Motion to advance cause No. 1251 on the General Docket for hearing out of its order. Motion granted. 192. Sullivan v. Nowak. Motion for leave to file a petition in error to the District Court of Cuyahoga County. Motion overruled. 206. Wallace et al. v. Townsend, Receiver, &c. Motion for leave to file a petition in error'to the District Court of Jefferson County. Motion granted. 207. Evans et al v. Jones. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion overruled. 208. Ely v. Bassett. Motion for leave to file a petition in error to the District Court of Lorain County. Motion overruled. 209. Flinn v. Pacific Building Association. Motion to take cause No. 167 on the General Docket out of its order. Motion overruled. 211. Hitchcock v. Inman. Motion for leave to file a petition in error to the District Court of Ashtabula County. Motion overruled. 212. Cincinnati & Clifton Incline Railway Co. v. Starbuck et al. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion granted. 213. The State ex rel. Fishback v. The Toledo, Cincinnati & St. Louis R. R. Co. Application for writ of mandamus. Application withdrawn with a view to making the same in the district or common pleas court. 214. Village of Oberlin v. Hoffner. Motion for leave to file a petition in error to the District Court of Lorain County. Motion overruled under section 6710, Revised Stasutes, as amended April 18, 1883. 215. Eureka Lodge No. 41 v. Johnson. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion overruled. 216. Sessions et al. v. Trevitt et al. Motion for leave to file a petition in error to the District Court of Franklin County. Motion overruled. To be reported. 217. The State on complaint of Emeline Miller v. Anderson. Motion for leave to file a petition in error to the District Court of Jefferson County. Motion granted. 218. Carrigan v. Priday et al. Motion for leave to file a petition in error to the District Court of Cuyahoga County, Motion overruled. To be reported hereafter. 219. Ohio Farmers' Ins. Co. v. Sarver. Motion for leave to file a petition in error to the District Court of Butler County. Motion granted. 220. Loughley v. Fagin. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion granted and cause advanced to be heard with cause No. 565. On the general docket. 221. Ramsey v. Jones et al. Motion to reinstate cause No. 1253 on the general docket. Motion granted. 222. Woodmansee v. Woodmansee. Motion to take cause No. 870 on the general docket out of its order. Motion granted. 223. Mace v. Mace. Motion for conditional order of revivor. Motion granted. Court adjourned to Tuesday, September 18, 1883. Columbus, Ohio, June 28, 1883. No. 370. The Board of Education of the school district of the Village of Westwood. v. David Sinton. Error to the District Court of Hamilton County. MARTIN, J. Certain bonds payable to- -,or bearer, issued by the board of education of the school district of the Village of Westwood, pursuant to a special act (66 O. L. 402) authorizing the saine for the purpose of providing funds wherewith to purchase a school house site and erect a school building thereon, were taken up and paid by the board and left with the treasurer with instructions to cancel them, who, instead of cancelling them, negotiated them before maturity as collateral security for his own debt to an innocent purchaser, who received and holds them without any endorsement thereon,-the board prior to such judgment having issued bonds to the full amount authorized by said act. Held: The board of education is not liable thereon to said purchaser. Judgments of the district court and common pleas reversed. 239. Wesley Pierce v. Mary Tiersch. Error to the District Court of Hardin County. DICKMAN, J. 1. In an action by mortgagee against mortgagor upon a note and mortgage given for the purchase money of the premises, the mortgagor may, as a defense, set up a counterclaim for damages by reason of the fraud of the mortgagee, in concealing from him material facts as to the situation and extent of the premises. 2. In such an action, it is error in the court to instruct the jury, that while the mortgagor was in undisturbed possession of the premises, he was not en titled to recover of the mortgagee on account of such fraudulent concealment, any thing more than nominal damages. Judgment of the district court and of the court of common pleas reversed, and cause remanded to the common pleas for new trial. 161. Sinton v. Butler. Error to the Superior Court of Cincinnati. GRANGER, C. J. S, the owner of a block of three buildings containing separate elevators operated by an engine placed in the rear of one of them, leased to T. H. & Co. another of them, stipulating that the lessees should have possession of the premises; they agreeing with care and diligence to keep the same in good order and condition during the term, they to pay to S. quarter yearly the cost of keeping in good order all the parts of said elevator contained in said leased premises and one third of the expense of running said engine. S. employed and paid the engineer to work for the block so leased, but did not interfere with or supervise his work; made repairs to the elevator when notified of their necessity by the tenants, and was re-imbursed by the tenants quarterly. Prior to the termination of the lease the parties agreed to extend it, S. under taking that from January 1, 1874, he would "at his own cost keep the elevator in said property in repair providing the lessees hereto use proper and judicious care in the use of the same." After January 1874, the only change in conduct was that S. did not call upon the lessees for reimbursement for such repairs. On Aug. 11, 1874 the rope broke, the elevator with B., an employee of the lessees upon it, fell, and B. was injured. S. had not been notified that any repairs were needed. The engineer as he oiled the machinery had opportunity to see it. The elevator was exclusively operated by the lessees and their employes. Held: 1. S. was not at the time of the accident in possession and in control of the elevator nor was he conducting or operating it. 2. The fact that the engineer so employed had opportunity to see the machinery was not notice to S.. of the need of repairs. 3. It was the duty of the court to construe the terms of the contract bearing upon the relation of the parties to the machinery, and it was error to refuse to give to the jury pertinent and proper instructions as to the legal effect of those terms. Judgment reversed. 221. James R. Challen et al. v. The City of Cincinnati. Error to Hamilton District Court. BY THE COURT. After a verdict for plaintiffs for damages caused by the change of an established grade of the street in front of their lot the city moved for a new trial, to which plaintiffs consented. The city then withdrew said motion and filed another calling it a motion "in arrest of judgment and for judgment for the defendant on the pleadings." The court entered upon the journal, against the objection and exception of plaintiffs, the words, "it appearing to the court that by the admission of plaintiffs upon the trial they were not owners of the premises at the time the work was done" &c., and taking that entry with the pleadings, sustained the city's motion and dismissed the action at plaintiffs' costs. Held: An admission made during the jury trial not incorporated into a pleading, was only a part of the evidence, and has no place in the record except in a bill of exceptions. Hence, the statement on the journal must be disregarded. On such a motion the court could only look at the pleadings. (Sec. 384, Civil Code, S. & C. 1054.) Judgment of district court and common pleas reversed and cause remanded for a judgment in favor of plaintiffs upon the verdict. 1. After overruling a motion to set aside a verdict the court made a journal entry allowing thirty days after term to prepare and present for allowance a bill of exceptions. No journal entry showed that such bill was ever prepared, presented, allowed or ordered to be made a part of the record. Held: A reviewing court cannot consider a paper claimed to be said bill of exceptions. 2. Where defendants sued as joint tort feasors answer separately: H., one of them, averring that he (with persons not made defendants) committed the act complained of, that it was lawful and that his codefendants had no part in it, it was not error to the prejudice of H. to overrule his motion for a new trial while sustaining a separate motion by the other defendants to set aside the verdict as to them. Judgment affirmed. 170. Lloyd v. Richards et al. Error to the District Court of Columbiana County. Judgment affirmed without penalty or further report. 201. Deis v. Moul. Error to the District Court of Tuscarawas County. Judgment. affirmed without penalty or further report. 215. Blake v. Hecla Iron and Mining Company et al. Error to the District Court of Lawrence County. Judgment affirmed without penalty or further report. 247. Teeters v. Barleon. Error to the District Court of Vinton County. Judgment of the district court reversed and that of the common pleas affirmed. No further report. 249. Ogle v. Ogle et al. Error to the District Court of Columbiana County. Judgment of the district court reversed-finding the plaintiff not entitled to partition when he began suit, or to the relief prayed for, therefore the action is dismissed. Costs in this court adjudged against the defendants in error, all other costs against plaintiff in error. No further report. 280. Goodwin v. Turner. Error to the District Court of Erie County. Judgment affirmed without penalty or further report. 270. McKinney et al. v. Johnston. Error to the District Court of Miami County. Judgment affirmed without penalty or further report. 324. The Pomeroy National Bark v. The Sugar Run Salt Co. Error to the District Court of Meigs County. Judgment affirmed without penalty or further report. 340. Roettinger, Jr. v. Burns. Error to the District Court of Hamilton County. Judgment affirmed with penalty $25 and attorney fee $25. No further report. MOTION DOCKET DECISIONS. No. 2. Alonan v. The State. Motion to reinstate cause No. 266 on the general docket. Motion granted. 3. Cincinnati and Portsmouth Packet Co. et al. v. Johnson. Motion to reinstate cause No. 288 on the general docket. Motion granted. 4. Studebaker v. Marshall. Motion for re-hearing in cause No. 286 on the general docket. Motion overruled. 5. McGiff v. Wanee. Motion to reinstate cause No. 372 on the general docket. Motion granted. 6. Upington v. May. Motion to reinstate cause No. 366 on the general docket. Motion granted. 7. Hoover v. Ames. Motion to reinstate cause No. 278 on the general docket. Motion granted. 8. Jones v. Doolittle. Motion to reinstate cause No. 306 on the general docket. Motion granted. Brown v. Kuhn. Motion to revive cause No. 476 on General Docket. Motion granted. Commission adjourned to Tuesday, September 18, next. |