fore, come within the most narrow definition of police regulations. If it were conceded, however, that none of the substances described in section 7090 are positively injurious to health, we hold that the law is within the general powers possessed by the state. Those who buy food have a right to know what they buy, and to have the means of judging for themselves as to its quality and value. Motion overruled. [To appear in 39 Ohio St.] BAKER V. MORATH. UNDERTAKING FOR SECOND TRIAL-OMISSION NOT MATERIAL DOES NOT INVALIDATE. (Ohio Supreme Court Commission. May 8, 1883.) Where an undertaking for a second trial, provided by Section 691 of the Code of Civil Procedure (2. S. & C. 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. Chas. Follett & Son for plaintiff in error. June 9, 1871, one Dolph, with Michael Morath as surety, gave a second trial bond in the Court of Common Pleas of Licking County, as provided by section 691 of the Code of Civil Procedure, 2 S. & C. 1155, in a cause in which William Baker had recovered a judgment against Dolph for the sum of $1,828.90. Upon Upon a second trial Baker recovered a judgment against Morath upon the second trial bond above referred to. The district court reversed the judgment of the court of common pleas, chiefly on the ground that the second trial bond did not sufficiently describe the original judgment of Baker against Morath. It is claimed that the amount of the judgment obtained at the first trial is not correctly stated in the second trial bond. The condition of the second trial bond was not that the judgment in the first trial should be paid, but that the party obtaining a second trial should abide and perform the order and judgment of the court yet to be rendered. If this be true, Morath had no interest in the judgment rendered in the first trial. It was mentioned in the second trial bond, with other things, for the purpose of identifying the case. Statements were made in the bond of such character as identified the case in which the second trial bond was given, and it was immaterial whether the amount of the judgment in the first trial was correctly stated or not. Judgment reversed. [To appear in 40 Ohio St.] VILLAGE OF HARTWELL v. C. H. & D. RAILROAD CO. VILLAGE IMPROVEMENT-CONSTRUCTION OF SEWERSMETHOD OF Procedure. (Ohio Supreme Court Commission. June 12, 1883.) 1. The power of a city or village council "to open, construct, keep in order and repair, sewers, drains and ditches," conferred by paragraph 21, section 199 of the municipal code, (72 O. L. 107) was not, in 1877, restricted by chapter 50 of said code (66 0. L. 251), unless council, acting under said chapter, in the exercise of its discretion, had previously determined that it was necessary to provide a system of sewerage and drainage "for the city or village. 2. The manner in which council should have exercised the power conferred by pargraph 21, section 199, when unrestricted by chapter 50, was contained in chapter 49, muncipal code, (66 O. L. 245). The opinion states the case. Haly, Brannon & Desmond for plaintiff in error. Ramsey and Matthews for defendant in error. NASH, J. On the eleventh of December, 1876, the council of the village of Hartwell adopted a resolution declaring the necessity of improving Ohio Avenue in said village, by constructing a sewer therein from its northern to its southern terminus. The publication of this resolution required by section 563, chapter 49, Municipal Code (66 O. L. 245) was made. This resolution provided also that the expense of the improvement should be assessed upon the abutting property per foot front. The subsequent steps in the construction and completion of this improvement and in the assessment of the cost thereof upon abutting property were a substantial compliance with the provisions of chapter 49, Municipal Code (66 Ó. L. 245-251). The action in the court of common pleas was brought by the village for the use of the contractor, to enforce the collection of the assessment levied upon the abutting property of the defendant. In this court there was a judgment in favor of the village of Hartwell. An appeal was taken to the District Court of Hamilton County and there the judgment was in favor of the Cincinnati, Hamilton and Dayton Railroad Company. We are asked to reverse the judgment of the district court. The principal reason urged against this request is that the power of municipal corporations in 1876 to build sewers and to levy assessments therefor was limited and restricted by the provisions of chapter 50, Municipal Code (66 O. L. 251-256). We can not concur in this interpretation of the statutes. The first section of this chapter, 602, vested in the council of any city or incorporated village the power to determine when it became necessary to provide a system of sewerage and drainage for the city or village. The provisions of chapter 50 did not become operative or binding upon council until this determination had been reached. If the theory of the defendant in error is correct, no sewerage or drainage could have been provided for a city or village until council had determined that "a system of sewerage and drainage' was necessary. There were at that time many cities and villages in Ohio, in which the councils had not made this determination and in which to have done so would have been absurd. In such cities a sewer or drain may have been required without the necessity of "a system of sewerage and drainage." Such cases were amply provided for by the general assembly. Paragraph 21, section 199, Municipal Code (72 O. L. 107) clothed the councils of municipal corporations with power "to open, construct, keep in order and repair sewers, drains and ditches." This power was restricted only in cities and villages where the councils had declared the necessity of "a system of sewerage and drainage." A sewer is a public improvement, and the manner and means of exercising the power conferred by paragraph 21. section 199, was provided by chapter 49, Municipal Code. The council of the village of Hartwell had not found that there was a necessity for system of sewerage and drainage" in said village and the record shows that there was in fact no such necessity. Therefore, her council proceeded to exercise the power conferred by paragraph 21, section 199, and in substantial conformity with the provisions of chapter 49, Municipal Code. Judgment of the district court reversed and judgment accordingly. [To appear in 40 Ohio St.] JONES V. BANGS. PROMISSORY NOTE-ALTERATION-SURETY-RELEASE. (Ohio Supreme Court Commission. June 12, 1883.) 1. Where a complete note, payable at a future day and containing no stipulation as to interest, is altered by the principal maker without the knowledge of his surety, before its delivery, by the addition of the words "with ten per cent. interest from date," held: That such alteration is material and makes the note void as against the surety, although the same is made without the knowledge of the payee. 2. Where the charge of the court to the jury was manifestly erroneous as to a material issue raised by the defense, and the record does not disclose all the evidence, the judgment should be reversed, although it does not appear that the defendant was prejudiced thereby. Error to the District Court of Ross County. Bangs, the defendant in error, brought suit as payer and, holder of two promissory notes against Jones, the plaintiff in error, and A. W. Thompson, two of the makers thereof, to recover the amount due thereon. A copy of one of the notes is set out in the opinion of the court. The other note is for same amount, to same payee, by same makers, payable ten months after date, and dated February 1, 1873, and contains this clause, "at ten per cent. interest per annum." It was admitted that Jones signed both notes as surety for C. B. Thompson. The trial was to a jury who rendered a verdict for the amount due on the notes. The only issue tried was raised by one branch of, the answer and a reply thereto by way of denial. That answer was this: 2. "That said notes were altered after he had signed his name to them, so far in their tenor and effect, and without his consent, as to the first note, by writing therein the words, at ten per cent. interest per annum, and in the second note, with ten per cent. interest from date." Testimony was given on both sides relative to that issue. A motion for new trial, predicated on the refusal of the court to charge as requested, and on alleged error in the charge given, was overruled, and a bill of exceptions taken. Thereupon a finding on default was taken against A. W. Thompson and judgment against both defendants. The bill of exceptions, among other things, recites : "And, be it further remembered, that at said trial, at said term of court, evidence had been given, tending to show that the notes sued upon had been fraudulently altered after being signed by said Jones, either with or without the consent and connivance of said plaintiff, as alleged in his first defense, and, on the other hand, evidence had been given tending to show that such was not the case, and the evidence being all in, the said defendant, by his counsel, asked the court to charge the jury: That, if the jury should find that the note, or notes sued upon, had been changed or amended as alleged in the first defense of the amended answer, after they had been signed by said Jones, and without his knowledge or consent, then the contract upon which he is sued is not the contract which he signed, and the plaintiff cannot re over.' Which said charge the court refused to give, but did charge the jury as follows, in respect to said first defense: "Each note constitutes a separate cause of action, and to each the same defenses are pleaded. As to the first defense to each note, the burden is upon the defendant to maintain this defense by a fair preponderance of the evidence, and in order to make out this defense the proof must satisfy you of two things. "1. That the note, in each case, was altered by the insertion of the clause as to interest, after it had been signed by the defendant Jones, and without his consent. "2. That it was so altered with the knowledge, consent, or procurement of the plaintiff. 237; Maine, Waterman v. Vore, 43 Me. 504; Michigan, Bradley v. Mann, 37 Mich. 1; In diana, Schneurind v. Hackett, 54 Ind. 248; Missouri, Frigg v. Taylor, 27 Mo. 245. Many other authorities bearing directly on the point from the same and other states are cited in the able brief of counsel for plaintiff in error. The alteration was certainly material. When it was signed by the surety the note bore no interest before maturity and was for the pay-.. ment of $1,000 and no more when due. À8 altered it drew interest from date and was for the payment of $1,060 at inaturity. It may be well to remark (although it is not an important circumstance) that the note is joint and several. The príncipal was not a party to the, action, and the plaintiff planted her case on the several promise of the surety. If the surety is bound it is because of his promise. There is no allegation in the record that his alleged liability was assured otherwise than by his written promise. When he signed and handed his note to his principal, he thereby authorized its delivery as it was then written. And he would have been bound accordingly to the payee or any subsequent bona fide holder. The answer of the surety Jones merely alleges that after he signed the note it was altered without his consent, by the addition of the words" with ten per cent interest from date." By whom and when, whether before or after delivery or with or without the By its subsequent alteraltion its identity knowledge of the principal or payee is not was lost and there arose another and distinct stated. The plaintiff making no objection to obligation which he had not signed. To hold the answer on account of this indefiniteness him bound by the new contract he must, in put in a reply amounting to a general denial. some way consistently with legal princiOn this issue alone the case went to a jury ples, be concluded by the act of his príncipal and testimony was given tending to show or other person in making the alteration. He an alteration as charged in the answer. may be thus concluded by authority previdefendant requested an instruction to the ously given, or by subsequent ratification, or jury to the effect that if they found that the by conduct on his part raising an estoppel. note had been altered as stated in the answer There is no claim made of subsequent ratifithen the note sued on was not the note cation. And there is no suggestion of authorhe signed and the plaintiff cannot recover. ity other than the mere fact that he entrusted The instruction the court properly refused to the paper to his principal for negotiation. give. The charge given was "that if the The principal had the custody of the note note was altered before delivery to the payee with authority to deliver it. If the surety without her knowledge or consent, such al-had parted with the note leaving a blank for teration will not affect its validity in her hands." The The only questions to be decided are upon this charge. As applied to the note under consideration the charge is to the effect that a material alteration of a complete note made by the principal maker before delivery and without the knowledge of the surety, does not discharge the surety unless such alteration was made with the knowledge, consent or procurement of the payee. We think that this charge is manifestly erroneous. We are sustained in this view by numerous well considered adjudications, in New York, McGarth v. Clark, 56 N. Y. 34; Connecticut, Etna Nat. Bk. v. Winchester, 43 Conn. 391; Massachusetts, Draper v. Wood, 112 Mass. 315; Pennsylvania, Fulmer v. Leitz, 58 Pa. St. the insertion of the amount or other material part, the custody of the note would have carried with it unrestricted authority to fill the blank accordingly. Fullerton v. Sturges, 4 Ohio St. 509. In this instance there was no blank to be filled. The surety carefully fixed in writing all the terms of his contract-the day of the payment and the precise amount he was to pay. The note was complete when it left his hands, and conferred no authority on anybody to alter it. Did the conduct of the surety estop him from saying that the alteration was without his consent? The record of his conduct is brief. He signed the note at the request of his principal and handed it to him for delivery to the payee. This is all of it. It was a single transaction incapable of | being misunderstood. It is claimed by the learned counsel for the defendant that the surety here falls within the rule "whenever one of two innocent parties must suffer by the act of a third, he who has enabled such person to occasion the loss must sustain it." The application of this rule to the unauthorized alteration of a complete note by one of the promisors before delivery and without the knowledge of the other, is expressly denied in McGarth v. Clark, supra, and Etna Nat. Bk. v. Winchester, supra. The construction of an instrument may, it is true, be so faulty as to afford exceptional facilities for alteration. And in such case negligence to some extent may be imputed to the maker. He may possibly be said to have enabled his co-maker to commit the forgery. Every such case must stand on its own peculiar circumstances. In this record, however, we see no evidence of negligence on the part of the surety. The alteration consisted of words added at the end of a note. In what respect was the surety negligent in not anticipating and preventing this crime? He might, it is true, have drawn an elongated scroll from the end of the note before parting with it. If this was his duty it was his duty likewise to have excluded the possibility of fraudulent alteration on any part of the space within the four corners. A construction of the rule which exacts such suspicious care and requires the surety to regard his principal as a rogue is untenable and wholly unsuited to the practical business methods of our people. by the testimony in favor of the defendant it, would have been the duty of the court to save the rights of the defendant by ordering an amendment to the pleading if necessary. The mere fact that the record does not affirmatively show that the defendant was prejudiced by the error in the charge is not important. It is sufficient that he may have heen prejudiced. The testimony is not before us. Baldwin case, 1 Ohio St. 141; R. R. Co. v. Slattman, 22 Ohio St. 1. We consider it unnecessary, in view of what has been said, to comment on the other note described in the record. Judgment of the district court reversed. [To appear in 40 Ohio St.] RECORD OF NEW CASES FILED IN THE OFFICE OF No. 1303. The Pittsburgh, Cincinnati and St. Louis 1304. John H. Burgess et al. v. Rufus C. Danison, exr. et al. Error to the District Court of Lawrence County. O. F. Moore for plaintiffs; Ralph Leete, Neal & Cunningham for defendant. 1305. Moses G. Watterson v. Alvah Bradley. Error to the District Court of Cuyahoga County. Kain, Sherwood & Bunts for plaintiff; Fitch & Ensign for defendant. 1306. George Hause, assignee v. Vinton County National Bank. Error reserved in the District Court of Gallia County. D. B. Hebard, C. C. Aleshire for plaintiff; S. A. Nash, Jones & Jones for defendant. 1307. Pittsburgh, Cincinnati and St. Louis Railway Co. v. Mahala Smith. Error to the District Court of Jefferson County. J. Dunbar for plaintiff; J. H. Owesny for defendant. The case of Fullerton v. Sturges, supra, is confidently relied on by the defendant in error, as sustaining the proposition that the participation of the payee in a material alteration before delivery is necessary to avoid the note as to a surety who had no knowledge of and had given no authority to make the alteration. As we understand that case the alteration consisted in affixing a seal to the name of the surety before delivery and was wholly immaterial. Therefore all that was said by the eminent judge who delivered the opinion plaintiff; S. F. Crawford for defendants. on the law relating to a material alteration is obiter. 1308. Henry S. Cross v. Xenophon C. Scott et al. Error to the District Court of Cuyahoga County. Burk & Sauaers for plaintiff; Estep, Dickey & Squires for defendants. It is insisted, however, on behalf of the defendant that the error in the charge is immaterial because of the deficiencies of the answer. To this we cannot accede. The answer set up a partial defense at least, and the intent was to state a full defense. The plaintiff claimed to have established by the testimony that the alteration was made under circumstances that would in law discharge the surety. The charge assumed that the testimony tended to show that the alteration was made before delivery. Had there been a general or special verdict warranted 1309. James Mack v. The United States Hauser & Dower Association et al. Error to the District Court of Hamilton County. Champion & Williams for 1310. Society Perun v. The City of Cleveland. Error to the District Court of Cuyahoga County. Wilson & Sykora for plaintiff; B. R. Beavis, Kain, Sherwood & Bunts, J. W. White for defendant. 1311. Society Perun v. John Hay et al., ex'rs. Error to the District Court of Cuyahoga County. Wilson & Sykora for plaintiff; B. R. Beavis, Kain, Sherwood & Bunts, J. W. White for defendants. 1312. Deborah A. Spangler et al. v. The City of Cleveland. Error to the District Court of Cuyahoga County. Mix, Noble & White for plaintiffs; Kain, Sherwood & Bunts for defendant. 1313. The Ohio Farmers' Insurance Co. v. Robert Campbell. Error to the District Court of Columbiana County. J. W. & H. Morrison for plaintiffs; Wallace & Billingsly for defendant. The Ohio Law Journal. Columbus, O., July 14, 1883. THE legislation of last winter, which among other foolish things, saddled upon common pleas courts the unconstitutional task of appointing a tax commissioner in certain cities, has borne its proper fruit by precipitating a war between that commission and the school board of this city, with promises to be one of extermination to the former. If the school board had last winter selected a committee of A. Primary lads to coach some of the members of the 65th in grammar and law we would have avoided all those tempests which have been howling since the adjournment. JUDGES IN OHIO. The high esteem in which judges are justly held in this state has led to the unprecedented spectacle of six judges being at once candidates for the offices of governor and for the honors of the supreme bench. In view of this fact we are requested by many of the best, friends of the LAW JOURNAL and of the candidates themselves to commemorate this unusual incident by giving to the people and to history a portrait of this distinguished half dozen of eminent men. We deem this eminently proper in a legal journal, which survives in libraries, public and private, for scores of years after the fleeting mention made by newspapers has been lost and forgotten. We therefore will make the effort to give at an early day these portraits and sketches and respectfully ask that this shall be accepted as a personal response to our many friends who have made the suggestion. AFFIDAVITS. The venue in an affidavit is the essential part, or one of the essential parts of it (Lane v. Morse, 6 How. Pr. 394; Cooke v. Staats, 18 Barb. 407), and has been held to be prima facie evidence of the place where the affidavit was taken (cases supra; Belden v. Devoe, 12 Wend. 225; M. & M. B'k etc. v. Cowden, 3 Hill 461). An affidavit should show on its face that it was made before some officer competent to take affidavits (State v. Green, 15 N. J. L. 88; Ladow v. Groom, 1 Denio 429), and within the territory in which he is authorized to administer oaths (Lane v. Morse, 6 How. Pr. 394). It has been held that where an affidavit has the venue laid in one county, and is sworn to before an officer of another county who is authorized to take affidavits within his county, is not good (Cooke v. Staats, 18 Barb. 407; Davis v. Rich, 2 How. Pr. 86; Sandland v. Adams, Ib. 127; Snyder v. Olmstead, Ib. 181). An affidavit taken out of the jurisdiction can not be recognized unless the authorized and official character of the officer is authenticated (Behn v. Young, 21 Ga. 207). An affidavit in garnishment, attachment, and the like, must state the facts on which such process is authorized to issue. Sec. 635 of the New York code provides, among other things, that "if the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him." In an action under this section an affidavit omitting the words "over and above all counter-claims," and including none of equivalent import, is held fatally defective (Kelly v. Archer, 48 Barb. 68; Lyon v. Blakely, 19 Hun. 299; Printing and Binding Co. v. Hart, 11 Week. Dig. 292). Where the statute requires that the plaintiff, or some one for him, file an affidavit setting forth, among other things that "he has reason to believe and does believe," etc., an affidavit which fails to allege that the affiant "does believe" is not good (Lynch v. Markowitz, 5 Tex. L. J. 278). And where the statute requires, as in Wisconsin, that before a writ off attachment can issue, there must be filed an affidavit by "the plaintiff or some one in his behalf" setting out certain specified facts, if it fails to appear upon the face of the affidavit that it is made by the plaintiff or by some one "in his behalf" and for him, it is fatally defective (Wiley v. Aultman, 53 Wis. 560, and authorities cited in paragraph 2 on page 565). Where the statute requires that an affidavit be filed by the plaintiff or by his agent or attorney in his behalf, the affidavit must show such fact affirmatively. In a case where a petition for a writ of garnishment was signed by "Fly & Fly, attorneys for plaintiff," and the affidavit was made by "B. F. Fly" sim |