Dangler v. Baker.

1; 3 Wend. 360; and see Ferry v. Patterson, 5 Humph. 133.

Marvin & Hart, for defendant in error.

WHITE, J. In this case, four persons, including the defendant, agree to execute a bond to the plaintiff. One of the persons who was to execute the bond, procured, by fraud, a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were omitted. Held: 1. That the fraud constitutes no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same, and parted with the property in consideration of which the bond was given. 2. That the plaintiff might have required the bond to have been executed by all the parties, but he was not bound to do so. He might waive his right to require the bond to be thus executed by all the parties; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement.

Judgment affirmed.

[This case was decided before JOHNSON, J., came on the bench.-REP.

INDEX.

ABATEMENT

The right to enforce a decree of foreclosure of a mortgage rendered before the code took effect, abated by the death of plaintiff, but it may be revived in the name of the personal representative. Moore v. Ogden,

430.

ABUTTING LOTS OR LANDS. See ASSESSMENTS, 1, 2, 3, 4, 5, 6, 7, 11, 12, 13; RAILROADS, 1, 5, 6.

ACTIONS, REMEDIES, AND DEFENSES

1. The legislature can not create a liability for acts as to which there was no liability when they were committed; but where a remedy exists, the legislature may change it, as well as to acts theretofore as those thereafter done. Railroad Co. v. Comm'rs, 1.

2. The act of March 7, 1873 (70 Ohio L. 53), which provided a new remedy against those who place obstructions in public highways, applied as well to existing obstructions as to those subsequently placed therein. Id. 1.

3. A railroad company wrongfully laid its track in a public highway, and after it had continued the obstruction more than six years, an action was brought against it under the act of 1873. Held, That neither the limitation of four years, nor that of six years, was a bar to the action. Id. 1.

4. Where an obstruction is created in a state or county road, and the corporate limits of a municipal corporation are extended over a part of the road so obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation. Id. 1.

5. An action by the county commissioners, brought for the obstruction of a county road, was pending at the time of the passage of the act of March 7, 1873; and on May 31, 1873, the court, by consent of parties, made an order that the case should stand as though commenced on that day. Held, That the action must be regarded as one prosecuted under the act of 1873. Id. 1.

6. Where an insolvent corporation assigned all its assets and property in consideration that the assignee would pay all its debts and save the stockholders from individual liability, and the assignee brings divers actions to collect the assets assigned, in one of which the receiver of the corporation is made a party and files a cross-petition making other debtors on assigned claims parties, and prays that in the event the assignee, by reason of the invalidity of the assignment, is not entitled to recover, then that judgment be rendered in his favor against the debtors of the assigning corporation: Held, that the pendency of such cross-petition is no defense to the prosecution of other actions by the assignee to collect the assigned assets. Ins. Co. v. Jones, 351.

7. The court reversing a judgment has inherent power to make an order of restitution, which order when made will be final and conclusive between the parties, and can not be questioned by them collaterally; and, in such case, an action may be maintained by the plaintiff in error against the defendant in error, to recover money paid by the former on

Adoption-Appointment of Attorney to Assist Prosecuting-Attorney.

ACTIONS, REMEDIES, AND DEFENSES-Continued.

the judgment prior to the reversal, in which action it will be no defense
for the defendant in error to show that the money was paid voluntarily.
Hiler v. Hiler, 645.

See COUNTY COMMISSIONERS, 4, 5, 6; CONTRACT, 4; DEMAND AND NO-
TICE OF NON-PAYMENT, 1, 4; DAMAGES, 10; EQUITY, 7.

ADOPTION. See BOARD OF EDUCATION, 3.

ADOPTED CHILDREN. See DESCENT AND DISTRIBUTION, 1.

ADVERSE POSSESSION. See EVIDENCE, 4; Rhodes v. Gunn, 387.

AFFIDAVITS. See NEW TRIAL, 1.

AGREEMENT. See CONTRACTS; OCCUPYING CLAIMANTS; COUNTY COM-
MISSIONERS, 5, 6; CORPORATIONS, 8, 9, 11.

AGENCY. See PRINCIPAL AND AGENT; EVIDENCE, 18.

ANIMALS. See FENCES, 1.

APPEAL-

1. In an action brought under section 28 of the code of civil procedure,
as amended March 30, 1874, to subject the separate estate of a married
woman to the payment of a promissory note executed by her, neither
party is entitled to demand a trial by jury, and hence an appeal lies from
the judgment to the district court. Avery v. Vansickle, 270.

2. Where the plaintiff gives notice of appeal, and part of the defendants
enter into an undertaking on his behalf to perfect the appeal, the un-
dertaking, though defective, does not entitle the other defendants to the
unconditional dismissal of the appeal. Under the statute such a dis-
missal is only authorized after the failure of the plaintiff to give an
undertaking in accordance with the order of the court. Church v. Nel-
son, 638.

APPEARANCE-

Where, in a suit under the chancery act of 1831, enforcing the claim of a
locator in the Virginia Military District, etc., the appearance of un-
known heirs is to be effected under section 10 of the act, the finding of
the court, that they had been notified by the publication of notice in a
newspaper named, for a period specified, is, in effect, equivalent to a
notice given in pursuance of the previous direction of the court; at
least it ought to be so regarded when questioned in a collateral pro-
ceeding. Rhodes v. Gunn, 387.

See PARTIES, 5.

APPOINTMENT OF ATTORNEY TO ASSIST PROSECUTING-
ATTORNEY-

1. A court of common pleas, held by a single judge, has power, under the
act of 1875 (75 Ohio L. 47, 28), to appoint an attorney to assist the
prosecuting attorney in the trial of any case pending in such court;
and the rule is not different in Hamilton county, although the prosecut-
ing attorney and an assistant prosecuting attorney appointed under sec-
tion 9 of the same act, be present and participate in such trial. Price
v. State, 601.

2. The court should not appoint an attorney, under said section 8, to assist
in the trial of one charged with crime, merely because the prosecuting
attorney, the injured person, or his friends, request that such appoint-
ment be made, nor unless, in the opinion of the court, the public inter-
est requires such appointment; but, where such appointment has been
made, it will be presumed, in the absence of any showing to the con-
trary, that it was properly made. Ib. 601.

Appropriation of Land-Assessments.

APPROPRIATION OF LAND-

1. The owner of land which has been unlawfully and wrongfully taken and
appropriated to its use by a corporation authorized by law to appropri-
ate land, can not maintain an action for the value of the land so taken
and appropriated, and also damages accruing by reason of such taking
and appropriation, if the circumstances are such that he may recover
the land itself. Railroad Co. v. Robbins, 531.

2. In such a case the owner may recover compensation and damages, by spe-
cial proceedings, under section 21 (69 Ohio L. 88, 95; Rev. Stat. ?? 6448-
6450), or the land itself, as in other cases of unlawful entry. Ib. 531.
See RAILROADS, 5; STREETS; ASSESSMENTS; BAR, 9.
ARREST, UNDERTAKING IN-

Where suit is brought on undertaking given before judgment in a
civil action for discharge from arrest, the court in which the cause is
pending has power, at any time before judgment is rendered on the un-
dertaking, to grant the bail further time in which to surrender the judg
ment debtor. Whetstone v. Riley, 7 Ohio St. 514, explained and quali-
fied. Wright v. Collier, 131.

ASSESSMENTS-

1. Where a party seeks to enjoin an assessment on the ground that the
city council making the same, did not comply with the provisions of
the act of April 5, 1866 (S. &. S. 834), he must aver in his petition that
the city ordering such improvement belonged to the class embraced
within the provisions of that act. Bolton v. Cleveland, 319.

2. Where no damage resulted to abutting lots or lands from a street im-
provement made in 1866, under laws then in force, the publication of
notice by the city of its determination to improve the street, was not a
precedent condition to the authority of the city to make an assessment
on the abutting property, to defray the cost of the improvement. Id.
319.

3. Where a party seeks, in equity, to enjoin the collection of an assess-
ment by the city council, on the ground that the improvement was not
recommended by the board of city improvements, he must show such
fact by averment and proof. Id. 319.

4. By an assessing ordinance, passed by the city council of the city of
Cleveland, on the 31st day of July, 1866, under authority of the act of
May 3, 1852 (2 S. & C. 1493), the abutting lot-owners were required to
pay the assessment on the 28th day of the same month: Held, that the
defect in the ordinance was within the curative provisions of section 31
of said act. Id. 319.

5. Where a municipal corporation, in exercising the power of assessment
to pay for a public improvement, levies the assessment upon property
which was not subject to be charged therewith, and, in a suit brought
to enforce the assessment, the property thus charged was ordered to be
sold to pay the same, it is competent for the legislature to relieve the
property thus ordered to be sold, and to require the amount improp-
erly charged thereon to be paid out of the funds of the corporation.
State ex rel. v. Huffman, 435.

6. Where the statute granting such relief does not confer corporate power
it may be a special act. Id. 435.

7. The appropriation of land for the opening of a street, by a municipal
corporation, through a parcel of land which stands upon the tax dupli-
cate as a single lot or parcel, severs the same into two lots or parcels,
for the purposes of assessment, though it remains on the general tax