441. Smith et al v. Smith. Error to the District Court of Clermont County. Settled and dismissed at costs of plaintiffs' in error.

454. P. C. & St. L. R. R. Co. v. Wright.

Error to the District Court of

Perry County. Settled and disinissed at cost of plaintiff in error.

538. St. Clair et al v. Brown et al. Error to the District Court of Mahoning County. Dismissed for want of preparation.

539. Bailey v. Glass et al.

Dismissed for want of preparation.

Error to the District Court of Clinton County.

Error to the District Court of

540. Hengehold v. Gardner, executor, etc.

Hamilton County. Settled and dismissed at costs of plaintiff in error. 543. Woster v. Goodnow. Error to the District Court of Huron County. Dismissed for want of prepara ́ ́ɔn.

547. Martin et al. v. Smith. Error to the District Court of Meigs County. Dismissed for want of preparation.

555. Davis et al. v. The Grange Supply House. Error to the District Court of Athens County. Dismissed for want of preparation.

559. Cole v. Union Central Life Ins. Co. Error to the District Court of Scioto County. Settled and dismissed at cost of plaintiff in error. 562. Caldwell v. High. Error to the District Court of Hamilton County. Judgment affirmed. No further report, no penalty. 582. Martin v. Keiser. Error to the District Court of Summit County. Judgment affirmed. No further report, no penalty.

MOTION DOCKET.

25. Yeoman et al. v. Lasley. Motion to modify decree. BY THE COURT.

In a case in which neither party was entitled to a trial by jury, the court found for the defendant, overruled a motion for a new trial, and dismissed the action. One of the errors assigned was "that the finding and judginent were against the evidence and the law. The bill of exceptions presented the entire evidence. If the trial court had not erred in applying the law to those facts about which there was no material conflict in the evidence, the decree would have been for the plaintiffs.

Held: In such a case the reviewing court may not only reverse the decree complained of, but also render the decree required by the facts referred to.

The motion is overruled so far as it asks that the cause may be remanded for a new trial, but is sustained in its request to strike out the recognition of assignments made by some of the plaintiffs 'since the trial below.

The costs on the motion are equally divided.

ASSIGNMENT FOR ORAL ARGUMENT

Wednesday December 12.

478. Cincinnati Consolidated Street Ry. Co. v. Jacob Nolthenius. Error to the District Court of Hamilton County.

490. John O'Brien et al. v. Board of Education of Hiram township. Error to the District Court of Portage County.

Wednesday, January 9.

352. Aetna Insurance Co. v. Uhriah W. Reed. Error to the District Court of Paulding County.

481. Robert H. Tyler, by n. f. v. Jesse Thornton.

Wednesday, January 16.

493. Henry N. Raymond et al. v. Mattie D. Ross. Error to the District Court of Cuyahoga County.

498. Manhattan Life Insurance Co. v. Emeline T. Abraham. Error to the District Court of Hamilton County.

Wednesday, January 23.

504. Samuel Fosdick v. Cornelius Van Horn. Error to the District Court of Hamilton County.

542. Swing & Mellon, executors, etc. v. Chatfield & Woods. Error to the District Court of Clermont County.

Wednesday, January 30.

522. John H. Taphorn et al. v. Marietta & Cincinnati R. R. Co., as re-organized. Error to the District Court of Hamilton County.

524. Jane Swanger v. Wm. H. Lantz et al. Error to the 'District Court of Franklin County.

Wednesday, February 6.

546. John W. Rutherford et al. v. Henry Brachman et al. Error to the District Court of Hamilton County.

550. Jacob Harline, executor, etc. v. First National Bank of Xenia. Error to the District Court of Greene County.

Wednesday, February 20.

457. Chauncy Winchell v. Frank Frost. Error to the District Court of Portage County.

567. Joseph Rawson et al v. George Bogen et al. Error to the DisWednesday, February 27.

576. Leopold Burckhardt v. Fourth National Bank of Cincinnati. Error to the District Court of Hamilton County.

584. Wadsworth Coal Co. v. Silver Creek Mining and Railway Co. Error to the District Court of Medina County.

Wednesday, March 5.

586. Adin G. Hibbs, administrator, etc. v. Union Central Life Insurance Co. Error to the District Court of Franklin County.

594. Ohio Valley Insurance Co. v. James S. Kirk et al. Error to the District Court of Hamilton County.

Wednesday, March 12.

596. Abraham Zimmerman v. Mary Zimmerman. Error to the District Court of Mahoning County.

N. B.-This being published previous to the making up of the docket for the January term, 1884, the numbers of the cases are those of the January term, 1883.

DIGEST OF CASES.

Contract-Joint Obligees—Survivorship.—Prima facie, all the obligees must join in an action for breach of a contract running to them jointly. No understanding between the obligees prior to the making of the contract can effect this rule. If any fact takes a case out of the 'rule, it should be alleged in the complaint; but a defect in this respect may be cured by an allegation in the answer. If one of several joint obligees decease, the right of action is in the survivors only. Hedderly v. Downs. Minn. Sup. Ct., Oct. 22, 1883. 17 N. W. Rep. 274.

Criminal Law-Conspiracy.—The law holds each party responsible for the acts of each co-conspirator, done in pursuance and furtherance of the common design, which extends to the consequences which might reasonably be expected to flow from carrying into effect the unlawful combination. Accordingly, no error was committed in admitting in evidence against the defendant, the acts and declarations of a co-conspirator in relation to the gun with which the murder was committed. People v. Collins. Cal. Sup. Ct., Nov. 6, 1883. 12 Pac. Coast L. J. 268

Criminal Law-Defence of Insanity — Burden of Proof - Reasonable Doubt.-When insanity is interposed as a defense in criminal cases, it must be established to the satisfaction of the jury by a preponderance of the evidence; and a reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. Ford v. State. Ala. Sup. Ct., 1883. 16 Rep. 647.

Criminal Law-Dying Declaration.-Dying declarations are restricted to the act of killing and to the circumstances immediately attending it and forming a part of the res gestae. When they relate to former and distinct transactions, they do not come within the principle of necessity on which such declarations are received. People v. Fong Ah Sing. Cal. Sup. Ct., October 26, 1883. 12 Pac. Coast L. J. 263.

Criminal Law-Practice-Challenging Jurors.-In a criminal case, eitber party having accepted the panel, or what is equivalent, having declined to challenge when duly called on by the court, can not, at a subsequent stage in the formation of the jury, put in a challenge. Munday v. Commonwealth. Ky., June 9, 1883. Chicago L. A., Oct. 2, 1883.

Deed-Record-Notice.-In order to be constructive notice to subsequent purchasers the record of a deed or other instrument affecting the title to land must show upon its face that such instrument was so executed and acknowledged, as to entitle it to be recorded. Girardin v. Lampe. Wis. S. C., Sept., 1883. 16 Rep. 606.

Evidence-Impeachment of Witness.-Testimony impeaching the general reputation of a witness is admissible, and where it is lacking in completeness and evidentiary force, the objection to it, is to be applied by showing its weakness to the jury, and getting proper instructions upon it, and not by a motion to strike out. Dovey v. Lane. Mich. Sup. Ct., Oct. 31, 1883. 17 N. W. Rep. 272.

Evidence-Privileged Communication.-When objection is made to the admissibility of a paper offered in evidence, upon the ground that it is a privileged communication, it is proper for the court, before permitting said paper to be read to the jury, to allow the party objecting to crossexamine the witness producing it, and also to receive other evidence upon the question of its privileged character, in order to decide as to its admissibility. Trussell v. Searlett. U. S. C. C. D. Md. 1882. 18 Fed. Rep. 214.

Execution-Levy on Principal-Release-Surety.-A judgment creditor having an execution against several defendants who are equally bound, may direct the officer holding the writ to make the amount out of such as he may see fit to proceed against. But where one of the defendants is a surety, and the fact is known to the creditor, he cannot voluntarily release a levy which has been made upon property of the principal debtor and proceed to make the judgment out of the surety. Such release operates as an extension to the principal, and a subsequent release of the liability of the surety. Hyde v. Rogers. Wis. Sup. Ct., Oct. 23, 1883. 17 Cent. L. J. 431.

Exemption-Garnishment.-Garnishment process will not reach personal property assigned by the principal debtor, if in his hands it would have been exempt from execution. Creditors cannot attack the transfer of property which the law would not have allowed them to apply on their claims, whether it be real or personal. Anderson v. Odell. Mich. Sup. Ct.. Oct. 17, 1883. 16 N. W. Rep. 870.

Foreclosure-Before Debt Due.-A foreclosure bill will not lie until the debt secured by the mortgage under foreclosure falls due. Kelly v. Bogardus. Mich. Sup. Ct., Oct. 17, 1883. 16 N. W. Rep. 885.

Insurance-Devise of Policy.-Where a policy provides that the heirs of the insured are to take the proceeds of the policy upon his death, he can not deprive the heirs of the benefits of the fund by devising it to another. Though where it appears that the devisee of the policy has saved it from forfeiture by paying some of the premiums on it, she is entitled to be reimbursed therefor out of the proceeds of the policy. Weisert v. Muehl. Ky: Ct. of App., Oct. 16, 1883. 5 Ky. L. Rep. 285.

Insurance-Effect of Incumbering Tille.-A policy of fire insurance containing a provision that "if the title of the property is transferred, incumbered, or changed, the policy shall be void," is rendered void by the execution of a mortgage on the insured property. Ellis v. State Ins. Co. Ia. Sup. Ct., Oct. 3, 1883. 1 Denv. L. J. 324.

Judgment-Lien.—A judgment is a lien against real estate for five years from its entry. Opening the judgment for the purpose of letting the defendant into a defense does not affect its lien. Kittanning Ins. Co. v. Scott. Pa. Sup. Ct., Dec. 11, 1882. 1 Denv. L. J. 323.

Married Woman-Separate Estate.-Where a married woman borrows money to pay for land conveyed to her as her separate estate, and mortgages the land therefor, she is bound by the mortgage, though the money was paid to her husband and was not all used in paying for the land, it appearing that he acted in the matter as her agent. Hounshell v. Clay F. & M. Ins. Co. Ky. Ct. of App., Oct. 9, 1883. 5 Ky. L. Rep. 267.

Negligence-Judicial Notice.—Judicial notice will be taken that a box freight car in a state of rest at a highway crossing is not per se a frightful object to horses of ordinary gentleness; the question is not for the jury. Gilbert v. Flint & P. M. Ry. Co. Mich. Sup. Ct., Oct. 17, 1883. 16 N. W. Rep. 868.

Negotiable Instrument-Lost.-Where a negotiable instrument is lost after it becomes due, a recovery may be had thereon in a court of law. Mowrey v. Mast. Neb. Sup. Ct., Oct. 9, 1883. 16 N. W. Rep. $39.

New Trial-Newly discovered Evidence.-Where it appears that a party asking a new trial on the ground of newly discovered evidence, could, by the exercise of proper diligence, have offered such evidence on the former. trial, the motion should be denied. Lindauer v. Hay. Ia. Sup. Ct., Oct. 17, 1883. Cent. L. J. 411.

New Trial-Misrecital of Testimony by Counsel.--A misrecital by counsel before a jury of the testimony of a witness is no ground for a new trial, it being apparent that no prejudice could have resulted. Rheiner 7. Union Depot S. R'y & T. Co. Minn. Sup. Ct., Nov. 3, 1883. 17 N. W. Rep. 279.

Officer-Care of Attached Property. A sheriff or constable is required to use only ordinary care in the preservation of attached property, or property taken under execution. There is no reasonable ground for establishing a different rule of diligence in cases of attachment and execution. Creswell v. Burt. Ia. Sup. Ct., Oct. 3, 1888. 1 Denv. L. J. 323.

Parties Name- Variance.-A slight variance in the name of one of the parties to a judgment from that in the execution will not vitiate it, where it is apparent from the pleadings and proceedings that the parties are the same. Miller v. Willis. Neb. Sup. Ct., Oct. 9, 1883. 16 N.W. Rep. 840.

Promissory Note-Incapacity of Maker.-One who in good faith takes a note signe by a person of whose incompetency to do business he has no notice, and in a transaction which is not likely to call his attention to it, can recover on the note. Shoulters v. Allen. Mich. Sup. Ct., Oct. 17, 1883. 16 N. W. Rep. 888.