The Daily empire. (Dayton, Ohio) 1865-1867, 1866-06-04
pLAw REPORT.
SUPERIOR -juDGr HAYNES.

Hdrshman d Baker VS.. The Little Mam
Railroad Company ct al. The plaintiff
shipped lot of tobacco by the defendant
who agreed to transport IL By all rail to
New York, and deliver it there in good
order. The tobacco was shipped, and ar
rived at Baltimore In good order; from
thence it was transported by water-which
the plaintiffs claim, was a breach of the
contract--and arrived at New York in a
damaged condition The Plaintiffs claim
damages in the amount of S70l1.
The defendants demurred to the petition.
The Court said the first question that
arose was, whether a railroad company
chartered by this State, and having its ter
minal within the State, has the power to
make such contract. In the decision In
this State 1t has been held that it has. The
Superior Court of Cincinnati held In case
of Falman 81 Co. Us. c. III. q ID. II. X. Co..
u Law Gazette that Railroad Company
had the power to enter into such contract
not as derived from its charter, but as Incl
dental to its chartered duties. This Court
thought it a proper and legitimate contract
for the road to make, and not ultra vires.
The Court thought the next question
made by counsel could not be decided upon
the demurrer. A demurrer only lies to
facts appearing upon the face of the petit
tiOn. The question made was upon the
bill of ladinQ attached to the petition as an
held that these Rxhibits form no part of the
petition. The petition must contain within
itself full statement of the facts constitu-
ting the cause Of action. The bill of lading
though attached to the petition, could not
be regarded as part of it.
Demurrer overruled and leave granted
to answer. - fLt-A l4 'AAa-
Lowe q Nauerth and Conover & Craig
head for Plaintiff, Mason & Bowman
(Springfield1 contra. .it fitEiI l-i4
Patterson ct al VS.. Patterson Petition
for partition bychildren against the father,
of lands held by them In joint tenancy, the
children claiming two-thirds of the prop
erty, and admitting the fathers right, to
one-third for life and asking that the faith
er's one-third may be set OFF TO him for
life. and the two-thirds partitioned amongst
the children. The title TO the land was de.
rived from the father of Hannah Patterson.
the mother of the children, by deed, con-
veying TO Hannah Patterson the property.
with remainder to the heirs OF her body
forever; her and her husband TO have the
Joint use of 1t during their natural liyaa
and II he survived her, he to have the use
OF one-third for life. but not to be subject
TO any debts contracted by him.
. The question made was, whether he, the
husband, has the whole of the property as
tenant by courtesy, or only the use of one
third for life.
case was applicable to this case; that as far
as regards deeds that rule had not been
modified, although as regards wills, 1t had 1
that the Courts must apply the rule inflex-
IDLY until it was changed by legislation or
the decision Of the Supreme Court. la this
case the grantees took an estate-tail under
the rule, and the children took by descent
and not by purchase.
The Court considered the husband TO be
entitled to tenancy by courtesy. and there
Gseould be no partition Of the land.
Conover q Craighead for plaintiff; Davies
Il Lowe, contra.
Dayton d Germantown Turnpike Co,apahy
VS.. William T.. PaRllev. An action 10 re.
cover $l33 4s upon an account for tolls due
TO said plaintiff from defendant. Judgment
by default for answer for $l34 60.ifI Y ~
4. Thompson for plaintiff. grsil
George W. Stet0artys. William HoIlembeck.
Order of partition for lot No, 32 In the In
corporated village Of Farmersville, made
returnable forthwith, and property APP
praised at S225. Report of Commissioners
approved at the same term, and order
granted for sale Of premises. 'Iiil l,
George W. Meyer, Attorney. \. "A