The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1876-03-30

| SOlldatlOn becomes complete peloIo al
the installments are due, such requisition
will continue in force for the benefit OF
the consolidated company, provided an
officer authorized to receive such pay
ments be continued at the place named
in the call. ;.
4. Such requisition applies to condl-
tional subscriptions as soon as the condl-
ton is performed, and to subsequent sub
scriptions made before consolidation is
complete, as well as to subscriptions ab-
solute at the date of the call.
6. Under the first section of said act
as amended May 6, 1869, it is condition
precedent to the right to enter into a
Joint agreement for consolidation that
the line of road of contracting corpora
tions be first made, or be in process OF
construction and a conditional subscrl-
Der, who had no knowledge OF the pro-
gress of consolidation and in no way con-
tributed thereto, may, in an action by
the new company as successor to the ola,
to recover the amount of his subscrlp-
ton, dispute the corporate existence OF
the plaintiff, on the ground that at the
date of the agreement to consolidate, the
road of the company, to whose stock he
so subscribed, was neither made nor in
process Of construction.
Judgment affirmed
MOTION DOCKET
No. 1876. George K. Wilder v. The
City of Cincinnati ct al. Motion for leave
to file petition in error to reverse the
District Court of Hamilton county.
Gilmore, j,
|. An ordinance to improve street be-
tween designated points, may properly
except an intermediate portion thereof,
which by an existing contract is to be
contemporaneously improved according
to the plan and grades established with
out expense to the city and the separat-
ed parts may be improved and assessed
as if they were contiguous.
2. Under the 550th section of the
municipal code, the fair and reasonable
average cost per front foot of the whole
improvement, if made entire, or of the
proper section if improved and assessed
by sections, is, if the per centage limited
by statute, the amount per front foot
with which an abbuter's property may
be properly changed in an action to re-
cover an assessment for street improve
ment.
Motion overruled.
No. 125. B. w. Miller ct al. Daniel
Longacre. Motion for leave to file petit
ton in error to reverse the judgment of
the District Court OF Union county.
WHITE, j. Held:
l. Where the makers of a promissory
note are sued jointly, an answer by one
of the defendants, setting up a defense
that the consideration of the note was
illegal interest, inures to the benefit of
all the defendants
2. Where in such cases there was
joint finding and judgment against all
the defendants on the first trial, and they |
were allowed a second trial under the |
statute, the extent of the liability is the |
amount of the recovery on the second |
trial, notwithstanding the second trial
proceeding may have been enormously |
dismissed as to all except the defendant
in whose name the answer was filed.
3. The judgment rendered on the first
trial was vacated, if not entirely, at least
to the extent that it was in excess of the !
amount recovered on the second trial.
4. The more appropriate remedy,
where an execution has been enormously
issued, is by application to the court
from which it issues to set it aside. Yet,
where it has been sentt to another county,
and suit has been brought to enjoin its
to which suit the execution
creditor appears aud answers to the mer-
its, making no objection to the jurisdic.
ton or mode of proceeding, relief may be
granted by injunction.
Leave granted, judgment reversed and
cause remanded to the district court for
further proceeding.
No. n. David W. Oliver VS. Charles L.
Moore and Lydia G. Moore. Motion for
leave to file petition in error to reverse
the judgment Of the District Court Of
Hamilton county.
Where an insolvent husband, who in
equity is indebted to his wife, advances
money, intended as a gift to her, to dis
charge the wife's estate from mortgage
debt, the wife, not being guilty of actual
fraud, cannot, at the suit of other credit
ors, be compelled to account for the mon
ey so advanced, until her claim against
her husband is first satisfied.
Motion overruled.
No. 1872. Lucy A. Rouse ct al. VS.. Geo.
Chappell ct al. Motion for leave to file
a petition in error to reverse the judg
ment Of the District Court of Cuyahoga
county.
REX, j.:
Under the statute allowing appeals
from the Superior Court of the city of
Cleveland to the District, Court passed
January 80, 1875, 72 o. L. 1S9, an appeal
was properly taken from ajudgment rem
1ered by the Superior Court at the term
Turing which the act was passed, al
,hough the judgment was rendered be-
ore the date of its passage.
Motion granted, judgment reversed,
md cause remanded to the District
court.
No. "a. John c. Fiedeldey VS. Albert D.
)iserens. Motion for leave to file Pc
ion in error.
WEIGH, c. j.:
l. A master commissioner, or other
,arty entitled to have fees taxed as costs
n an action, cannot in his own name
proceeding in error to reverse !
n order of the court for re-taxing the
osts, or disallowing his claim for costs in /
be case.
2. Where land is sold on execution or
rider of sale, and before confirmation of
he same by the Court, the judgment or
ecree is satisfied by payment to plain
Fl, and the sale is thereupon set aside,
ne officers making the sale is not enti-
ed to "poundage" on the purchase mon 4
= for which the land was so sold, the G
lme not being "money actually made k
nd paid" within the meaning of the a
atute. IS, & s., 358.) e
Motion allowed and Judgment of Dis b
let Court reversed. h
No. 1872. George w. Dreake, Treasurer Il
Il G.. a.. L