8. If two courts have concurrent jurisdiction, the one which first obtains
possession of the subject, must adjudicate, and neither party can be
forced into another jurisdiction. Ib.
9. A court having once acquired jurisdiction should retain it.
10. In an action for the foreclosure of a mortgage, it is no defense that
a third party has subsequently brought a similar action against the
mortgagor, in a court of concurrent jurisdiction, founded upon the
same subject. Ib.
11. The Marietta & Cincinnati R. R. Co. having its road constructed
and in operation from Marietta to Blanchester, and having the use
of the Cincinnati & Hillsboro Railroad track, from Blanchester to
Loveland, by virtue of a contract with that company, and having a
running arrangement with the Little Miami R. R. Co., whereby
the right of that road, from Loveland to Cincinnati, was leased to
the M. & C. R. R. Co. for the purpose of transporting its freight and
passengers over that road to Cincinnati; and also having built for
itself a side track, leading to a depot owned and used by it, for the
reception of freight in the city of Cincinnati, renders it amenable to
process as a corporation, situated in the city of Cincinnati. Athens
Branch Bank v. Marietta & Cincinnati R. R. Co. 425.
12. Where goods in the possession of the sheriff, by virtue of an execu-
tion, are taken from him by process of replevin, issuing from the
circuit court of the United States, and judgment is there rendered
in favor of the sheriff, on the ground of his having legal custody, the
sheriff may bring an action in his own name on the replevin bond.
Cheseldine v. Mathers, 592.
13. The circuit court had jurisdiction of the person and subject matter,
and such judgment is conclusive until reversed. Ib.
JURY-See NEGLIGENCE, 1, 2.
1. The non-residence of a juror will not of itself invalidate a verdict.
Hull v. Albro, 147.
LEASE. See ACTIONS, 19; PARTITION.
1. An estate for years, created by a lease granting a privilege of pur-
chase in fee, is merely a chattel interest and becomes subject to the
lien of a judgment only from the time of levy on execution. Hazard
Powder Co. v. Loomis, 544.
2. Where a lease has been forfeited for non-payment of rent, the subse-
quent payment of the same rent was not, at common law, a waiver
of the forfeiture. Campbell v. McElevey, 574.
3. And where, as in Ohio, legal and equitable relief may be afforded, in
the same proceeding, nothing less will be adjudged a waiver in such
cases than that state of facts, which in equity would afford the basis
of a decree for redemption. Ib.
4. Therefore while, under the Ohio system of practice, payment may be
a sufficient waiver, the recovery of a judgment, for the rent in arrear,
is not. Ib.
5. A covenant to erect a building and pay for it, "so that, when com-
pleted, it, and the lessee's rights under the contract, should be entirely
free and unincumbered," is not broken if the fact be that the build-
ing has been erected, although part of the cost remains unpaid, but
no lien being on the premises therefor. Ib.
6. A mortgagee of a leasehold will be permitted to redeem the premises
from forfeiture: and the sum he pays, in such case, will be a prefer-
able charge, in redemption account, against the lessee and all claim-
ing under him. Io.
7. To create a forfeiture of a lease. it is not necessary to make any de
mand for rent, when the lease provides that the non-payment, with-
out demand, shall determine the lease. Sweeney v. Garrett, 601.
1. The sheriff is not liable for a failure to find and levy on property,
unless he was guilty of fraud in the premises. Mueller v. Bates, 318.
2. The return of the sheriff can not be collaterally impeached. Ib.
3. When the foundation of an action is alleged damage, in consequence
of a wrongful and malicious levy upon property, special injury must
be alleged and shown. Springer v. Wise, 391.
LIEN. See ATTORNEYS AT LAW; MECHANICS' LIEN; WATERCRAFT.
1. The deposit of title deeds creates no lien legal or equitable. Pro-
basco v. Johnson, 96.
2. An estate for years, created by a lease, granting a privilege of pur-
chase in fee, is merely a chattel interest, and subject to the lien of s
judgment only from the time of levy. Hazard Powder Co. v.
Loomis, 544.
1. Contracts of life insurance are not contracts of indemnity like those of
fire or marine insurance; if there is a failure to pay a premium,
when by the terms of the policy it is to be paid, the risk is at an end.
Robert v. New Eng. Mut. Ins. Co. 106.
1. The statute in force when the cause of action accrued generally gov-
erns; the court will take notice of the lapse of time with or without
plea. Kelly v. Wiseman, 418.
1. In actions for malicious prosecution, the question of probable cause is
for the court to decide; the truth of the facts, upon which it is pred-
icated, is for the jury to determine. Doll v. Schoenberg, 54.
2. An action will not lie for the recovery of damages, alleged to have
occurred in consequence of a civil suit, unaccompanied by arrest of
the person or seizure of property. The costs of the action are pre-
sumed to compensate him for his loss. Springer v. Wise, 391.
3. Where the foundation of the action is alleged damage, in consequence
of the wrongful and malicious levy upon property, special injury
must be alleged and shown. Ib.
1. Mandamus is the proper remedy to compel a county treasurer to pay
a warrant lawfully drawn upon the treasury, by the county auditor.
Bates v. Fries, 511.
MARRIED WOMEN. See HUSBAND AND WIFE.
1. Material furnished to a contractor by a third party is not within the
mechanics' lien law, unless furnished under an agreement that it is to
be used in the construction of the particular building. Horton v.
Carlisle, 184.
MECHANICS' LIEN-Continued.
2. The death of the owner of property, before a lien has been taken, does
not arrest the proceedings. Williams v. Webb, 430.
3. The affidavit may be made by an agent. 16.
4. It is not for the party in possession, for whom the labor and mate-
rials have been furnished, to say that he has no real or beneficial
interest in the land. 1b.
5. As between mechanics' liens, the law allows no priority; but where a
mortgage or other lien takes effect, after the commencement of one
or more mechanics' liens, but before the commencement of others,
the latter must be postponed to the mortgage lien. Hazard Powder
Co. v. Loomis, 544.
6. Where a builder, or material-man, has begun to furnish work or mate-
rial, toward the erection or repair of a building, without any agree-
ment as to the amount of material or duration of the employment,
but under a reasonable expectation that further work or material
will be required of him, to finish the undertaking, and he is after-
ward called on, from time to time, to furnish the same, until the
completion of the building, he is entitled to his lien, as though acting
under a contract originally for the entire labor or materials so fur-
nished. Ib.
7. In such case no part of his claim is postponed to a mortgage or judg-
ment lien, intervening during the erection of the building, unless he
had actual notice of the existence of such mortgage or judgment. Ib.
8. Two distinct accounts of a material-man can not be tacked together
to make a continuous account; the lien for each account must be
taken within the four months prescribed by the statute.
MISTAKE-
1. The day payable, for a note, is the one originally intended; and if a
mistake occur in the dating, it may be corrected by the holder, so as
to make it mature at the date in fact intended by the parties. Jes-
sup v. Dennison, 150.
2. Upon a showing of fraud or mistake, the assured will be entitled to
have his policy of insurance reformed and properly enforced.
Graham v. Firemen's Ins. Co. 255
MORTGAGE. See CHATTEL MORTGAGE; MECHANICS' LIEN, 5, 6, 7.
1. A conveyance to trustees by way of mortgage, to secure the payment
of a series of railroad bonds, and granting a power of sale to pay the
principal and interest due and unpaid, will authorize the court, on
application of the trustees, to decree a sale of so much of the prop-
erty as may be necessary to meet the interest, though no part of the
principal has become due. Goodman v. Cin. & Chicago R. R. Co. 176
2. Whenever a debt is payable by installments, the failure to pay any
one of them will authorize a foreclosure and sale. Ib.
3. Mortgages take effect only from the time of being delivered for
record, as against all persons having or acquiring an interest in the
property, except the mortgagor, and that without regard to the
question of notice. Brannon v. Brannon, 224.
4. An action of foreclosure and sale may be maintained against the ad-
ministrator and heirs of a deceased mortgagor, although the eighteen
months allowed for administration have not expired. Hathaway v.
Lewis, 260.
5. In some cases the remedy for the debt is lost or suspended, and yet
the right to proceed on a security, given for the debt, will not be
affected. Ib.
6. A mortgagee, who was not a party to proceedings of foreclosure and
sale, may be compelled, by the purchaser at such sale, to redeem
within a reasonable time or be foreclosed. Hess v. Fieldkamp, 332.
7. The time of redemption, allowed by a decree of foreclosure, is a mat-
ter solely within the discretion of the court. West v. Morris, 415
8. Railroad bonds, in the hands of the company and not issued, are not
subject to execution; nor can they be subjected to sale by proceed-
ings in aid of execution. Means v. Cin. & Chicago R. R. Co. 465.
MOTION. See ATTORNEYS AT LAW.
MUNICIPAL CORPORATION. See SEWERS; STREETS.
1. If the city fails to give the contractor an assessment, she is liable to
an action; but reasonable time is allowed, after the completion of
the public work, for the issue of an assessment. Lowden v. Cincin-
nati, 203.
2. Where a municipal corporation, by a change of grade in the public
streets, has caused an increased flow of water in a natural water-
course, such fact is not relevant to the question of liability, on her
part, in case of the breakage and overflow of a sewer, built by the
plaintiff after such change of grade, as a substitute for the water-
course on his own premises. Niles' Works v. Cincinnati, 400.
NEGLIGENCE. See BAILMENT, 1, 2.
1 Generally, negligence, if not a question of fact for the jury, is at least
a mixed question of law and fact, which it would be improper to
take from the jury by the charge of the court. Jenkins v. L. M. R.
Co. 49.
2. In a case where a question of negligence as to the conduct of a hand
in the employ of a railroad company, and as to the conduct of an
engineer having the supervision of the hand, is in dispute, it would
not be proper for a court, taking certain of the facts, apart from the
others and the surrounding circumstances, such facts not having, in
law, any conclusive and definite effect, to say to a jury that they did
constitute negligence. 1b.
3. Where a note is deposited for collection, if the banker fails to have
demand made, and the depositor thereby loses his security, the
banker is liable. Huff v. Hatch, 63.
4. Where a loss is shown to exist, the law raises the presumption of
negligence against a common carrier, and on him rests the burden
of proof to show that the loss or damage occurred without his fault
or that of those employed by him. Fatman v. Cin., Ham. § Day-
NEGOTIABLE INSTRUMENTS. See BILLS OF EXCHANGE AND PROM-
ISSORY NOTES.
NON-RESIDENT. See CORPORATIONS, 1.
NOTICE. See MORTGAGE, 3.
NUISANCES. See STREETS.
1. There is no occasion for parties to covenant not to carry on a busi-
ness, in itself a nuisance to an individual, for against such the law,
without such covenant, would afford protection. Grasselli v.
den, 323.
2. In an action to recover damages, caused by a public nuisance, the
petition must contain a statement of the special damages complained
of. Farrelly v. Cincinnati, 516.
1. In certain cases where, on payment of money, a right of subrogation
exists, the defendant, when sued for the recovery of such money,
may, by cross petition, bring in as defendants those against whom a
cause of action would arise, in his favor, to enforce the repayment of
such debt. Resor v. McKenzie, 210.
1. Where S. and P. were tenants in common, and P. leases to S., for a
term of years, his undivided interest, S. agreeing to keep the build-
ing insured, to pay all taxes and assessments, and a certain rental;
and being thus in possession, S. can not maintain his petition for par-
tition, it appearing that the premises were not susceptible of divis-
ion. Shillito v. Pullan, 588.
PARTNERSHIP. Sec COMMON CARRIER, 2, 3, 4. 5.
1. One partner can assign a portion of the joint effects, in payment of
firm debts, or by way of security for antecedent debts, or debts to
be afterward contracted. McGregor v. Ellis, 286.
2. The creditors of a firm have no special lien upon partnership prop-
erty; whatever equity is allowed them is to be worked out through
the rights of the partners themselves; where the separate partners
have lost their lien, none can be saved to the creditor; this lien is
lost when the firm property is sold in good faith to a third person, or
where one partner retires from the firm, disposing meanwhile of his
interest to the other partner, or to a third person, with his copart-
ner's consent, taking the assumption of his copartner, or of a third
person, to discharge all the firm debts. Ib.
3. In an action, by the members of one firm against the members of
another firm, it is not a sufficient defense that G. is a member of
both firms. However strict the rule at law, it does not apply in
equity, for there need be no decree against G., nor yet against the
other defendant, for his share of the debts. David Gibson & Co. v.
Ohio Farina Co. 499.
4. Where H., P., B., and A. contributed each an equal sum to be ex-
pended by H. in building a steamboat, with the understanding that
these sums, with such credit as he could obtain, would enable H. to
get her out, and that she would then run, in his name, until her
debts were paid out of her net earnings, and that H. should then
convey three-fourths to P., B., and A., but that meanwhile they
should have no interest in her, and there being no agreement to re-
pay the advances, in case the enterprise failed, the transaction con-
stitutes a partnership from the beginning, and ali are liable for the
unpaid debts contracted in building the boat. Lape v. Parvin, 560.
5. In an action against a firm, in the partnership name, and service made
by process left at the place of business, on leave being given to sub-
stitute the individual names, it is necessary to amend the petition
and serve new process. Marienthal v. Amburgh, 586.
1. Where a lease has been forfeited for non-payment of rent, subsequent
payment of the same rent was not, at common law, a waiver of the
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