the coupling pin was lying and that he there. The yard master was occupied in

sending off the plaintiff below, and when he got through with that he went and got the inspector and the two went up to the cars, which the evidence shows remained substantially as they were, and they made

that the bolt was loose; that the link was loose; that the bolt passed through it; that it was an ordinary link for the Lake

then went in and attempted to make the
coupling. He says he didn't use a stick
because it would be of no avail, one link
being higher than the other, that the link
would not balance, but would slide back
into the draw-bar if he attempted to use a pan inspection of the cars and they found
stick; so he took hold with his hand and
pushed it up and at the same moment his
arm slipped and was thrown up and it be
came very severely injured, and was am- | Shore cars and that the bolt was an or-
putated, perhaps within the next 24 hours.inary Lake Shore bolt.
He says further, that not feeling the blow In giving his testimony under this head,
at the first moment or the pain, he turned of the inspection of the car, the inspector
and looked at the coupling and held his testified that the cars were all inspected
light towords it and he saw then that theas they came into the yard, and, while he
Eames draw-bar which had the large couldn't tell the exact moment that this
link in it had the link thrown back and car came in, he said that it had been in-
that there was a smaller link spected. Upon cross examination that
matter was gone into thoroughly and it
was shown very clearly that the car itself
had been inspected by the regular in-
spector of the Lake Shore Company when
it was received into the yards of the com-
pany and before it was attempted to be

in it and that that was held
by a pin which went through it and was
not an ordinary pin used by the Lake
Shore Company upen their cars, but was
a bolt such as was frequently used for the
purpose of fastening the car itself upon
the truck, and that the link was project-put into this train.
ing some and that it was fast; that the
large bolt held it, the bolt filing the space
in the link very full so that it couldn't be
moved, and that the reason he received
the injury was, that, instead of the bolt
moving as he had anticipated, it was firm
and in pushing it his arm slipped. He
was then taken away by the same locom-
otive that was pulling the train and was
taken by the employes across the river
and to the hospital.

Now, on those two points we are called upon to pass. This injury occurred prior to the passage of the act of 1890, I think it is, so that the cause of action arose under the law as it stood when the decision in 42 Ohio State was in full force, and it being shown beyond contradiction that the car was inspected when it came into the yard, if the contention of the plaintiff be true that the bolt which was used was a bolt such as was used for the fastening of the car upon the truck, that was too large for the link, and if the link was

The conductor of the train, as soon as he saw the man started upon the locomotive, went to the cars where the injury occurr-bound by the bolt in the manner in which ed and inade, as he says, a thorough ex- he has stated and if it had come into the amination of the cars. He says he found yard and was received and used by the the coupling of the draw-bar of the Eames Lake Shore Company in that condition, car to be an ordinary link and with an or- then the negligence, if there was any dinary Lake Shore bolt through it, put in negligence, was the negligence of the infrom the under side and passed up spector in receiving the car; and, under through, as was the custom when they the decision 42 Ohio State, that would be used those bolts; that he handled the link, the negligence of a co-employe for which and that it moved very easily in the coupi- the company would not be liable; so, upon ing; that he threw it back and forth and that ground, as a matter of law the plaintthat there was no trouble with it. An in-iff was not entitled to maintain his action. spector and another man named Miller, Furthermore, if the testimony be rethe yard master, in about an hour, went ceived and weighed, we think that the

Reed V. Boice vs Wm. R. Hodge
Error to the Circuit Court of Lu-
cas county.
BRADBURY, J.

A holder of stock in an Ohio corporation, who transfers his stock after a corporate debt has been created, is not relieved from his statutory liability for such debt, by an agreement for an extension of the time for its payment; although such agreement be made by the corporation and cre‹litor after such transfer, and without the knowledge or consent of the transferrer.

Judgment affirmed.

2646. James . Kerr et al vs Charles E. Lydecker, Adm'r. Error to the Circuit Court of Galia County. BURKET, J.

A mortgage is a speciality, and an aćtión for its foreclosure and sale of the

716-James Rooney vs City of Toledo -Rooney brought suit to enjoin the collection of an assessment made by the city of Toledo upon a lot at the corner of Missouri street and Collingwood avenue. The lot had a frontage of 9 feet on Missouri street extending back abutting Collingwood avenue about 135 feet. There was a house built in part-upon this lot and extending over upon the adjoining lot. The assesment was for the improvement of Collingwood avenue and was assessed by the foot front of said lot in length abutting upon Collingwood avenue. The plaintiff claimed that under the decision of the Supreme court, in the case of Haviland vs the city of Columbus, decided last winter, that the lot could be assessed for only the extent of its frontage on Mis-premises, comes within the provisions of souri street, to-wit: 9 feet, and that the balance of the assessment was illegal. City denied plaintiff's conclusion and set up that, he having full knowledge of the making of the improvement, and that it would be of benefit to the property, and of the making of the assessment, he was now estopped from alleging the illegality of said assessment, The court held that under the Haviland case, plaintiff's lot could not lawfully have been assessed upon a frontage of more than 9 feet, being the foot frontage in width of the lot upon Missouri street. Also held upon the Personal property, whether in the form authority of Alger vs the city of Columbus decided by the Supreme Court, and remoneys, bills receivable, bonds, cerported in the 44th Ohio State, that the tificates of stock, or otherwise, held by plaintiff was not estopped from contest- an assignee of an insolvent debtor ing the legality of the assessment. The whose estate is being settled in city was enjoined from collecting more is the probate court, than the assessment properly made upon 9 feet, being the foot front in width of to taxation, and it is not the duty of such the lot upon Missouri street. assignee to make return of the assets of

section 4980, Revised Statutes, and the period of limitation is fifteen years, unless extended by virtue of section 4992 Revised Statutes.

Judgment reversed.

Nos. 3738 and 3749. Aaron McNeill, assignee vs John Hagerty, Auditor of Hamilton county: Herman P. Goebel, trustee vs Leo. Schott, treasurer of Hamilton county. Error to the Circuit Court of Hamilton county. SPEAR, J.

of

not subject

without

I. It is a general principle in the law I. A contract, the consideration of of recovery that a parties' possession of a which, in whole, or in part, is the supthing cannot be disturbed by one who pression of a criminal prosecution, is cannot show a better right to it. There-1 any leg:1 efficacy, either as a fore, irrespective of his own title, a party cause of action, or a defense to an action to a suit has the right to object to an not founded on, or arising out of, the der requiring him to pay money in his agreement. possession, or that of his agent, to one who shows no better title to it.

or

2. A suit cannot be maintained by one taxpayer on behalf of himself and others to recover back taxes, alleged to have been illegally assesed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action on his own behalf.

suit on

2. The rule that a party who would rescind a contract must restore what he he has received under it, does not apply. to contracts founded on an illegal consideration, and void for that reason.

3. In certain cases where app icable, the rule is satisfied if the judgment sought will substantially restore the party to the situation he was in when when the agreement was made; as, money paid by him is less than he justly owed the other party, and the same is credited, and the action brought for the

balance

3. A tax-payer commenced a beharf of himself and other tax-payers against the county treasurer to restrain the collection of a tax alleged to have been illegally levied, and obtained a temporary order restraining the collection 4. Where a person is induced by of the tax until the final hearing on the threats of a groundless prosecution to acmerits. Subsequently he filed a supple- cept a less sum than is justly owing to mental petition, alleging that since the lum on a policy of fire insurance, in satcommencement of the suit-the injunc-isfaction of his claim, and to surrender tion being in full force and unmodified- the same, he may maintain action on all had been involuntarily compelled to the policy for the balance due, without pay the tax by the refusal of the treasur- returning or tendering back the money er to receive the taxes due from them, so received. though tendered, unless they paid the taxes that had been enjoined, and threatened to return their lands as delinquent and cause them to be sold, unless they did sɔ; Held, tha, a payment made under such circumstances is not an involun

Judgment affirmed,

2635. Alexander M. Byers vs Samuel Schlupe et al. Error to the Circuit Court of Marion County. DICI,MAN, C. J.

I. In a civil action for the recovery of

tary one, and a recovery back cannot be money, the plaintiff may, on the ground

had.

4. When the lands of a person have been sold at delinquent tax sale, he must, in the first instance, apply to the auditor of the county for their redemption, under the provisions of the statute in such

that the defendant is a non-resident of this state, have an attachment against the property of a defendant partnership of which all the members reside outside this state, which was formed for the purpose of carrying on business in this state,

and which has a usual place of doing bus- From the statement it appears that it was iness in this state.

For the purpose of determining the frontage of a lot with a view to its assessment, reference must be had to its situation at the time the improvement is made, and not to changes subsequently made. ERROR to the Circuit Court of Franklin County.

BY THE COURT.

agreed:

"I. That said plaintiff's lot at the date of said improvement was vacant, and when platted had 371⁄2 feet on Mound street, 37% feet on the alley in the rear, and 150 feet on Champion avenue.

"2. That after the making of said improvement, the plaintiff erected two houses on the rear end of said lot next to the alley, one occupying 35 25 feet and the other 33.25 feet, and each fronting on Champion avenue, leaving 80.50 feet on the said lot on Champion avenue vacant.

"It is also agreed that if said plaintiff were called, he would testify that he does not intend to set upon said lot any more buildings facing Champion avenue."

that, under the construction given the statute regulating assessment by the front foot, in Haviland's case, it should, for the purpose of an assessments on Champion avenue, have been deemed as turned, so as to front as many feet on the improvement, as it in fact fronts on Mound street, and no more.

The assessment on the lot is for its entire length on Champion avenue, 150 feet, at the rate of $4.2762 per foot. This is erroThis case was in this court a short while neous. The assessment should be made since, and was then disposed of in conne- with reference to the front of the property ction with the case of Haviland v Col- at the time the improvement was made, umbus, 50 Ohio St. 471. Having been and not with reference to any subsequent remanded to the circuit court for further changes. The agreed statement, taken proceedings, it appears from the record in connection with a plat made part of since made, that an answer was filed in the bill of exceptions, shows that, at the which it is admitted that an assessment time the improvement was made, the lot has been made on the property of the lay lengthwise on Champion avenue, and plaintiff to meet the bonds issued in pay-fronted 371⁄2 feet on Mound street. So ment of the cost of the improvement; the action having been brought to enjoin this assessment on the ground that the act under which it was made is invalid, and that the assessment exceeds any and all benefits to the property and is in excess of its actual value and its value is assessed for taxation. The answer then states that the assessment was made by the front foot, and upon the property of the plaintiff for the number of its front feet upon the improvement. The case was heard and submitted to the court upon the pleadings and an agreed statement of the facts, which by a bill of exceptions is made a part of the record. The court on consideration dismissed the petition. T. R. R Co., et al. Whereupon the plaintiff again brought Court of Mahoning county. Judgment the case into this court, claiming that the affirmed. MINSHALL, J., dissents. judgment upon the agreed statement of facts, is erroneous and should be reversed.

The judgment of the circuit court must therefore be reversed, and the assessment made on the lot of the plaintiff set aside, and an assessment made for the number of 37% feet, at the rate fixed by the ordinance, $4.2762 per foot.

Judgment accordingly. 2794. James Caldwell vs The P. C. & Error to the Circuit

3731. The Wheeling Railway Co. vs Maggie Lewis. Error to the Circuit

4002-A. F. Ingersoll, adm'r, &c., vs case. President Richard Smith Jr., Executor, &c. Error factor in the case. to the Circuit Court of Cuyahoga County.cinnati Southern sued the city of CincinBurke & Ingersoll, for plaintiff, Cleveland. Estep, Dickey, Carr & Goff; Wilcox & Collister and Hoyt, Dustin & Kelley, for defendant, Cleveland.

nati for $1,000,000 for failure to provide terminal facilities at Cincinnati. A clause in the contract provides for arbitration, the lessees selecting two men, 4003.-Edward H. Jones vs State of the railway two and the four a fifth man. Ohio. Motion for leave to file petition The lessees selectedGrover Cleveland, who in error to the Circuit Court of Brown was then a private citizen with a fairly county. J. H. Cabell, Cincinnati, W. W. lucrative law practice in New York city, Dennison, Batavia and W. W. Young, and Clarence Seward of New York. At Georgetown, for plaintiff. O. P. Grif- this stage of the game the city of Cinfith and Attorney General for defendant. cinnati enjoined the lessees from con4004. Hiram B. Swartz vs Board of ducting the arbitration proceedings Commissioners. Error to the Circuit further. The lower courts decided Court of Wayne county. John McSweeney, Wooster, for plaintiff and A. D. Metz, Prosecuting attorney for defts.