BRADBURY, J.

and does not relate to a change respecting incumbrances.

3643, Revised Statutes, relates to the physical 1. Where the petition in a civil action pur- condition of the property such as an inspection ports to seek a distribution of the assets of an would disclose, and does not relate to the matter insolvent corporation among its creditors, the of incumbrances, The "change" mentioned assets of the corporation are the subject of the in the statute refers to a physical change in the action; and an answer, in the nature of a cross-insured property, its use, or its surroundings, petition, which discloses assets of the concern, in addition to those disclosed by the petition, or shows a title in the party filing such answer to share in the distribution of such assets, sets forth matters connected with the subject of the action. In such case, the answer, or cross-petition, is not subject to a demurrer, although it fails to disclose a cause of action "in favor of the defendant and against a plaintiff between whom a several judgment might be had in an action."

2. In such an action, a defendant may join in his cross-petition, a cause of action for money payable to the insolvent corporation by a stockholder thereof on account of stock is

sued to him, with a cause of action against all the stockholders of the concern upon their statutory liability as such stockholders.

3. If the corporation is insolvent and its assets in the hands of a receiver, a creditor may, by a cross-petition, seek the enforcement of the statutory liability of the stockholders, although his claim has not been reduced to judg

ment.

Judgment affirmed.

7. Where a policy of insurance stipulates that if any part of the property shall be incumbered by mortgage without the consent of the company, the policy shall be void, such stipulation is not within the provision of section 3643. And if, after the issuing of the po icy and before the loss, such incumbrance is created by the insured without the co..sent of the company, the policy is thereby invalidated. Judgment affirmed.

4443. The Cincinnati Street Railway Company v. Alta G. Murray, admx., and The Baltimore and Ohio Southwestern Railroad Company. Erro to the circuit court of Hamilton county.

BURKET, J.

1. The act of May 4, 1891, 88 O. L., 582, provides, in substance, that before a street car shall cross over a railroad track at grade, that the street car shall stop not less than ten, nor more than fifty feet from the railroad track,

3868. Julia L. Webster et al. v. Dwelling and some employee of the street railway comHouse Insurance Company. Error to the cir-pany shall go ahead of the car, and ascertain if cuit court of Ashtabula county.

the way is clear and free from danger for the passage of such car, and said car shall not proceed to cross until signaled so to do by such employee, or said way,is clear for the passage over said track.

In the absence of extraordinary circumstances, it is negligence to cause such street to cross such railroad track, without stopping the car and going ahead as required by this statute.

2. Rules followed in courts of equity respect-car ing the forfeitures may be available in a suit at law where the facts make their application necessary to the ends of justice.

3. Provisions for forfeitures are to receive, where the intent is doubtful, a strict construction againt those for whose benefit they are introduced.

4. If it be left in doubt, in view of the terms of the instrument and the relation of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most beneficial to the poiisee.

5. Where a farm dwelling and farm implements are insured by a fire policy issued to a wife and husband, and the dwelling is used and occupied as a family homestead, and the implements are used on the farm where the dwelling is situate, a representation and warranty in the application that the property is owned by them jointly, should, unless the contrary intent is manifest, be construed in the popular, and not in a technical legal sense, and so construed will not be held to beun true when simply because the title to the dwelling is wholly in the wife and the title to the personalty wholly in the husband.

6. The examination required to be made by the agent of an insurance company by section

2. Whether or not such violation of said

statute could be justified or excused by any circumstances whatever:-quære.

3. In an action for damages, to make such negligence actionable, it must appear that injury was directly caused thereby.

4. In a tral of an action for damages in such case it is proper for the court to instruct the jury that such failure to stop the car and go ahead, as required by said statute, constitutes negligence, and if the evidence tends to prove that such negligence was the direct cause of the injury, the case should be submitted to the jury. Whether the evidence does or does not so tend, is a question of law for the court

5. If there is only one employee operating. such street car, it is his duty to stop the car and go ahead and ascertain if the way is clear and free from danger, and if he finds the way clear for the passage over the track, he may cross over with his car without signaling to any one; but if there are two or more employees operating such car, such signal is required before crossing.

6. Such stopping, going ahead and signaling, are required at crossings having gates and a watchman, the same as at other crossings. Judgment affirmed.

2857. John N. Glidden v. The Mechanics' being notified of the situation and requested National Bank. Error to the circuit court of to remove the obstruction, declined to act. Cuyahoga county. Held, in an action against the municipal corporation.

WILLIAMS, J.

1. In the absence of express agreement authorizing it, a pledgee cannot become the purchaser of the pledged property at his own sale; and if the property be bid off by him the contract of pledge is not thereby terminated, nor the relations of the parties changed, unless the pledgor elects to treat the transaction as a valid sale; in which event, the pledgee will be accountable for the net proceeds of the sale.

2. If the pledgor do not so elect, the pledgee, while he retains the possession and control of the property, with the ability to perform his part of the contract by restoring the property to the pledgor, cannot be held for its conversion, without demand for its return accompanied with an offer by the pledgor to perform his part of the agreement. 3. When, however, the pledgor puts it out of his power to perform his part of the agreement, by an unauthorized disposition of the property, he will be liable for its conversion without demand and offer of performance by the pledgor; and when he has so disposed of a part of the property, he may be held for the conversion of all of it, as of the time of such disposition.

Judgment affirmed.

3502. City of Zanesville v. John Fannon. Error to the circuit court of Muskingum county.

WILLIAMS, J.

1. The obstruction constituted a nuisance, and the municipality is liable for the damages occurring from it after the notice and refusal to act.

2. That its liability is not affected, nor the remedy against it taken away, by section 3283, of the Revised Statutes, which gives the party injured a remedy against the railroad company.

3. But, in the action against the municipal corporation, the plaintiff is not entitled to recover damages which are in the nature of compensation for the additional burden in the street arising from the location and construction of the railroad tracks therein; for damages of that character the municipal corporation is not liable. Steubenville v. McGill, 41 Ohio St., 235, approved. Dillenback v. Xenia, 41 Ohio St., 207, distinguished. Judgment affirmed.

3157. Grever & Sons v. Taylor et al. ror to the circuit court of Hancock county. MINSHALL, C. J.

Er

1. A petition in replevin, in which it is averred, that the defendant wrongfully detains certain goods of the plaintiff, describing them, is sufficient, without an averment that A wrongful detention by the defendant necesthe plaintiff is entitled to the possession: sarily implies a right to the possession in the plaintiff; and wrongful detention is the gist of the action.

credit, influenced the seller in making a like sale to the same party at a subsequent time, is a question of fact; and, in such case, it is competent for the seller to testify that they did. But the fact is to be determined by the jury in view of all the circumstances; as, also,

1. Municipal corporations are invested with 2. Whether representations as to his pecunthe power and charged with the duty of keep-seller of goods, at one time, in order to obtain iary circumstances, made by a purchaser to the ing the streets and highways under their control free from nuisance (Revised Statutes, sections 1878, 2640), and a liability arises from the omission to perform that duty, for damages resulting from such nuisance after notice to the municipal authorities of its existence; and, though the person who caused the nuisance may be also liable, and responsible over to the corporation for whatever damages it has been compelled to pay in consequence of it, that does not affect the liability of the municipality to the party injured.

2. Where a statute which creates a new right prescribes the remedy for its violation, the remedy is exclusive; but when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option.

3. Railroad companies which had obtained permission from a municipal corporation to lay their tracks in a public street, so constructed them as to obstruct the drainage provided for the street, in consequence of which the water from rainfalls was accumulated and forced on to and over the plaintiff's lot abutting on the street, flooding the cellar of his dwelling house thereon situate, and otherwise injuring his premises. The municipal authorities

whether there was such fraud in the subse

quent sale as to entitle the seller to recover the property, on the ground that the information given in the first instance was false.

3. A pre-existing debt is not a sufficient consideration for the transfer of property, to warrant the transferee to hold it as against the right of one, from whom the transferer had obtained it by fraud in the purchase. Eaton & Co. v. Davidson, 46 Ohio St., 355.

Judgment of the circuit court reversed and that of the common pleas affirmed. BURKET, J., not sitting.

3190. Commissioners of Putnam County et Error to the circuit al. v. P. M. Krauss et al. court of Putnam county. BY THE COURT:

Where under the ditch-laws of the state, a ditch has been ordered and established by the county commissioners, and the construction paid for from the county treasury, on certificates of the engineer appointed to superintend the work, the assessments made to reimburse the county for the payments made from

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