Shaw v. Walbridge.

alone. If that is worthless in the general market of public estimation, it would seem strange indeed, if defendant might not show, in mitigation of damages, that it was generally reputed of little value.

The court erred in refusing to allow defendant to prove plaintiff's general reputation for chastity was bad.

IV. We think the court ruled correctly in refusing to allow a cross-examination of witness Carnes on the subject proposed by defendant. The witness was examined by plaintiff as to her general reputation alone. If the character of plaintiff's associates could be used in any aspect of the case, it was evidence in chief, and not admissible on cross-examination. Facts not admissible in chief, as a defense, were sought to be introduced indirectly, under the guise of impeaching the witness. We know of no rule of evidence that would authorize the proposed cross-examination of the witness.

Reversed and remanded to the court of common pleas for further proceedings.

WRIGHT, J., dissented from the second proposition of the syllabus.

INDEX.

ABATEMENT. See Billigheimer v. State, 436.

ACTION. See COURTESY, 2; COUNTY TREASURER, 1, 2, 3, 4; JURISDIC-
TION, 2, 3, 4, 5.

ADVERSE POSSESSION. See Clark v. Potter, 49.

AFFIDAVITS-

Affidavits used on a motion for the continuance of a case, though copied
by the clerk into the record, can not be regarded as part of the record
and considered on proceedings in error, unless they are made part of
the record by a bill of exceptions. Schultz v. State, 276.
AGREEMENT. See CONTRACTS; PARENT and Child, 1, 2, 3.
AGENCY. See PRINCIPAL. AND AGENT; GUARDIAN AND WARD, 5.
AGENT. See PRINCIPAL AND AGENT; HUSBAND AND WIFE, 9, 10; Ex-
ECUTORS AND ADMINISTRATORS, 18, 19, 20, 21.

ALIMONY-

1. Where a wife is living separate and apart from her husband, and, in a
suit against him for divorce and alimony, has obtained a decree fixing
the amount of alimony to be paid by the husband for her sustenance
during the pendency of her petition, and the husband is not in default
in respect to the payment of the alimony so allotted, he is not liable for
necessaries subsequently furnished at her request, during the pendency
of her petition. Hare v. Gibson, 33.

2. Persons dealing with the wife, under these circumstances, do so at their
own peril, and are chargeable with knowledge of the allotment and
payment of the alimony. Id. 33.

3. The adequacy of the alimony decreed in such case, can not be collater-
ally drawn in question, especially by a stranger to the suit. Id. 33.
APPROPRIATION OF LANDS TO PUBLIC USE—

1. Under the provisions of the statute authorizing a municipal corpora-
tion to appropriate land to a public use, such corporation must secure
an "inquiry into and assessment of compensation," by a jury, to the
owner of the property sought to be appropriated, which inquiry and as-
sessment must be, not merely nominal, but actual, and made upon proof
of the value of the property, or the corporation may be defeated in the
appropriation; it is, therefore, not such error as will warrant the re-
versal of a judgment for the court before which the inquiry is held, to
permit such corporation to open and close the evidence and argument
to the jury. Neff v. Cincinnati, 215.

2. When a question is asked of a witness which is objected to, and the
objection is sustained, the ruling will not be reviewed on error, unless
the exception taken shows what it was proposed to prove. Id. 215.
3. On an inquiry before a jury for the assessment of compensation to the
property owners for land sought to be appropriated for a public use, a
civil engineer testified that he had computed the quantity contained in
each of the lots described in the application for the appropriation, and
had noted the square feet contained in each lot, on a copy of the plat
contained in the application, which paper the court permitted to be

Assignments in Insolvency-Assessments.

APPROPRIATION OF LANDS TO PUBLIC USE-Continued.

given to the jury as a memorandum of the quantity of land contained
in each one of the lots, as testified to by the witness: Held, Not to be
error. Id. 215.

ASSIGNMENTS IN INSOLVENCY-

1. Under section 17 of the "act regulating the mode of administering as-
signments in trust for the benefit of creditors," as amended February
12, 1863 (S. & S. 379), lands conveyed for the purpose of defrauding
creditors inure to the benefit of such creditors, and any one of them,
whether his claim be reduced to judgment or not, may bring an action
to set aside such conveyance, and have the proceeds of the land applied
to the payment of the creditors, as provided in said section. Combs v.
Watson, 228.

2. Under the limitation prescribed by section 15 of the code, an action to
set aside such fraudulent conveyance is barred after the lapse of four
years from the discovery of the fraud. Id. 228.

3. Where the petition in such action shows on its face that the convey-
ance was made more than four years before the action was brought, it
must contain an averment that the fraud was not discovered until
within that period; otherwise the defendant may demur to the peti
tion, on the ground that it does not state facts sufficient to constitute a
cause of action. Id. 228.

4. An assignment for the benefit of creditors, devotes all the property cov-
ered by it to the creditors who have their claims allowed pursuant to
the act regulating the administration of assignments, to the exclusion
of those who do not. Lahm v. Johnson, 590.

5. In an action by a creditor whose claim has been duly allowed on an
assignee's bond for a failure to account for any of the property assigned,
the amount of recovery can not be limited to an amount proportionate
to the whole amount of the claims of all the creditors, including those
not allowed as required by the statute, but the amount of recovery must
be controlled by the proportionate amount of his claim to the whole
amount of those only which have been presented and allowed pursuant
to the statute. Id. 590.

ASSESSMENTS-

1. Under the provisions of the statute authorizing a municipal corpora
tion to appropriate land to a public use, such corporation must secure
an inquiry into and assessment of compensation," by a jury, to the
owner of the property sought to be appropriated, which inquiry and
assessment must be, not merely nominal, but actual, and made upon
proof of the value of the property, or the corporation may be defeated
in the appropriation; it is, therefore, not such error as will warrant the
reversal of a judgment for the court before which the inquiry is held,
to permit such corporation to open and close the evidence and argu-
ment to the jury. Neff v. Cincinnati, 215.

2. On an inquiry before a jury for the assessment of compensation to the
property-owners for land sought to be appropriated for a public use, a
civil engineer testified that he had computed the quantity contained in
each of the lots described in the application for the appropriation, and
had noted the square feet contained in each lot, on a copy of the plat
contained in the application, which paper the court permitted to be
given to the jury as a memorandum of the quantity of land contained
in each one of the lots, as testified to by the witness: Held, Not to be

error. Id. 215.

See RAILROADS, 4.

BAR-

Bar-Bill of Exceptions.

1. The limitations of the code of civil procedure, as to the time of com-
mencing civil actions, are applicable as a bar only to suits compre-
hended within the civil action of the code. Chinn v. Trustees, etc. 236.
2. Prior to the code of civil procedure, equity followed the law in deter-
mining when time would begin to run against the right of a mortgagor
to redeem, and when such right would be barred. Clark v. Potter, 49.
3. Hence, if the mortgagee, with the knowledge and acquiescence of the
mortgagor, takes actual, open, and notorious possession of the mort-
gage premises, and holds and controls the same adversely to the rights
of the mortgagor to redeem, for twenty-one years, under color of title
derived from the mortgage, and from a decree of foreclosure and sale
of the same to him, the equity of redemption is barred, although the
decree foreclosing the mortgage was null and void. Id. 49.

4. Where the mortgaged premises is an entire tract, as a farm, part of
which only is improved with a tenement thereon, and the possession to
the whole is so far adverse as to create a cause of action in favor of the
mortgagor, and cause time to commence running against the right to
redeem, the temporary interruption of actual residence on the land,
caused by the unlawful and violent acts of strangers in tearing down
the house and rendering the premises untenantable for the time being,
will not prevent the statute from continuing to run where there is no
adverse entry or offer to redeem, and the mortgagee does not abandon
his possession and control, but continues to exercise all such acts of
ownership and dominion over the premises as the nature of the land
and its condition will admit of. Id. 49.

See MORTGAGES OF REALTY, 1, 2, 3; COURTESY, 2; LIMITATIONS, STATUTE
OF, 5, 6, 11, 12; Hall v. Hall, 193; Billigheimer v. Stute, 436.

BEQUEST. See WILLS.

BILL OF EXCEPTIONS-

1. Affidavits used on a motion for the continuance of a case, though copied
by the clerk into the record, can not be regarded as part of the record,
and considered on proceedings in error, unless they are made part of
the record by a bill of exceptions. Schultz v. State, 276.

2. A bill of exceptions, taken at a term of the court subsequent to the
trial, on overruling a motion for a new trial, will not avail to bring on
the record for review errors of law occurring on the trial, in the admis-
sion, over objection, of alleged incompetent testimony. Dayton v. Hin-
sey, 258.

3. An error of law, occurring at the trial, must be saved and brought
upon the record by bill of exceptions taken at the trial term. Id. 258.
4. In order to take advantage of error in the ruling of the court, admit-
ting testimony, the bill of exceptions thereto must be signed and filed
as part of the record at the trial term. Estabrook v. Gebhart, 415.
5. If, however, a motion for a new trial is overruled, and a bill of excep-
tions taken, embodying all the testimony and charge of the court, the
whole record will be examined, to ascertain if the verdict is sustained
by the law and the evidence, although the b 11 was taken at the term
when the motion for a new trial was overruled, this being subsequent
to the trial term. Id. 415.

6. If the debtor has voluntarily abandoned his homestead, before claim-
ing it as exempt, his right is gone; but the court having found there
has been no such abandonment, that finding can not be reviewed upon