Harman v. Abbey. have disclosed to this witness alone, who was a stranger to her in blood, her real wishes and views in respect to her property, while 218] she earnestly and persistently sought to create, and *keep up till her death, a different impression in the minds of all her other friends and acquaintances. The mass of testimony leaves no doubt upon our minds that Mrs. Van Harlingen gave to her husband the money which was drawn from the executor, intending to make it his property. No undue influence is shown, and the gift must, therefore, be held valid. As to the residue of the legacy, still in the hands of the executor, and of which no disposition was made by Mrs. Van Harlingen, the terms of the antenuptial agreement will pass it to the complainants. Decree accordingly. BARTLEY, C. J., and SWAN, BRINKERHOFF, and SUTLIFF, JJ., concurred. LESTER A. HARMAN v. SETH A. ABBEY. Where S. gave to H. a chattel mortgage on a stock of goods, to secure the payment of certain notes of hand, H. permitting S. "to make sales at retail only," stipulations in the mortgage, that H. should at all times hold absolute and exclusive possession of the goods as against all persons other than S., and should release all claims to the property as soon as the debt should be fully paid, etc., do not take the case out of the rule, that a mortgage of personal property, where the mortgagor retains possession of the property mortgaged, with the power of sale, is void as against subsequent purchasers and execution creditors. Collins v. Myers, 16 Ohio, 547, and Freeman v. Rawson, 5 Ohio St. 1, followed and approved. PETITION in error to reverse the judgment of the district court of Cuyahoga county. The original action in the court below was brought by Harman against Abbey, to obtain the possession of a stock of goods in a country store. Abbey had taken possession of the goods, as the sheriff of the county, under executions against one Albert Sanderson, who had 219] *purchased the goods of Harman, and had, before the ex Harman v. Abbey. ecutions were levied, given to him notes therefor and a mortgage thereon, to secure their payment. The mortgage contains the following provisions: "It is mutually agreed, that during the whole life of this mortgage, and until the whole of said notes are paid, the said Harman shall, in person, or through some agent to be selected by himself, retain the possession of said stock of goods, in order to see to and enforce the performance of said contract; the said Harman or his agent at all times to hold absolute and exclusive possession as against all persons other than said Sanderson, permitting the said Sanderson to make sales at retail only, and do all other things in pursuance of said contract, but not to withdraw any portion of the proceeds thereof from the business, beyond the amount of necessary expenses-the said Sanderson to pay the agent selected by said Harman, as aforesaid, a reasonable compensation for his services in the business, and all other expenses which the said Harman shall incur in keeping his said security good, and in converting the same into payment. The said Harman to release all claims to said goods, as soon as his said debt shall be fully paid, together with all expenses incurred by him as aforesaid; and it is further agreed by me, that this mortgage and bill of sale shall cover and extend over all the goods now in my possession in said store, which I have added or may add to said stock purchased of said Harman." The district court charged the jury "that said mortgage was absolutely void in law, as against the creditors of Albert Sanderson, and that the same was insufficient in law to sustain the plaintiff's claim to the possession of the property therein described." The jury found for the defendant, and assessed his damages. The plaintiff moved for a new trial on the ground that the court erred in charging the jury as stated. This motion was overruled, and judgment entered on the verdict. This action of the court is assigned for error. C. Stetson, for plaintiff. Paine & Wade, for defendant. BARTLEY, C. J. It was adjudged by the late Supreme Court of this state, in the case of Collins v. Myers, 16 Ohio, 547, that a mortgage of personal property, where the mortgagor retains possession of the property mortgaged, with the power of sale, is void [220 as against subsequent purchasers and execution creditors. The Cent. Ohio R. R. Co. v. Holler. doctrine of that case was fully affirmed by this court in the case of Freeman v. Rawson, 5 Ohio St. 1. These cases are decisive of the case before us. And the stipulations, that Harman should at all times hold absolute and exclusive possession against all persons other than said Sanderson, the mortgagor, and release all claims to the mortgaged property as soon as his debt should be fully paid, etc., could have no effect to take this case out of the rule of the adjudicated cases mentioned. Judgment of the district court affirmed. SWAN, BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred. THE CENTRAL OHIO RAILROAD COMPANY v. ADAM HOLLER. Before the code of civil procedure took effect, the final order of the court of common pleas, in proceedings for the appropriation of a right of way by a railroad company, under the act of February 11, 1848, regulating railroad companies, was subject to revision by the district court, on certiorari. An assessment of damages in the "sum of $150, with a wagon-way and stop for cattle," as the damages sustained by the owner of the land taken, is not in conformity with the provisions of said act, nor with the provisions of the constitution of this state, requiring compensation to be made to the owner for the property so appropriated to public use. An order of the court of common pleas, confirming such assessment of damages, was in that respect erroneous, and was rightfully reversed by the district court, on certiorari. And a mandate from such court, on such reversal, authorized the court of common pleas to vacate its order of confirmation. PETITION IN ERROR to reverse the judgment of the court of common pleas of Licking county. Reserved in the district court. In May, 1854, the Central Ohio Railroad Company, pursuant to the act of February 11, 1848, "regulating railroad companies," and to the act amendatory thereof, passed March 20, 1850, filed in the 221] office of the clerk of the court of common pleas of Licking county, an instrument for the appropriation of a right of way for its railroad, through the lands of Adam Holler. At the May term, 1851, said court appointed appraisers to assess damages which Holler might sustain by the appropriation. Cent. Ohio R. R. Co. v. Holler. On the 17th of May, 1851, the appraisers returned to the clerk of the court an award of "one hundred and fifty dollars, with a wagonway and stop for cattle," as Holler's damages. At the August term, 1852, the court finding that no exceptions had been filed to the report of the appraisers, and that the amount of damages assessed by them had been paid to the clerk of the court, for the benefit of Holler, made an order confirming the appropriation, and establishing the company in the rights acquired under it; and directed the clerk to record the proceedings, which was done. In May, 1853, at the instance of Holler, a transcript of the proceedings in the court of common pleas was taken to the district court on certiorari; and that court, at the June term, 1854, reversed the proceedings of the common pleas, and directed a mandate to be sent down. At the October term, 1854, of the common pleas, the cause coming on to be heard on the mandate of the district court, on Holler's motion, the common pleas set aside the proceedings and award of damages, for irregularity; and directed a transcript of the case to be certified to the probate court of the county, to be proceeded in according to law, and that the company pay the costs. To this judgment of the common pleas the company excepted. The statute, under which the original appropriation was made (46 Ohio L. 40), is, so far as it pertains to the present case, as follows: "If the corporation shall not agree with the owner of the land, or with his guardian, if the owner is incapable of contracting, touching the damages sustained by such appropriation, such corporation shall deliver to such owner or guardian, a copy of such instrument of appropriation. Upon the filing of such act of appropriation and delivery of such copy, or making of such publication, the court of common pleas, or other court of record of the county where the land lies, or any judge thereof in vacation, upon application of *either party, shall appoint by warrant three disinterested [222 freeholders of such county, to appraise the damages which the owner of the land may sustain by such appropriation, Such appraisers shall be duly sworn; they shall consider the benefit as well as injury which such owner shall sustain by such railroad; and shall, forthwith, return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damage done to the property, the amount of benefit conferred, and the difference between the value of, or damage done to the property taken, Cent. Ohio R. R. Co. v. Holler. which they assess to such owner, or owners, separately, to be by him filed and recorded; and thereupon such corporation shall pay to the clerk the amount thus assessed, or secure the payment to the satisfaction of such court, or of the judge issuing the warrant. And on making payment or tender thereof to said clerk, or on giving such security as may be required, it shall be lawful for such corporation to hold the interests in such lands or materials thus appropriated, and the privilege of using any materials on said roadway, within fifty feet on each side of the center of such roadway, for the uses aforesaid. The costs of such award shall be paid by such company; and, on motion by any party interested, and showing said proceedings, the court may order payment thereof, and enforce such payment by execution. The award of said arbitrators may be reviewed by the court of common pleas, or other court in which proceedings may be had, on written exceptions filed by either party in the clerk's office, within ten days after the filing of such award; and the court shall take such order therein as right and justice may require, by ordering a new appraisement on good cause shown: Provided, that notwithstanding such appeal, said company may take possession of the property described as aforesaid, and subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed." It is assigned for error, in substance: 1. That the court of common pleas had no jurisdiction in the case after the expiration of ten days after the filing of the award. 2. That no motion to set aside the appraisement and award having been made, and no exceptions thereto having been taken for more than two years after the filing of the award, and the ten days having expired, the court erred in setting the same aside. Stanbery, Kebler & Wright, for plaintiff in error. SUTLIFF, J. The principal question presented for our consideration upon the petition in error relates to the jurisdiction of the court of common pleas in this case. It is insisted by counsel for plaintiff 223] in error that the statute having provided a particular *manner in which the defendant in error could have had the award of the arbitrators reviewed by the court of common pleas, and the defendant not having availed himself of that provision to take the case before that court for review, he is precluded from bringing the case before the common pleas in any other manner. The correctness of this position, we apprehend, depends upon the |