Volume 10 — Ohio Circuit Court Reports

<p>1. Where a municipal council instructs the treasurer to advance to a contractor who is unable to go on with his contract for lack of means, a sufficient sum to pay railroad freight on material to be used in the contract, the amount to be deducted from the next payment to be made to the contractor on an estimate for work done, to which the contractor consents, the transaction being entirely bona fide, the municipality is entitled to a credit for the amount so advanced, as against mechanic’s liens for work done and material furnished on such contract, although there was no resolution or ordinance passed by such council at the time providing for such advance payment to the contractor.</p> <p>2. Where a contract for a street improvement provided that payments should be made to the contractor as the work progressed on estimates of the city engineer, eighty-five per cent, of the proportionate part of the contract price to be paid such contractor on such estimates, and fifteen per cent, to be paid only on completion of the entire contract, and the contractor having abandoned the work, his sureties have completed the contract to save themselves, the work being completed at a loss to such sureties, such sureties are entitled to the said fifteen per cent, remaining unpaid, as against holders of mechanic’? liens for work done on such part of the contract provisionally estimated to the contractor.</p>

<p>1. The rule of law in Ohio is that a traveler crossing a steam or street railroad, must use his senses, look and listen for approaching trains But it is not the law of Ohio, as in Pennsylvania, that it is always negligence per se for.a traveler to fail to look and listen.</p> <p>2. The degree of care required is always ordinary care, under the circumstances of each particular case. The degree of care may be increased in different cases, owing to the character of the surrounding circumstances.</p> <p>3. Street ear companies running through the streets of a city have not superior but only equal rights with citizens whether pn foot or in vehicles. Both are required to use due care.</p>

<p> The funds of a society, organized to assist its sick and needy members, can not, without a change of its constitution, be applied to religious purposes. </p>

<p>Facts which will justify the jury in giving punitive damages — Loss or injury by reason of mortification by being badly treated by conductor may be considered by jury in fixing damages — Exception to point in charge of court to jury must be specific to be considered on error.</p>

<p>1. A judgment taken on a cognovit note payable to A. C. R. & Co., in an action in which the plaintiff is described as A. B. & C. D., partners under the firm name of A. O. R. & Co., is not absolutely void as being unauthorized by the power of attorney.</p> <p>2. Where the plea of res judicata is interposed, parol evidence is admissible to show the distinctive issue on which a case was tried when the record is silent in this respect.</p>

<p>1. Where a part of a county road comes by the annexation of contiguous territory within the limits of a municipal corporation, it is subject to the control and supervision of the municipal authorities, and may be improved as other streets of the municipality. „</p> <p>2. The municipal authorities have the power to establish the grade of such road, and in doing so can remove a bridge passing over a railroad, that crosses such road, and make the crossing at grade.</p> <p>3. The streets of a municipal corporation are to be held in trust for public uses and the power over them is to exercised by the municipal authorities for such public uses. Section 3283 of the Bevised Statutes, gives no right to the city authorities to barter away the rights of the public in the streets.</p> <p>4. It is in the discretion of the municipal authorities to determine at what grade its streets shall cross a railroad, the track of which runs through the municipality.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Huron County.</p>

<p>Prosecution under act punishing adulteration of vinegar, etc. — Judgment by , common pleas acquitting defendant final; and on exceptions by the state the circuit court has no jurisdiction to entertain a petition in error.</p>

<p>Appeal from the Court of Common Pleas of Cuyahoga County.</p>

<p>1. Ordinances requiring the lighting of railroad crossings in a municipal corporation and assessing the expense of such lighting against the company or person operating such railroad, if duly enacted, create a valid claim against such company, and may be collected in any court having jurisdiction.</p> <p>2. Copies of such ordinances, attached to and filed with a petition as an exhibit, form no part of such petition, and their validity cannot properly be determined on a general demurrer to the petition.</p> <p>3. If the facts stated in such petition constitute a cause of action, a general demurrer should be overruled, notwithstanding there is also much surplusage and immaterial allegations in such petition.</p> <p>4. If a notice is served on the officer or agent m charge of the railroad and operating it byffiis correct name, a misnomer in the description of the office or position held by him is immaterial.</p>

<p>Railroad company liable for injury caused io employe through defective machinery — Sudden movement of locomotive.</p>

<p>Freight cars running in yard without brakeman. — Yardmaster having assigned a sufficient number of brakemen to attend to freight cars being moved about the yard, the company is not liable to other employe for being run over by freight cars moving on track without a brakeman attending them.</p>

<p>Injunction. Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>On Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Erie County.</p>

<p>The petition of the plaintiff, containing the allegations hereinafter stated, states facts sufficient to constitute a cause of action in favor of the plaintiff, against the defendant, and in her representative capacity.</p>

<p>A statement of the issues and facts contained in the opinion of the court.</p>

<p>Appeal from the Court of Common Pleas of Cuyahoga County.</p>

<p>Error to the Court of Common Pleas of Lucas County.</p>

<p>On error to the Court of Common Pleas of Defiance-County.</p>

<p>Error to the Court of Common Pleas of Mahoning County.</p>

<p>1. When written instructions should be taken by the jury in their retirement. — Written instructions presented to the court, and by it given to the jury on the request of either party, should be taken by the jury in their retirement.</p> <p>•2. Evidence of witness’ opinion excluded. — In an action to recover damages for a personal injury, claimed to have resulted from the negligence of the defendant, it is proper to exclude the opinion of a witness that the plaintiff' ‘‘ might have been saved” from injury.</p> <p>3. Discretion of court to receive evidence in chief on rebuttal. — Where evidence is offered ini rebuttal that was competent in making out plaintiff’s case, its admission or rejection is discretionary -with the trial court.</p> <p>4. Evidence of conduct of motorman under which verdict will not be disturbed.— There being evidence tending to show that the motorman running an electric motor car rung the gong, turned off the electric current and put on the brake as soon as he could reasonably anticipate that his car was likely to run against a boy who suddenly turning from the position he had occupied, ran upon the track not as a passenger crossing and was injured, a verdict for the company owning and runuing the car will not be disturbed, there also being evidence from which contributory- negligence on the part of the boy might be inferred by the jury.</p>

<p>cited : 10 Pick. 204; 2 Met. 229; 7 Cush. 166 ; 117 Mass. 433; 122 Mass. 100; 20 N. Y. (Ct. App.), 226; 56 N. Y. 673; 33 Wis. 617; 1 Story, U. S. 458; 12 Me. 1; 52 Me. 202; 66 Me. 557; 2 Bibb, (Ky.), 273; 18 N. H. 220; 13 Vt. 379 ; 30 Vt. 242; 51 III. 413; 1 Mont. 688; 11 Ohio St. 120; 31 Ohio St. 574; 14 Bull. 48; 32 Bull. 78 , 8 C. C. Rep. 407; Dillon Mun. Corp. (4th Ed.), sec. 472 and note 1; Sedgwick on Damages (8th Ed.), secs. 236, 238, 240, 241; Southerland on Damages (1st Ed.), Vol. 1, pages 127, 128, 140, 141, 142, Vol. 2, pages 302 to 309, inclusive, and pages 412, 413 and 419.</p> <p>cited: 10 Ohio St. 277; 31 Ohio St. 529; 46 Ohio St. 371; 8 C. C. Rep. 407.</p> <p>Error to the Court of Common Pleas of Lucas County.</p>

<p>In replevin cases, when the finding is that defendant is entitled to the property, the judgment should he either for the return of the .property to the defendant, or if he does not ask that, for the value of the property. But where the magistrate in such a case, on a verdict by the jury for the defendant, entered judgment that the defendant was entitled to the property and to his costs, which were paid, but failed to enter judgment that the property should he returned to the defendant, or to assess the value of the property to be paid by plaintiff, plaintiff’s surety on the replevin bond will not be liable to the defendant for the property or its value.</p>

<p>Where a street railway company has regularly appropriated, by proceed - ings under the statute, the right to run and operate it's railway cars over and upon certain designated portions of the line of street railway of another company, it does not thereby acquire such an interest in the property of the latter company as to entitle it to demand from another company which has subsequently acquired, by contract with the company owning the railway the right to use its tracks, compensation for such use. The case of The Toledo Consolidated Street Railway Company v. The Toledo Electric Street Railway Company, 6 C. C. Bep. 362, approved and followed.</p>

<p>A testator bequeathed all of his personal property to his sister, who had been his housekeeper for oyer fifty years, and also gave her an estate for her life in a farm which he described as ‘‘ the farm on which I reside, situate, etc.”; and directed that, at her death, hi3 executor should sell such farm, and all his real estate, and divide the proceeds between a niece and two nephews. After the. making of the will, the testator sold the farm, and took a mortgage thereon for part of the purchase-money, a portion of which remained unpaid at his death. A part of the money paid to the testator was unaccounted for, a part he used for his support, and the remainder he gave to the plaintiff to keep for him, who deposited it in bank at interest, where it remained up to the testator’s death, The executor has in his hands for distribution hut $200.00 in addition to the sums thus left of the proceeds of the sale of the farm; and the testator, at no time, owned any other real estate. Upon action brought by the executor for construction of the will, held:</p> <p>That the legacy to the niece and nephews was specific, and adeemed by the sale of the farm by the testator, and the avails of such sale, including the amount collected by the executor upon the mortgage, would pass to the sister, under the bequest to her of all the personal property.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County. ;</p>

<p>Error to the Court of Common Pleas of Lucas County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. A debtor can at the time of making a payment on an open account, designate the item of such amount on which the payment is made, and if received by the creditor, the application will stand. But if the creditor fail to make the application, the creditor may make it,and if no special application of the payment-is made by either, the payment will be applied to the oldest item of the account, subject, however, to such an application as the court would say is equitable and just.</p> <p>2. But where the creditor for part of the account would bo entitled to a lien, and for part not, and the creditor afterwards attempts to apply the payments made to those items of the account for which he is not entitled to a lien, and.to secure a lien on that part of the account for which he would be entitled to the lien, he will be ■ sustained by the court in such application of the payments made.</p>

<p>Error to tlie Court of Common Pleas of Summit County..</p>

<p>1. In a proceeding to revive a judgment, where the judgment debtor pleads his discharge in bankruptcy, such discharge will not be a bar to such judgment where it appears that the original cause of action on which such judgment was rendered was one of fraud of the most active kind.</p> <p>2. The proceeding to revive such judgment brings the whole record of the original cause before the court.</p>

<p>1. Power of cashier to make contracts. — The cashier of a bank cannot make for his bank a contract, in regard to a subject-matter outside of the usual and customary business of the bank, and outside of the business usually performed by cashiers.</p> <p>2. Competency of instructions by principal to agent. —Where an agent has had definite instructions not to act for his principal in a matter outside of his duties as an agent, the principal may show such instructions where he is sought to be held for the acts of his agent contrary to such instructions.</p> <p>3. Character of agency of different banks receiving a draft for collection. ■ — Where a banK in this state receives for collection a draft, payable in this state, and for the same purpose forwards the draft to its correspondent in Pennsylvania, and the bank in Pennsylvania forwards it for like purposes to another bank in Ohio where it is payable, such last-named bank is the agent of the bank in Pennsylvania, and is not the sub-agent of the bank',' in Ohio that first received the draft. The bank in Ohio where the collection is to be made, is responsible for its negligence to the Pennsylvania, bank only. ■</p> <p>I. Obligation of one who is liable on one of two separate claims to defend against both claims. — If M. is sued’on two separate claims, and W. is liable to M. on one of the claims, if M. has it to pay, but is not thus liable on the other claim, and M. when sued notifies W. of the pendency of the suit, W. is under no^obligation to defend the suit involving both claims, and if judgment is obtained against M. for the sum of both claims, M. cannot recover from W. a part of the costs and attorney fees in"the suit against him.</p>

<p>Davis entered into a written contract with Porter, his son in law, whereby he leased to him, during the life of Davis, a tract of land, and Porter was to pay therefor an annu al rental of $250, and the taxes thereon. The lease further says. “The said James Davis having by his last will and testament bequeathed the premises leased, to Emily Porter, the wife of said Harry D. Porter, and daughter of the said James Davis, she is to take possession of the same from and after the death of said James Davis. It is expressly agreed on the part of the said James Davis that the said Harry D. Porter is to take free and entire possession of said premises hereby leased, from and after the 1st day of March, 1883, and to make such repairs and improvements thereon as he may deem best for his interest and the interest of his said wife. In a word, “he is to use said premises as if they were his own.” Porter took possession of the premises and erected buildings and made other improvements thereon. Afterwards Davis, with the knowledge of Porter, executed and delivered to Emily Porter a deed for said premises for her life, with remainder to her children, and subsequently Porter and wife mortgaged the property to another to secure a debt. Davis sued Porter to recover the rents alleged to be due, and Porter, by way of counter-claim, sought to recover the damages which he claimed had resulted to him by his having made improvements on the real estate, and that Davis having conveyed only a life estate in the land to Mrs. Porter instead of a devise to her in fee, as he had stipulated to do, that he should recover the damages Sustained by him thereby. On the trial the court found in favor of Porter on his counter-claim, and assessed his damages thereon, substantially at the cost of the improvements. Davis, Porter and his wife are still living. On this state of facts, Held:</p> <p>1st. That the contract did not provide that in any event, Davis should compel, sate Porter for, or pay to him the cost or value of any improvement made by him on said premises.</p> <p>2nd. That the sipulations or recital in the contract as to the existence of the will of Davis, whereby he had devised to his said daughter those promises in fee simple, and as to the right of Porter to make improvements thereon during his lease as ho might deam best for the interest of himself and of his w-ife, were in the nature of an existing and material fact, and were a part-consideration for the making of such contract, and it was incumbent upon Davis to see that such arrangement as to the devise of the land was carried out. And in case of a breach of this stipulation by Davis, he would be liable to Porter for the damages resulting to him therefrom.</p> <p>3rd. Such performance might be waived by Porter, and it was done in this case.</p> <p>4th. Whether there has been a breach of the contract entitling Porter to sue thereon during the life time of Davis, Quiere, But if this be conceded, yet owing to the fact that it is absolutely uncertain how long the term of Porter may continue, and whether his wife will survive her father or Porter survive his wife,and as the only damage that Porter might sustain by breach of this stipulation by Davis would be in the event that Mrs. Porter should survive her father and Porter survive her, and would be for the loss of his contingent right of dower in the improvements made, it is manifest that the cost of such improvements, with the interest thereon, is not the measure of his damages, and should not be allowed.</p>

<p>Where a contract is made for services, the employe agreeing to do the work for the compensation which on the completion of the work the employer would consider fair and reasonable, the employer who is to name the compensation, must exercise that right at the time when it ought to have been exercised — in this case at the completion of the services; and if not then, then at the time when the employe after the completion of the services came to him for his compensation. Such employer can not wait until he is brought into court and upon the witness stand, and then for the first time exercise the right to name the price; and it is not error for the court-under such circumstances, to rule out at the trial the opinion of the employer expressed at the witness stand. In such case the employe is entitled to recover what the jury think his services were reasonably worth.</p>

<p>On Appeal from the Court of Common Pleas of Hancock County.</p>

<p>Refunding of street improvement bonds. — Sec. 2729a Rev. Stat., which excludes street improvement bonds from the classes of bonds to be refunded, relates to improvement bonds issued by the city which are redeemed by monies collected by assessment on the property abutting on the improvement, but does not apply to bonds issued for street improvements by the city, for which no secondary liability rests on any property for their payment.</p> <p>Power of municipal corporations. — Except as -to incidental powers such as are essential to the very life of the corporation, the presumption is that the state has granted in clear and unmistakable terms all it is designed to grant at all. Doubtful claims to power are resolved against the corporation.</p> <p>Power of city to issue “ gold ’’ bonds. — The power to issue gold bonds not being expressly granted, and it not being essential that the bonds should be made payable in gold in order that they may be sold, it cannot be an implied power for the city to make them payable in gold.</p> <p>“ Dollar ” defined. — Sec. 2729a Rev. Stat., authorizing the issue of bonds by the city of Cincinnati to the amount of twenty six millions of “dollars,” dollars must be defined to be the unit of value of money, as enacted by congress, consisting of a legal tender currency dollar redeemable in gold or silver coin of the United States, and a bond payable in gold, excluding the payment of such bond in legal tender currency or silver coin, would be a limitation on the “dollars” used in the statute, which is not authorized without express legislation to that effect.</p>

<p>Liability of B. B. Go. for merchandise contained in trunk accepted by it as personal baggage — Knoivledge of contents by B. B. Co.'— The weight of authority is, that if the baggage agent of the company, at the time he received the baggage and gave a check for it, had knowledge that the baggage contained merchandise of the kind claimed to have been in these trunks, and received it without objection, as baggage, and placed it on the train, that in case the trunk or merchandise is lost or destroyed, the company would be liable for the same upon the same principle that it would be liable for the ordinary baggage of a traveling man.</p> <p>Facts tending to show knowledge. — Where the evidence offered presented the facts that the trunks were of peculiar form, bound to getber in a peculiar manner, of great weight, and iron bound, such as are generally known as jewelry trunks; that the baggage agent was at the hotel inquiring about the baggage, and there saw the merchandise spread out which afterwards went into the trunks, although no special declaration of the contents of the trunks was made to him at the time the trunks were received by him, such facts are sufficient to require that the question of knowledge by the R. R. Co. of the contents of the trunk should be submitted to the jury to be passed' upon by them.</p> <p>Liability of B. B. Co. — Degree of care required. — The liability of a R. R. Co. for merchandise contained in a trunk accepted by it as the personal baggage of a passenger, without notice or knowledge of such contents of the trunk, is that of an ordinary bailee without reward from the time it takes such property into its possession, and it is liable for gross negligence only in case of loss or destruction of the trunk.</p>

<p>1. Except’ in cities of the first class, all assessments against abutting property, authorized to be made by a municipal corporation, to pay the cost and expense of a street improvement, are limited to twenty-five per cent, of the value of such abutting property.</p> <p>2. The value of such abutting property upon which the said' twenty- • five per cent, is to be ascertained and assessed, is the value, as fixed by the decennial aj>praisement for purposes of taxation, in force at the date of the passage of the ordinance ordering and providing for the improvement.</p>

<p>1. In a civil action, by a female, to recover a money judgment for a criminal assault, the petition contains a general statement of facts, in substance : That the defendant made an assault on her with criminal intent, and took unwarranted liberties with her person, without her consent, and frightened, humiliated and injured her to an extent of 85,000, for which she prays j udgment. The facts stated constitute a cause of action in favor of plaintiff and against defendant, and the petition is good as against a general demurrer.</p> <p>2. The provisions of section 4986 of the Statute of Limitations is not a saving provision merely to persons under disability, but forms an exception to a general rule, and excepts the persons therein named from the operation of the general provision of section 4979;' so that time does not begin to run against persons under the disability of infancy when a right of action accrues, until such disability is removed.</p>

<p>Error to tlie Court of Common Pleas of Hancock County.</p>

<p>Action for damages for injury by railroad — Averments sufficient as against general demurrer.</p>

<p>Error to tlie Court, of Common Pleas of Hamilton County.</p>

<p>1. The lien of a vendor on land sold by him, for the unpaid purchase-money, is not lost by the mere taking of collateral security for the payment thereof. If a distinct purpose to preserve, and rely upon the lien is shown, it will remain. And such was the. case here.</p> <p>2. Where such is the case, and no conveyance has been made of the land to a vendee, but only a contract made between the owner and the purchaser, by which the latter was authorized to execute to a Building Association a mortgage for not exceeding the value of houses to be erected thereon by the purchaser, who was then to execute to the vendor a second mortgage on the land to be prior to all liens and conveyances except the Building Association mortgages, and the purchaser contracted, without the knowledge or procurement of the vendor, with a Building Co. to erect houses thereon, which was done, and a builder’s lien placed therefor on the land, but the purchaser thereupon assigned the land to an assignee for the benefit of his creditors without having- executed and delivered the mortgage provided for, the land having been before conveyed at the request of the purchaser to a trustee for his benefit, and the same was done with a stipulation by the purchaser and his trustee, that there was to be no other liens prior to that of the vendor thereon, other than the Building Association mortgages, in such case the lien of the vendor is prior to that of the Building Co.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p> <p>Motion to strike petition in error from the files, etc.</p>

<p>Damages for fire set by locomotive to land — What evidence competent. —In an action against a railway company to recover damages caused by fire set by its locomotive,the proof is subject to considerable latitude. It is competent to show, that the fire started in the grass along the track soon after passage of locomotive, and that about that time and immediately after the passage of the locomotive, other fires occurred in that neighborhood. Where the particular locomotive that is claimed to have sec the fire, is not traceable, it may be shown that the railway company was reckless in this particular, and it would be competent to show that every one of the company’s locomotives emitted fire.</p> <p>Sec. 8516-39, Rev. Stat., construed — Duty - of railway company under that statute defined.</p>

<p>Township Treasurer — Election and term of office — Appointee to fill vacancy, hoiv long to serve. — Under sec. 1448, Rev. Stat., where a vacancy occurs in the office of township treasurer, the person appointed by the township trustees to fill the office holds not for the uenxpired term, but until a successor is elected and qualified, which, under the statute, is to the next general election thereafter occurring more than thirty days after the vacancy happened.</p>

<p>Error to the Court of Common Pleas of Lorain County.</p>

<p>Agent — Money received for principal’s illegal enterprise — Agent’s note to principal for money tied up in the deal not enforceable. — While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.</p> <p>D., an agent of C.,was engaged with C. in a wheat gambling deal at Chicago. While the deal was in progress, D., being in Cincinnati, was induced by threats of prosecution, to execute his note to C. for the money C. had furnised for the deal. On suit on the note, held, C. can not recover on the note. If 'D. had had the money in his possession at the time, he could not retain it from C. But the deal still being in progress at the time, and the money being in the deal, and not in D. ’s possession, the note was a gambling transaction, given in furtherance of the gambling transaction, and therefore not enforceable at law.</p>

<p>1. If a dealer largely indebted, proposing to purchase goods, states 'the facts truly, and goods are then sold to him on credit. The title passes, and no subsequent fraudulent acts will divest him of the title, and re-invest it in the seller.</p> <p>2. A grocer largely indebted purchased of a wholesale dealer, goods of an amount and quality suitable for retail in his business, and placed them in the original packages in his store, with like packages bought from other dealers. Such act was not a wrongfully intermingling of goods so as to justify the seller in taking all the unbroken packages, because he was unable to identify the ones he had sold.</p>

<p>Section 6489 of the Revised Statutes of Ohio, (An. 88, O. L. ¿78), the justice of the peace attachment act — is notaTimitation of sec. 5430,p. 6 — (the three months’ earnings exemption law) when on motion to dissolve attachment it is shown that the excess of the three months’ earnings, over §150, is also necessary for the support of the debtor’s family, and demand of the same therefor. Upon such showing the debtor is entitled to hold exempt from the attachment both the §150 and the remainder of the three months’ earnings as well, whatever the amount.</p> <p>It is not necessary that a definite amount of said three months’ earnings in the hands of the garnishee be made to appear, in order to entitle the debtor to a dissolution of the attachment.</p>

<p>1. Plaintiff, a brakeman, for the purpose of going ahead of his train to throw a switch and turn the train onto a side track, stepped from the front of the pilot of the advancing engine to the center of the track immediately in front of such engine,[and slipped and ■ fell, and was run over by the engine and injured. Held: that plaintiff cannot, in such, case, call witnesses to prove that brakemen would, or did, usually perform the same work in the manner the plaintiff had attempted to perform it.</p> <p>2. In negligence cases, whether the plaintiff was guilty of contributory negligence is ordinarily a question of- law and fact, but it may be one of law only. The rule is that if the plaintiff has given some evidence tending to prove every fact necessary to a recovery, the question must be submitted to the jury, unless all the material facts as to the plaintiff’s duty and conduct are certain and undisputed, and admit of no reasonable inference but that of negligence; in which case the question is one of law only, and should not be submitted to the jury.</p> <p>3. The doctrine that a plaintiff who, in trying to avoid an impending danger brought upon him by the negligence of the defendant, pursues a wrong course and is injured, when he would have been safe had he acted otherwise, is not chargeable with contributory negligence if he believed, upon reasonable grounds, that in so acting he would escape injury, is not applicable to a’ case like this, when the plaintiff unnecessarily and of deliberate choice, adopted a reckless method of doing the work, when a safe course was open to him, and known. If such doctrine does apply, as the plaintiff was not asked, and made no statements as to his belief in regard thereto, when testifying as a witness in his own behalf, it must be presumed that he did not entertain such belief.</p>

<p>Poioer of court, to interfere with public officials or body in the exercise of their special powers — What is a county officer under sec. 1, art. 10 of constitution — Where two bodies are directed by an act of legislature to act together in certain functions, a majority ■ of the total number of both bodies combined necessary to any action.</p> <p>1. In the distribution of powers under the constitution of Ohio, certain political and civil powers are vested in certain public bodies, and these bodies, in the exercise of their powers, can not be interfered with by other bodies or the courts. Courts, however, have the power to enjoin when such bodies or officials are proceeding to make illegal contracts, and to some extent to interfere where there is a gross abuse of power. But courts have no power to set their opinion or discretion against that of the body or officials acting within the scope of their powers.</p> <p>2. By special act of the legislature, passed February 2, 1893, the legislature of Ohio authorized the building of a new court house for • Wood county. It is provided in section 5 thereof that the judges of the circuit court of the sixth circuit should appoint four freeholders of said county as a “Building Committee, ” to act and vote with the county commissioners in procuring, making and approving plans, estimates and specifications for said court house, in awarding contracts for labor or materials used in building tbe same, and for furnishing said court house when completed. Such building committee wa§ appointed by the circuit court. Held: That the members of such building committee are not “county officers” within the meaning of sec. 1, art. 10, of the constitution, who must be elected, and sec. 5 of the said act of the legislature is not in conflct with the constitution in that regard — What constitutes a “county officer” within the meaning of sec. 1, art. 10, of constitution defined.</p> <p>:.3. Under the provisions of the special act of February 2 1893, the county commissioners must [act with the building committee in all matters relating to the building and furnishing of the new court house, and both together forming a body of seven members, the consent of at least four of the whole body is required in favor of any proposition to contract in regard to building and furnishing the new court house.</p>

<p>Authority of court, after jury has retired to deliberate upon their verdict, to further instruct the jury in the absence of parties and counsel, and without attempt to notify them. — It is a clear violation of the duty of the court and of the rights of the parties, to instruct the jury in the manner in which they were instructed by the court in this case, at the bar of the court, without some effort being made to get notice to counsel in order that they might be present and protect, so far as they might deem it necessary to do so, the rights of their clients in whatever communication might be made to the jury by the court upon that occasion.' — Sec. 5191, Rev. Stat., considered and authorities reviewed.</p> <p>Motion for neto trial — Second motion filed after three days’ elapsed, on grounds not within knowledge of counsel within three days after verdict — The court doubts whether the three days’ limitation for filing motion for new trial applies where the knowledge of the matter complained of comes to the party complaining after the expiration of the three days from the date of the rendition of the verdict, in the absence of laches on his part.</p> <p>When motion for new trial not required — Where the party claims that the verdict is against the evidence, or not sustained by sufficient evidence, there it is necessary that there should be a motion for a new trial; but when the party bases the exception upon the ruling of the court during the progress of the trial, or to the action of the court in its charge to the jury, in giving instructions or refusing instructions requested, exceptions being duly taken, no motion for new trial is required.</p> <p>Amendment, more than three days after verdict, of motion for neio trial previously filed. — Sec. 5114, Rev. Stat. — Under the broad power of amendment afforded by the statute, it is competent to amend more than three days after verdict the original motion for a new trial filed within the proper time, by adding as an additional assignment and ground of the motion, new matter complained of as error.</p>

<p>Mandamus — Practice.—An alternative writ of mandamus to be effec tive under the statute must contain a copy of the petition, that the defendant may know what act he is required to perform.</p> <p>Act required impossible to be performed. — Where in an action to compel a municipal council to award to plaintiff a contract for paving a certain street, it appears from the pleadings that before the alternative writ of mandamus was served upon defendant, a contract had been entered into and performed and at least ninety per cent, of the contract price paid, so -that council could not comply with the. order of the court if ordered to do so, no writ of mandamus will be allowed.</p>

<p>Bill of exceptions — Journal entry after term amending bill. — -To make a paper a part of a bill of exceptions, it must be incorporated in it, or attached to it, or filed with it, and so described as to leave no doubt as to its identity. When not so made a part of the bill, the defect can not be cured by obtaining an entry in the trial court at a subsequent term, directing it to be taken as a part of the bill.</p> <p>Contributory negligence — Proof.—It is error for the court to charge the jury that plaintiff not only must prove defendant’s negligence, but also prove affirmatively that he did not contribute to his injury. The burden of showing contributory negligence is on the defendant.</p> <p>Erroneous charge to jury — Error presumed. — Parties are entitled to a correct statement of the law by the court in its charge' and error will be presumed when the law is not correctly stated, but the error must appear to be prejudicial to plaintiff in error.</p>

<p>Adverse possession — By grantor of land, what required to constitute. —The mere undisturbed possession of land by the grantor, after delivery of the deed, for any length of time, will not be considered adverso as against the grantee. Nothing but a clear, unequivocal and notorious act on the part of the grantor that would at once advise the grantee of the purpose of the grantor to hold the land against the grantee, would bar thedatter’s right if continued for twenty-one years.</p>

<p>1. Under the previsions of the will of G. M. H., hereinafter set forth, E. S. H., his son, on the death of his father, took a vested interest in the undivided one-tenth part of the real estate belonging tc his father at the time of his death. But it was subject to be divested by the exercise of the power to sell the same, conferred upon the executrix of his will, or on the contingency that said E. O. H. died without leaving any issue of his body surviving him.</p> <p>2. The executrix of said will, having exercised the power of sale conferred upon her, as to a part of the real estate so devised, several years before the accruing of the debt of the plaintiff M. against E. S. H., and before the rendition of the judgment thereon, such judgment never became a lien on the part so sold; and though such sale may not have been made for the purpose mentioned in said will, if consented to at the time by E. S. H. (as was done), M., the subsequent creditor, cannot under the allegations of the petition complain thereof.</p> <p>3. Such judgment became a lien on the interest of said B. S. H. in the other tracts of land, so devised, but subject to lie divested as before stated.</p> <p>4. The interest of said B. S. H. therein is also subject to the advancements which the said executrix was authorized to make to him, but which were made before the rendition of said judgment.</p>

<p>Equity will relieve against a forfeiture of a lease incurred by the breach of a covenant to pay taxes, when the breach was not wilful or the result of gross negligence, and no demand for the payment of the taxes was made by the lessor prior to declaring the forfeiture.</p>

The two cases above named were consolidated in the court below, and tried as oue case.

<p>1. P. purchased of Shaw, a married man, real estate and paid full value therefor, in 1852, and took-a warranty deed in which Shaw’s name appeared as the grantor, but in which Shaw’s wife released all her right, title and. interest “by way of dower or otherwise.” P entered into possession under the deed, and he and his heirs have since held exclusive possession. In 1893 it was first discovered that the title stood in the name of Shaw’s wife. In an action brought by heirs of P. in possession to correct the deed and make it a valid conveyance of the wife’s title; held, that it appearing to have been the intention of all parties to the instrument that the entire title should be conveyed, such correction would be decreed.</p> <p>2. An action by a vendee of real property in possession thereof, to correct a mistake in the conveyance under which such vendee entered into possession and under which he claims title, is not barred by the statute of limitations.</p>

<p>Motion to restore part of answer.</p>

<p>Error to the Court of Common Pleas of Huron County.</p>

<p>1. Where the agents of a railway company accept for transportation as baggage a passenger’s trunks, knowing, or having good reason to know, that such trunks contain merchandise and not personal baggage, such company is liable, as a common carrier, for the safe delivery of said property.</p> <p>2.”But where such agents do not know, or have good reason to know, the contents of such trunks to be other than personal baggage, and accept them for transportation upon the belief that they contain only personal baggage, the obligation of the company is that of a bailee for hire, and it is bound only to the exercise of ordinary care in respect to such property.</p> <p>3. Where such property js received by the company in good condition, and is lost or damaged in transit by forces and agencies within the control of the company, the burden rests upon the company to show due care.</p> <p>4. Where such trunks and contents were not the property of the passenger delivering them for transportation, but were in his possession and control as agent of the owner, an action will lie at the suit of' such owner to recover for any loss or damage arising from a violation of the duty of such company in respect to such property.</p>

<p>An action against the drawer of an over-check for the amount thereof is limited to six years.</p>

The original action in the common pleas court was brought by John W. Morris against the C. H. & D. Railroad Company on December 29, 1888. The cause was three times tried to a jury, resulting each time in a verdict for the plaintiff. The first verdict was set-aside by the trial judge. The second by the circuit court at a former term for error in the admission of evidence, and because the verdict was against the weight of the evidence.

<p>1. The owners of a line of poles used to support wires for conveying electricity in a muncipality, may so devote and use said poles as to subject them to the power of the municipal authorities, in providing reasonable regulations regarding them, to authorize their being used to support the wires of other parties, upon payment or tender of the reasonable value of said use, without proceedings in the probate court to appropriate the right of said use.</p> <p>2. Prior to the Act of 1886, municipal councils were not authorized, by reason of their general control of streets, to grant the absolute right to erect and maintain electric light poles in the streets of the municipality.</p> <p>3. The power of municipal authorities under the act of 1886 to impose reasonable regulations governing the erection and maintenance of lines for the transmission of electric light and power within the limits of the municipality, is a continuing power, and under it, a requirement that the poles of such lines may also be used to support electric wires of parties other than the owners of such lines, upon making proper compensation, may, where such added use does not materially interfere with the business of such owners, be reasonable and valid.</p> <p>4. Such poles erected in the streets of the city prior to the act of 1886, or prior to a grant by the city of the right to erect and maintain them, are to be considered as in the streets by sufferance only, of the municipal authorities, and may be subjected to such reasonable regulations as the council may impose.</p> <p>5. Where the owners of such line of electric light poles and the parties to whom the municipal authorities have granted a right to use such poles, are in a court of equity for the determination of the amount of reasonable compensation to be paid by the latter party, such latter party will be adjudged to pay all ordinary costs in such action.</p> <p>6. Whether the fees of a stenographer taking the testimony before a special master commissioner in such case will be allowed as costs, query.</p>

<p>Corner lot assessment — Facts.—On the facts found by the court, as hereinafter stated, the lot of the plaintiff for the purpose of assessment for a street improvement, did not front on Carson avenue for the whole distance it abuts on said avenue, viz., 417 feet, and should be assessed for the improvement of said avenue only on 243% feet thereof.</p> <p>Same — Estoppel by signing petition.' — The signing by the plaintiff of a petition for such improvement, did not operate to estop him from claiming that the assessment made against his lot therefor, was excessive.</p> <p>Same — Former adjudication — Different grounds of action. — In a suit brought by the plaintiff against the defendant to enjoin the collection of the whole assessment levied upon his lot for said improvement, oh the ground that it was wholly void for other reasons, a decree was rendered against him. The questions raised in that case were wholly different from those presented in this case, and the plaintiff is not barred by that decree from asserting and maintaining his claim in this.</p> <p>Voluntary payment of installments of assessment cannot be recovered. —Where there have been voluntary payments of excessive installments of such an assessment, the plaintiff is not entitled in an action like this, to a credit on future installments, for the excess so paid — especially is this the case as to such payments made more then one year prior to the commencement of such an action, in which he practically seeks to recover the amount claimed to have been improperly paid.</p>

<p>Agent procuring sale of property delivering deed and absconding with purchase money — When agent of vendor. — On the facts in this case, as found by the court, Loud had apparent and actual authority, as the agent of the plaintiff, to deliver the deed made by the plaintiff to the defendant, and to receive from her the purchase-price for the property. And the fact that the defendant paid to Loud, in good faith, a sum of money for his services while he was acting as the agent of the plaintiff in negotiating the sale of the real estate to the defendant, did not prevent Mrs. Levy from relying on such payment — the parties having agreed that Loud might receive a part or the whole of his commissions from her.</p>

<p>Action for damages by employe against person maliciously procuring' his discharge from employment. — An action lies in behalf of an employe against a person who has maliciously procured the employer to discharge such employe from employment in which he is engaged under a legal contract, for a certain period, provided damage result to the employe from such discharge.</p> <p>Same — Uncertain term of service. — An action will also lie where the period for which the employment is to continue is not certain, if damage result from the discharge; even though, from inability to ascertain the amount of the damage, a verdict for nominal damages only should result.</p> <p>Same — Action lies against such third party, although no action will lie against employer. — The fact that no contract, nor any legal right of the employe as against the employer is violated by the employer, or that no action can be maintained by the employe against the employer for such discharge, does not prevent a recovery against a third person who has maliciously procured the discharge, and which discharge would not have occurred but for such procurement.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County,</p>

<p>1. Questions fov special findings submitted to jury — Failure of jury to answer — Consent by party to discharge of jury waiver of all objections. — Where questions for special findings are submitted to the jury to answer, and the jury in their verdict answers several of the questions, and as to others answers that they cannot agree, but counsel upon inquiry by the court whether they have any objection to the discharge of the jury consent thereto and the jury is discharged accordingly and judgment entered on such verdict, such consent by counsel is a waiver of all objections to the verdict and judgment.</p> <p>2. Questions submitted to jury on matters as to tohich there is no evidence — Failure of jury to answer. — Under the statute a party has no right to insist that a jury shall pass upon and answer special interrogatories where there is no testimony before them- warranting any finding on those matters.</p> <p>3. Verbal admission at trial by party of correctness of adversary's account, provided the transactions were not gaming transactions, and finding of jury they were not — Power of court on such verdict ’ to render judgment for amount of such account. — The court is not authorized by any rule of law to proceed and render judgment for a sum of money claimed by the defendants in their cross-petition upon a mere finding by the court thatcthe plaintiff on the trial admitted. that that sum was due, providing the transactions com-plained of were not gaming transactions, and the jury having found that they were not such. Mere oral admissions on the trial would not empower the court to go forward and find, as a matter of fact, that the facts so orally admitted on the trial were correct, and the party would have a right to contest any such claim,,</p>

<p>Employer and employe — Liability for dangerous service—</p> <p>1. A servant, by his contract of service, assumes the ordinary and usual dangers of such business, as generally conducted, and those arising from defective apparatus or appliances of which he has, knowledge at the time he enters such service; but he does not assume, by his contract, dangers arising from defective apparatus or appliances subsequently furnished by the master, or which subsequently become defective.</p> <p>Same — Defective appliances — Liability—</p> <p>2. Ordinarily continuing to work with such defective appliances or ■ apparatus, with knowledge thereof, without complaint, and promise of the master to remedy the defect, is negligence per se; but if the defect bo of such a character that ordinary care in the performance of his'" duties by the servant, in view thereof, would be sufficient to protect himprom injury therefrom, or, if such defect was not so obviously or immediately dangerous but that prudent men would continue in such service, then such continuance would not constitute negligence per se, and the exigencies of the service, at the time of the injury, may excuse the servant for fa momentary forgetfulness of such defect — all of which would be for the jury to determine under proper instructions from the court, provided such facts were properly alleged in the petition.</p> <p>Same — Rules for use of appliances—</p> <p>3. If the master has made and furnished to the servant rules to govern him in the performance of his work, and if an observance of such rules, so far as time and occasion will reasonably permit, would make known a‘defect in such apparatus or appliances to the servant, he must be presumed to have known of and obeyed such rules and to have acquired a knowledge of such defect, and the buidm of proof is upon him to show either that he had no actual knowledge of the defect, or, a legal excuse for not knowing, or for using the appliances or apparatus with such knowledge. In this case the evidence did not rebut such presumption, nor was such excuse alleged or proved, and as the decedent, therefore, knowingly and voluntarily used the defective brake, the plaintiff could not recover.</p> <p>Contributory negligence — Proof—Presumption■—</p> <p>4. The rule that the burden of proof of contributory negligence is upon the defendant, unless the jury shall find that the testimony of the plaintiff raises a presumption of negligence on his part,does not apply when the only reasonable inference to be drawn from such testimony is one of negligence. In such case, it is the duty of the court to declare that the burden of proof is upon the plaintiff.</p>

<p>Error to the'Court of Common Pleas of Lucas Comity.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Right of children to attend school in other than the district of their residence more conveniently located — Sec. 4022a {89 O.L. 233) construed — Permission of school board of district of their residence not required — Liability of school board of district inhere such, children reside to pay per capita to the school board of the district where the same attend school. '</p>

<p>Error to the Court of Common Pleas of Summit County.</p>

<p>Where property and money of a municipality has been diverted under an agreement between the council and municipal authorities, and private parties, to the unlawful use, and for the benefit of such private parties, the municipality may recover such money and property back from such private parties.</p> <p>Where he authorities of a municipality, under an agreement with private parties, donate to them a large amount of the money of such municipality and a tract of land owned by it, in consideration of such private parties erecting a factory in such municipality, such transaction is an unlawful diversion of the municipal property, and the same can be recovered back from such private parties at the suit of the municipality.</p> <p>Where the officers of a municipality enter into an illegal agreement with private parties whereby municipal property is diverted to the use and benefit of such private parties, and such private parties then form a corporation to which such municipal property thus diverted to their benefit is transferred to the knowledge and with the consent of all the stockholders who accept the benefit of such transaction, such stockholders are not innocent parties, and the municipal property thus diverted may be recovered back from such corporation.</p>

<p>1. An ordinance limiting the rate of speed of street cars in running across the public bridges of a city is not admissible in evidence to show negligence in running at a greater rate of speed in approaching a bridge.</p> <p>2. In an action brought by a passenger injured while riding with her husband, it is not error to charge that she should exercise reasonable care to learn of the danger and avoid injury.</p> <p>3. The circumstances of the case shown by the evidence as recounted in the opinion fairly sustain a verdict in favor of the street railroad company.</p>

<p>Suit by taxpayer to restrain illegal act of city — When attorney fees under see. 1779 will not be alloicecl. — Where purchasers of city bonds, to test the validity of the bonds,procure a taxpayer to commence suit under section 1777 and 1778, it being stipulated that such taxpayer should not pay costs and attorney fees, but be protected, no attorney fees under section 1779 Rev. Stat. will be allowed, such suit being in the interest of such party, and not in the. interest of the city.</p>

<p> Question of negligence and contributory negligence under the facts of the case discussed. </p>

<p>1. Where an action is brought against a party, and the summons is returned “not found, dead, ” there is no suit which could be revived against the administrator of such deceased person.</p> <p>2. But where on an attempt to revive such case against the administrator, he without any service, voluntarily appears and files an answer of general denial, such administrator becomes a party to. the suit, and can not when the trial comes on amend his answer setting up for the first time such want of service on the deceased, and that there could be no reviver of the case against the administrator.</p> <p>3. Where a claim against an estate is of such a character that it should be presented to the administrator for allowance before suit can be brought thereon, yet such requirement may be waived by the administrator; and where such administrator enters appearance in the suit so brought, and proceeds to trial therein without objection, this amounts to a waiver, and such waiver can not be taken back by the administrator when the case comes on for trial, by taking permission to amend his answer, and then for the first time setting up the fact that the claim was not presented to him for allowance as a defense.</p>

The action below was brought by the Farmers’ and Merchants’ State Bank of Muscatine, la., against Samuel M. Gray upon a transcript of a judgment rendered in the local courts of that state. An attachment, on the ground of the debtor's non-residence in Ohio, was issued and levied upon certain real estate in the city of Greenville. Service of process was attempted to be made upon Gray, and thereafter judgment was rendered in the action.