Volume 11 — Ohio Circuit Court Reports

<p>Street railway legislation — Publication of notice — Aline may “fork” . ivithout becoming tivo routes — The making of an existing line , part of a new route.</p>

<p>The right to occupy the streets of a municipal corporation by a telephone company for its use is conditioned upon its agreeing with the municipal authorities as to the mode of use ; or, failing so to agree, upon the direction of the probate court of the county as to the mode of use, in a proceeding instituted for that purpose; and such agreement or direction is inseparable from such right, and such right terminates with such agreement or direction.</p>

<p>IProsecutions under the provisions of “An act to prevent abandonment and pauperism, ’ ’ passed April 16, 1890, 87 O. L. 216, can only be instituted and maintained in courts which, by law, are provided with a clerk. Inferior courts, or courts without clerks,' are with out jurisdiction to try and sentence persons accused of violating the provisions of said act.</p>

The original action was brought by plaintiff in error to subject to the payment of its claim certain real estate alleged to have been fraudulently transferred by J. O. Brown for the purpose of hindering, delaying and defrauding this plaintiff and other creditors. The cause of action arose prior to the passage of the act entitled “An act to prohibit the use of fictitious names in partnerships” passed May 19, 1894, ( 91 O. L. 357).

<p>Depositions — Right of party to tahe at any time after service of process on defendant.</p> <p>1. A party to an action may commence taking testimony by deposition at any time after service of process upon the defendant, and in case of the death of a person whose deposition has been properly taken before the trial of such action, his deposition is admissibl and may be read in evidence, though the reason for taking the same is not shown by the deposition itself.</p> <p>Assignment for Benefit of Creditors — Action to compel alloioanee of claim, equitable and appealable.</p> <p>2. An action brought under sec. 6352, Rev. Stat., against an assignee or trustee of an insolvent estate to compel him to allow a claim in the settlement of his trust, is an equitable action, is appealable, and neither of the parties is of right entitled to a jury trial therein.</p> <p>Same — Where such action may be brought.</p> <p>3. Such action may be brought in the court of common pleas of the proper county, or in the Superior Court of Cincinnati.</p>

<p>Assignment for benefit of creditors — Exclusive jurisdiction of Probate Court of all matters connected therewith.</p> <p>Where an insolvent or failing debtor makes a general assignment of all the debtor’s property to an assignee, in trust, for the use and benefit of all the creditors of the insolvent, and the deed of assignment is filed in the probate court of the proper county, and the assignee has qualified and is proceeding to administer the trust, the probate court acquires exclusive jurisdiction of the subject-matter of the assignment, and has full power to hear and determine all questions properly arising.</p>

<p>Additions to taxable value of property — Power of Board of Review.—</p> <p>1. The Board of Review can make no addition to the taxable value of real estate until the owner has been served with the copy of a notice of their intention to do so. Rev. Stab, sec. 2804.</p> <p>Same — What notice reqirired.—</p> <p>2. By sections 2804a and 2804b, as passed March 1, 1892, vol. 89, Ohio Laws, pages 174 and 175, the notice shall describe the real estate whose tax value shall be acted upon by the description in the tax duplicate of the current year and the name in which it is taxed, and that the tax value will be acted upon by the board on the 10th day after said notice shall have been served as provided in section 2804b, which requires that notice shall be served (1) by delivering a copy thereof to the person or persons interested in said real estate or by leaving such copy at the usual place of residence or business of such person; or if no such place of residence or of business shall be found in the county (2) by delivering such copy to the agent in charge of such real estate and collecting the rents thereof; or if no such agent shall be found in the county (3) by advertisement thereof inserted one time in a newspaper of general circulation in the county in which said real estate is situated,and notices to the respective persons interested in different pieces of real estate may be united in one advertisement under the same general heading. Notice served in accordance with any of the above provisions shall be sufficient.</p> <p>■Same — Several methods of notice.—</p> <p>3. Where three methods of service are thus provided for, the last depending upon the inability to serve by either of the first two methods, no service by the third method is warranted unless service is impossible by the first two methods.</p> <p>Same — Statutory requirements to be strictly construed.—</p> <p>4. The statutory requirement for service must be strictly pursued.</p>

<p> Right of way for a road dedicated for private purposes. </p> <p>-1. Where an easement is granted for a private road to an abutting land owner, his heirs and assigns, it inures to the benefit of all the heirs and assigns, however many there may be, or into’however many parcels the abutting land may be subdivided.</p> <p>2. Where in a contract between several parties for a private road to be mutually used by them and their heirs and assigns, it is provided that a gate of & particular kind shall be maintained only at each end of the-road, neither party will be permitted to maintain one of a different land without the consent of the others.</p> <p>3. If after such a road is laid out, a public road be constructed across any part of it by the lawful authorities, neither party will be authorized to place a gate at the intersection of said public road without the consent of the other parties to the contract.</p> <p>4. The fact that a fence had been kept up on part of the line of the private road for many years, would not, in the absence of the contract of such a requirement, authorize the court to order defendants to fence along their line.</p>

<p>1. Assignment of interest in judgment to attorney, in casé — Where a-party assigns to his attorney a half interest in a judgment recovered by his services, who in turn assigns his interest to a third party, and then absconds, but his assignee employs other counsel to prosecute the case in the higher courts, who however-are not permitted by the client to attend to the case further, he engaging other counsel to do so, such assignment of part interest in the judgment is valid, and the counsel afterward employed by the client to attend to the case has no claim against the share-originally assigned by the client to the attorney. ‘,</p>

' The plaintiff and the defendant aré owners of adjoining property on Broadway, Cincinnati, separated by a party wall, in which there were vyindows of opaque glass. These windows were boarded up by the defendant, for the reason that he had been annoyed by persons in the house of the plaintiff looking through them into his rooms. The plaintiff charged that the boarding up of these windows was malicious, and petitioned for an injunction.

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

<p>1. Conveyance subject to condition — Forfeiture—</p> <p>Timothy Kirby, by deed in 1841, conveyed certain property to the Methodist church of Cumminsville, for church purposes, and should it cease to be so used, the grant to cease and determine. In 1846 Kirby conveyed all his interest in said land to the Wesleyan Cemetery Association, subject to the grant of the church. Kirby died sometime after, and in 1889 the church burned down, and the ground has not been used since for church purposes. The trustees ask that it be sold and the proceeds used to build a new church in a better location. The Cemetery Association claim to enter by virtue of the deed from Kirby in 1846.</p> <p>Held: 1. The deed from Kirby to the church vests in it an estate in fee subject to be divested only by a breach of condition. This is a mere possibility which may never occur, and the presumption of law would be that the grant being favorable to the church, it would not forfeit it.</p> <p>2. Same — Possibility of reverter not an estate which can be transferred—</p> <p>The possibility of a reverter does not rise to the dignity of an estate, but is a mere expectancy or possibility which can neither be transfered or released. 35th Ohio State, 297.</p> <p>3. Same — Who may claim forfeiture—</p> <p>If the condition subsequent were broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper steps were taken to constitute the forfeiture. This could be done only by the grantor during his life time, and after his death by those in privity of blood'with him. In the mean time only a right of action subsisted, and that conld not be conveyed so as to invest the right to sue in a stranger. 97th'U. S. Reports, 693-6.</p>

<p>Nunc pro tunc entry at subsequent term — Inadvertent entry — Presumptions—</p> <p>Where the journal of the court shows an entry of judgment at the October term in favor of one party, and the overruling of á motion for a new trial filed by the other party, and the allowance of a bill of exceptions; and at .tbe next term of the court that an order nunc pro tunc as of the October term had been entered by the court, finding that the said entries made at the October term were inadvertently made, and ordering^ that they be stricken out and held for naught, such last order so made was not erroneous, and should not be reversed. For all that appears, such entries made at the October term may have been entered without the order or sanction of' the court, and might at the same term have been stricken out, and the nunc pro tunc entry of the April term shows that it was in fact made at the October term, but for some reason was not then entered.</p>

<p>Chattel mortgage taken with notice of prior mortgage — Failure to re-file said chattel mortgage — Effect on subsequent chattel mortgage ivith notice.—</p> <p>On the facts stated in the opinion of the court, the chattel mortgage of Mrs. Sweney was entitled to priority over that of The Huber Co. Though the first mortgage of the former was not valid as to the assignee, and the creditors whom he represented, for the reason that it was not re-filed in accordance with the statute, it was good as against the Huber Co., which took its mortgage on the same property with actual notice of Mrs. Sweney’s mortgage. And the second mortgage of Mrs. Sweney, taken on the same property, to secure the same debt, was good as against the assignee of the mortgagor and his creditors, and therefore the claim of Mrs, Sweney was entitled to priority over that of The Huber Co. as to the proceeds of the property which was covered by both mortgages.</p>

<p>Revivor of action — Death more than a year before motion for~f revivor — Discretion of court — ■</p> <p>The court, in the exercise of a sound legal discretion, may allow an action to be revived in the name of the personal representatives, or heirs at law, of a deceased party, though he may have died more than one year prior to the time when such application for revivor is made. The facts disclosed in]this caselmake^it a proper-one for the granting of such an application.</p>

<p>Partnership —■ One partner buying interest of other — Mistalee as to, assets of firm — Recovery of share of loss from former co-partner. —</p> <p>Where one of two partners purchases from the other partner his interest in the partnership property and assets, including his interest in certain claims specifically mentioned, and pays for the same, and at the time of said purchase a part of said claims had in fact been paid to an employe of the partnership and embezzled by him, without the knowledge of either of said parties, the partner so purchasing and paying therefor, may recover from the other partner the share he had therein, (in this case one-half,) as they were, by their partnership agreement, to share the profits and losses equally. And the fact that the purchasing partner had recovered from the employe a part of the amount so embezzled by him, would not prevent a recovery of the one-half of the balance.</p>

<p>1. Father distributing his lands among his children — Consideration.— On the facts hereinafter stated, the contract entered into between Ephraim Blackford and his four children, was founded on a good and sufficient consideration,and might have been enforced against him.</p> <p>3. Same.— The father having subsequently executed deeds to the several children, conveying to them respectively the lands which he stipulated to convey to them (one of which was delivered by him in his life time to the grantee therein named) and the others were by him handed to another person with the express direction, and without :any qualification whatever, that he should keep them in his possession as long as the grantor lived, and as soon as he was dead that he should deliver them to the several grantees, and no other direction was afterwards given to him by the grantor, such deeds took effect in presentí, and when delivered after the death of the grantor, vested the title in the several grantees as of the date of their delivery to the person to whom they had been delivered by the grantor. And if one of the grantees died before his father, intestate and leaving issue, such issue would take as grantees.</p> <p>3. Same — Delivery of deed — What sufficient. — The delivery of the deeds by the depository in this case was a good delivery.</p>

<p>Error to the Court of- Common Pleas of Warren county.</p>

<p>1. Right of action accrues when party to a contract repudiates it— A suit brought April 20, 1893, on a contract for delivery of stone during the year 1893 is not prematurely brought, where it is alleged that the defendant “disregarding its promise and agreement in that behalf * * * wholly refuses and declines to fulfill and perform its agreement. ”</p> <p>2. Power of an officer of a corporation to bind it by admissions.— Admissions made by an officer of a corporation, after a transaction, to one not connected with the transaction, when the corporation is not called upon to say something, will not bind the corporation.</p> <p>3. To recover special damages they must be plead.- — There was no allegation in the pleadings that the plaintiff in error knew that contract sued upon was made in reference to a contract which defendant in error had with the United States government, and the admission of evidence as to what his arrangements with the government were, was erroneous.</p>

<p>1. Fees of special constable of coroner to serve at inquest — Gertift- ■ cate of coroner subject first to allowance by county commissioners—</p> <p>The auditor of Hamilton county is not authorized by the statutes of the state, on receiving from the coroner of said county a certificate, that certain services were rendered by a special constable in serving subpoenas on witnesses to appear and testify at an inquest to be held by him, to issue a warrant upon the county treasury for the payment of the fees so certified. All such and like bills must be presented to the county commissioners for examination and allowance, and if not allowed by them, or by some other tribunal on appeal from such decision, can not be paid by the auditor.</p>

<p>Replevin — Allegation of ownership—</p> <p>1. “An allegation in a petition in replevin that “the defendants wrongfully detain from the plaintiffs the following goods and chattels of the plaintiffs”, is a sufficient allegation of ownership on the part of the plaintiffs, where the plaintiffs claim to be the general owners.</p> <p>Sale induced by fraud — Rescission—Title to goods — •</p> <p>2. Where a person has sold goods, the sale of which has been induced by the fraud of the purchaser, and the seller has rescinded the sale on account of such fraud, the title of the seller, after the • rescission of such sale, is that of a general owner, and not a special owner.</p> <p>Pleading — Sufficient averments in petition—</p> <p>3. In such case, it is sufficient for the plaintiffs to allege that they are the general owners of the goods. The fact constituting the cause of action is the ownership of the goods by the plaintiffs. The fraudulent sale and the rescission of the same is evidence of such ownership, and the fact should be plead, and not the evidence of the fact.</p> <p>Same — Demand of goods — When necessary—</p> <p>á. A demand for the delivery of goods and chattels before bringing suit therefor is only necessary in case the goods and chattels come into the possession of the party holding them rightfully; and where goods are obtained by fraud, the purchaser acquires no lawful possession as against the vendor, and no demand for the return of the same is necessary before bringing suit.</p> <p>Fraudulent sale on unsecured notes — Return of notes—</p> <p>5. Useless and idle ceremonies are neither favorites of the law, nor required by common sense, and where the seller of the goods has received for the same the unsecured notes of the purchaser, and the seller rescinds the sale on account of the fraud of the purchaser in buying the goods, it is not necessary that the seller should first return the notes to the purchaser before bringing an action for the recovery of the goods. It is sufficient if the seller has the notes in possession so as to be able and ready to return them to the purchaser, if demanded.</p> <p>6. It is good practise for the seller to bring such notes into court at the time of the trial of the case, for the purpose of having them disposed of in such way as the court may order.</p> <p>Mercantile agencies— Judieial*notice.—</p> <p>7. The court will take judicial notice of the[nature[of the business and office of mencantile agencies.</p> <p>Same — Statements to commercial agency.—</p> <p>8. A person making statements in reference to his [financial condition and standing, or of other facts afl'ecting[his[finaneial responsibility to a commercial agency, makes such commercial agency his agent to transmit such statements to its’subscribers in the usual course of its business.</p> <p>False statements to Corn! Agency — Fraud on seller of goods — Effect.-—</p> <p>9. Where a person makes to a mercantile agency statements known by him to be false, with the intent that such statements shall be communicated to persons interested ^ascertaining his pecuniary responsibility, for the purpose of thus['procuring credit, and such statements are communicated to one who, in reliance thereon, sells goods on credit to the maker of such statements, the making of such false statements would constitute a fraud in the sale of said goods, such as to authorize the seller to rescind such sale, and re-possess himself of the goods sold.</p> <p>Statements of -past fact, when continuing representation — Statements of changeable facts — Reasonable time. — ■</p> <p>10. Where a person makes to a commercial agency a statement as to a past fact, which statement must, from the nature of the case, be thereafter either true or false, such statement is a continuing representation, and the subscriber of the commercial agency, to whom the same is communicated, has the right to rely upon the same. If, on the other hand, the statement made is in reference to facts which may be changed by the varying fortunes of the future, a person to whom such statements are communicated by the commercial agency has no right to rely on the same, unless they are so communicated to him within a reasonable time after the same are made. What will constitute a reasonable time thereafter, will depend upon the facts and circumstances of each particular case.</p> <p> Right of seller to rely on statements made to commercial agency — </p> <p>11. A person selling goods through an agent or broker, has as much right to rely upon the representations of the purchaser made through a commercial agency, as a person selling goods directly to the purchaser.</p> <p>Fraudulent purchase defined.—</p> <p>12. A contract for the purchase of goods upon credit, made with intent on the part of the purchaser not to pay for- them, is fraudulent.</p> <p>Same — -Reasonable expectation of ability to pay.—</p> <p>13. If the purchaser has no reasonable expectation of being able to pay for goods purchased on credit, it is equivalent to an intention not to pay.</p> <p> False representations made in purchase of other goods admissible — </p> <p>14. Where it is sought to set aside a sale, and on the ground that the same was fraudulent on account of false representations actually made, or because the purchaser had no intention of paying for the goods purchased, it is proper to introduce evidence of false representations made in the purchase of goods at or about the time of the purchase of the^goods in question, for the purpose of showing the fraudulent intent of the purchaser.</p> <p>Same — Made before or after purchase in controversy.—</p> <p>15. It makes no difference whether these other false representations were made before or after the purchase in controversy, if the transactions are so connected in point of time, and so similar in their other relations, that the same motive may reasonably be imputed to them all.</p> <p>Replevin of goods from agent — Agent defending in his oxen naxne— Agents’ admissions. — • ■</p> <p>16. Where an agent of others is in possession of goods, and they are taken from the agent’s possession in a suit of replevin, and he is defending such suit in his own name, admissions of such agent as to facts material to the issues of the case are competent as against him, although they were not made in the execution of the purposes of his agency.</p>

<p>Execution — Money made ,by Sheriff ”on an execution on a judgment in favor of a party, may be applied by him on an execution [held by him against such party.</p>

<p>Replevin before J. P. — What judgment entry sufficient.</p> <p>1. After the trial of an action of replevin before a justice of the peace, the justice duly entered upon his docket, the following: “Whereupon I do find that the right of property and possession of said goods and chattels when this action was commenced was in the paintiff, and I do assess his damages in the premises 8125.00 and costs of suit herein taxed at 8--.” This, though informal, was a good and valid judgment.</p> <p>2. The defendant having filed in the court of common pleas her petition in error to reverse said judgment, the court dismissed the same on the ground that no judgment had been entered by the justice of the peace. This was erroneous. If there was error in the proceedings of the justice, the[judgment should have been reversed, and the cause retained for trial in that court. If there was^no error in the judgment of the justice, it should have been affirmed.</p> <p>3. In the other case, which was an action against the surety on a redelivery bond given in the case, the court directed the jury to find for the defendant, because there had been no judgment rendered in the replevin case by. the justice of the peace. This was erroneous.</p>

<p>Action to set aside cancellation of mortgage — Former decree when no bar to action.</p> <p>An action was brough by H. against E., who had executed to him a mortgage on certain real estate, and against the building association, which had subsequently taken a mortgage from E. on the same land, to set aside a cancellation of the mortgage held by H. on the ground that such cancellation had been procured by the fraudulent acts and representations of E. and the building association. To this action P. was also made a defendant, as claiming some interest in the land, but which the petition averred was subject to the rights of H., the plaintiff. All fraud was denied by the answers of all of the defendants, and P. in addition, alleged and averred that after the cancellation of the mortgage of H., he had in good faith, bought the land from E. subject to the building association mortgage for full value, and was the absolute owner thereof, subject to said last mortgage. On the trial of said action a final decree was entered, dismissing the petition as against all of the defendants.</p> <p>Held, that such judgment or decree does not operate as a bar to the prosecution of an action subsequently brought by H. against E. & P., averring that the deed made by E. to P. for said land was made and received with the intent to defraud the creditors of E. The two actions.were entirely separate and distinct. The is- . sues therein were wholly different, and the relief sought was not the same.</p>

<p>Board of Education — Establishment of several special school districts at one time requires seperate vote for each by yeas and nays.</p> <p>1. The attempted establishment by a board of education of a township, of four special school districts, in the mode and manner, and under the circumstances hereinafter stated, was against public policy, and therefore illegal. There being four separate and distinct petitions — each one asking for the establishment of a different special district, they could not be granted by one and the same vote, after a refusal by the board to vote separately on each proposition.</p> <p>2. Where one of said special districts so attempted to be authorized, afterwards attempted to organize as such under the forms of law, and a board of education for such alleged special district was elected, and proceeded to levy a tax on the property in such district for school purposes, and applied to the auditor of said county to place the same on the duplicate for collection, which was refused, and said auditor having already placed upon the duplicate a levy made by the board of education of the township, on all of the property in said township, for school purposes, ^the court will not, by mandamus, require him to do so.</p>

<p>Water Works — Powers of Board of Administration of Cincinnati— Appointment of three expert engineers to investigate etc. as to condition of water, sufficiency of present ivater works, plans for new water tvorks, etc.</p>

<p>Debt represented by two notes, each for part of the amount, with accomodotion endorsers to each — New note for one of them without knowledge of endorser on the other note no discharge for him.</p> <p>R. sold to H. & B. certain personal property, and received therefor two notes of H. & B for the purchase-price — one for $1,000 and one for 8900 — the first of which was also indorsed by McF. for the accommodation of H. & B., and the second was indorsed by McF. and M. for the accommodation of said H. & B., and without other consideration. When the first note become due, R., without the knowledge or consent of M., the accommodation surety_on the other note, took a new note therefor from the original makers and indorser for the same amount due in six months from date, and surrendered the original note. The first note could have been collected at maturity, but when the note taken in lieu thereof became due, the makers and indorser were insolvent. Held, That this did not discharge M., the accommodation indorser of the $900 note, from liability to pay the same.</p>

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

<p>Contract — Law of the place forms part of it.</p> <p>1. The law of the land where a contract is made enters into the contract and forms a part of the same; and the scope and eflect of the contract is determined by the law; and the parties to a contract are governed in their rights, duties and liabilities under the same by the law, and by their own choice they make the provisions of the law that thus enter into their contract obligatory upon themselves.</p> <p>Same — Power of Legislature.</p> <p>% “The power of the legislature to attach binding incidents and obligations to certain contracts, is limited to .cases wherein the statute which attacheb the obligation at the same time gives or leaves -to the party, upon whom it is laid, adequate means of protection 'against the consequences of it.”</p> <p> Mechanic’s Lien Law of 1894 constitutional. </p> <p>• 3. The Mechanic’s Lien Law, 91 O. L. 135, creates no obligations against the owner of property on which improvements are made with his consent, nor liens upon the same that can prove unjust to him, except by his own fault and neglect, and said law is constitutional.</p> <p> Mechanic can not be deprived of right to lien. </p> <p>Í. The owner of property and his contractor cannot, by stipulations in their contract, for the erection of a house by the contractor on the owner’s land, deprive those, who perform the labor upon the house or furnish materials for the same, of a lien on the property without their assent to such stipulations of the contract</p>

<p>Money advanced by bank on condition that it should be protected by chattel mortgage in case of assignment for benefit of creditors.— An agreement by a bank and a business corporation that it would advance them money to a certain amount to enable them to carry on their business, provided that such firm at any time that the bank should deem it necessary for its protection, should execute to it a mortgage upon the personal property of such firm, and such mortgage was eventually executed to the bank, is not a preference of such bank in fraud of the other creditors of the firm, and such mortgage will be held valid. _</p> <p>2. Private corporation — De facto Director, when to be recognized.— ' A mortgage was made by the directors of a corporation of its personal property, one of the directors acting in the transaction having ceased to own any stock in the corporation. Held, that he will be recognized as a de facto director, and the transaction held valid.</p> <p>Same — Director ceasing to own stock — Where a director of a private corporation ceases to own stock therein, and the question is made, he will not be permitted to act as such director.</p>

<p>Contempt of court for failure to pay alimony decreed — What evidence required — Ability to perform order of court — Poiver of court to imprison as for contempt—</p> <p>1. Proceedings in contempt under our code are not provisional remedies, biit are special proceedings. Section 5644, Rev. Stat., contemplates a trial on such evidence as is competent in ordinary trials before the court. The party accused has the right to meet the witnesses for the prosecution face to face, and the opportunity to cross-examine, and affidavits can therefore not be used.</p> <p>A In such proceedings under sec. 5644, Rev. Stat., the court, before imprisoning for failure to perform, should find the accused capable of performing, unless the court should find that the accused fraudulently put it out of his power to perform.</p> <p>•3. Upon sufficient evidence the court has the power to imprison for contempt on failure to pay alimony. It is not a debt, and an imprisonment for failure to perform is not against the provisions of our constitution or our statutes.</p>

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

<p>Appeal — Effect—Concurrent error proceedings not admissible.</p> <p>1. The perfecting of an appeal in an appealable case, has the effect to suspend the judgment — so far vacating it that in fact no final order is left subsisting upon which to predicate error. In such case the appeal takes the whole case into the appellate court to be reviewed on appeal, and error to the same matter cannot be concurrently maintained.</p> <p> Repeal by implication. </p> <p>2. Repeals by implication are not favored, and are not accomplished if the statutes can be fairly reconciled.</p> <p>Same — General statute not expressly contradicting prior special statute.</p> <p>3. A general statute not expressly contradicting prior special statutes is never construed to affect their particular and positive provisions unless absolutely necessary to give its words meaning.</p> <p>County commissioners — Authority to employ engineers other than county enginer.</p> <p>4. The provisions of sec. Í181, Rev. Stat., as amended May 21, 1894, 91 O. L. 397, do not repeal, or in any respect modify the provisions of sections 4454 and 4831, Rev. Stat. Said sections are in full force, and authorize and empower the county commissioners, in the exercise of a sound discretion, to appoint competent engineers, other than a county surveyor, to render service on ditch _ and turnpike improvements.</p>

<p>Levy on land in other county — Entry on Foreign Execution Doclcet — • Effect.</p> <p>1. If a judgment is entered in one county, and an execution issued thereon to the sheriff of another county, and by him levied upon lands in his county, and such execution and levy are duly entered upon the foreign execution docket as required by see. 1212, Rev. Stat., such judgment thereby becomes a lien upon such lands,and such lien will continue for the period of five years from and after the date of such levy as against subsequent purchasers from the execution debtor, notwithstanding such sheriff returns such execution without further proceedings, by order of the judgment creditor.</p> <p>Levy on land subject to prior lien — Purchase after levy.</p> <p>2. If, at the time of such levy, such lands are covered by prior liens, a beneficial sale on such execution could not be made, and it would be necessary for the judgment creditor to bring suit against all the parties interested to marshal the liens, and for a sale of the lands, before sale could be had ; and if, after such execution was returned as aforesaid, and before such suit was brought, and before all such prior liens were extinguished, the defendants purchased a part of such lands from the execution debtor, such defendants would take the same subject to the lien of such judgment.</p>

<p>Bond for agent’s fidelity — Change in character of employment — Sur ety’s liability.</p> <p>Where a bond to an insurance company is given to secure, the fidelit} of an agent in a certain employment specifically set out and described, but the bond contains the addition, “during his employment by said company in whatever capacity in which he may be engaged, the duties and emoluments of which may be changed from time to time by the company without notice to the sureties, ” and such agent is afterwards employed in a wholly different position with increased responsibilities, and under an entirely different contract, the surety does not remain liable for default under such new contract and arrangement.</p>

<p>Burns Law — Application to street improvements—</p> <p>The action of council of a village for a street improvement under the act of April 15, 1890 (87 O. L. 201) one half the cost to be paid by the village, is subject to the general provisions of the Burns law (sec. 2702JEtev. Stat.), and a contract entered into for the improvement of a street without certificate of the Clerk being secured that the money is in the treasury, is void, and the contractor can not be held to such contract.</p>

<p>Partnership — Power of one partner to assign and mortgage partnership property to prefer firm creditors without the Icnowledge or consent of his co-partner — Validity of mortgages thus executed.</p>

<p>Claim against insolvent estate partly secúred by mortgage — Creditor entitled to dividend on total amount. 1</p> <p>1. A creditor of an insolvent estate who has a mortgage or other security for part of his claim, is entitled to a dividend on the full amount thereof, including the amount which he may realize from such security, if together they do not equal the amount of his claim.</p> <p>Same — Exception to action of Commissioners — Right to appeal to Probate Court limited to ten days.</p> <p>2. Where a party has a claim against an estate duly declared insolvent, which claim is partly secured by mortgage on real estate, and the commissioners allow such claim, less the amount which might be thereafter realized from a sale of the real estate by which it was partly 'secured, such creditor, if dissatisfied with such limited allowance, must appeal from such decision of the commissioners, to the probate court within ten days, or such action of the commissioners will be final.</p> <p>Same — Action of Probate Court on motion to allow dividend — Appeal to Common Pleas.</p> <p>3. Where in such case, more than ten days after such decision of the commissioners, the creditor makes a motion in the probate court asking that the administrator be required to pay the dividend on the whole amount of .the claim, which motion is overruled, no appeal will lie from such action of the probate court to the common pleas.</p>

<p>Parties renting by the year, holding over — Liability for rent for entire year less amount oiuner could realize for use of storeroom during such year.</p> <p>Where parties rent a storeroom for a year, at a fixed rental payable monthly, and after the expiration of the year, the agreement was renewed for another year, and the same was done the succeeding year, - and at the expiration of that year, without any other or new arrangement, they occupied the room for six months of the succeeding year, paying the same rent therefor monthly, and then left, having notified the owner a month before that they would leave by that time, against the owner’s protest, such parties will be liable for the rent for the entire year. And where the owner proposed to the parties to aid in renting the premises so left vacant for the unexpired part of the year after they left, the rent received therefor to be a credit on his claim again'st them for the rent for the balance of the year without thereby waiving any of their rights, to which proposition no reply was made, and the landlord rented such storeroom for one month, such owner will be entitled to recover from such parties the rent for the balance of the year less the amount which he thus succeeded in realizing for one month.</p>

<p>Error to the Court of Common Pleas of Cuyahoga county.</p>

<p>1. Evidence — Criminal Law — Statement by accused heard only by one of several by-standers competent — A statement or expression alleged to have been made by the accused at a time when several persons were present, but testified to as having been made only by one of those present, while others did not hear it, is competent, the weight of such testimony being left to the jury.</p> <p>2. Order of testimony — The order in which testimony as to some fact goes to the jury does not affect its competency, if it finally all gets to the jury.</p> <p>3. Permitting question whether there was a certain conversation when such conversation would be incompetent — It is not reversible error by the court to permit a question to be put, over objection, whether there was, or not, a certain communication by the deceased to his wife as to who assaulted him, when such a communication would'be incompetent if it had taken place. It is very common practice by the courts first to ascertain whether there was any conversation at all upon the subject to what the question related, either way, and then to determine its competency, if there is nothing disclosed from which the jury could rightfully draw the slightest inference.</p> <p>4. Description of accused on which officer arrested him — Where counsel for the accused, on cross-examining the officer who made the arrest, attempted to show that he acted recklessly and without any relible information and in bad faith, it is competent on reexamination to let him state that before starting out to make the arrest the wife of the deceased gave him a description of the man who made the assault, and to state what that description was.</p> <p>5. Incompetent Testimony must be prejudicial also to be ground for reversal of judgment — The testimony must be both erroneous and prejudicial before a judgment will be reversed because of its introduction to the jury. Where the testimony as a whole established no fact prejudicial to either the witness or accused, but there is nothing in this testimony that could by any construction have had the least weight with the jury in determining the verdict, it was of no" benefit to the State, nor injury to the plaintiff in error, ana its admission will not be sufficient ground for a reversal of the judgment.</p> <p>6. Good Character — Proof of — Effect—Previous good character, when established, is a circumstance to be considered in’”conneetion with the other evidence in the case’in determining the guilt or innocence of the accused, but does not raise any presumption whatever. It is a circumstance favorable to the prisoner "always to be considered,yet evidence establishing the chargehnay be so strong and conclusive as to render evidence of this character unavailing, In the practical application of such evidence, it has^nothing to do with the overt act of guilt; but it is proper that the jury should consider it when searching for a motive or purpose" of“deliberation, for it may well be supposed that a man of good character and reputable, and who has led a blameless life, would”not be as likely to indulge those passions and exhibit the depravity necessary to commit murder as one habitually'engaged in thejviolation ’ of law.</p> <p>7. - Verdict contrary to evidence as ground for reversal in criminal case, —A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, but^there is a marked difference between the practicable application of this rule in civil and criminal cases. In"a'eivil case'a verdict is authorized if supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is only authorized when the evidence produced establishes the guilt of the accused beyond a reasonable doubt; and the verdict may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required to warrant a verdict o guilty.</p> <p>8. Some — Evidence—Improbable Conduct of Accused — It is not safe to judge of the acts and conduct of one possessed of a wicked purpose to kill by the ordinary conduct of men who act from honest motives engaged in no unlawful enterprise. Murder itself is the exception, and not according to the ordinary rule of con-' duct in human affairs; and it is a matter of little surprise that the conduct of a murderer should not in all respects be consistent. The state of mind that would lead one to commit murder might naturally lead to other conduct not in all respects consistent with reason. But the fact that the transaction was strange and unnatural . should lead to a greater care and caution in weighing the testimony, and should always be considered by the jury.</p>

<p>Mre Insurance — Total Loss — Structure under sec. 3634 Rev. Stat. defined.</p> <p>1. Under the terms of an insurance policy describing “one boiler engine and apparatus pertaining thereto, contained in the five story and basement bricu, medal roof, Musee theater building, Number 240, Summit street, Toledo, ” which boiler and engine were in fact built in the basement of said building, and con-' structed upon permanent foundations, the boiler being enclosed by a brick wall, the court would be justified in instructing the jury that the same constituted a structure within the meaning of section 3643, of the Revised Statutes, under which, in case of a total loss, the insurer is bound to pay the full insured value of the property.</p> <p>Same — Verdict final—</p> <p>2. The Court, in fact, submitted the question whether this was a structure to the jury under appropriate instructions and definitions, and the jury having found under the charge of the court that the boiler and engine in question was a structure, their, verdict upon the facts presented will not be disturbed.</p> <p>Same — Submitting value of property to arbitration not a waiver of statutory right to full insured value—</p> <p>3. The parties, by voluntarily submitting the value of the property destroyed to arbitration, did not waive the right to insist upon the payment by the insurer of the full insured value of the property, since the provisions of the statute in question upon that subject cannot be waived or contracted away by the parties.</p>

<p>Practice — Questions submitted to jury — Inability to answer for insufficiency of evidence — When will not invalidate verdict—</p> <p>On the trial of an action certain questions having been submitted to the jury for answer, they answered by saying that they could not answer from the evidence. Such answers will not be held to invalidate the verdict, where the evidence in full is not set forth by a bill of exceptions, bearing upon the questions submitted to the jury,or where the facts necessary to answer the questions de* volved upon the excepting party to show by a preponderance of. evidence and the bill of exceptions does not disclose that he made out the facts by a preponderance of the evidence, necessary to enable the jury to answer correctly.</p>

<p>Admission to party — When competent against him—</p> <p>1. The admissions of a party are competent to be given in evidence against him, but when offered as such they must be direct admissions, and not hear-say.</p> <p>Same — Hear-say evidence defined.</p> <p>2. The testimony of a witness on trial in behalf of the plaintiff that at some time prior he had told the plaintiff what the defendant had told him, or the testimony of the plaintiff that the witness in question told him what the defendant had said to the witness . on some previous occasion, is hear-say.</p>

<p>Contract for paving street — Sample brick furnished by lowest bidder not acceptable — Right of next lowest bidder to contract — Where the Board of Administration advertises for bids to pave a street with brick, all bids to be accompanied with samples of the brick proposed to be used, which must be found acceptable by the city engineer, and the sample brick furnished by the lowest bidder is not found acceptable, the board has no power to award the contract to such bidder, at the amount of his bid, on his agreement to use a certain other kind of brick which comes up to the requirements. The next lowest bidder would be entitled to the contract, if the sample brick furnished by him with his bid answered the requirements, and if he was diligent in asserting his claim. But where the bids were opened on August 7, and a petition for mandamus was filed October 25, held, that the delay defeated his right.</p> <p>Where the test of sample brick accompanying the bid was to be made by the city engineer, a test by another engineer is not sufficient.</p>

<p>Alteration of note — Insertion of interest according to the agreement— Addition erased, and suit on note as executed — Discharge of surety.</p> <p>Where the maker of a note, after it is signed by the surety, without knowledge of surety, adds to note, “with interest at7. per cent.” according to the previous understanding between the parties, and the payee, without fraudulent intent, afterwards erases such addition and brings suit on the note as originally executed, a majority of the court holds that this will'not be such an alteration of . the note as will discharge the surety.</p> <p>Practice — Refusal to give special charge requested need not be stated as ground of motion for new trial, but should be in petition in error.,</p> <p>Where it is claimed in the appellate court that the trial court erred in refusing to give a special charge requested, it is not necessary that this should appear as one of the grounds for a new trial in the motion to that effect, but where the fact appears on the record it can be availed of in the petition in error. If not alleged in the petition in-error,the court need not regard it if substantial justice-was done by the judgment below. • • •</p>

<p>Alimony in gross in lieu of dower payable in installments — Early death of wife no ground for reduction.</p> <p>'Where alimony in a fixed sum, payable in installments, is adjudged in lieu of all dower rights in husband’s land, which is thereupon released of all such dower rights, and such judgment is sold by the wife in consideration of care and nursing, on the early death of the wife such amount adjudged will not be reduced on the ground of excessiveness, or because expenses incurred by wife were unnecessary and extravagant.</p>

<p>Recognizance in Bastardy — Forfeiture—Application of money paid in on forfeited recognizance on judgment.</p> <p>Where in a bastardy proceeding defendant fails to appear, the court may proceed to trial of the case in his absence, and on verdict and judgment against such defendant the amount of the recognizance forfeited and paid into court, may be applied to on the judgment in the case, under Section 5623, Rev. Stat.</p>

<p>Chattel mortgage given within two months before assignment for benefit of creditors — Lien as against operatives of mortgagor.</p> <p>Where a chattel mortgage, given within- two months before an assignment for benefit of creditors, is produced, it is incumbent on the mortgugee as against the lien of the mortgagor’s operatives for wages due under Section 6355, to show that such mortgage was given in good faith, not to create a preference among creditors, or to secure a pre-existing debt other than upon real estate for the purchase money thereof.</p>

<p>Defective appeal bond — Failure to name obligees — May be amended under sec. 5114 Rev. Stat.</p> <p>Where, by a mistake, an appeal bond, attempted to be given in a case, is defective in not naming the obligees, and is therefore invalid, this would not entitle the appellee to a dismissal of the appeal as against a motion by the appellant for leave to file an amended appeal bond. The giving of an appeal bond is a “proceeding” which, under the broad terms of section 5114, Revised Statutes, the court has power to have amended.</p> <p>Section 5114, as to the correction of mistakes in appeal bonds, is not repealed by section 5233.</p>

<p> A suit for a forfeiture will not be entertained by a court of equity.' </p> <p>This plaintiff brought suit averring that defendant, her tenant, had failed to pay installments of rent due under the lease, and asking for a decree of forfeiture of the lease, and for re-possession of the premises.</p> <p>Held, That this was an attempt by a suit in equity to establish a forfeiture, and that such a suit can not be entertained.</p>

<p>Suit for damages for personal injury — Evidence—Amputation becoming necessary after petition filed — Fact admissible in evidence without amending petition.</p> <p>1. Where, in an action to recover damages for personal injury, the petition alleges an injury to the hand “necessitating the amputation of three fingers, ” it is competent upon the trial, without amending the petition or filing a supplemental petition, to prove that since the commencement of the case it has become necessary to amputate the remainder of the hand at the wrist, as a direct result of the injury complained of.</p> <p>Same — Conductor getting off train while in motion — Contributory negligence — Burden of proof .</p> <p>2. If the plaintiff, the conductor of a freight train, by his own testimony shows that he received such injury by a car wheel running over his hand, by reason of a fall from a defective car stirrup, in attempting to get off his train while it was going at the rate of four or five miles an hour, in the middle of the night, with a lantern on his left arm, and his left hand partially disabled, at a station where he was required to register the time of passage of his train; and that the rules of the company did not require him to get off while the train was in motion, but authorized him to cause the engineer to bring the train to a stand-still, such testimony raises a presumption of negligence on his part, and the burden is upon him to rebut such presumption, and the court should so instruct the jury, if attention is called to the matter at any time before the jury retires.</p> <p>Same — Railroad running in two states — Contract of service and injury occurring in other state, Jurisdiction of Ohio court.</p> <p>3. Where an action for personal injury, resulting from a defect in appliances or machinery, against a railroad company operating by lease or otherwise a line of railroad partly within the State of Ohio and partly within the State of Pennsylvania, and where it appears that the plaintiff’s contract of employment with, the railroad company was made in the State of Pennsylvania, and his services under that contract were to be and were actually performed on said road wholly within the limits of the State of Pennsylvania, and that said accident occurred within said State, whether the second section of the Statute of Ohio, volume 87, page 149, relating to the presumption of knowledge and of negligence in such cases, applies when it would change the legal effect of such contract under the law of the State of Pennsylvania, quaery?</p> <p>Excessive verdict — Facts—$8,000.</p> <p>4. Where the plaintiff, a freight conductor, has his left hand crushed in an accident necessitating first,the amputation of three fingers, and afterwards, the amputation of the balance of the hand at the wrist, and where it appears that prior to the accident one of the bones of the plaintiff’s left hand had been broken in the palm of the hand which had resulted in at least one and probably two fingers of that hand becoming stiffened and withered, but which prior accident did not incapacitate him from performing his duties as freight conductor, Held : That a verdict of eight thousand (88,000.00) dollars was excessive, but the plaintiff below having voluntarily entered a sufficii nt remittitur, that error is cured.</p>

This was an action to enjoin that part of the improvement assessment upon property on McMillan street, between Highland avenue and Kibby street, included in the same ordinance, which is an item of damages for land condemned to support sloping fills.

<p>Where the payee of a joint and several note has no knowledge that one of the signers is a surety only, he may treat them both as principals.</p>