Volume 12 — Ohio Circuit Court Reports

<p>The act of March 27, 1893, (90 Ohio Laws, 375), commonly known as the crematory law, applies to all cities in the state then or thereafter of the second grade of the second class, and is constitutional,</p>

<p>S Fees of Master prior lien on fund realized by 7vis services—</p> <p>1. A judgment creditor of an insolvent debtor, who has in a suit in equity, recovered a judgment for money against the adverse party — part of the costs of which suit is taxed against such insolvent debtor and remains unpaid — cannot, when the proceeds of such judgment have been paid into court, by filing a creditor’s bill under section 5401, Revised Statutes, subject such funds to the payment of his judgment claim, to the exclusion of the equitable claim of a Special Master Commissioner against such funds, for fees for services rendered as Master in the suit in which such judgment was rendered and the funds realized.</p> <p>Master’s fees are part of the costs of the case—</p> <p>2. The fees of a Special Master Commissioner, appointed by the court under section 5221, Revised Statutes, for services rendered in the case in which he was appointed, are part of the costs of such action, within the meaning of the statute, and when funds derived from such litigation are brought into court, the court will order the fees of the Master paid out of the proceeds, before making distribution thereof to the litigant entitled thereto, or to a judgment creditor of such litigant seeking to subject the same to the payment of his judgment by proceedings under section 6164, Revised Statutes.</p> <p>On appeal, Master’s fees not be relegated to recovery from bondsman.—</p> <p>3. Where an action in which such funds have been realized, has been appealed to the Circuit Court by such insolvent debtor — he having given bond under section 5351, Revised Statutes — the court will not, under its equitable power in marshaling liens, where there is not sufficient to pay the claim of such judgment creditor and the fees of the Special Master Commissioner, order payment of the funds to such creditor, and require the Master to proceed against the bondsmen for his fee, unless they have been brought into court, and there exists some equitable grounds that they should pay such costs; nor will the court, in case there exists equitáble grounds that the bondsmen should pay such costs, and that the Master should proceed against them for his fees, award such funds to the judgment creditor until the Master has realized his fee from the bondsmen.</p>

<p>Rejected claim against estate — Suit to be brought loithin six months after rejection — Suit in II. S. Court dismissed othemvise than on the merits takes case out of the limitation—</p> <p>Section 6097 Rev. Stat. limiting the time within which suits on claims against an estate rejected by the administrator can be brought to six months, must be taken in connection with Sec. 1991, which provides that if in any action commenced in due time the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has at the date of such failure expired, plaintiff may commence a new action within one year after such date. And a suit on such a rejected claim commenced in the U. S. courts within six months after its rejection, and dismissed by that court otherwise than on the merits, is such a sui as will permit the plaintiff to commence another suit in the state court within one year after the dismissal of the action in the U. S. Court.</p> <p>Large books of account used in evidence below, but not attached to bill of exceptions under stipulation of counsel — Effect of such stipulation—</p> <p>Where four large books of account constituted part of the evidence, but were not attached to the bill of exceptions, but the bill contains this stipulation : It is agreed by counsel that the original books of account used in evidence in this case and referred to in this bill of exceptions may be referred to and used in the upper courts without being attached to the bill,” such stipulation is not sufficient to identify the books, or to show what parts of them were introduced in evidence, and such bill of exceptions will be considered insufficient, as failing to give all the evidence in the case.</p>

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

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

<p>1. Claim against estate — Allowance by administrator — What sufficiient under the Statute—</p> <p>Where a claim is presented to the administrator, and not disputed or rejected by him, that is a sufficient allowance of the claim by him to authorize a suit to be brought thereon for the money, pro rate amount or full amount as the assets may prove, to be recovered against the estate and also against the administrator. A formal endorsement of allowance by the administrator is not indispensable.</p> <p>2. Suit for protection of right where plaintiff has already as good protection as suit would bring—</p> <p>A party can not bring a suit for the protection of a right when he already has a better or as good protection as the suit would bring.</p>

<p>Error from the Court of Common Pleas of Wood county.</p>

<p>Will construed — Provision that executor shall use income in support and education of the children until the time of distribution provided for—</p> <p>Testatrix leaving two sets ot children, three by a former husband and one by a second husband who survived her, bequeathed all the balance of her estate to her children share and share alike, “the same to be kept invested by my executor until my daughter Ilda shall become of age, when the same is to be divided” ; and further directed that “the interest and income of said estate be used as far as needed in the judgment of my said executor and my sister E. G. C. in the support,care and education of my children till the final distribution of said estate.” (1.) Held: Until the distribution of the estate only the income can be used by the executor for the maintenance and education of the children. (2.) The income is not to be divided into four equal parts from the time the will takes effect, but the executor should take a general credit .for all the income he has used for the education and support of any of the children,up to the time of distribution, and the balance of the income and the principal of the estate is at the time provided to be distributed in four equal shares. (3.) The Probate Court is to say whether the executor has exercised his discretion properly, and it will be the province of that court to make the proper correction.</p>

<p>Error to the Courtof Common Pleas of Jefferson county.</p>

<p>Gas and oil leases — Duty of lessee to sinlc wells to develop territory— Temporary suspension of operations as proof of abandonment.</p> <p>Where wells have been sunk under a lease, and found to be productive wells, it is the duty of the lessee to proceed diligently and make a fair use of the premises in producing the oil, to the end that the lessor might have his royalty and the use of the premises; but in a new territory and under a lease like the one in this case, and where one well is sunk, and no oil is discovered, parties are not bound to go forward and sink other wells at a considerable expense, not knowing whether they would obtain any oil-or not in their search. In such case parties have a right to abide, at least for a reasonable time, to see what the developments are in the vicinity around and about there, unless there are express stipulations to the contrary in the lease, and such a temporary suspension of operations will not be considered an abandonment.</p>

<p>1. Where a lease was made in Sept., 1886, for the production of oil and gas for a term of five years and as much longer as oil or gas is found in paying quantities, and a well has been drilled which produced gas in paying quantities for a number of years, and for which the annual rental has been promptly paid, the lessee, if he has preformed all the conditions incumbent upon him, is entitled to a reasonable time after such well is exhausted, to drill at other locations on the premises to find oil or gas in paying quantities, and for that purpose and during such time, the lease continues in full force.</p> <p>2. Where such lease granted the lessee and its assigns the right to sub-let and subdivide the leased premises; and where, by partition proceedings, a part of the premises is set off to one of the tenants in common, the lessee may release such part from the incumbrance of the lease, and retain it in operation on the balance of the land.</p>

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

<p>Gas and Oil Lease — What to he considered paying gas well—</p> <p>Where it is provided in the lease that the lessee shall pay $108 annually for every gas well as long as the same produces gas sufficient to justify marketing, and it appears that there were several! gas wells which the lessee had connected with its pipe line anti from which he sold gas, such fact is conclusive as to the right of the lessor to recover the annual rent of $100 for each of such gas wells so connected and used. And it is no defense on the part of the lessee that such wells did, in fact, not produce gas sufficient to justify marKeting, and that the amount of gas produced by them was not more than sufficient in quantity to run the wells on the leased premises, but that they had to use gas from wells on other premises to operate the wells on lessor’s land. The lessees might have used the gas produced from the wells on lessor’s land to operate the wells thereon ; but i£ they sold it, they are to be considered as choosing to treat these wells as producing gas in paying quantities, and they are liable for the payment of the stipulated rent therefor.</p>

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

<p>Prosecuting Attorney — Appointment to fill unexpired term—</p> <p>1. The tenure of an appointee to a vacancy in the office of Prosecuting Attorney of a county, is not for the unexpired term, but is only until a successor is elected and qualified. Sec. 11 R. S.</p> <p>Same — When election to fill vacancy to take place — ■</p> <p>2. A successor should be elected at the first general November election occurring, under the provisions of law, more than thirty days after the occurrence of the vacancy ; and where a vacancy in the office of Prosecuting Attorney occurs September 13, the general November election, which is held on the fifth of November following, is a “proper election” for the choosing of such successor. Sec. 11 R. S.</p> <p>Omission in bond — ■What not fatal — ■</p> <p>3. The omission from the official bond of a Prosecuting Attorney of of the condition, provided in Sec. 1269 R. S. that he shall “pay over, according to law, all moneys by him received in his official . capacity, ” is not a fatal or serious defect. The omission is cured by the provisions of Sec. 7 R. S.</p>

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

<p>Chattle mortgage given on goods bought on the installment plan, is subject to the provisions of the act of May 4, 1885, (Rev. Stai7913-73) — Mortgagee before attempting to repossess himself of the goods must return the money paid thereon, less reasonable amount for their-use.</p>

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

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

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

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

<p>Combustible material on right of way of R■ R. — Grain Elevator—</p> <p>1. Under the statute requiring railroad companies to keep their right of way free from weeds, high grass, deeayod timber and combustible material, an allegation that it failed to do so by having’a grain elevator standing on its right of way, in which the fire originated, will, on motion, be stricken out. Such an elevator is not “combustible material,” of the character contemplated by the statute.</p> <p>Locomotive setting fire — Expert testimong — Testimony of former R. B, Engineer out of service for seventeen years—</p> <p>2. A former railroad engineer who has been out of that service for seventeen years, may testify as to his experience and observation during the time of his service as engineer. His long absence from the service and the fact that the conditions have changed since he left the service, might affect the weight of his testimony.</p> <p>On failure to identify engine setting fire, evidence as'to condition of locomotives in throwing sparks about the time in question admissible—</p> <p>3. Unless the identification of a particular engine throwing the sparks is certain, witnesses are not confined in their testimony to any particular locomotive, but may show that the engines of the railroad company generally emitted sparks as they passed along-¶ about the time of the fire, and the witness would not be confined to a day or two, but will be allowed to testify as to a reasonable time, and a month preceding the fire would not exceed the limit.</p> <p>Building on right of way burned from sparlts from engine, setting fire to adjoining building—</p> <p>4. Where a building on the right of way of a railroad is set on fire by sparks from a passing engine, and the fire is communicated to plaintiff’s adjoining building, the railroad company is liable for the loss. The statute of 1894, makes the railroad company liable for all loss or damage by fire originating on its own lands, and also provides a rule of evidence that the existence of tho fire upon its lands shall be prima facie evidence, not of negligence to be rebutted, but that such fire was caused by operating such railroad, which leaves the railroad company two facts only for rebuttal — that the fire did not originate upon their land, or that it was not caused by the operation of the railroad, but from causes over which they had no control.</p> <p>Same — Constitutionality of the Statute—</p> <p>5. The act of 1894, (91 Ohio Laws, 187), is constitutional.</p>

<p>Error to the Circuit Court of Cuyahoga County, Ohio.</p>

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

<p>Criminal Law — Objection that copy of indictment not true copy. An objection that the copy of the indictment served on the defendant is not a true copy must be made before going to trial.</p> <p>2. Same — Lareenv of Chech — Where the defendant is charged with larceny of a check, the property of one Graue, and it appears that the defendant, after endorsing and presenting the check, did not leave it upon the counter, but immediately put the check in his pocket, and that afterwards Mrs. Graue paid him the money, never having had the check in her possession, and that it was not left upon the counter or in any way delivered to Mrs. Graue, then the legal property in said check was not in Mrs. Graue, and the subsequent use of said check by defendant did not constitute larceny.</p> <p>3. Same — Talcing check inadvertently — If the defendant took up the chek inadvertently, with no intention of stealing it, and afterwards finding it in his possession, intended at the time of the discovery to return the check or the money received thereupon to Mrs. Graue, and maintained that intention throughout, and intended at the time of purchasing some goods paying for them with the check, to return said money to Mrs Graue,as claimed by him, then his offense was not larceny.</p>

<p> Husband’s title to deceased ivife’s personal estate under law of Kentucky. </p> <p>Under the law of Kentucky, which gives to the husband the surplus of the whole personal property of his wife after payment of claims and debts, her personal property goes to the administrator of her estate, and the administrator, and not the husband, can bring suit to recover the same.</p> <p>Want of right of plaintiff to bring action — Failure to set up in pleading.</p> <p>Want of right of plaintiff to sue may be taken advantage of by demurrer to the petition, or by answer. But where this has not been done, but plaintiff’s right to recover depends on his title to the property sued for, and plaintiff fails at the trial to show such title, this is a failure of proof,and he can notrecover a judgment for it.</p>

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

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

<p>Action to enjoin municipality from entering into illegal contraat for street improvement—</p> <p>Where a municipal corporation has no corporation solicitor, no action to enjoin the same from entering into a contract for a street improvement, claimed by a tax-payer to be illegal, can be brought by him in his own name; but he must bring such action on behalf of the corporation.</p> <p>Same — Irreparable injury—</p> <p>The mere averment in the petition that the injury will be irreparable is insufficient on demurrer to entitle plaintiff to an injunction.</p> <p>Establishing grade of street and ordering its improvement—</p> <p>There is no statute requiring village councils to establish the grade of streets by ordinance before ordering their improvement. It should be done by a separate ordinance, or by a resolution or ordinance to improve to a certain grade.</p> <p>Ordinance to establish grade and to improve street, referring to plans and profiles in office of engineer located outside of village—</p> <p>It is sufficient if the ordinance to establish the grade and ordering the improvement of a street refer to plans and specifications on file in the office of an engineer, who is located outside of the village, where they can be seen by the property owners. The court thinks it better practice to have them on file at some pláce within the municipal corporation, but would be loth to hold that the proceedings could be enjoined by a owner of land abutting on a proposed improvement if it were not done.</p> <p>Defect in proceedings for street improvement — Right of property owner to injunction—</p> <p>The validity of assessments made for a street improvement can not be contested by the owner of land assessed therefor, under Sec. 5848, Rev. Stat., and he is not at liberty before any such assessment is made or the work done, to come into court, and for the reason as he claims that there are some defects in the proceedings,have the council enjoined from making a contract for the improvement. This can be done in some cases under section 1778, by a taxpayer who sues on behalf of the corporation itself. But is is a special provision, and is not to be applied to cases other than those mentioned.</p>

<p> The acceptance of an offer to sell must be absolute and unequivocal. </p>

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

<p>Transfer of land, grantor reserving life estate — Constructive fraud on creditors—</p> <p>1. H. owned property worth 88,000, upon which there were incumbrances of 86,4000, and being indebted to his son 81,200, he deeded the property to the son who assumed the incumbrances, H. retaining a life estate. Held, The reservation of the life estate, under the circumstances, was a constructive fraud upon the creditors of H.</p>

<p>Agent fraudently taking conveyance in his own name, and giving ■mortgage — Rights of mortgagee as against agent’s principal-is., as the agent of L., purchased property fraudulently, taking the-title in his own name, and then gave B. a mortgage, who did not file his mortgage for record till after L. had brought an action to compel F. to convey the property to her. Held: B’s right in the property is superior to L’s.</p>

<p>Gilbert avenue viaduct aet held unconstitutional — Special act conferring corporate power—</p> <p>The act authorizing “the county commissioners of Hamilton couDty to extend Gibert avenue, in the city of Cincinnati, from its present terminus at Court street to Broadway, and to provide a fund therefor,” (88 O. L., page 815), is unconstitutional, in so far as it also authorizes the “City Board of Administration or board of city affairs, to include the present width of the sidewalk along the present south side of Eighth street from Eggleston avenue to Broadway in said improvement.”</p>

<p>Corner lot assessment — Lot irregularly formed—</p> <p>In determining the assessment of a corner lot which lies lengthwise on the proposed improvement, the assessment on such lot should be-made on its depth, where the lot is a parallelogram.</p>

<p>Trust claimed for benefit of husband’s creditors in property standing in his loife’s name — Failure of proof — Creditor’s bills under sections 5464 and 6344—</p> <p>Under section 5461, where the title to property has been decided in an action in the nature a creditor’s bill, such decision is not a bar to an action of the same character by another creditor again involving the same question of title to the same property.</p>

<p>On appeal from the Court of Common Pleas of Wyandot County.</p>

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

<p>Justice of Peace — Annexation of township to city — Right to act as-Justice of Peace in city.—</p> <p>It was not incompetent for the General Assembly to enact the statute (92 O. L., page 60), relating to Justices of the Peace, with its-important exception as to counties containing cities of the first, grade of the first class.</p> <p>Where one is usurping the duties of a Justice of the Peace in a-.township in which he has not been elected to that office, an action in quo warranto will lie against him.</p> <p>Where a Justice of the Peace for one township attempts to exercise the duties of the office in another township, injunction would be-the proper proceeding against him.</p>

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

<p>Sill of Exceptions — Contract of Insurance — Law of this State controls, etc.</p> <p>1. The assignment of error that the verdict is not sustained by the evidence will not be considered by the reviewing court, although the bill of exceptions contains the statement that it embraces all the testimony, if, upon the face of the bill itself, it appears that the statement is untrue.</p> <p>2. A deposition,detached from the bill of exceptions a part of which appears to have been offered and read upon the trial, will not be treated as a part of the bill, in the absence of the statement therein that it is so made.</p> <p>8. A contract of insurance with a foreign Insurance Co., the assured residing in this state, the Company having complied with the conditions of our statute permitting it to do business here, by the terms of which contract it is agreed that the same shall be regarded as made under the laws of the state where the insurer resides, is, nevertheless, subject to the laws of this state in determining the rights of the parties thereunder, when sought to be enforced by the beneficiaries in the courts of this state. Laws founded in public policy, for the protection of all the citizens of the state, cannot be evaded or nullified by a contract between a citizen of this state and a citizen of another, permitted to do business in this state only by a compliance with the conditions imposed by our statute.</p>

<p>Councilmen — Appointed by Mayor to fill casual vacancy—</p> <p>1. The exclusive right of the council to judge of the election returns and qualifications of its own members, under section 1679 R. S., does not extend to a Case where the controversy is not simply which of the two or more persons was properly selected to fill a conceded vacancy, then to be filled by some one, but where the point in dispute is whether, under the law, there is any vacancy or office then to be filled by election or appointment.</p> <p>‘2. The provisions of section 1724 must apply in determining whether the appointment shall be till the next annual municipal election or for the unexpired term, and, under that section, an appointment of a councilman by the mayor, made with the consent of the council, must be for the unexpired term of the person, who, after being elected and qualified, ceases to be a councilman before the expiration of the term for which he was elected.</p> <p>3. The misapprehension of the true tenure of the appointee, on the part of the mayor, the appointee or others, cannot abridge the term fixed for his continuance in office.</p> <p>4. In view of the particular'provisions of sections 1713 and 1724 Rev. Stat., in connection with the more general provisions of section 8, a councilman appointed for an unexpired term, may hold office until his successor is elected and qualified.</p> <p>5. While regular elections may be and are required to be held in anticipation of the expiration of an official term, and appointments to an office, originally appointive, may be made while the person holding the office is still serving his term, yet neither an election nor an appointment to fill a casual vacancy can be held or made anticipatory of the vacancy, nor until its actual occurrence.</p> <p>6. The appointment of a person as councilman to fill a vacancy occasioned by the removal of the person elected to the office, must be with the consent of the council, and such consent must be manifested by some affirmative act; mere silence or failure to object on, the part of the council is not sufficient.</p> <p>7. The council is not required to take immediate action upon the appointment, but may defer action, and it is competent for it to act upon the matter until the mayor, or the force of circumstances, has withdrawn the nomination; but whenever it gives the requisite consent, in the requisite way, it cannot thereafter undo its effect, nor oust one who thus becomes a de jure member, except in the manner provided by statute for his removal</p> <p>8. It is not absolutely required that the consent of the council should be expressed by actual vote upon the direct question of approving the mayor’s choice, if it be plainly and affirmatively given.</p> <p>9. A record o^the proceedings of the council indicating that the person appointed to"fill a vacancy was, after his appointment, elected clerk pro tempore, together with other like evidences of his recognition as a member, is sufficient to show that the council consented that he was then a member, and the appointment having been made in the presence of the council, its members knew that his only claim to a seat was by virtue of that appointment which only needed their consent to make it effective. Such affirmative action of the council should be allowed a broader significance than being treated as merely recognition as a de facto member of the council, as it^fully shows the consent required by section 1724 Rev. Stat.</p>

<p>Bill of exceptions — When to he presented to opposing counsel for inspection — What hill must contain to he complete—</p>

<p>Mandamus — Board of Education, Contracts etc.</p> <p>The Board of Education of G., a village, at a regular meeting, by motion, tendered C. the election as superintendent of a school in which branches other than those enumerated in the certificate issued to O. by the Board of School Examiners were taught, giving C. notice of such action. C. accepted the employment tendered, and entered upon its duties.</p> <p>Held, That this constituted a valid and subsisting contract between C. and the Board ; that, in the absence of proof, other teachers being employed in the school, no presumption arises that C. actually taught branches not enumerated in his certificate.</p>

<p>Vacation of County road — Proper proceeding — Requisites to confer jurisdiction on Commissioner—</p> <p>1. Under section 4661, Revised Statutes, providing for the vacation of county roads, residence in the vicinity of the road proposed to be vacated, is an essential qualification of a petitioner for vacation ; and the fact of such residence is a jurisdictional one and must affirmatively appear in the record, to confer jurisdiction on the board of commissioners to order a vacation.</p> <p>Defective records of proceedings before lower courts — Liberal construction required—</p> <p>2. Tas provisions oE ths statute relating to appeals, appeal bonds, and proceedings thereunder to perfect an appeal, are remedial in their nature and character, and must be liberally construed so as not to defeat the remedy on unsubstantial grounds. In.furtherance of this beneficial purpose, by provision of statute, a bond that is insufficient in form or amount may be amended or an additional or new bond given; and all recitals in such bond, not pertinent, may be regarded and treated as mere surplusage.</p> <p>Same — Presumption is for validity of judgments, but jurisdiction ■must appear—</p> <p>:3. Presumptions of law favoring the validity of a judgment rendered by an inferior court or tribunal, do not arise, unless it affirmatively appears in the record that the court or tribunal has jurisdiction of the subject matter of the action or proceeding pending, and of the parties litigant. But when the record shows jurisdiction in the court or tribunal, and does not disclose some prejudi■cial error in the proceedings, in such cases presumptions of law ¡arise and sustain the judgment or order.</p>

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

<p>Revivor of Judgment — Motion—Cross-Petition etc.</p> <p>A motion asking for a conditional order of revivor of a judgment cannot be treated as a petition to which an answer and cross-petition may be filed asking for equitable relief.</p>

<p>Appeal from the Court of Common Pleas of Butler County.</p> <p>On motion to dismiss appeal.</p>

<p>Personal injury to Railroad employe in consequence of defective car — Railway 'company presumed to have knowledge — Construction of act of 1890, 87 Ohio Laws, p. 149.</p> <p>1. Where a defective car is delivered by one railroad to another, and while in the possession of the latter company, one of its employes is injured in consequence of th’e defective condition of such car, both railroad companies are liable to such employe for damages for such injury.</p> <p>2. Where the defect in the car is shown, under the Ohio statute of 1890, the fact of such defect constitutes prima facie evidence Of the negligence of the railroad company, which may be rebutted by the R. R. Co. by showing that it had in fact no knowledge of the defect, and was not guilty of negligence.</p>

<p>Error to the Superior Court of Cincinnati.</p>

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

<p>Jury Trial — Waiver of right to, Eta.</p> <p>The right of trial by jury may be wajved in open court by the conduct of the party amounting to an estoppel.</p>

<p>Pleading — Improper general denials— ,</p> <p>1. It is a practice generally to be condemned, although altogether too common, for a defendant, where a real denial of many of the allegations of the petition can not be made in his answer, simply to deny each and every allegation of the petition.</p> <p>Personal injury by negligence of St. R. R. employe — Ladi/s dress catching—</p> <p>2. Where, in a suit for damages for personal injury, ' it appears that the injury was caused by the plaintiff’s dress being caught in some way by the door or on the platform of the ear, while she was alighting therefrom, and the car being started by the conductor before she could free herself, in consequence of which she was thrown on her side and injured, it w.ould not be proper to charge the jury that the plaintiff’s failure to-gather up her dress while alighting from the car, which would probably have avoided the accident, if a careful and prudent lady would have done so, was negligence on her part as a matter of law, and would prevent a recovery by her. — What would be proper charges in such case.</p>

<p> Officers and directors of corporations acting in good faith, are not personally liable in damages to stockholders for losses. </p> <p>Where the Board of Directors of a corporation to manufacture woodenware add to the business of the corporation the manufacture of sewing machines, requiring a large outlay of money, and involving great risks, but in doing so acted in good faith for what they considered the best interests of the corporation, and the stockholders were for years aware of the fact and acquiesced therein, such directors will not be held liable for the losses sustained by the corporation by such business.</p>

<p>.Appeal from Court of Common Pleas, of Butler county.</p>

<p>Will construed—</p> <p>On the facts stated in the opinion of the Court, Held,that the will of James A. B, charged the 90 acres of land devised thereby to his son Joseph S. B., with the payment of §1,500 devised thereby to his sister P, the plaintiff, the same to be paid within one year after the death of the widow of the testator, without interest. And also with the payment of the one equal half of the legacy of §1,500 given by the will of Joseph B. to the children or heirs of the body of S., the sister of James A. B., on the death of the said S. should she die leaving children or heirs of her body surviving her. But said will did not make the payment of the one-half of the annuity or interest payable to S. during her lifetime, a lien or charge upon said 90 acre tract, devised to said Joseph S. B. And the interest of said Joseph S. B. in said 90 acre tract having been levied upon and sold on execution to pay off his debt, the purchaser who had full notice of the facts in the cáse, took said property subject to the said liens and ■charges so declared by the court.</p>

<p>Appeal to Circuit Court — Duty of clerk — Neglect of Clerk, effect—</p> <p>1. A party having given notice of appeal from the common pleas to the circuit court in proper time, it becomes the duty of the clerk, unless otherwise directed, after the expiration of thirty days from the entry of the judgment to make a transcript and file it with the other papers in the case in the circuit court; but where the clerk files the paper several days after the expiration of the • thirty days, his failure in this regard cannot prejudice the appellant.</p> <p>Same — Notice of appeal by Trustee — What sufficient—</p> <p>2. A trustee having given notice of his intention to appeal by an entry upon the journal, this was a substantial compliance with the provisions of section 6408, Revised Statutes, that a trustee • may, in such cases, appeal by giving written notice to the court -. of his intention to do so.</p>

<p>Assignee for benefit of Creditors, selling mortgaged land — Land' bought in by mortgagees — Contribution to costs — Poundage of' Assignee.</p> <p>An assignee for benefit of creditors is not entitled to poundage on the ■ purchase price of mortgaged land sold by him and bought in by the mortgagees, and it is therefore error for the court to include-the sales of land to such mortgagees in an order that T% Per cent, of the amount of all sales should be paid by the purchasers • to cover the costs of the sale, including court costs, advertising and attorney’s fees, extraordinary services of the assignee and. the fees of his attorney.</p>

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

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

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

<p>Construction of Wills — Rules—</p> <p>1. In construing a will the entire instrument must be read and considered together, each part with every other part, in order to gather from a consideration of the whole,, the intention of the maker. And in ascertaining such intention, in connection with the writing, the court will look at the circumstances under which the will was made, as relating to the subjects of the estate of the testator’s property, the condition of his family, and the like.</p> <p>Same — What loiTl amount to a trust for wife and children — Power given to bequeath estate left, limited to children and heirs at law.</p> <p>2. P., by items 1 and 5 of his will, devised all bis property, real and personal, to his wife, to manage and control during her life, with power to lease the real estate and sell personal property as she should deem best, and appropriate the proceeds to the best advantage,on condition that she should be the guardian of his children, and should raise, educate and'provide for them, and support them out of the proceeds of said property. And by item 6 of the will it is provided : “And I do further will that my wife shall dispose of all the aforesaid property, including anything owned by me, at her death, and do empower her to devise and bequeath the same as she deems proper and right — reposing confidence in her fidelity and affection towards my children, and trusting to her judgment to provide for them to the best advantage. ” Applying the settled rules of construction and considering all the provisions of the will together: Held: 1. Items 1 and 5, vested in the wife an estate for life, in trust, for the use of herself and the children of F. 2. The power of disposition by devise and bequest, conferred by item 6, was not general and absolute, but special and limited to the children and heirs at law of F.</p>

<p>Railroad — -Crew on train having notice in time and not stopping train — wilfullness—</p> <p>Where the crew on a railroad train going through the streets of Cincinnati at a higher speed than allowed by ordinance, see and hear a man running towards the train calling on .them to stop on account of some. teams being on the track which cannot bé removed in time to prevent a collision with the train, and they make no effort to stop the train, although they might easily have done so, they are guilty of gross negligence on their part amounting to wilfullness.</p> <p>Same — Liability for wilful injury notwithstanding plaintiff’s contributory negligence—</p> <p>Where the act of negligence on the part of the defendant is so gross as to amount to wilfullness, and the injury might have been avoided by defendant notwithstanding the negligence of plaintiff, the defendant is liable.</p> <p>Injury to team of horses — Measure of damages — •</p> <p>Where teams of horses are injured by the negligence of a railroad company, the proper measure of damages is the expense of restoration to health and soundness, compensation for the loss of use during the period of disability, and the amount of difference between the value before the injury and after the cure or repair.</p>

<p>Sidewalk — Duty of abutting lot owner to keep public way in safe condition.—</p> <p>1. It is not the duty of a private person, who owns a lot abutting on a public way in a municipal corporation, to keep such public way in repair and in safe condition for public use.</p> <p>Same. —</p> <p>2. By a mere passive omission to keep the public way in safe condition for public travel, such owner does not thereby become liable, in damages, to a person injured by reason of a defective and dangerous place in said way.</p> <p>Same — Acts of abutting owner putting sidewalk in unsafe condition— Primary Liability of city — Liability over to city.—</p> <p>S. It would be otherwise, if the defective and unsafe condition, and consequent injury, was occasioned by affirmative negligence and active wrongful acts and conduct of such owner. In such case, the individual owner would be liable, directly, to the person injured, and if the municipal corporation, by reason of the provisions of law, has been required to respond in damages to the injured party, it is entitled to a judgment over against such individual owner.</p>

<p>Incompetent evidence — Error in admitting same cured by court instructing jury to disregard it—</p> <p>Mode of examination of witness as to his means of knowledge, as to-' a fact inquired of — Improper evidence having been admitted by the court, and the jury afterwards having been instructed to wholly disregard it, and nothing else appearing to show prejudice on this account, the original error is cured.</p> <p>Insufficient instruction — Failure to ash additional proper instructions waives objection — •</p> <p>If a charge given to the jury on a certain point is sound, but does not state the law with clearness or certainty, the party complaining has the right to ask additional proper instructions, and if’ not done he waives his objection. In this case such additional proper instruction was asked and given.</p> <p> Exception to whole instruction, only part of which is erroneous, too-general. </p> <p>A special charge, correct in form and substance, and applicable to the case, was asked and refused. But it was asked as part of one charge, or' as one of a series of charges-part of which was not good law, and was properly refused, and the exception was taken to (he refusal of the court to give the-whole. This was not a good exception to the refusal to give the correct charge, and the verdict being substantially right, and supported by the evidence, a reviewing court should not reverse the judgment on this ground alone.</p>

<p>Official Bonds — Strict construction in favor of surety.—</p> <p>1. Sureties on an official bond, may stand and rely on its strict letter. Their liability cannot be extended by implication or construction.</p> <p>Attachment before J. P. — Discharge of property only on bond, not on money deposit — Liability of J. P's bond for money deposited with him to discharge attachment.—</p> <p>2. The receipt of money, by a justice of the peace, from a defendant toan attachment proceeding pending before such justice, asa deposit to secure the discharge of the attachment, does not accomplish the discharge; and a failure to pay such money over to the person depositing it. on his demand, does not constitute a breach of the condition of the justice’s bond, which requires him “to pay over according to law, all moneys which may come into his bands by virtue of his commission :’’ Such money is not received by the justice, by virtue of his commission or by authority of law, and the sureties on his boud are not liable therefor. Such attachment can be discharged only by the giving of a proper undertaking or on motion to the court based on proper ground as provided by sections 6573 and 6522 R. S.</p>

<p>Mechanic’s lien on Railroad itself before act of 1883—</p> <p>On the facts stated in the opinion ; Held : First — That the lien of the trustees for the bonds secured by the first mortgage executed by ^ the defendant company, and which mortgage was duly executed “ and recorded, and the bonds secured thereby issued and negotiated, long before the passage of the act of April &, 1883, (Ohio Laws, 99) and long before the perfecting by the contractors and subcontractors of their liens on the road, was superior and must be firsr paid.</p> <p>Same — Mechanic’s lien talcen after passage of act of 1883, not prior to lien of mortgage of road executed before passage of act—</p> <p>Second — The provisions of said statute “that a person who performs labor or furnishes material for, or in the construction of any railroad, * * * and a person who furnishes boarding on the order of any contractor or sub-contractor to persons employed by (hem, or either of them in furnishing materials or performing labor for, or in the construction of such railroad, * * .* in addition to his rights under the preceding section, shall have a lien for the payment of the same upon §uch railroad, and such lien shall have and maintain precedence over any lien taken or to betaken, and shall subsist for one year from the date of the filing the attested account herein provided for,” must be considered to have a prospective operation only, in so far as liens existing at the time of the passage of the act are concerned. It can not be deemed to have been the intention of the legislature to interfere with existing liens. If such interpretation must be given to it, then so much of the statute as so provides, must be held to be unconstitutional, as impairing vested rights</p>

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

<p>Error to the Court of Common Pleas of Lucas County, 0,</p>

<p>Contract for fixed salary — Can not be modified by employer without employe's consent.—</p> <p>Where a contract provides for a fixed salary for a certain time for an employe, and the employer asks a modification involving a temporary reduction of such salary which is not assented to by the employe who however ofiers the modification of the contract in a different form, which is not assented to by the employer, there is in such case no valid modification of the contract, and the employer proceeding thereupon to act according to a modification óf the contract by paying the reduced salary as proposed by it, is liable to the employe for the balance of the salary is fixed oy the contract.</p>

<p>Bill of Exceptions, not signed by trial judge within fifty days, must show reason—</p> <p>A bill of exceptions should show why the same was not signed by the trial judge within fifty days from the rendition of the judgment excepted to and sought to be reversed, else it will, on motion, be stricken from the files; and where the petition in error contains no assignment other than the one appearing in thebill itself,as in this case, the petition in error will be dismissed on motion.</p>

<p> Deed of conveyance to parties without the word “heirs” only conveys life estate— </p> <p>A deed for land to parties (naming them), “surviving executors of the estate of W. S., dec’d, their successors and assigns forever,” the word “heirs” not being used in connection with the grantees, either in the granting clause, in the habendum clause, or in the covenants, conveys no fee simple, but only an estate for the joint lives of such executors and the life of the survivor of them, and at the death of such survivor, the estate will revert to the grantor if living, and his heirs or assigns, if deceased in fee, free, and discharged from an)- claim arising under such deed.</p> <p>Same — The trust relation existing between the executors and the beneficiaries under the will, does not affect other parties—</p> <p>No synonym will supply the word “heir” in a deed, and no circumlocution has ever been held to create a fee, except in case of a conveyance in trust. The trustee will take the legal estate in fee, though limited to h3irs, without the word “heirs, ” if the trust which he has to execute be to the cestui que trust andhisheirs. But the trust relation between executors and the beneficiaries under the will, does not affect parties not such beneficiaries.</p>

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

<p>Practice — Leave to file reply at conclusion of testimony—</p> <p>It is not reversible error for a court in a case where a reply ought to have been but was not filed, to permit the filing of a reply after the testimony was substantially closed and when testimony in rebuttal was being introduced by the other party, where the case had been tried previously without objection as it would have been tried had a reply been filed before the trial commenced.</p> <p>Engine setting fire to houses — Evidence competent to shew different hinds of spark arresters in use by- railroads—</p> <p>In an action against a railroad for setting Are through defective or insufficient spark arrester on engine, the testimony of expert witnesses would be competent showing the different kinds of netting that were used by different railroads to guard against the emission of sparks, to enable the jury to say whether the particular appliance used upon the engine in question, was a proper appliance. But to charge one company with negligecne by showing that another company used a different appliance is incompetent. Testimony, by a witness conversant with that class of business, is also competent to show defects in the mode in which the netting of the spark arrester was attached and secured around the exhaust pipe, as to the effect of sparks and their vitality, and the distance to which, they could be carried and still start a fire.</p> <p> Question to expert whether spark arrester in question was efficient, incompetent.— </p> <p>The spark arrester being present in the room, it it incompetent to ask a witness to examine it and state to the jury whether that particular spark arrester was one that was most efficient in preventing the emission of sparks. This is the exact question (he jury were to pass upon, and the proper way is to get all the knowledge the expert had upon the different kinds of netting that were used, the ‘different classes of spark arresters, their efficiency etc., and submit to the jury the question that was put to the witness to answer.</p> <p>Same — Specimen of wire netting used now, without proof whether same was used then, not admissible—</p> <p>It is incompetent to permit a witness to produce a specimen of wire netting, used upon spark arresters by and procured from defendant R. R. Co’s, shops, to the jury for examination, and to permit the jury to take it into the jury room in their deliberations, no proof being offered that this kind was used upon the engines of this railway company at that time, and the wire netting was procured some two or three years after this transaction.</p> <p>Measure of damages — Cost of reconstruction with deduction for wear and tear of structures destroyed—</p> <p>The testimony of an expert builder as to the cost of reconstructing the houses burnt according to the plans and specifications on which the old buildings were constructed, and as to the probable depreciation through the time they had stood, with a view of taking from the cost of the new buildings the value of the depreciation of the old, and thus determine the loss, does not furnish the proper criterion for the assessment of damages, but is only competent as a circumstance in the case to be considered by the jury in fixing the actual value of the property destroyed.</p> <p>Same — Market value—</p> <p>Questions not only leading up to showing that the property destroyed had a market value, but showing it had a market value, are entirely competent. It is competent to show, as bearing upon the actual value of the property destroyed, what its actual value was as a whole before and after the fire.</p> <p>Same — Actual value of property destroyed—</p> <p>The measure of damages is the actual value of the property, and not what it would have cost to reconstruct or replace the same, with deductions for wear and tear. Under such a rule the damages might far exceed the actual value of the property and the actual loss to plaintiffs. Where property totally destroyed has a market value, that market value is the measure of compensation for the loss.</p> <p> Sparks picked up, when admissible— </p> <p>If it is clearly established that sparks picked up and produced in evidence came from the engine, it would be competent to admit them in evidence.</p>

<p>Fees of Clerk of Court collectible from county treasury — Construction of the different sections allowing such fees—</p> <p>Except by statute specifically provided, the clerk of court is not entitled to receive any compensation from the county, treasury for any services rendered for the benefit of the county or the public however valuable and necessary such services may be, and although the law absolutely requires him to perform the same. If so required for the public, and no provision is made for its payment from the treasury, it must be regarded as gratuitous.</p> <p>The different sections allowing fees to the Clerk to be collected from the county reviewed. — Sec’s. 1260, 1261, 1262, 1263, 1264, 4957, 5132, 5Í36, 5339a, 7189, 7155, 7164, 7199.</p>

<p>Parol lease of land for five years coupled with possession — Might of lessor to evict by proceeding in forcible detainer—</p> <p>Where a lessee enters into possession of lands under a verbal lease for ’ five years, and has occupied and cultivated them, and made improvements thereon and paid the rent stipulated in the verbal agreement, he can not be evicted by the lessor or his executors during such term under a proceeding in forcible entry and detainer.</p> <p>Practice — Power of Circuit Court to reverse judgment of Justice of Peace — Quaere:</p> <p>Has the Circuit Court the power to reverse the judgment of a Justice of the Peace, in a case taken on error from such Justice’s court " to the Common Pleas, and coming on error from the Common Pleas to the Circuit Court? ’ ■</p>

<p>Transfer of prosecution from Common Pleas to Probate Court not authorized—</p> <p>1. Section 63C7 Rev. Stat., authorizing the prosecuting attorney of' certain counties to proceed in prosecutions in which the probate-court has jurisdiction, either in the probate court or court of common pleas at his election, does not authorize a transfer of any such prosecution from the common pleas, when once filed there, to the probate court.</p> <p>Prosecution upon mere information of public prosecutor without' charge upon affidavit—</p> <p>2. Cinder art. 1, sec. 14, of the Constitution, no person can be placed on trial for a crime against the law of this state upon the mere-information of a public prosecutor, nor until he has been charged with the commission of such crime upon oath or affirmation. An. indictment being founded upon oath or affirmation, of course, satisfies the requirements of the constitution.</p>

<p>Several counts in indictment describing same crime, constituting one transaction, proper. —</p> <p>Where the alleged crime constitutes but one transaction, and the indictment contains several counts, each describing the same transaction, to meet any phase of the testimony which might be developed on the trial, this is entirely proper and in accordance with the universal practie in this state, and a motion to compel the Prosecuting Attorney to elect upon which count he would proceed to trial, is properly overruled.</p> <p> Facts tending to disprove defense of alibi. </p> <p>The defense claiming that the accused did not leave the house where he stayed the night of the homicide, evidence tending to show whether the doors of the house were locked or otherwise, was competent.</p> <p>Circumstance tending to show motive for presence of accused at the house where crime committed.— 1</p> <p>Where in an indictment charging the accused with murder,the third and fourth counts charge the murder to have been committed in an attempt to commit a rape, which counts are nollied and the trial proceeds under the other counts containing no such charge, yet testimony tending to show the feelings of the accused toward the woman in question would not be incompetent as bearing upon the counts nollied,but competent as a circumstance accounting for his presence at the residene of the victims at the time of the commission of the crime.</p> <p>Insanity as defense■—</p> <p>The burden of proof to establish the defense of insanity in a criminal case, rests upon the defendant, but a preponderance of the evidence is all that is necessary for that purpose — What will amount to insanity or unsoundness of mind, to amount to a legal defense for crime defined.*</p>

<p>Chattel mortgage executed by partnership firm — Signed by one member only—</p> <p>Where a chattel, mortgage, authorized by all members of a firm of co-pkrtners, is signed by one of them only, first in his individual name and then in the firm name, but not by the other members of the firm individually, and there is nothing to show that it should not be valid unless signed by all the partners individually,, the mortgage is valid.</p> <p>Note of firm given for debt of former firm of same membership— A firm of co-partners has the right to give its firm note for a debt of a former partnership of which all the partners in the new firm were members.</p> <p>Uncertainty or error in description of debt—</p> <p>A chattel mortgage is not invalid as to third persons on account of uncertainty in the description of the debt intended to be secured, when, upon the ordinary principle allowing extrinsic evidence to apply a written contract to its proper subject matter, the debt intended to be secured may be shown as between the parties. The lien is not affected by a clerical inaccuracy in the description of the debt.</p>

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

The petition of plaintiff below, who is plaintiff in error here, is as follows: The plaintiff, John C. Engel, says that he is the duly appointed, qualified and acting guardian of Andrew T. Engel, who is a minor, and as such guardian he brings this suit.

<p>Action for personal injury — Admissibility of statements of party injured—</p> <p>1. In an action to recover for injuries to the person, claimed to have been received in a railway collision, a physician who had been employed by the plaintiff to examine and treat her, cannot be permitted to testify, as a witness in her behalf, to statements of the plaintiff as to the cause of such injuries, or that she attributed her condition to injuries received in such collision.</p> <p>Same — Examination by physician appointed by court—</p> <p>2. In such case, a medical expert, called in by the plaintiff to examine her for the purpose of becoming a witness in her favor, or who examined her for purposes other than advice and treatment, cannot be permitted to testify for plaintiff to complaints or statements made by her on such examination as to her symptoms,condition, pain or sufferings, past or present, as either corroborative of the plaintiff’s testimony, or as evidence of the facts, or as a basis for the expression of an opinion. It is otherwise, if such expert be appointed by the trial court to make such examination at the request of the defendant.</p> <p>Same — Statements to non-expert witnesses—</p> <p>3. In such case a non-expert, called by the plaintiff, may testify to spontaneous manifestations on her part of a present existing pain, such as screams, groans, or exclamations which are the usual and natural accompaniment of great bodily pain ; but he cannot be permitted to testify to anything in the way of a narrative or statement by the plaintiff of her symptoms, condition, pain or suffering, past or present, even although voluntarily made by way of complaint.</p> <p>Same—</p> <p>4. The defendant having offered evidence to show that the bodily condition of the plaintiff, as described by her, was attributable to change of life, and that on the day of the collision, and after-wards, upon being asked,if any one was hurt in such collision, the plaintiff had made no complaint of having been hurt herself, it was error to permit the plaintiff, in rebuttal, to call witnesses to prove that on other occasions she had made such complaints to them, and to give in detail statements made by her on such other occasions, as to her condition, pains, and their locality.</p>

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

<p>Break in sewer by negligence of city, damaging adjacent building— Proper measure of damages—</p> <p>Where by the neglect of the city in constructing and keepipg in order and repair, of a sewer, water percolates from a .break in such sewer into the surrounding ground, causing the lot of an abutting owner to settle, whereby the walls of his building on such lot are cracked and damaged necessitating rebuilding the same, the measure of damages to which such abutting owner would be entitled,' would be the difference' in the value of such building before and immediately after such injury, and not the amount which such owner paid out for repairs.</p> <p>Same — Interest on amount of damages—</p> <p>Interest on the amount of damages found, up to the time of the verdict, may be included in the amount of the damages on account of the delay in paying plaintiff’s claim, as apart of the damages; and if computed at all, it should be from the time plaintiff suffered the injury which caused the depreciation in the value of his property.</p>

<p>Defective Transcript from J. P. — May be amended—</p> <p>An accurate copy of the record of a Justice of Peace, properly signed but not certified maybe amended under Sec. 5114 Rev. Stat., on .proper motion to the court.</p>

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

In an action in the common pleas court, by Solomon Albright, plaintiff, against William Albright and others, defendants, there was a contest as to the validity and priority of liens.

<p>New party, made under claim of lien — Proof of lien failing, jurisdiction of court to adjudicate the claim in that case.</p> <p>Where an action is brought on an account and a mechanic’s lien, another party claiming a mechanic’s lien may be brought in, and the fact that the court' afterwards finds that such new party has no mechanic’s lien, does not oust the court of jurisdiction to adjudicate xn such case the question of the amount owing to such new party on his unsecured account.</p> <p> Action on account and mechanic’s lien triable by jury, and not appealable. </p> <p>An action upon an account, and a mechanic’s lien, the issue being as to amount due upon the account and as to whether the mechanic’s lien was filed in time, is to be tried by a jury, and is therefore not appealable, and the question whether the mechanic’s lien was filed in time, is one that should be submitted to a jury unless waived.</p>

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

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

On March 17th, 1896, tbe defendant in error, Fischer, Administrator, obtained a judgment against Josephine Bechtold, plaintiff in error, by the consideration of the court of common pleas of Defiance county. On June 6, 1896, Bechtold filed a petition in error in the circuit court of said county to obtain a reversal of the judgment and caused a summons in error to be issued and dated the same day, directed to the sheriff of the county.

<p>Ditches — Proceedings to fix compensation by upper to lower county for increase in waterflow.</p> <p>Before the Probate Court can act by appointing freeholders to assess the compensation under the statute, it must appear, as jurisdictional facts, that the commissioners of the lower and upper counties have failed to agree, or that, having agreed, the upper county has.failed to pay the compensation agreed upon.</p> <p> Same —Power of Probate Court in modifying report of committee appointed, to increase amount of compensation. </p> <p>In hearing exceptions to the report of the committee appointed to, fix compensation, the Probate Court in modifying the report as, authorized by statute, may increase as well as decrease the .amount of compensation found by the committee, and its authority is not limited to merely confirming or setting aside the report. The word “modify” m this statute is entitled to a broader meaning than where used in the code.</p>

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

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

<p>Bigamy — Proof of divorce.</p> <p>In a prosecution for bigamy, the Ttate having proven the first marriage and produced the first wife in person, or accounted for her existence, the presumption is that the status once established by law continues, and the State is not bound to prove that there was no divorce.</p> <p>Bigamy — Letters from accused to first wife, when admissible— Letters from husband to wife strongly tending to prove marriage relation between them, when produced at the trial by a third party, not their agent or representative, to whom they had been given by the wife, will not be privileged under the statute, but are competent evidence against the husband.</p> <p>Marriage Certificate — What not admissible as such—</p> <p>A writing, alleged to be a marriage certificate, signed by the minister who solemnized the marriage, but not dated nor recorded nor exemplified in any way, nor entitled to be admitted as an ancient document, is inadmissible in evidence in a criminal prosecution.</p>

<p>Receiver appointed in other State — Jurisdiction of Ohio Courts o.ver debts owing the estate in Ohio—</p> <p>A voluntary conveyance by a party in one state, transfers title and right to his assignee or his transferee, whoever it may be, to his property wherever that property may be found. But if the> conveyance is not voluntary, but is forced, as where creditors put a party in bankruptcy, or where creditors force the property out of the owner’s hands by means of a receiver, in such case the-transfer will not prevent a creditor who lives in another state-from garnishing property situate in the other state, and enforcing his claim upon the same by way of judgment.</p> <p>Jurisdiction of U. S. Courts exclusive only loithin boundaries of their jurisdiction—</p> <p>The rule is now well settled that where a United States court obtains-jurisdiction over the property of a party by means of a proceeding, instituted by the creditors of such party for the appointment of' a receiver to take possession of his estate, the jurisdiction of' the United States court is exclusive of the state courts only within the boundaries of the jurisdiction of that United States-court. In such case,therefore, where such proceedings are instituted in a U. S. Court in Illinois, the courts of the state of Ohio will not be prohibited from taking jurisdiction of property within this state.</p> <p>Attachment by Ohio creditor of claims in Ohio — Prior right as-against receiver appointed in other state—</p> <p>To allow a receiver appointed by a court in another state, to come into Ohio to collect the debts due the estate of which he has-become receiver, is purely a matter of comity; and while comity has become a rule of,law to some extent, yet is it not a uniform rule, and the states do not hold the same view in regard to it. Under the rule in Ohio, a party attaching such debts in Ohio by garnishee proceeding instituted in an Ohio court, would secure' prior right to the same as against the right of a receiver appointed by a court of another state.</p>

<p>The classification made in section 1 of the Collateral Inheritance Tax Law. as amended April 20, 1891, (91 Ohio Laws, 169) held constitutional.</p>

<p>City draining street and sewerage on lower land — Liability for damages—</p> <p>A proprietor — and a city is nothing but a proprietor as regards ' its control over its streets — has a right to drain his land ; and as to water that naturally flows or finds its way into a stream, he has a right to increase the flow of that water into that stream, by carrying it into a ditch, or through an underground drain, or in various ways, if that is the natural place for it to flow; but the upper proprietor cannot so increase the flow of water as to go beyond, the capacity of the stream, where the water did not go beyond that capacity before; and if by doing this, he increases the servitude of the land below by making the overflow greater, or by making an overflow where there was no overflow, ■ he is liable for damages, and a party is not bound to anticipate any injury of this kind until it occurs.</p> <p>City directing out buildings, privies, etc., to be drained in stream, depositing it on lower lots — Liability to lot owner—</p> <p>Where the city directs parties to drain their out-buildings and privies into a.stream of water, and it is, in consequence, flowing down upon a lower proprietor, and spreading that filth out over his land, he is entitled to damages although the flow of water in the stream, is not thereby increased.</p> <p>City changing watershed in improving streets — Liability for turning water on land—</p> <p>Where a city in improving its streets changed the water-shed so as to bring down water on to an owner’s premises, which did not naturally flow in that direction, the plaintiff is entitled to, recover for damages resulting therefrom.</p> <p>City turning water-course on land — Owner’s consent conditioned that rooter be carried fully, across land — Non-compliance by city-Liability—</p> <p>Where the city changed the.channel of a water-course on plaintiff's premises, with the consent and knowledge of plaintiff, and for such consent the city agreed to construct a sewer entirely across said premises, and the city, in pursuance of such consent, constructed its sewer upon said premises, but failed to complete and construct it across the same, abandoning it when constructed less than half way across the premises, and thereby allowed it to discharge upon and overflow plaintiff’s premises to his material injury and damage, the city would be liable for such damages as plaintiff has sustained by reason thereof.</p> <p>Practice — Additional charges to jury after retirement. —</p> <p>When the court,after the retirement of the jury,on the request of one of the parties allows additional instructions, it would not be proper for the court to merely send such instructions to the jury in their room, but the jury should be called into court to receive such additional instructions.</p>

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

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

<p>Change of venue under sec. 5033 Rev. Stai.—</p> <p>Under Sec. 5033, Rev. Stat., which provides that the court shall change the venue to an adjoining county in actions where one party is a corporation and has more than fifty stockholders and its principal office in the county, on the filing by the other party of an affidavit that he believes he can not have a fair trial in such county, corroborated by the several affidavits of five credible persons residing in such county, the court is clothed with a judicial discretion to decide as to the sufficiency of such affidavits, the credibility of the affiants, etc., and a petition in ' mandamus, to compel the judge on the filing of such affidavits to transfer the action to an adjoining county, will not lie.</p>

<p>Scheme to erect Butter Factory — Contract under which contractors are not entitled to mechanic’s lien for balance due on unpaid subscriptions. —</p> <p>A promotor of a scheme to erect a butter factory, entered into a contract with a number of persons severally, that he would erect a factory costing a certain amount, the subscriber's to the scheme to take each a certain number of shares at 8100.00 a share, and when a sufficient number of shares were subscribed to cover the cost of the factory, then a corporation should be formed to whom the factory would be conveyed, with the proviso however, that each subscriber should be held liable only for the amount of his subscription. A sufficient number of shares having been subscribed, the factory was erected and conveyed to the corporation formed, but several of the subscribers refusing to pay from whom nothing could be collected by law, the sum realized from the subscriptions was insufficient to pay for the factory. The contractors thereupon attempted to secure a mechanic’s lien on the factory, and brought suit to enforce the same. Held: The contractors under the contract were not entitled to a mechanic’s lien.</p>

This was an action to construe the will and codicils thereto of William E. Marsh, who died in August, 1879. The will was dated May 20, 1863, and there were appended five codicils of dates from 1865 to 1877.

<p>Defective sideioalk — Injury—Admissible testimony. —</p> <p>In an action against a city for damages for permanent injury sustained by falling on the sidewalk in a dark night in consequence of a defect in such sidewalk, testimony need not be confined to show the length of time such defect has existed to prove knowledge by the city, but testimony as to the character of the defect is admissible.</p> <p>Request given in final charge and not before argument, when not error. — •</p> <p>Where certain requests to charge are submitted to the court prior to the argument, with the request that the same be made part of the charge of the court, but no request is made that' they be given to the jury before the argument of counsel, the fact that the court did pass upon them and give most of them in his final charge to the jury, and not before argument of counsel, is not error.</p> <p>Not excessive verdict.—</p> <p>Verdict for S1200 under the circumstances of this case not excessive.</p>

<p>Sewer — Negligent construction — Liability of city. —</p> <p>A city is only liable for damages to buildings inconsequence of,[the construction of a sewer in the street whereJLthe damagejs caused by the negligence of the city in constructing the”sewer.</p> <p>Same — Measure of damages. —</p> <p>The true measure of damages is the difference in the value of the property immediately before and after the injury.</p>

<p>Act authorizing county commissioners to improve avenue unconstitutional — Taylor avenue.—</p> <p>An act authorizing county commissioners to improve a certain avenue and issue bonds to pay for such improvement, is in violation of sec. 26, art. 2 of the constitution, and also in conflict with the principles announced instate ex rel v. Broerman, 35 Law Bulletin, 213, as a matter administrative, and not legislative in character.</p>

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

<p> Deed by aged people made in consideration of being tahen care of, etc.,— </p> <p>In actions to set aside deeds of this kind, courts always look into the circumstances of the case and size of things which in other cases might not appear of great moment, to see whether there is any inequity.</p>

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

<p>Bill of Exceptions — Affidavits used in hearing the motion for new trial can only be brought before the reviewing court by being made part of the bill of exceptions.</p>

<p>Action for balance of indebtedness and accounting — Information obtainable by interrogatories lo petition — Not appealable.</p> <p>An action brought on a certificate of indebtedness issued by a city to a property owner for land appropriated for opening a, street to be paid by the city from the assessments on abutting property for-said improvements, asking that the city should account for the proceeds of such assessments, and for judgment for the amount due on such certificate, is not appealable. It is an action for money only and the information asked of the city could have been obtained by filing interrogatories with the petition.</p>

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

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

<p>Estoppel—</p> <p>Where in an action for divorce and alimony by the wife the petition states that plaintiff had an interest in some land, and it appears that the land had been conveyed to her by her husband without valuable consideration, and the husband in his answer alleges that the whole title to the land which bad belonged to him, had been by him conveyed to her, and the court based its finding and judgment in regard to such land on these allegations, the husband will ■be estopped from suing nine years later to enforce an alleged agreement for a reconveyance of such land by the wife to himself.</p> <p>Motion for new trial, when necessary—</p> <p>The court below having held in such action that the question as to the title of this land was res adjudicata, to bring this question before a reviewing court, a motion for a new trial should have been made in the court below, and it would be improper for the appellate court otherwise to interfere with the judgment belowj</p>

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

<p> Death of child eight years old at R. R. crossing. </p> <p>The charge of the trial court that tho R. R. Co. was bound to exercise ordinary care in the transaction of its business, but that ordinary care, at one point might be very much less than ordinary care at another, and (under the circumstances of this case, at a street crossing) that the R. R. Co. shou d exercise great caution at the point in question, is not erroneous.</p> <p>Failure of JR. JR. Co. to have man on top of front car — JRules of contributory negligence as applicable to a child eight years old—</p> <p>Duty of JR. -R. Co. as to trespassers.</p> <p>A R. R. Co. in running its trains is not bound to take throughout all the precautions that it would take at a street crossing, but it is bound, as against trespassers on its right of way, to exercise ordinaiy care under the circumstances of the place to protect them from injury.</p> <p> Right of father of child hilled to sue for loss of services. </p> <p>The common law gives no right to the father of a child killed by the negligence of another to recover for the loss of his services during the period of his minority.</p>

<p>The police justice appointed by the council of a village under Sec. 1831 Rev. Stat., as amended 89 O. L. 139, has jurisdiction in all the offenses against the State in which the mayor of the village has jurisdiction, among which is keeping open saloons on Sunday.</p>

<p>When all the evidence and charge given are brought upon the record by a bill of exceptions, and an erroneous charge is claimed to have been given, a reviewing court may consider whether it was right, to see whether the case was fairly tried, though no exception was taken at the time. But where the trial court fails to charge on a certain point and counsel fails to request the court to charge as to that point, which is not supported by evidence of particular weight, a party can not avail himself of the failure of the court to charge as to that point.</p>

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

<p>Administrator — Life insurance money coming into his hands after appointment — Liability of sureties on bond.</p> <p>The proceeds of a life insurance policy which came into the hands of the administrator after his appointment, become assets of the estate in his hands, and on his failure to account for the same his sureties on his bond become liable therefor to the extent of the penalty of the bond.</p>

<p> Act for the improvement of Columbia Ave., 90 O. L. 211, mandatory. </p> <p>1. The provision for levying taxes for a certain improvement, contained in an act passed by the General Assembly of Ohio, found in vol. 90 of the Ohio Local Laws, page 217, is mandatory, and not directory, on the county commissioners, as to the time when such levy for taxes is to be made, and the levy for the first installment of said taxes should be made in the year 1893.</p> <p>Bonds need not be issued before purchaser tenders payment—</p> <p>2. Before such county commissioners can be compelled to issue the bonds provided for by said act, there must be a tender of payment for such bonds..</p>

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

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

<p>Injunction against advertisement of articles infringing upon plaintiff’s property rights in such artieles,and generally misrepresenting.— Where a party can prove injury through the advertisement of a competitor, offering articles for sale in which plaintiff has property rights, he is entitled to an injunction. But as against mere misrepresentations, although gross lies, but as to which plaintiff fails to show actual injury, no injunction will be granted.</p>

<p>Unrecorded contract of R. R. Co. with land oioner to construct cattle-pass, coupled with possession of same by land owner — Possession sufficient notice to purchaser of R, R. ■—</p> <p>A land owner entered into a contract with a railroad company, by which he agreed to convey to it a strip of land through his farm on the payment of 8150 and the railroad company agreeing to .make a cattle-pass under its track for him to connect the two parts of his farm. On the payment of 8150, and the construction of the cattle-pass, as agreed, he afterwards conveyed the strip to the R. R. Co., the deed, however, being silent as to the cattle-pass. The road was afterwards sold on foreclosure, and the purchaser attempted to fill up the cattle-pass on the claim that the contract not being recorded, they had no notice of the agreement about the cattle-pass and are innocent purchasers, without notice, and not bound by the contract. Held, that the actual and open possession by the land owner of the cattle-pass was sufficient notice of the claim of the land owner to the railroad company to put them on inquiry.</p> <p>Possession of grantor after deed made notice of adverse claim not inconsistent with terms of deed.—</p> <p>2. While it is the rule that possession by the grantor after execution of the deed, is not notice of an adverse claim by him inconsistent with the terms of his deed, yet where the deed only conveys the easement in the land for the purpose of constructing a railroad track thereon, and the existence of the cattle-pass is not inconsistent with such use, the possession of the same by the grantor will be notice to the purchasers of the railroad of the landowner’s claim to the cattle-pass.</p> <p>Same — Duty to maintain cattle-pass — Continuing Contract—</p> <p>3 While in the contract the railroad company only agrees to construct the cattle pass, and not to maintain the same, yet the contract is a continuing one, and neither the railroad company the party to the contract, nor the purchasers of the road under a foreclosure sale, have the right to fill it up..</p>

<p>Dissolution of partnership — What will amount to — Assesis will vest in remaining partner, ivho entitled to homestead exemption out of proceeds. —</p> <p>1. Where one partner withdraws from the partnership, turning over all his interest therein to the other partner, in consideration that such other partner pay him S150 and pay the debts of the partnership, the title to the assets of the same vests in the other partner, and although he has not paid the 8150 to the withdrawing partner, nor the debts of the concern, yet he or his wife, neither owning a homestead, will be entitled to S500 in lieu of a homestead, out of the proceeds of the assets of the concern, if properly demanded.</p>

<p>Appeal from the Court of Common Pléas of Huron County.</p>

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

<p>Taking case from jury — When not proper.—</p> <p>When in the delivery of the case to the jury upon the issues generally, there is some evidence, some testimony, tending to prove each of the material averments of the petition, the court is not at liberty to direct a verdict, and the party is entitled to the opinion of the jury upon the facts tending to prove his case, and that is so even if the showing is so slight that the court would feel called upon to sot aside a verdict for the plaintiff, rendered upon such insufficient testimony. It is only, where there is a total failure of proof, total absence of proof upon some one or more of the material averments in the petition, of facts necessary to be established, that the court is authorized to direct a verdict for the defendant.</p>

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

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

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

<p>Attorney and client — Power of attorney to compromise claim for a less sum, without express authority.—</p> <p>An attorney to whom a promissory note is g;iven for collection, is not thereby authorized to make a compromise and receive part of the amount due in full settlement thereof. Express authority to do this is requisite.</p> <p>Same — Owner of claim may recover balance due.—</p> <p>The fact that the attorney holds the notes endorsed in blank by the real owner, and transferred them to the maker on the payment of a less sum than is due thereon, without authority from the real owner to do so, would not estop such real owner to recover the balance due on the notes, if the notes were then overdue, even if the maker had not known that the attorney was not the real owner, but held the notes only for collection.</p>

<p>Seioer — Local drainage defined—</p> <p>The local drainage which is meant by sec. 2382 is such a sewer, or such a system of sewers, as looking to the dimensions, the mode of construction, the material used, the location for the outlet and the sanitary conditions, will not only benefit the persons who have constructed the sewers, but will not be detrimental to the rights of the public, not only of the present public, but of those who may, and who of right may, build in the vicinity ‘A, where the sewer is located.</p>