Volume 13 — Ohio Circuit Court Reports

<p>Appeal from the Circuit Court of Lucas County,</p>

<p>Error to the Court of Common Pleas of Allen County:</p>

<p>Unconstitutionality of act of legislature — Courts are not in every case to consider it.</p> <p>1. Courts are always reluctant to hold acts of the legislature unconstitutional in whatever form the question is presented, and especially is this true of courts which are not courts of last resort. And it is not in every case that courts will enter into a consideration of the question whether a law is constitutional or unconstitutional.</p> <p>Voluntary payment of unconstitutional tax — Right of taxpayer to enjoin application of money so paid—</p> <p>% One who voluntarily pays a void tax with knowledge of the facts rendering it void, can not recover back the amount so paid, nor can he maintain an action to restrain the application of the money raised by such tax to the purpose for which said tax was paid.</p> <p>Same — No equity to restrain application of money for purposes for which voluntarily paid.</p> <p>3. There are no equitable considerations why a court, at the instance of a tax-payer, should interpose to prevent the doing what the complaining and other tax-payers voluntarily put it in the power-of the county or city and their officers to do. The contribution having been voluntarily made to a particular fund for the purpose of having it applied to a particular object, the plaintiff as such contributor cannot successfully invoke the aid of equity to prevent such application on the alleged ground that the respective law is unconstitutional.</p> <p>Suit in representative capacity — Requirements and rights, same as in suits in individual capacity.</p> <p>4. A tax-payer or citizen acting in a representative capacity stands the same as one in an individual capacity. If he has an equitable action, has been diligent and alert, comes into court with clean hands, having done equity, he may have a standing; otherwise, not.</p> <p>Application for injunction to restrain application of fund paid in by taxpayers without objection to purpose for which paid, on ground of unconstitutionality, too late — •</p> <p>5. Where an action is brought by a tax-payer on behalf of the state, against the county commissioners, asking for an injunction to restrain them from carrying out the provisions of an act of the legislature authorizing them to improve a certain avenue in said county, on the ground that such act is unconstitutional, and it appears that the tax provided by such act for that purpose has been levied and paid, and that the fund for improving such avenue according to such act of the legislature is in the county treasury, and that such tax was paid by the tax-payers, including the complainant, without objection, the application on behaif of a tax-payer for an injunction to restrain the county commissioners from proceeding to improve the avenue and apply the fund collected by taxation to that purpose in accordance with the act of the legislature comes too late, and such injunction will be refused.</p>

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

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

<p>Passenger directed by station agent to wrong train, and ejected thei'efrom — Liability of P. P. Go. — Action for damages is as for tort.</p> <p>Where a person has a ticket purchased from a company engaged in the business of a common carrier of passengers, entitling him to be carried from a certain station to another on the line of its road, good only on trains stopping at his destination, and he is by the fault of the company’s station-agent, induced to take a train that does not, under the schedule, stop at such place, and, as a consequence, is ejected by the conductor on calling for his ticket and before reaching his destination, such facts show a right in the passenger against the company to recover as for a tort, and not merely for a breach of contract.</p>

<p>Conveyance to son in consideration of support — Degree of capacity—</p> <p>1. In a transaction between father and son, or other member of the family, in which there is a conveyance of real estate made by the father, to the son, and an agreement by the son to maintain the father during life, and all made for the purpose and with a view to secure a home and support for the father during his life, and also as an advancement to the son, equalizing him in the father’s estate with the other members of the family, as great a degree of capacity is not required as if the transaction was with a stranger, or, of an adversary character.</p> <p> Same— </p> <p>2. Such transaction in such case is, in effect, final disposition by the father of his property; and if he have sufficient mind to know and comprehend the extent and value of his estate, and the names and rights of children, or those who are naturally entitled to share in it, and is free from restraint, such transaction will be sustained.</p>

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

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

<p> Warrant giving initials of first and middle name'fpnly, not void— </p> <p>1. A warrant for the arrest of an accused party, in all other respects legal, but describing hind by the initials of his first and middle name, 'is not void for-that reason, and the same is a sufficient process to justify the officer in making the arrest ;-and this is so, if the affidavit upon which the warrant is issued, contains a similar description of the accused,</p> <p>Arrest under such warrant — Strategy of officer to effect arrest— Heading warrant after arrest—</p> <p>2. Where the officer holding such warrant, finds the accused armed with deadly weapons, ready to resist arrest by taking his life, such officer has the right, without first producing the warrant, to disarm the accused, and to use necessary strategy and deception for that purpose, in order to make the arrest without peril to his own life; and it is sufficient in such case, to produce and read the warrant, if requested, after the accused is so taken into custody.</p> <p>Killing officer on attempt to arrest — When murder in first degree—</p> <p>3. Where the accused, knowing that the officer is on his way to arrest him, arms and prepares himself to resist arrest, even to the taking of tfie officer’s life, and he purposely kills such officer in his attempt to disarm and arrest him, such killing is murder in the first degree.</p>

<p>Rule in Shelley’s ease still a rule of property in Ohio — Will prevail over clearly expressed intention of grantor in deed—</p> <p>1. It is a fundamental principle in the construction of deeds and all other written instruments, that the expressed intention of the parties when ascertained, shall be carried out, but with the exception to this rule where applied to deeds, that when its terms come within the rule in Shelley’s case,that rule will prevail over the clearly expressed intention of the grantor, and this is still a rule of property in Ohio.</p> <p>Same — Case not within the rule.—</p> <p>2. Where the owner of land, in contemplation of marriage, jointly with her intended husband conveys such land to a trustee, to hold the same for her separate use and enjoyment during her life, at her death, her husband surviving her, the husband to enjoy the rents and profits thereof for his life, and on his death the property to go to grantor’s lawful heirs; and grantor dies before her said husband, the rule in Shelley’s case does not apply, but the fee on the death of grantor vests in her lawful heirs by force of the statute.</p>

<p>Employer and employe — Breach by Employe of Contract for fixed time — Suit for icages — Employer’s right to recover damages for breach of contract.—</p> <p>1. Where an employe, hired for a fixed period at a fixed salary, leaves his employer without his consent and without just cause, before the end of the period for which he was employed, and brings suit against his employer to recover wages for the time he served, the employer may interpose such breach of contract as a complete defense against any recovery on the part of such employer.</p> <p>2. The employer in such action is not restricted to showing such breach of contract by way of defense only ; but, in a proper case, may go further, and by way of cross-petition in such action, recover of the employe such damages as he may have sustained in consequence of such breach of contract by the employe.</p>

<p>Evidence — Res Gestae — Agent’s declarations.</p> <p>1. In response to complaints by the vendee as to the quality of glass sold and delivered, the vendors paid the expenses of a man to inspect the glass. What is said by this man about the quality of the glass while making the inspection, is part of the res gestae, and admissible against the vendor.</p> <p>Sale of goods — Inferior quality — Unsaleable in market.</p> <p>2.- The vendor of goods brings an -action for the price of the goods delivered. Vendee counter-claims for breach of warranty as to the quality. In such case, it is competent for the vendee to offer evidence that the-goods could not be sold in the market of .the vendee, as goods of the quality for which he bought them, but only, if at all, as a lower grade. •</p> <p>Same — Paying for the goods as received, in lots at different times.</p> <p>3. In such case, the goods having been sent at- different times, it is admissible for the vendee to offer evidence to show that drafts accompanying the bills of lading, were paid before the merchandise was received-, for the purpose of affecting any inference as to’waiver of quality, arising from receipt of the merchandise.</p> <p>Same — Proof of custom.</p> <p>á. Por the same purpose it is admissible for the vendee to show that there was a custom on the part of “manufacturers to shut down their works during the fall, and the custom on the part of the buyers to stock up in the summer, as explaining why a closer examination as to breakage and value was not made -of the goods upon their receipt. > •</p> <p>Same — Examination of goods — Not- every box need be examined.</p> <p>5. In such an action it'is error to exclude testimony, of witnesses who have examined the glass, as to the percentage of poor glass which they found in the boxes which they examined, and how many panes of broken glass the boxes would average, and as to the grade of the glass as it appeared when inspected by. them. It is not necessary, in such case, for the witnesses to be able to give this testimony as to each box separately.</p> <p>Same — Evidence of defeat in packing goods.</p> <p>6. One of the claims of the defendant being that there was an improper amount of broken glass in the boxes, it is error to exclude evidence offered by the vendee to show that the boxes had "larger apertures than is customary, and apertures which were improper.</p> <p>Same — Evidence of custom — Custom defined.</p> <p>7. Evidence of custom is inadmissible to control explicit provision® of the contract, or to control tfoe rules of law as applied to the-terms used in a contract.</p> <p> Contract to deliver f. o. b. —Definition. </p> <p>8. The words “delivered f. o. b. at Cleveland,” have acquired a hxed legal meaning, and require the vendor to deliver, atClevleand. to-the vendee, the article of'the quality such as he has agreed to sell, and in the proper condition.</p> <p>Same — Evidence of opinion as to custom.</p> <p>9. Evidence of opinion as to custom, or aá to particular instances, or as to language of price lists or circulars issued by houses engaged in the glass trade, is not admissible for the -purpose of proving-custom.</p> <p>Same — Evidence of quality —Manner of manufacturing goods.</p> <p>10. When the contract between vendor and vendee expressly provide® that the quality of glass sold shall be second and third, it is not admissible for the vendor to offer evidence to prove how he made the glass, what Kind of coal he used in burning it, and that the purchaser knew how the glass was burned, and that the vendor’s glass was not of the same quality though of the same grade, a® other glass. With such a provision in the contract the glass must be of the grade specified as known in the market.</p> <p>Same — Warranty—What will amount to.</p> <p>11. A contract for the sale of glass contained this language: “Quality to be second and third.” This is a warranty, and not a mere description of the kind and character of the goods, nor a mere condition precedent.</p> <p>Same — Warranty survives acceptance.</p> <p>12. Such a warranty survives acceptance,and it'is error to charge the-jury that if the purchaser, in the usual and ordinary course of receiving and handling glass and vending the same, could or did , discover or know that the glass was not of the quality called for by the contract, it could not keep possession and vend th^same without notice to the vendor, and afterwards recover of the vendor because the glass was not of the quality called for by the contarct.</p> <p>Same — Notice of bad condition.</p> <p>13. In such case, and where the contract piovides that the glass is to-be “delivered f. o. b. at Cleveland”, it is error to charge the jury that after receiving and vending the glass without notice, the purchaser cannot complain of the breakage of the glass if the purchaser, by the use of reasonable diligence, could or d.id know of the breakage, and did not give notice thereof to the vendor.</p> <p>Failure to delive. quantity contracted for — What will not excuse. ”</p> <p>11. Where the purchaser declines to pay the draft for the last car load, because the glass previously delivered did not comply with the-warranty as to quality, and had an undue amount broken, it is error to charge the jury that, Jfor this reason, the vendor may rightfully decline to deliver the last oar load of glass, and that defendant cannot recover for the failure to deliver such car load, the glass having advanced in price.</p>

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

<p>I. Threats made by defendant.</p> <p>If, after the commission of an offense, threats are made by the defendant against the prosecuting attorney of the county, evidence-of such alleged threats is not admissible, unless it appears that they were made under such circumstances and are of such character as to manifest a consciousness of guilt.</p> <p>II. Burden of proof as to Alibi.</p> <p>1. Where proof of the presence of the defendant, at the time andi place of the commission of an offense, is requisite to sustain a conviction, a charge to the jury, which in terms or by implication, puts upon the defendant the burden of showing that he was-not present at such time and place, is misleading and erroneous.</p> <p>2. It is also error, in such case, to charge the jury that an alibi is a defense set up by the defendant, which can only be satisfactorily maintained by proof which renders it impossible that he-could have committed the act.</p> <p>III. Misconduct of Prosecuting Attorney.</p> <p>1. When the natural and probable effect of an improper' address to-the jury by the prosecuting attorney, is to create an unjust prejudice against the defendant, and secure a decision influenced by the prejudice so created, a new trial should be granted.</p> <p>2. The neglect of counsel for defendant to make objection to such misconduct at the time, will not preclude its consideration upon a motion for a new trial, where its prejudicial effect could not have been prevented thereby.</p>

October 14, 1892, the plaintiff brought suit in the court of common pleas of Clark county to recover from the defendant taxes and penalty, amounting to $65,884.72 for the years 1887 to 1891, both inclusive; and, on March 4, 1893, brought suit to recover from the defendant taxes and penalty amounting to $20,483.19 for the year 1892. Answers and replies were filed. The cases were consolidated and tried to the court, a jury being waived.

<p>Case pending in Supreme' Court — Facts under which no bar t other action relating to same subject.</p> <p>1. On the facts stated in the opinion of the court, the pendency in the Supreme Court of a petition in error to reverse the judgmen of the Circuit Court in the case -therein referred to, was no bar to the prosecution of the present action, and said judgment having been affirmed subsequently by the Supreme Court, the allegations'of the defendant set up in the second -defense of hisanswe have been settled and adjudicated in the other case between t’ same parties.</p> <p>Easement — Building obstructing right of way.</p> <p>2. That the structure erected by the defendant over the roadway o the plaintiff, and the occupation of it by the defendants in th manner shown, is in violation of the rights of the plaintiff.</p>

<p>Insurance Policy — Condition of immediate notice—</p> <p>1. What is a sufficient compliance with the condition of the policy requiring “immediate” notice is a question of fact to be determined by the jury. Where the fact of the existence of a policy of accident insurance was unknown to the beneficiaries thereof, until it came to their knowledge by accident over four months after the death of the insured, when proper notice thereof was immediately given to the company, the condition of the policy for immediate notice of the accident is complied with.</p> <p>Knowledge of accident by local agent—</p> <p>2. The, fact that the local agent of the company who had taken the insurance, heard of the accidental death of the insured, is not such notice to the company as is contemplated by the policy.</p> <p>Failure to advise somebody of existence of policy not negligence—</p> <p>3. Failure of the insured to advise somebody of the existence of the policy so that immediate notice could be given, is not such negligence as would release the company from liability in a suit by the representative of the deceased.</p> <p>Proof of death — What showing sufficient—</p> <p>4. It is not necessary in the proofs of death to enter into every detail of the accident. The condition as to proof is complied with by filing affidavits showing in general the manner of the death.</p>

<p>' Appeal from the Court of Common Pleas of Hancock county. _</p>

<p>Statute, of Limitations — Computation of time.</p> <p>In computing the time within which an action is barred by the statute of limitations, the day on which the cause of action accrued is to be excluded.</p>

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

Edward Besuden held two chattel mortgages, aggregating $30,000, on the assigned plant. A subsequent chattel mortgage for $25,000, upon the sarne property, was executed to Henry Besuden, he having full knowledge of the prior mortgages. . These several mortgages were all duly filed with the county recorder, but were, all rendered void by failure to file them in jMillcreek township where one of the partners of P. Wilson’s Sons &• Company resided.

The original proceeding was in partition. The prayer of the petition was for partition of tbe real estate of Thomas B. Hayes, deceased, between those entitled, and tbe assignment of dower to his widow, Hannah Hayes. The widow made answer, waiving dower interest in money.

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

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

This suit was to enjoin Schmidt from operating a bakery at 1900 Vine street. Schmidt sold the bakery at No. 113 Elder street to Peterson for $1,000, agreeing not to go into the business again within four squares of the old stand. The new business started by Schmidt at 1900 Vine street is carried on in the name of his wife, by whom he claims to be employed. The common pleas court granted a perpetual injunction aaginst a continuance of the new business by Schmidt.

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

<p>Error to th'e Court of Common Pleas of Seneca county.</p>

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

<p>“Operative’', under seo. 6355 i2. S. defined — Traveling agent—</p> <p>The preference given by section 6355 to “operatives” over other creditors applies only to those classed as operatives in the usual and ordinary sense of the word.*</p>

<p>Mortgage — Incorrect description of notes secured.</p> <p>Where a mortgage is given to secure four notes, described as made to the mortgagee’s wife, but it is shown that the four notes were the notes intended and understood to be described in the mortgage, the description in the mortgage will be sufficient to cover the four notes.</p> <p>Statute of Limitations — Mortgage—Payment of interest by one joint obligor, ivjien binding on other joint obligors.</p> <p>Where several parties are jointly liable for the payment of a mortgage on land owned by them jointly, and one of them, under an arrangement between them, afterwards pays the interest on the mortgage, the payments by such party will take the mortgage out of the operation of the statute of limitations as to ail the joint • obligors, and not only as to the party who actually made the payments.</p> <p>Taxes — Payment by mortgagee — Light to be reimbursed out of the land.</p> <p>Where the mortgagee pays the taxes on the mortgaged land, he is entitled to be reimbursed for such payment out of the land, and for that purpose is subrogated to the rights of the state.</p>

<p>Action to vacate-judgment or order of probate court for fraud— Original jurisdiction of Common Pleas — ■</p> <p>The court of common pleas is a court of general jurisdiction, and, independent of the provisions of Sec. 5354 Rev. Stat., has power to vacate and set aside judgments procured by fraud, in an original action for that purpose.</p> <p>' Same—</p> <p>The’special proceeding provided by Sec. 5354 et seq., Eev. Stat. is cumulative merely, and does not in any way abridge or limit the right in an original action to impeach and annul a judgment for" fraud.</p> <p>Same — Judgment of Probate Court releasing surety—</p> <p>A judgment of the probate court, releasing and discharging from liability, sureties on an original executor’s or administrator’s bond, and accepting and approving a new bond which was procured by fraud, may be vacated and set aside in the common pleas court.</p> <p>Petition to vacate judgment for fraud —Sufficient allegations—</p> <p>Addition, setting out in detail the facts alleged as constituting a fraud by which a judgment was procured, and showing that a fraud was in fact successfully practiced, with a prayer that the judgment so procured be vacated and set aside, is good as against a general demurrer.</p> <p>Surety on admr’s bond liable until sufficient new bond given—</p> <p>By“ the provisions of Sec. 6204 Rev. St., a surety on an executor’s or administrator’s bond may be released from liability thereon, upon request and good cause appearing, by order of the probate court; but such order is ineffectual until a proper and sufficient new bond is given.</p>

<p>Statute of frauds — Money given for use during life,the balance unexpended to be repaid on death of donee, not within statute.</p> <p>Where a son places in the hands of his mother S500.00, with the- ■ agreement with her that she should use it if needed, during her life, the amount unexpended at her death to be paid back to him, such contract is not within the statute of frauds as not to be-performed within one year, although the mother lived eleve» years afterwards.</p> <p>Same — Time within which administrator has to pay.</p> <p>The fact that at the death of the mother her administrator would by law have eighteen months to repay the money, will not place the contract within the statute of frauds.</p>

<p>Action pending in Superior Court of Cincinnati when act abolishing the General Term thereof toole effect — Right of appeal to Circuit Court.</p> <p>The act abolishing to General Term of the Superior court,gave to the-Circuit Court jurisdiction to hear judgments or final orders made* by the Superior Court* on error or appeal. This law went into operation November 1st, 1893, and continued in force to July 1st, 1894, when it was repealed. That act was not made applicable to actions then pending in the Superior Court, special term. An action therefore which was pending in the Superior Court on or before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the repealing act took effect, can not be appealed to the Circuit Court.</p>

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

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

<p>Watercraft — Canal boat damaging turn-bridge liable for damages.</p> <p>Where a canal boat which navigated the state canal negligently ran against and damaged a turn bridge, the property of the county commissioners, an action against the boat itself may be instituted both under sections 5888 and 7790, Revised Statutes, by the county commissioners. The remedies under these sections are-, cumulative.</p> <p>Same — Authority of commissioners to sue.</p> <p>Under sections 860 and 863, .Revised Statutes, the county commission- - ers have authority to bring such an action for such damages to a canal bridge, the property of the county.</p> <p>‘ ‘Person’’1 as used in sec’s 863™and 5880 JR. S., includes board of county commissioners.</p> <p>The word “person,” as used in sections 863 and 5880, Revised Statutes, under the rules of interpretation laid down in sections 4947' and 4948, Revised Statutes, includes the Board of County Commissioners.</p>

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

<p>Bill of exceptions from J. P. — Duty of J. P. to transmit to clerk within ten days — On his failure, party not prejudiced.</p> <p>It is the duty, by law. of the Justice of Peace to transmit a bill of exceptions when by him allowed, within ten days with the papers of the case to the clerk of common pleas, but if he fails to do so,unless he has demanded his fees therefor and they are not paid, the person taking the bill is not prejudiced, by such failure, but may within the six months allowed for filing petition in error, do so, and with it file the bill of exceptions and other papers. Error to the Court of^Common Pleas of Hamilton county.</p>

This was an action for recovery of $7,500 from the defendants on an appeal bond executed by John B..Mannix, assignee of J. B. and Edward Purcell. The appeal was from the judgment of the probate court, which was, June 2, 18S6, rendered against Mannix for $y05,827.70.

L. H. McCammon Bros, sued Amiss before a magistrate, and garnisheed Fred. L. Men tel. The garnishee paid the money into court,and Amiss claimed homestead exemption. The magistrate turned the money over to him. On appeal to the common pleas, Amiss failed to appear, and judgment for the amount of the claim against him was given against the garnishee.

<p>Action for malicious prosecution against police officer — Probable cause — Acquittal not proof of want of.</p> <p>The acquittal of plaintiff in an action for malicious prosecution is not proof of want of probable cause. There may be probable cause for the arrest although the party on the trial is acquitted. There may be facts known to the officer which it would be improper to introduce in evidence.</p> <p>Same — Evidence of-bad character of party arrested.</p> <p>The party causing the arrest may show the bad character of the arrested person.</p> <p>Same — Probable cause defined — Belief—Good faith.</p> <p>The question of probable cause is one of belief where the facts are such that a prudent person would believe in the guilt of the party arrested. The facts where they are disputed, are to be found by the jury, but whether they constitute probable cause is to be determined by the court. Good faith is not the equivalent of probable cause.</p> <p>/Same — Deliberate action, and arrest on view.</p> <p>Where the charges are made deliberately,a person is required to look into all the facts to some extent, and he can not act entirely upon rumors, but must investigate as to their truth ; but a police officer or party acting upon view cannot proceed to an examina tion of the facts, but must proceed without losing time by investigation.</p> <p>Probable cause — Evidence admissible to show — Common repute.</p> <p>Evidence of common repute in the neighborhood that the plaintiff was guilty of the particular offense for which he was prosecuted, may be rightfully received as one proof, though not a sufficient one in itself, of probable cause. Not only the facts which the defendant knew, but the information he had received, the circumstances under which he acted, and consultations with counsel learned in the law,are competent evidence upon the questions of probable cause and malice in fact.</p> <p> Legal advice before filing affidavit as defense in action for malicious prosecution. </p> <p>If an officer,before making the affidavit, takes the advice of an attorney at law, upon full and fair disclosure of the facts, and follows his advice in making an affidavit and prosecuting the person so charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.</p> <p>Same — Prosecution begins with filing the affidavit after arrest— Malicious arrest different cause of action from malicious prosecution.</p> <p>Where an officer finds one violating a law or ordinance, and arrests him, and thereafter files affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit, and not with the arrest. Malicious arrest is, in many cases, entirely a different and separate cause of action from that of malicious prosecution.</p>

<p>Will construed — When devise of whole use and benefit during life with power to dispose of the property by will, will not give entire estate in fee.</p> <p>F. B., being unmarried, in his will deeded his farm and other property to his executor, in trust, the use. rents and profits of the farm to be given to his brother L. B. during his life, and at his death the farm to be deeded to the person whom he should appoint by will, and on his failure to so appoint, to be deeded to his heirs; the residue of the estate was deeded to the executor in trust, one-third of the use and income to be given to each of testator’s three brothers L. B., T. B. a.d S. B. On the death of S. B. his share was not to go to his children, but to the two other brothers equally, or their representatives, the will providing that no part of testator’s estate should under any contingency go to the children of S. B. On the death of the two brothers T. B. and -S. B., the use and benefit of the whole estate went to L. B., who dying childless, willed the same after the death of his wife to his heirs, whereby a share would go to the children of S. B. Held, that although thejuse’and benefit of this estate during life and the right to dispose of the same by will was given to L. B., yet the entire estate in fee did not vest in him, but in the executor, and the power of L. B. to dispose of the estate by will was subject to the limitation that no part of it should be given to the children of S. B.</p>

<p>Motion for New Trial for newly discovered evidence — Counter affidavits proper.</p> <p>Where affidavits are filed to sustain a motion for new trial on the ground of newly discovered evidence, the filing of counter affidavits is proper under Sec. 5308, R. S.</p> <p>Contest of will — Apparent injustice to family — Burden of proof— Ohio Statute.</p> <p>While the fact that the evidence in the case tends to show that the will the validity of which is attacked, is unreasonable in its provisions and inconsistent with the duties of the testator to his family withoi.it any good reason therefor appearing, would be a matter properly to be considered by the jury in connection with the other evidence in the case, as tending to throw light upon the question whether the testator was of sound and disposing mind and unrestrained, yet under the Ohio statute, providing that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will where offered by those upholding, it will not have the effect of throwing the burden upon those upholding the will of explaining such apparent injustice, but it is incumbent on the contesting party to prove that the will is the offspring of mental defect, perversion or undue influence.</p>

<p>Lease — Oral agreement made at or before execution of the written lease but not carried into same, not admissible in evidence.</p> <p>An oral agreement alleged to have been made at the time or before a written lease was executed, to the effect that at the end of the year a rebate of SS50 from the amount of the rent stipulated in the lease should be allowed by the lessors, to the lessee, but as to which agreement the written lease is silent, can not be admitted in evidence in a suit for the amount of the rent stipulated in the lease. Besides such an oral agreement would be within the statute of frauds, and not binding.</p> <p>Lease by the year — Tenant holding over, liable for another year's rent.</p> <p>Where a tenant under a lease by the year stays over a second year,and at the expiration of the second year holds over and actually pays for several months of .the third year the monthly installments of rent as stipulated in the lease, he will be held as holding by the year, and if he leaves the premises before that year expires, will be liable for the rent for the balance of the year, although such lessee notified the lessors on the expiration of the second year that he would not take for another year, but only from month to month, the lessors refusing to accept such proposition.</p>

<p>Bargain and Sale — Representation by purchaser, untrue in fact, but believed by him to be true — Right of seller to rescind sale and repTevy the goods.</p> <p>1. One of the questions argued in this case, viz., whether, when a person purchasing goods from another, makes representations as to material facts, upon which representations the seller relied and acted,, and upon which he was authorized to rely, but which representations were in fact untrue, although the person making them, in goo! faith believed them to be "true, the seller is authorized to rescind the contract (no payments having been made thereon), and take the property by replevin proceedings as he might do in case of actual fraud,though discussed, is not decided in this case, for the reason that the same was not properly raised by the charge and asked for and refusd, and because the two judges who heard the case, differed on this point and further, because the decision of the question is not necessary in this case.</p> <p>2 The evidence in the case shows that at the time of the contract of sale, material representations were made by the purchaser which were untrue, and that in view of all the facts in the case he could not have believed them to be true, and that they therefore were really fraudulent. The verdict therefore was against the weight of the evidence, and the motion for' a new trial should have been granted.</p>

<p>AppeaFfronNthe [Court of Common Pleas of Jefferson county.</p>

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

<p>Taxes — Statute of Limitations does not run against — ■</p> <p>The statute of limitations does not run against the state in the matter of the collection of taxes.</p> <p>All taxes regularly assessed, whether upon realty or personalty, are a claim on behalf of the state, and a suit for their collection may be maintained after as well as before the expiration of six years.*</p>

<p>Error to the Gourt of Gommon Pleas of Jefferson county.</p>

<p> Riparian Rights. </p> <p>1. Conveyance of platted lots which are situated npon the bank of a navigalba stream, no part of the bed of the stream being platted, includes all the riparian rights of the grantor in front of said' lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be • reserved or excepted in the deed.</p> <p>(Affirms decision of Common Pleas by Pugsley, J., in same case, 4 Nisi Prius Rep. 73).</p>

The plaintiff in error, while standing upon a step-ladder, repairing the chandeliers in the defendant’s school room, was violently thrown to the floor and injured by the pushing of the ladder from under him by the janitor, cleaning the room. The present suit ■ is for damages on account of the wrongful act of the janitor.

<p>1. Levy for general county purposes — The last clause of section 2823, Revised Statutes, “that whenever in any county the levy in the first clause of this section authorized is deemed insufficient for general county purposes, the commissioners may increase said levy by any amount not exceeding six-tenths of a-mill on the dollar valuation ; but in such, case the levies for other purposes shall be reduced to the same extent, so that the total levies for all purposes shall not exceed the limits in this chapter prescribed.”</p> <p>a. The limitation applies only to levies authorized in Chapter 5, Title 13, Revised Statutes, and not to levies authorized by special and other general statutes.</p> <p>b. Where the levy for general county purposes exceeds the amount authorized in the first clause, but does not exceed the amount authorized by the section, the failure of the commissioners to certify or state in the record, “that the levy in the first clause of this section authorized is deemed insufficient,” does not make the levy excessive.</p> <p>2. Levies, part of which are legal, and part excessive — Where part of the tax assessed on personal property is illegal by reason of excessive levies, and the tax payer has had no opportunity to pay that which is legal without also paying that which is illegal, and the treasurer proceeds under section 2859, Revised Statutes, to enforce the collection, by a civil action against such person, who interposes and maintains a defense to the illegal part, the ten per centum penalty previously added under section 2855, Revised Statutes, was wholly unwarranted and invalid, and no part of it should be included in the judgment.</p>

<p>Interest on unpaid taxes.</p> <p>Taxes levied do not draw interest from the time they were payable, or from the commencement of the action for their collection, nor until judgment is rendered. The allowance by the statute of penalties covers interest until the claim has gone into judgment; and where penalties are disallowed, interest also should be disallowed.</p> <p> Levy to pay deficiency bonds, when not authorized. </p> <p>A levy to pay deficiency bonds issued under an act of legislature for that purpose, is unauthorized where such act does not expressly authorize such levy.</p> <p>(See in connection with this case the foregoing decision by Fra zier, J., in W. &. L. E. Ry. Co. v. Stewart, Treasurer, in Circuit Court of Harrison county.)</p>

<p>Pleading — Departure defined.</p> <p>A departure in pleading is the statement of matter in a replication or subsequent pleading, as a cause of action or defense, which is not pursuant to the previous pleading oí the same party, and which does not support or fortify it. Where therefore, in a quo warranto case, the reply sets up the particular facts which it is claimed show that the defendant company in exercising franchises and privileges which it may once have had, but which it does not now possess, such matter supports and fortifies the petititon, and is not n departure therefrom, and such reply is not demurrable.</p> <p> Pleading in Quo Warranto eases. </p> <p>The rule of pleading in quo warranto cases established by the Supreme Court in 23 Ohio St., 121, before the revision of the statutes by which such proceedings were brought under the code, that where in such cases the defendant pleads an act of the legislature granting to it the franchises named in the information, it is competent for the relator by way of replication to aver cause of forfeiture,and to pray for a judgment of dissolution, was not affected by bringing quo warranto proceedings under the code. It was not intended by the revision substantially to change the mode of pleading in such cases.</p> <p>Quo Warranto.</p>

<p> Postal clerk on train not a passenger under U. 8. laws. </p> <p>1. The plaintiff below, Bishop, was in charge of the United States mails on a train of the railway company, en route from Youngstown, Ohio, to Pittsburgh, Pa., and was severely injured by a freight train colliding with a train on which he was so engaged, in the latter state, caused by the negligence of the conductor of the freight train ; and as a postal clerk on duty is not a passenger under the laws of Pennsylvania and the decisions of the Supreme Court of the United States, and as no recovery could be had under the laws of that state, for such injuries, held : that, by reason thereof, no recovery could be had in the courts of this state for such injuries.</p> <p> Refusal of court to send charges written, without request, on his ■own motion to jury— </p> <p>2. It is not error for a trial judge to refuse to send his charge to the jury on their retiring, where there was no request made to reduce it to writing, although such judge had voluntarily reduced such charge to writing, and had read it to the jury.</p>

<p>Dangerous appliances — One B. B. Co. not obliged to Teeep warning lights for benefit of employes of other B. B. Co. in its yard — What to be shown to hold employer liable for injury—</p> <p>Where an employe of one R. R. Co. working in a yard containing different tracks of two railroad companies, while attending to his duties for the railroad by which he was employed, in cross» ing the tracks of the other company in the night time, fell into an ash-pit located there between the track leading to an engine round-house, but where there was no warning light attached, and of which such employe of the other company had no knowl» edge, the one R. R. Co. is not under obligation to keep a warning signal there for the benefit of the employes of the other company, and was not liable for such injury to one of them by falling into such ash-pit. Whether that company however, did not owe some duty to its employe while obliged to pass the tracks ofthe other company,not decided,but if so, the employe must show that the appliance was defective, (2) that the master had notice thereof and (3) that the employe did not know the defect,and did not have equal means of knowledge with his master.</p> <p> More danger, more care. </p> <p>The fact that the night in question was rainy and misty, and very dark,devolves the duty on the employe to be the more careful.</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>Error to the Court of Common Pleas of Hamilton county.</p>

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

<p>Motion for new trial — When not necessary — Exception to conclusions of law of court only—</p> <p>Where there has been a finding of facts separately from the conclusions of law under the provisions of section 5205, Revised Statutes, a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1-. All that is necessary in such cases is to except to such judgment.</p>

<p> Conductor represents R. R. Co. </p> <p>The conductor of a railroad train, by the law of Ohio, is the representative of the company in the management and control of the train.</p> <p>Same — Liable for conductor's negligence.</p> <p>The R. R. Co. is guilty of negligence where it appears that the conductor in charge of the train failed to acquaint the engineer of the train with certain facts that would have enabled him, and would have then put upon him the duty to exercise a different kind of care than that which he did exercise or feel called, upon to exercise in the light of the facts as he possessed them, i ---</p>

<p>Error to the Court of Common Pleas of Scioto ccunty.</p>

<p>Arrest without warrant— Duty of Police officer — False imprisonment—</p> <p>A police officer is authorized to arrest without a warrant a person who’ he believes is guilty of having committed an offense and to detain ■ him until an affidavit and legal warrant can be obtained; and-where he arrests such person on Saturday, and takes all necessary steps for his trial at the next session of the police court on Monday, and being on Monday detained by important duties, he may suppose that the duties connected with the case of such person will be properly attended to by the officers of that court, and he is not bound to leave more weighty matters and remain, for the purpose of prosecuting this suit, or to see that the affidavits were filed that morning. At least the question should be submitted to the jury,-to determine whether he had been guilty of any unreasonable delay in the omission of any duty which he was called upon to perform in connection with the case.</p>

<p>Representation as to size of lot untrue in fact — Right of purchaser to recover—</p> <p>Where the vendor in selling a lot of ground represents the lot to be one hundred feet in depth, whereas it afterwards appeared that the lot is only eighty feet in depth, and the purchaser was misled and deceived by such representations, he will be entitled to recover damages for the deficiency of ground whether the representations were wilful or innocent.</p> <p>And where such purchaser has already paid the whole purchase price before he discovers such deficiency, he may bring an action for damages, and to recover he need not prove actual fraud on the part of the vendor.</p>

<p>Shooting with intent to kill — Justification Self-defense—</p> <p>1. Where the defendant, charged with shooting another with intent to kill, sets up a justification on the ground of self-defense, it is error to charge:</p> <p>(a.) “That the person making the assault came at the other (the defendant), maliciously, and with every manifestation of endeavoring to kill the person assaulted, and that he was prepared, and manifested the fact that he waé able to carry out this malicious assault. It is only under such circumstances that the person assaulted may use the force necessary, without retreating, ” to kill the assailant.</p> <p>(b.) That the jury must be “satisfied from a preponderance of the evidence,” that the defendant “used no more force than was necessary to repel the assailant, ’ ’ or than ‘ ‘ was reasonably necessary to save his life, or his person, from great bodily harm.”</p> <p>Same — Aggressor—</p> <p>2. Under the facts of this case it was error to instruct the jury to find whether there had been a conflict between the defendant and the prosecuting witness, “and if so, who was the aggressor or the first to make a malicious assault in the conflict;” and that they must be satisfied from a preponderance of the evidence that the prosecuting witness “first made a. malicious assault upon the defendant, and that the defendant did the shooting while endeavoring to defend himself against that malicious assault,” without defining to the jury what was meant by malicious assault.</p>

<p>Receivei — Character of proceeding for the appointment.</p> <p>There can be no action for the appointment of a receiver. It can not be the ultimate relief sought. It is merely an ancillary proceeding. It is exercised by a court to preserve to it property upon which its subsequent judgment may operate. It is in the nature fo an attachment or execution before judgment. It can not be an issuable fact in an action, and a party may obtain all the relief sought, and yet be denied his prayer for a receiver.</p> <p>Prayer for receiver — Right to property by court before actual appointment of receiver. -</p> <p>Where an action is brought in which a receiver is asked for, the court does not obtain such a right to the possession of the property as to preclude another court in a proper case from seizing the property before a receiver is actually appointed.</p> <p> Same, </p> <p>Where the court has not actually seized the property in such proceeding, an assignee of the defendant has a perfect right to take possession of the property under the deed of assignment. ■</p> <p> Receiver before judgment in action at law for money. </p> <p>Where plaintiff’s cause of action is on a note for which he asks judgment, it is not a proper case for a receiver before judgment. The appointment of a receiver in an action at law for money, would be, m effect, granting an attachment, which can not be done. If an attachment is desired, the statute provides in terms how this may.be obtained</p>

<p>Husband and wife — Medical treatment of wife, husband ehargable—</p> <p>A husband is liable to a physician for medical treatment of his wife, in the absence of a special contract to the contrary.</p> <p> Same. </p> <p>Where a married woman sues for damages for injury sustained by defendant’s negligence, expenses for medical attendance by a physician can not be included in the damages, unless it appears that by special contract her husband was not chargeable therewith.</p>

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

<p>False imprisonment — Affiant pointing out wrong person to be arrested.</p> <p>Where one not only swears to the affidavit charging a person with the commission of a crime, but goes with the constable and points out to him the person to be arrested, who turns out to be the wrong person, who thereupon is arrested and imprisoned, the act of the constable is the act of such affiant, and he is liable for damages for false imprisonment to the person so wrongfully arrested.</p> <p> Excessive verdict. </p> <p>Facts under which a verdict forS175.00 for false imprisonment is considered excessive.</p>

<p>Street R. R. accident — Standing on platform, when not contributory negligence.</p> <p>Where a passenger on a street car was injured by an accident caused by the negligence of the employes of the street railroad company, the fact that the passenger was standing on the platform will not be considered contributory negligence where he stood there with the knowledge and without the objection of the conductor, and where his standing there was not the proximate cause of the injury.</p>

<p> Accord and Satisfaction. </p> <p>An accord and satisfaction of a. judgment must be to the full amount of the judgment. If anything less is taken, it must be upon_a ■' consideration that is paid,</p> <p>Appropriation of land by city — Payment of award^in certificate of indebtedness — Requisites.</p> <p>Under the constitution, where land is appropriated for municipal purposes the city should pay to the owner the damages assessed ky the jury in the condemnation preceeding. But where this is not done, but the city gives to the owner a certificate of indebtedness to amount to an accord and satisfaction to relieve the city of liability, it must appear that the owners accepted such certificate with a full understanding and knowledge of what they were doing, and the certificate must be for the full amount of the indebtedness, or for a less amount, the payment of a consideration for the deficiency must appear.</p>

<p>Injunction — Obligors on bond liable on judgment in appellate court—</p> <p>In an injunction case,commenced in the common pleas, but appealed to the circuit court, the judgment of the common pleas court making the injunction perpetual does not end the liability of the obligors on the injunction bond ; but on a reversal by the appellate court of the judgment of the common pleas and dissolving the injunction, such obligors are liable on the bond for the damages sustained by the other party by such injunction, although the appellate court does not expressly find that the judgment was improperly granted.</p>

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

<p>Director of corporation serving as secretary — Compensation.</p> <p>Where directors of a corporation appoint one of their number to act as secretary, he is prima facie entitled to a reasonable compensation for his services as such officer,although there was no express contract made at the time of his appointment that he should be paid for his services, and no compensation for the secretary was fixed in the by-laws of the association, but where the circumstances were such as showed that it was the intention of both parties that he should be paid for his services.</p>

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

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

<p>Oil Lease — Construction—</p> <p>A lease which conveyed to the lessee all the gas and oil in about one hundred acres of land owned by the lessor, the first well to be sunk within three months from date; all wells to be completed within eighteen months from date, and no well to occupy more than one acre of ground, does not mean that the lessee shall have sunk a well on each acre of the tract within eighteen months.</p> <p>Same — Forfeiture—</p> <p>Where the lessee has not sunk all his wells before eighteen months from date, he can not after the expiration of the eighteen months sink additional' wells; but there is no forfeiture, and where the lessor consents to permit the lessee after that time to sink additional wells, and he proceeds to do so, he can not be enjoined by the lessor from going on the land drilling additional wells.</p>

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

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

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

The plaintiff brought suit in the court below against The Central Press Association Company and others to enforce certain judgment and chattel mortgage liens against the property of said company.

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

<p>Partnership — What toitt constitute a partnership, defined — Authorities reviewed—</p> <p>1. Where M., who carries on business under the firm name of M. & Co.,enters into an arrangement with B., whereby B. was to let him have $10,000 in money, receiving therefor M.’s notes, payable to B., with eight per cent, interest per annum, part of the consideration being that B. was to receive one fourth of the net profits of the business, provided that if the net profits should not exceed the amount of eight per cent, on the money loaned, M was to pay eight per cent, on the notes; M. to receive a certain amount for his services in the business, and B. agreeing to endorse paper for the firm to a further amount; Held, that this arrangement constituted B. a partner of M. in the business, and made him liable as such for the firm debts</p>

<p>■Error in boundary line by mutual mistake of parties — No estoppel. When a-property owner accepts the boundary line as pointed out to</p> <p>■ him by the owner of the adjoining property, which turns out to be.erroneous, this is a mutual mistake rather than an agreement between the parties, and such adjoining property owner will not be estopped from afterwards claiming the true line, the question of adverse possession for twenty-one years not intervening.</p> <p>Same — Evidence—Notes of deceased, surveyor.</p> <p>Boobs and papers and the field note of a surveyor who made the original survey,.but since deceased, are competent evidence to establish the true boundary line.</p>

On appealfrom the Court of Common Pleas of Hamilton County! Prior to January 26th, 1891, Laist & Hochstetter had made contracts with plaintiffs for the purchase of glycerine to be shipped from France in equal monthly installments during the months from December 1890, to March 1891Jin-clusive, to be delivered free on board at New York on arrival, and to be paid for by giving notes for sixty days, after arrival. .

<p>Irespass — Damages—Limitation.</p> <p>1. Where a wrongful act, causing immediate damage, is committed, and such act is not a continuing one, the right of action for the damages ensued is barred in four years from the commission of such wrongful act.</p> <p> Increase of damages by grantors failure to avoid it. </p> <p>2: If the plaintiff, by his negligence or failure to use ordinary care to prevent the consequences of the defendant’s wornfgul act, allowed the damages resulting to be unnecessarily increased, he cannot recover for such increased damage which might have been avoided by his exercise of ordinary care.</p>

<p>Release — Consideration necessary.</p> <p>To constitute a good release, a consideration is necessary.</p>

<p>Bill of Exceptions — Motion for rehearing not disposed of within fifty days after judgment.</p> <p>Where a bill of exceptions is taken at the trial of the case, and after judgment, a motion to re-hear the case is made, and the entry of the judgment also provided that a bill of exceptions should be taken and filed, and the motion for re-hearing is disposed of more than fifty days after the judgment, the bill of exceptions taken at the trial of the case can not be filed any more, and if filed must be stricken from the files.</p>

<p>Statute of limitations — Cause of action arising by statute as well as by agreement of parties.</p> <p>Where a liability arises by statute as well as by special agreement of the parties, on either of which action might be brought,the limitation — which in one case would be ten years and in the other fifteen — should be uniform, and should be based upon the longest term given by the statute of limitations to bring the suit.</p> <p>(See the decision of Judge Pugsley in this case, in the Common Pleas, 4 Nisi Pr. Rep. 73.) out of repair and dangerous, the R. R. Co. has the same right as the city to close the bridge although it constitutes part of the public street.</p>

<p>Control of streets — JR R. Co. may close bridge which it has to maintain—</p> <p>Where it is the duty of a R. R. Co. to erect and maintain a bridge in a street under which its road is passing, and such bridge becomes [copyright, 1897, by carl g. jahn. ]</p> <p>Contributory negligence — Dangerous appliance — Notice to employer — Pleading.</p> <p>Where a bridge crossed by a street railroad became dangerous, and the employes of the Street R. R. Co., informed the officers of the company of the fact, and were assured by these officers after having made an examination of the bridge, that it was all right and safe and that they should continue to pass it, such employes had a right to rely on such assurance by the officers of the company; and the rule, that the petition for damages should state that the officers promised to repair the defect and that the employe relying on such promise continued his work, does not apply to such a case where the officers claim that no defect exists.</p> <p> Insufficient instructions as ground of error. </p> <p>Where a party considers the instructions of the court on a certain question insufficient, he should call the court’s attention to the fact and ask for further instructions. But having failed to do so, he can not afterwards claim error on account of the insufficiency of such instructions.</p> <p>Action for causing death — Measure of damages</p> <p>Under the provision of the statute that the jury shall give such damages for causing death as are proportioned to the pecuniary injury of the next of kin, the jury need not base their verdict on fixed mathematical tables, and the court has no right, in deciding a motion to set aside the verdict as excessive, and to apply to the verdict rules from any table of probability of life etc.</p>

<p>Hard Law constitutional — Proper fee accordtng to the amount of property of the corporation owned and used in Ohio.</p>

<p>Measurement of excavation. — The curb of the street can not be taken as the point from which the measurement of excavation for a cellar should be made where the contract does not provide for it and the relative position of the line of the curb and the surface line of the ground does not appear in the evidence.</p>

<p>Public contract — Right to reject bids — Where advertisement for bids for public work is required, the board of education has power by the statute to refect bids.</p>

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

<p>Error to the Court of Common Plesa of Luoas county.</p>

<p>Fraudulent purchase — Insolvency of buyer.</p> <p>While a purchase of goods by an insolvent vendee who conceals his insolvency, with the intent to injure the vendor, is fraudulent, and voidable, yet a purchase under like circumstances,but where such intent is absent, is not, in law, fraudulent. The simple failure by the vendee to disclose his insolvency, is not equivalent to its concealment.</p>

<p>Lessor and lessee — Lessee can not dispute lessor’s title.</p> <p>A tenant is not permitted to dispute tbe title of the lessor under which he is in possession. If the tenant acquires a good title from a third party, he can not set his title up against that of his lessor.</p> <p>Same — Title acquired by delinquent ta<p sale.</p> <p>But where the lessor has failed to pay the taxes on the land, and the land is sold for delinquent taxes, and the tenant acquires title to the land under such sale, he may set up such title against his lessor. The lessor may however controvert the vality of such tax title.</p>

<p>Admission of testimony out of order — Discretion of Court.</p> <p>It rests in the sound discretion of the trial court to allow the plaintiff to introduce further testimony after he has rested and the defendant has moved to arrest the evidence and for judgment in his favor.</p> <p> Servant hired by husband, but wife expressly agreeing to pay wages —Liability on separate estate. </p> <p>Where the husband employed a servant he was primarily liable for her wages, but his wife afterwards expressly promising her to pay her wages, the wife will be liable for the same on her separate estate.</p>

<p> Part of wages exempt from execution, applied by husband to pay off debt on house of wife, can not be subjected by his creditors. </p> <p>Where a working man,having a family, whose wages are exempt from execution, regularly every month pays to his wife part of the same saved by him, to be by her applied to the payment for a house, the title to which stands in her name, the interest so acquired by him in such house can not be subjected.'by his creditors to the payment of their claims.</p>

<p>Drainage over other’s land — Easement—Gan not he enlarged hy beneficiary without consent of land owner.</p> <p>Where one land owner grants to the other the right to drain his land over that of the other, such easement can not afterwards be enlarged by the beneficiary by draining privy vaults over the other’s land which at the time was not contemplated by the parties.</p>

<p>B. B. Crossings above grade of road — Approaches to track — What sufficient.</p> <p>Under Sec. 3324 Rev. Stat., which provides that R. R. Companies-f‘shall construct, or cause to be constructed and maintained at every point where any public street, lane, or highway, used by the public,crosses such railroad,safe and sufficient crossings,” where the grade of the R. R. track is higher than that of the road, the approaches need not be built by the railroad company so far on both sides of the crossing that there would be practically no. incline on the apporaches, so that the approaches are brought practically to a level with the railway crossing. They had a right to make inclines, and where the inclines as made by the railway-company in a safe and sufficient manner for all the ordinary and-regular purposes of travel, that is a sufficient compliance with, the statute.</p>

<p>Suit on injunction bond — When not maintainable.</p> <p>Where the party was compelled to resort to a court of equity to obtain relief in regard to matters that could not be set up as a defense in an action brought against him, and until that question could be settled, the parties should remain jin the position in which they were at the time, an injunction is rightfully issued,and a suit on the injunction bond can not be maintained.</p>

<p> Sale of goods, tuhen complete and goods at risk of purchaser. </p> <p>Where in carrying out a contract for the sale of goods and chattels the inventory of the stock of goods had been made and the price had been fixed, as provided in the written contract, and all things provided in the contract to be done by the seller in reference to the goods except the delivery thereof had been done when the goods are destroyed by fire while the defendant was holding the property ready to deliver the same on being paid the purchase price thereof, including the money, notes and chattel mortgage to be paid and delivered oy the purchaser for the goods, and such fire and destruction was without the fault or negligence of the defendant, then the property was held at the risk of the purchaser.</p> <p> Same. </p> <p>% j.The payment of the money and the execution and delivery of the notes and mortgage for the balance of the purchase price of the property were acts to be done by the purchaser, and not by the seller, and the same were not necessary to be paid and done to cast the risk and loss of the property cn the purchaser, provided all things to be done by the seller in reference to the property had been done, and that he was holding the property ready to deliver the same on receipt of the money, notes and mortgage, at the time of loss and destruction of the property.</p>

<p>Appeal — Amendment of petition on appeal.</p> <p>Where a suit is'brought in the Common Pleas to subject the interest of defendant in real estate to the payment of a judgment against him, his interest being described as a dower interest, and on appeal to the Circuit Court, leave to amend the petition is obtained, and an amended petition is filed there in which defendant’s interest is described as the whole estate held in trust for defendant to defraud his creditors, held, such amendment is admissible, and the appellate court will retain jurisdiction of the case.</p>

<p> Purchaser 'of land without notice of third party’s claim to part of purchase money. </p> <p>Where two parties agree that each should have one half of the profits realized from the sale of some land, the purchaser can not be held by either for his share of such profits where no knowledge on his part of such agreement is shown.</p>

<p>Building Association — Agreement to loan money as building progresses — Money can only be paid by direction of borrower.</p> <p>Where a Building & Loan Co. makes arrangements to loan to a party the money for building a house, the money to be paid as the work progresses, as he would direct, the money can only be paid to the parties designated by him, aDd not as the contractor for the building designates.</p> <p>Mechanic’s Lien — Mortgage to third party at bcontractor’s reguest as payment — Binding on subcontractors.</p> <p>The acceptance, as part payment by the contractor, of a mortgage, executed on the property to one of his creditors by the owner, at such contractor’s request, is a valid payment pro tanto as against the sub-contractors and laborers.</p> <p>' Attorney fee payable on foreclosure— When not chargeable to mortgor.</p> <p>Where the mortgage executed to the building association provides that in case of foreclosure the mortgagor shall pay $30 attorney fee to such association such fee can not be charged a mortgagor who is not in default on any of the conditions of the mortgage, where the expense is incurred by the building association in attempting to maintain a claim which by the court is decided invalid.</p>

<p>Notice of appeal — When to he made.</p> <p>Under the statute of 1892, the notice of intention to appeal mush be entered upon the record within three days from the time of the entering of the decree, and a bond must be filed within thirty days from the rendition of the decree.</p>

<p>Insurance agent is agent of company — Sec. 3644.</p> <p>Where a insurance agent applies to another insurance agent to procure a certain insurance in his company, under the statute sec. 36áá both agents are to be considered the agents of the insurance company.</p>

<p>False Imprisonment — Action for damages for — What will not be' considered ‘‘ ‘proceeding under advice of counsel” as will amount to a defense—</p> <p>Stating to counsel only such facts as are necessary to draw the affidavit is not such proceeding under advice of counsel as will be-a defense in a suit for damages for false imprisonment.</p> <p>Same — Verdict for defendant not maintained by the evidence—</p> <p>Where the fact as developed in the evidence clearly show want of probable cause and that the arrest was procured wrongfully and merely for the purpose of intimidating the plaintiff, a verdict for the defendant will be set aside as not maintained by the evidence.</p> <p>(Decided February, 211895.)</p>

<p>General Index of Records — Compensation to Recorder must be allowed by the County Commissioners.</p> <p>The compensation payable to the County Recorder for keeping the general indexes under sec. 1155, is payable to him only on the allowance by the county commissioners.</p> <p>No officer to fix his own compensation — Public policy.</p> <p>It is contrary to public policy of this state for any officer to fix his ■own compensation or the amount due him for his services.</p>

<p>Surety — Notice to creditor to bring suit — Creditor' not bound to go. out oj state to sus.</p> <p>The true construction of Sec. 5833, Rev. St., which provides that a surety may require a creditor by notice in writing to commence suit to collect the debt from the principal, and to make the judgment therefor from the principal by execution, is that the creditor must proceed in the courts of this state to bring such suit. But such creditor is not bound to go into another state to bring such suit.</p>

<p>Insurance policy — Statements in application correctly stated by applicant., but erroneously written dawn by agent himself— Question for jury—</p> <p>Where in a suit on a fire insurance policy the defensa is set up that the facts stated in the application as to encumbrances were not correctly stated, and the plaintiff denies fraud and claims that the facts were correctly stated and well known to the agent who wrote them in rhe application himself, this would entitle him to a recovery, and the question whether this was so should be submitted to the jury.</p> <p>Policy on building and personal property,-when severable—</p> <p>A policy insuring the buildings ápd the personal property in two distinct items and amounts, is severable, and if the insurance fails as to one, may be good as to the other.</p> <p>Cross-examination of witness — Limits—Rule in Ohio—</p> <p>The law in Ohio in regard to cross-examination of witnesses is somewhat different in different parts of the state. The practice in a large portion of the state is to require counsel upon cross-examination, to limit himself entirely to the cross-examination of such matters as have been referred to by plaintiff m his examination in chief; but the rule in the sixth district has been, to allow the defendant to cross-examine the plaintiff’s witnesses upon anj matters at issue upon which the plaintiff himself might produce testimony, — with this limitation or qualification, that the defendant shall not be permitted'to go into matters of defense in his cross-examination of plaintiff’s witnesses. And that is the rule laid down also by the Supreme Court.</p> <p>Cross-examination on new mattez'not in issue — ■</p> <p>An insurance company can not cross-examine plaintiff’s witnesses as to matter not opened in examination in chief, nor which would constitute a defense to an action on the policy, but is not set up in its answer, and therefore not in issue.</p>

<p>Defective side-ivalk — Injury— Testimony as to the condition of walk on next day.</p> <p>In an action against a village for injury caused by a defective sidewalk, a description of this walk by a witness who examined it the next day after the accident, may be competent where there is no indication of a change in theside-walk since the accident, and the description agrees with other descriptions by witnesses who saw it on the day of the accident.</p> <p> Non-professional witness as to state of health. </p> <p>Under the rules laid down by our supreme court, it is not incompetent for a non professional witness tp testify as to the general state of health of a party, although it would be incompetent for such witness to go into detail and determine the technical disease with which a party was afflicted.</p> <p>' Evidence — Evidence of statements contradicting ivitness’s testimony —Not admissible unless ivitness has been first examined as to such statements.</p> <p>Where in such action the defense is that plaintiff suffered before the accident from the same complaint which she claims was caused by such accident, and the depositions of a physician are produced who claims at that time to have treated her for such complaint, witnesses were introduced to testify that such physician at that time, had stated that plaintiff was suffering of a complaint of a different nature. Held such testimony was not admissible unless the physician was first asked in his examination whether he had made such statements, and the fact that his testimony was introduced in depositions and he was not accessible at the time of trial to be called to the stand, does not alter the rule.</p> <p>Physician’s statements — When not part of res gestae</p> <p>Held further, that it not appearing that such alleged statements were made by the physician in connection that any particular act while treating-the plaintiff at the time, they did not constitute part of the res gestae.</p> <p> General principles given in charge to jury. </p> <p>Care must be taken about giving generally correct principles in particular cases. So, in this case the charge was: — “It was the legal duty of the village of Monroeville to keep the side-walks in said village in repair, so as to be in a reasonably safe condition for pedestrians or persons walking upon said side-walks, both by night and by day; and a failure or neglect to perform that duty renders the defendant liable for all damage directly _ resulting from such failure.” The first part of that proposition is correct; while the latter part of it is too general as applied to a particular case.</p> <p>Contributory negligence — Question whether plaintiff’s evidence shows on his part, for jury.</p> <p>Where the evidence produced by the plaintiff to establish negligence on the part of the defendant by reason of which she was injured shows or suggests contributory negligence of the plaintiff, it becomes incumbent on the plaintiff to prove absence of contributory negligence on his part. But the question whether plaintiff’s evidence shows or suggests contributory negligence, and whether in consequence the burden to disprove the same falls on the plaintiff, must be left to the jury.</p> <p>Same — Duty to avoid defective side-walks.</p> <p>In such case a instruction that ,if the plaintiff had had equal opportunity with the village authorities to know the condition of the side-walk at the place where she fell, she is held to the same degree of care to avoid injury as the village is bound to exercise, and if by the exercise of ordinary care, plaintiff could have easily avoided danger by passing along the north side of the street, or if by the exercise of ordinary care, she could have passed along the walk where she fell and avoided falling, the verdict should be for the defendant, is erroneous.</p> <p>Same — Patent defect in side-walk — Duty of care.</p> <p>Where a person of ordinary intelligence would have seen the defect in side-walk, and that it was unsafe to’ go there, and notwithstanding that the plaintiff did attempt to go there, the presumption would arise that the plaintiff was guilty of negligence in attempting to go there; and it would then become incumbent for plaintiff to show an excuse why she did go there.</p> <p>Side-walks — Primary duty of village to know their defective condition.</p> <p>It is the duty of the village authorities to keep the side-walks in re- - pair and save condition, and a citizen is not under equal obligation to know of the defective condition of the side-walk as the village authorities.</p>

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