Volume 14 — Ohio Circuit Court Reports

<p>Manufacturing corporations may become members of Building Associations to borrow money for their legitimate business — Where the statute under which a corporation is incorporated provides that “it shall not be lawful for such company to use its funds in the purchase of any stock in any other corporation, ” the funds spoken of are the money of the company, and that statute is not intended to limit the power of the corporation to become a member of a building association organized under our laws to borrow money from the same to carry out its legitimate business. But if it had not such power, still, having borrowed the money, and received its benefits, and having contracted and agreedto pay it back, and also agreed that it should be a lien upon its property, that contract a court of equity will execute, and will not listen to the plea of the manufacturing corporation after it had used the money, much less to that of another general creditor, that the corporation originally had no power to borrow.</p>

<p>Exceptions to conclusions of law — Motion for new trial not necessary.</p> <p>When there has been a finding of facts separately from the conclusions of law under the provisions of Sec. 5205, Rev. Stat., 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>Mandamus against school board to award contract for furnishing heating apparatus — What plaintiff must show. — A bidder for a public contract, to be entitled to a writ of mandamus to have the contract awarded to himself,must show that according to the law he is the party with whom the contract should be made, regardless of the rights of anybody else; and he can not rely on the weak- , ness, informality or irregularity of the bids of others, or on the proposed irregular action of the respective public body with reference to anybody else.</p> <p>Alleged proposed wrongful action of sehool board no ground for mandamus— The fact that the school board is about to let a contract to a party who has not complied with the law, is no ground for the claim of another bidder who has coihplied with the law, that the contract must be awarded to himself.</p> <p>Offer of patented heating system — Separate offer for material and labor. — Where aboard of education advertises for bids for heating and ventilating a school house, bids which offer systems of heating and ventilating covered by patents and proprietary rights, need not separately state the costs of material and labor, but may be given in a lump sum, under section 794, Revised Statutes.</p> <p>Discretion of board in selecting system can not be controlled — The discretion of the board of education in such case can not be controlled either by a writ of mandaums, or by an injunction, in selecting any apparatus that is in the control of a single individual or firm. Such bids are not competitive.</p>

<p>Change of venue in criminal case — “Costs” to be repaid — Cost of impaneling Jury — The “costs” of the case, which the county wh indictment was found has to re-pay to the county to w ich the case has been removed for trial, as provided by section 7264, Revised Statutes, do not - include the expenses incurred for securing a jury to try the case— Section 7264, Revised Statutes, construed.</p>

<p>Interpleader — Interest chargeable where money not paid into court. Where a party files an interpleader, but fails to pay the money into court, such party ought to be charged with interest up to the time of such payment.</p> <p>Sub-contractors and mechanics — Claim to fund in hands of owner —Orders thereon — Equitable assignment.</p> <p>Where sub-contractors and mechanics set up several claims against a fund in the hands of the owner of the building, for material furnished and work done thereon, some having orders and others not. while these orders, written or verbal, may not be of the force and effect of an equitable assignment of a part of the money, so as to authorize an action on the part of the holder of an order directly against the drawee for the payment of the money, yet the holders should be entitled to some rights superior to those of the other claim holders who have not such orders.</p>

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

<p>Contract for use of street by city with railroad — Limit of power—</p> <p>It was not the intention of the legislature, by the statute which authorizes public authorities controlling streets and highways, to contract with railroad companies for the use of such streets and highways to a certain extent, that streets and highways should be abandoned and surrendered to railroads, and to deprive the public of the use of the same farther than was necessary.</p> <p> City holds streets in trust for public— </p> <p>Streets and highways are held in trust,and the officers having charge of them are trustees for the public and are exempt from liability because they are trustees only. The road system of the state is a part of the state.</p> <p>Same — Streets cannot be destroyed or abandoned by contract ivith railroad—</p> <p>Such trustees under the public policy of the state are not authorized to destroy a street in aDy way not necessary for the good of the public, aDd they can not abandon it except in the way pointed out by the statute for that purpose.</p> <p>Same — Such contracts are for use by railroad and public in. common—</p> <p>City authorities m their contract with a railroad company for the use of a street which can be used both by the railroad and .the public, can only grant to the railroad the use of the street in common with the public.</p> <p>Same — Construction of such contract — Such use as railroad “ deems necessary”—</p> <p>The grant of the use of a street by a city to a railroad “as such railroad should deem it necessary and expedient,” means such use as is reasonably necessary and expedient for the railroad, with due regard for the convenience of the public.</p> <p>Same — Use of street by railroad excluding public, by railroad’s failure to restore street — Title by limitation—</p> <p>A grant of the use of a street by city authorities to a railroad, under the statute authorizing contracts to that effect, is a grant of the use of the street in common with the public; and the fact that the street in question was unimproved and little used at the time; that the railroad made a cut in it and through a street crossing therein, and on such crossing erected fences on both sides of its tracks to prevent people from falling into such cut, which prevented the.use of such crossing by the public, without any other notice to the city or public that it claimed the exclusive use of such crossing, and its failure to restore the street, although continuing for more than twenty-one years, will not establish the claim by the railorad company to the exclusive use of such crossing by limitation.</p>

<p>Possession of land by railroad company— Verbal contract with owner as to compensation — Failure of promise — Suit for compensation — Statute of Limitations.</p> <p>1. Where a railroad company has taken possession of land for its right of way, and incorporated it as part of its permanent railroad track, with the verbal consent of the owner, on condition of compensation verbally promised but refused and not performed, and without appropriation proceedings and without any agreement in writing with the owner, the owner may. either bring his action in the probate court to compel appropriation under sec. 6488, Rev. Stat., within twenty-one years from the time of such occupation by the R. R. Co., or he may tender conveyance to the R. R. Co. and bring an action for compensation in the Common Pleas within six years from the tender of the deed.</p> <p>Same — In an action for compensation in common pleas, Damages to remaining land not recoverable—</p> <p>If the owner choses his remedy by action for compensation in the common pleas, he can oniy recover compensation for the land taken, and no compensation for damage to his remaining land. Damages to remaining land can only be recovered by action in probate court to compel appropriation.</p> <p>Same — Compensation—Value to be taken at time of tender of deed.</p> <p>To fix the compensation, the value of the land occupied should be taken as of the time when the deed was tendered.</p>

<p>Equitable conversion of realty into personalty in cases of testamentary disposition of real property — When doctrine applies.</p> <p>The doctrine of equitable conversion of realty into personalty, in cases of testamentary disposition of real property, appiles where the will directs the executors to convert the realty into money' and distribute the proceeds, without leaving any discretion with them whether to sell or not. Held, therefore, that a provision in a will as follows:</p> <p>“Further, should I not while living dispose of my Toledo property, I wish that my executors shall dispose of it, investing the net proceeds thereof, the same to be placed in the hands of .Anna ¡J. Huidekoper, trustee, and be devoted to beneovlent purposes. To her I will give full directions concerning it.</p> <p>“Fifth. (And this paragraph should be read in connection with the former :) I authorize my executors, or the survivor of them to sell or convey as opportunity offers, my real estate in the city of Toledo, Ohio, or any I may acquire in other states.”</p> <p>Such will does not contain such an imperative direction to sell as to make the doctrine of equitable conversion applicable to this case.</p>

<p>Evidence — Other transactions not connected with the one sued on, incompetent—</p> <p>In an action on a written contract for the sale of a book,where the defense is, that the contract is fraudulent and defendant’s alleged signature thereto a forgery, itls error at the trial to admit evidence intended ,to show that the plaintiff had transactions.of- a similar unsatisfactory and fraudulent.nature with other parties,- where such transactions are in no way connected with the one in suit,and there was no proof that the persons acting therein were agents or representatives of plaintiff.</p> <p>Suit infirm name — What necessary — Waiver—</p> <p>A partnership to be authorized to bring an action in its firm name, must in its petition make the necessary averments required by sec. 5011; Rev. Stat., that it is a partnership formed for the purpose of doing business in Ohio. But this is an objection that may be waived, and where the defendant fails to take advantage of the omission of such averment by proper pleading, the objection is waived 'and can not be made for the first time at the trial of the case on error.</p> <p>Same—</p> <p>Whether the objection may be raised hereafter in the court below to which the case is remanded-for new trial on the reversal of its first judgment, not decided.</p>

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

The suit was to enjoin the collection of taxes on additions of $35,760 and $20,000, made to the plaintiff’s tax return for the year 1892, under the Rawlings Law, (sec. 2742, Rev. Stat.,) by the Board of Review, sitting as a Board of Equalization. The hearing belcw was on demurrer to the petition,which was.sustained by Judge Sayler,in an opinion holding the'law constitutional.

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

<p>Act of April 27, 1896, (92 O. L. 748), unconstitutional—</p> <p>The act of the General Assembly, passed April 27th, 1896, vol. 92, page 748, Ohio Laws, which provides that in all counties which by the federal census of 1890, have a population of 30,617, nor more than 30,900, any money arising from the tax on oil wells, drilled or hereafter to be drilled, shall be collected by the treasurer of the county as other taxes are,and be returned to the~township treasurer, where said oil wells are located, in any sum not exceeding $2,500 per annum, to be used as a road fund in any such township, is unconstitutional.</p>

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

<p>Endorsement of note by one “as agent” — Effect</p> <p>1. Where an agent makes a promissory note, signing-the same by Ms name “as agent,” he is liable as maker of the note,notwithstanding the fact that that the payee knew he was acting as such agent at the time.</p> <p>Same — Parol evidence inadmissible to relieve endorser “as agent” of personal liability.</p> <p>2. The addition of the word “agent” to his name by the endorser of a promissory note, without anything- else on the instrument indicating his principal, does not relieve him from personal liability as endorser, and parol evidence is not admissible to vary the legal effect of such endorsement v or to explain the endorser’s signature by showing that he actually acted as the agent of another, and that the endorsee was aware of the fact of such agency.</p>

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

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

<p>Porrection of mistakes — Power of courts—</p> <p>1. Mistakes of whatsoever kind or nature will be corrected and relieved against in courts possessing arid exercising general equity powers and jurisdiction, by decree reforming the instrument or deed into which the mistake has been carried, or otherwise, wnether the transaction in which it occurred, is between private ■ persons, or is a judicial proceeding, whenever it is made clearly manifest, by competent evidence, that a mistake has occurred, that all the parties concerned intended otherwise, and -the probable effect of such mistake will be injury to one of the parties to the transaction, and its correction will do no harm to either, or to innocent third persons.</p> <p>Tax title — Burden to prove validity of proceedings on holder—</p> <p>•2. An auditor’s deed to a purchaser of lands or lots at a delinquent tax sale, carries with it no presumption of validity. The presumption is to the contrary; and a person asserting the validity ■ of such instrument, and claiming title under it, has the burden of showing the regularity and legality of the proceedings on which it is based, in every minute detail, from the valuation of the property for taxation, to and including, the sale; arid the least irregularity or defect in any of the steps required to be taken, is fatal, and renders-the deed unavailable to cast title.-</p> <p>Life tenant, can not acquire title by buying in the estate on lax sale after his delinquency to pay the taxes—</p> <p>3. The owner of an estate for life, in possession of lands or lots, who makes default in paying current taxes, so that the lands or lots, become delinquent and are offered for sale at delinquent tax sale cannot enlarge such life estate, or in any way increase such interest, by becoming purchaser at the sale, or by the receipt of a deed therefor from the auditor. Such transaction would be in substance, in fact and law, only the performance of a plain duty ■ in the proper payment of taxes by the ovner.</p>

<p>Oil and Gas-Lease — Forfeiture—Duty of lessee to develop—</p> <p>Where a land-owner gives a lease for all the oil and gas under his land, the lease providing that the lessee should pay $160.00 a year for every year he failed to operate under the lease, without other provisions as to forfeiture, it is the duty of the- lessee not to delay the development and operations under the lease for any unreasonable length of time, and if there is unreasonable delay., the lessor may insist that the lessee either sink oil wells, or aban- ■ don the premises, notwithstanding the payment of $160.00 every year. But if the lessor fails to avail himself of such unreasonable delay to forfeit the lease until after the lessee has again, with his consent, commenced operation's and sunk wells on the land, the right of the lessor to insist on a forfeiture for the previous unreasonable delay, is waived.</p>

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

<p>Fire insurance — Total loss — Insurance company bound for full •amount named in policy, although there is concurrent insurance—</p> <p>1. Where there is a total loss of a building or structure, an insurance company is bound under sec. 3643, Rev. Stat., to pay the full amount of insurance thereon designated in its policy, although there may be other concurrent insurance by other companies thereon,and in such case a provision in the policy that the question of the amount of the loss shall be submitted to and determined by appraisers, is of no binding force.</p> <p>(The court dissents from the decision of the Superior Court of Cincinnati, in Cincinnati Coffin O. v. Ins. Co., 7 Weekly Law Bulletin, 342, and calls attention to a typographical error in the revision of 1880,of the statutes, involving a material change from the original law as passed and found in the sessions laws, and the court disregards said change.)</p> <p>Total or partial loss question for jury—</p> <p>2. The question whether the loss was total or partial is for the jury to-determine.</p> <p>Total loss defined — Insurance of fish-houses, additions, foundations and docks — Dock part of structure — Loss total though part of dock unconsumed—</p> <p>3. A loss may be total although part of the structure may not be consumed by the fire. Where a fish-house,-additions, docus and foundations constitute a single structure, and are insured as a single structure by a“blanket” policy, and a fire consumes all of the structure but a part of the dock, which is left intact, but is ■of no use or value as it stands, and it appears that to rebuild the whole structure it would be necessary to tear down and remove -such part of the docu remaining, and that the cost of such removal and replacement of such unconsumed part of tüe dock would exceed in amount the value of the materials therein that •could be saved and used in such rebuilding, and the value of such materials for any use, is Jess than the cost of saving and utilizing the same, the loss is total.</p>

This was an action by Oskamp, Nolting & Cj., in the Ross county common pleas, to recover $562.50, the value of diamond ear-rings and pins, which they allege the Express' Co. received from them about March 15, 1895, and was in possession of at Hopkinsville, Kentucky, as a common carrier for hire, for the purpose of delivering to one T. M. Jones,, in that place, and which at that date, they aver, it wrongfully converted to its own use “ by delivering the same to-parties…

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

<p>By the provisions of a will, a life estate in certain real estate was devised to five parties named in equal proportions, the will providing that no partition during the life or lives of any of such life tenants should be made unless it could be done without a sale of the land. Suit for partition being instituted - by one of the life tenants, a decree therefor was granted and commissioners appointed by the court to make partition, who reported that the land could not be aparted, and should be sold. The other co-tenants, defendants in the suit, thereupon asked leave to file supplemental answers setting up the provision of the will against a sale i‘n partition of the land during the life oí any of the co-tenants. The granting of such leave being resisted, on-the ground that it was then too late to set up this defense after the matter had been heard and adjudicated by the court and a decree for partition made. Held: that it was discretionary with the court to permit the filing of such supplemental answers, although the right of the court to order a sale might be resisted when an application is made to the court to order a sale.</p>

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

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

<p>Juror --Opinion formed or expressed — Examination—What required—</p> <p>1. The manifest purpose and intent sec. 7278 of the statutes, in that part of it which explicitly requires the court, when a juror says that he has formed or expressed an opinion, to examine hinras to the grounds of his opinion, is, that the court might then ascertain how the juror reached his conclusion ; whether it was on mere rumor and hearsay and not founded on any substantial basis, orín some other way, and in such manner as would render it difficult for any man, however honest he might be, to lay aside the opinion before formed, particularly if the facts testified to before the jury, should substantially agree with what he had before heard and on which his opinion had been founded,and the effort of the court should be to have this clearly appear. And a limitation of the examination of the juror by counsel for defendant to ascertain the weight of his opinion, is improper.</p> <p> Evidence— Conversations of prosecuting witness with third parties. </p> <p>2. Testimony as to a conversation by telephone between the prosecuting witness and his agent, in the absence and without the knowledge of the defendant,are incompetent.</p> <p>Conspiracy — Evidence as to guilt of co-conspirator not admissible before proof tending to show conspiracy.—</p> <p>3. When a conspiracy is charged, it is error for the court, in the trial of one of the alleged conspirators, to admit testimony tending to show the guilt of the other (jointly indicted with the defendant on trial,) of the crime charged against both of them, and also conversations had by other persons with such alleged eo conspirator in the absence of the defendant on trial, without at all connecting him therewith, and before there was any proof tending to show any conspiracy between the two to carry out the alleged scheme.</p> <p>Order of testimony — Discretion of court — What required.—</p> <p>■4. While the order in which testimony shall be introduced, must of necessity be largely in the discretion of the trial court, yet this should be a legal and proper discretion, and such course should be pursued as should not prejudice the rights of the parties. Evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can not properly be received against, him, until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.</p> <p>Charge of crime committed — Proof of conspiracy to commit the crime not sufficient under said charge.—</p> <p>5. Where the charge in the indictment is not that the defendant entered into a conspiracy to commit the crime, but that the crime was in fact committed, proof that the defendant had entered into a conspiracy with one or more persons to commit the crime, . would not, of itself, justify his conviction under the indictment; there must be an actual accusation, and this must be proved by the state before the defendant could properly be convicted.</p>

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

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

<p>Imprisonment — Legal although defendant upon sentence goes to sheriff voluntarily without being taken into custody—</p> <p>Where the defendant in a criminal case is present under bail at the time the sentence is pronounced, and without being in custody of an officer, repaired to the office of the sheriff and was there taken in charge by the sheriff and imprisoned in accordance with the sentence, the imprisonment is legal although the defendant was not .turned over to the sheriff in open court, and the sheriff had no written authority to imprison the defendant.</p> <p>Discharge of indigent prisoner unable to pay fine not to be refused because relatives are able to pay — Sec.. 1028, Rev. Slat.—</p> <p>Where the sentence is for imprisonment and payment of a fine and costs, the defendant to stand committed until'line and costs are paid, and at the expiration of the term of imprisonment the defendant is without any means to pay the fine and costs and makes application to the county auditor,under sec. 1028, Rev. Stat., for his discharge on that account,and the auditor finds that the term of the sentence has expired and that the fine and costs can not be collected from him, and that a refusal to discharge until the penalty is paid, will not render the collection probable or possible, the auditor should not refuse to discharge him on the ground that some of the defendant’s friends are able to help him, and may at some indefinite time do so if the defendant is kept in prison.</p> <p>Same — Proper remedy—</p> <p>Sec 1028 Rev. Stat., is not mandatory and does not specially enjoin upon the auditor the duty to release the defendant under such circumstances, and the proper remedy of the defendant to secure his discharge is not by mandaums. but by habeas corpus.</p> <p>Pine payable to state can not be released by county commissioners—</p> <p>A fine imposed by a court on a defendant in a state case, although payable into the county treasury to the credit of the general county fund, is not a debt due the county, and is not a subject for compounding or releasing by the county commissioners.</p> <p>Sentence must be complete—</p> <p>A sentence in a criminal case must be so complete as to need no construction of a court to ascertain its import, so' that the offender may not have to look between the lines for its meaning, and it cannot be supplemented by a non-judicial or ministerial officer.</p>

<p>Quo Warranto against municipal corporation—</p> <p>Whatever may be the rule in other states, jurisdiction in quo warranto does exist in Ohio to oust a municipal corporation assuming to exercise a franchise not conferred on it by law.</p> <p>Sec. 6789 — Limitation as to time applies to the state, also provided, in sec. 6789. Rev. Stat.</p> <p>The limitation provided in sec. 6789, Rev. Stat., as to the time within which such proceeding may be instituted, applies to the state also.</p> <p>Same — Limitation applies to officers elected or appointed under unconstitutional laxo—</p> <p>Where a municipal corporation can not be ousted from the exercise of a franchise which it is exercising under an alleged unconstitutional act, on account of the limitation of time within which the proceeding in quo warranto to that effect can be brought under the provisions of sec. 7689,Rev. Stat.,officers elected or appointed under such act to perform the duties imposed thereby can neither be ousted, and the official acts of such officers can not be attacked in a proceeding of quo warranto.</p> <p>Officers under unconstitutional law—</p> <p>The official acts of officers acting in an office created by an unconstitutional law, are acts of de facto officers until the statute has been declared unconstitutional by competent judicial authority.</p>

<p>Vacation or modification of judgment or order as meant under ■see. 5394, Rev. Stat. — Order sending case to jury on default of defend•ant for plea.—</p> <p>Where m an action for the recovery of specific personal property and for damages, the defendant is in default for pleading,and the court thereupon finds, that the allegations of the petition are therefore confessed to be true,and orders the case to a jury to assess the damages; and afterwards, after the term, th6 court, on motion of defendant, sets this entry and order aside, and grants leave to defendant to file an answer, there being no judgment for the recovery of the debt or anything, such an order is not of such character as can only be vacated or modified after the term by a proceeding under sec. 5354, Rev. Stat.</p>

<p>. Locomotive operated by engineer alone in absence of fireman— Injury of brakeman by falling before moving train on side other than from where engineer is looking out. —Negligence of R. R. Go. in operating engine insufficiently manned.—</p> <p>1. Where a brakeman on a freight train, whose duty it was to attend to the coupling of cars, accidently fell on one side of the track in front of the engine which was slowly moving at the time, and by reason of the fact that the fireman had left the engine to take his dinner, the engineer was alone on the engine and, from the side of the engine on which he was looking out, could not see '■ the accident,and therefore did not stop the engine intime to save the brakeman from injury which he could have done if he or the fireman had been looking out on the other side of the engine where the brakeman fell, a special verdict by the jury, that the proximate cause of the accident was not the negligence • of the engineer, but the negligence of the R. R. Company in having the engine operated without being properly manned, will not be set aside.</p> <p>Stepping on pilot of slowly moving engine to couple it to a car— When not contributory negligence—</p> <p>2. It is not contributory negligence for a brakeman of a freight train engaged in coupling cars, to get on the pilot of a slowly moving engine to do coupling where this has been the usual and necessary way of doing it, and has been invariably done in that way, to the knowledge of the company.</p> <p>'Engine operated by engineer only, in absence of fireman —Not contributory negligence for brakeman to continue to work—</p> <p>3. It is not contriDutory negligence for the brakeman to continue ip his work.although he is aware that the engine is operated by the engineer alone, in the absence of the fireman, especially where no accident was ever known to have happened from that cause.</p>

Quo Warranto. On the 16th day of December, 1895, the city of Dayton, Ohio, brought this action in the circuit court for the purpose of ousting the Central Union Telephone Company from the streets of the city, upon the ground that, as its agreement with the city by ordinance had expired, it was “exercising, a franchise, privilege and right in contravention of law and without authority.” No objection to the filing of the petition was made by the defendant, but a general…

<p>Homestead Exemption — ’Right of husband living with, minor children, wife having left them— '</p> <p>1. Where the husband lives with his minor children,but not with his, wifo who has left him, he is the head of a family within the meaning of our homestead laws, and entitled to the provisions of those laws without regard whether the wife has left ‘him for his aggression or not. ;</p> <p>The legislation as to homestead exemption, and the revision of the statutes relating thereto, reviewed.</p>

<p>Employment of minor by R. R. Co. — Duty of R. R- Co. to ascertain age—</p> <p>1. Where a minor applies to a R. R. Company for employment, stating that he is of age, and whose general appearance, conduct and size would seem to confirm such statement, and being put to a dangerous employment, he is injured, the R. R. Company is not liable to his father for damages on the ground that the Company failed to inquire of the father whether the son was really of age or not. A R. R. Co. is not, under such circumstances, required, as matter of law, to make such inquiry.</p>

<p>Chattel mortgage by corporation — When valid as against other creditors—</p> <p>1. A chattel mortgage executed by a going corporation -to a bank to secure an antecedent loan, made to carry on the business of such corporation, and without any intention at the time to stop its business, is not void as a preference as against other creditors, although afterwards, being threatened with attachment suits by other creditors, it comes into court asking for a receiver to wind up its affairs.</p> <p>Power of corporation to secure debt by mortgage—</p> <p>2. A corporation in Ohio has the right to borrow money to pay its debts and to carry on its business, and may give mortgages on all its property to secure such loans.</p> <p>Same — Executed by proper officers without knowledge of other - directors—</p> <p>3. Such a chattel-mortgage, executed by the president and secretary of a private corporation, who are also members of the board of directors, to secure a debt of the corporation, although executed without the knowledge of the other directors at the time, is valid in the hands of the mortgagee who is not aware of the fact.</p> <p>Mortgage'j>f corporation properly executed — Duty of creditor to inquire—</p> <p>4. A creditor of a corporation should know that the corporation has the legal power to make the loan and to execute a mortgage, but he is not bound to inquire whether the board of directors has had a meeting and passed a formal resolution authorizing the loan and mortgage, or that the directors are legally elected, or whether the directors took an active interest in the business of the corporation or not.</p>

<p>Attachment for claim of damages for breach of promise of marriage proper—</p> <p>1. Under sec. 5511 R. S. an attachmeut will lie on the ground of defendant’s non-residence, in an action for damages- for breach of promise of marriage.</p> <p>Same — Promisee creditor of promisor — Fraudulent conveyance—</p> <p>2. One entitled so damages for breach of promise to marry is a credit- or of the promisor, and is entitled to have a conveyance made by the promisor without consideration to defeat the collection of her claim set aside as fraudulent.</p>

<p>Attachment against non-resident — Exemptions— Bastardy proceeding—</p> <p>Where in an attachment proceeding against a non-resident of Ohio, the money coming to such defendant is garnisheed, such defendant is entitled to the same exemptions provided in sec. 5340, as a resident of the state would be, and this applies where the attachment is issued in a bastardy proceeding.</p>

<p>Gas and oil lease— What is “gas sufficient to justify marketing’ ’ is for jury, not for witness to answer.—</p> <p>1.. Where a lease provides, as rental, for a share of the oil, and also for a fixed annual sum for the gas if found in sufficient quantity to justify marketing, and the lessee uses the gas flowing from an oil well together with the gas flowing from other oil wells as fuel for a central boiler located on other land to operate the oil well in question together with several other wells located closely on other lands, the question wnether this should be considered a production of “gas sufficient to justify marketing” under the provisions of the lease, is for the jury to determine. Testimony whether such would be considered the production of “gas sufficient to justify marketing is not admissible, as this is the question for the jury to answer.</p> <p>Same — Custom permitting ■use of gas flowing from oil well as fuel for engine. — “Custom” defined.</p> <p>2. Where in such case custom is claimed by which the lessee has the right to use the gas flowing from an oil well as fuel for the engine to operate the well, without charge therefor, such custom must be shown to be long continued, without interruption, acquiesced in reasonable and certain, so that the presumption arises that it was known to the parties to be affected thereby; but it is not in all cases necessary that it be known to a party, where the custom claimed, though only of recent date, is so general and universal and so commonly known and acted upon, as to shut out the right to plead ignorance of its existence. A party has no right to shut its eyes to what is universally known in his community by others, and this is a question for the jury to determine.</p> <p>Test for determining whether production of gas is sufficient to justify marketing — Location—Lessee not bound to find market. —</p> <p>•3. Upon the question whether a well produces gas sufficient to justify marketing, the question whether or not the gas derived from the well would be equal to the rental stipulated to be paid if gas enough be found to justify marketing,as a test, must be considered in the light of surrounding circumstances. The cost of marketing is a material element, and it is not the duty of the lessee to find a profitable market.</p> <p>Use of gas as fuel under central boiler located on other land.—</p> <p>4. The use of the gas from the well by the lessee to operate the well itself,even although the boiler under which the gas was consumed for that purpose be on other lands, does not entitle the plaintiff to a verdict, unless the jury also find that there was produced a sufficient quantity to justify marketing of gas.</p> <p>Statement of employes— When incompetent to bind their employer—</p> <p>5. Statements of mere employes who are charged wilh the specific duties, cannot be offered in evidence to bind their employer.</p>

<p>[Opinion delivered by Judge Haynes in connection with the above case. ]</p> <p>Gas lease — “Utilizing” has same legal effect as “marketing.'’ The use of the word “utilizing,” in a gas lease has the same legal effect as the word “marketing.”</p> <p>Oil and gas leases — Although providing for the production of both, the finding of one generally excludes the other. —</p> <p>In such cases there are generally two classes of property provided for —one an oil well and the other a gas well, and one generally excludes the other — if o'il is found, the gas is practically gone from the well as far as burning in houses is concerned, though there be enough to be used as fuel under the boiler to operate the well.</p>

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

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

<p>Appeal — Failure to perfect in time — Action on appeal bond—</p> <p>Where in an action on an appeal bond in a case appealed from a_J. P. to the common pleas, the petition fails to state that the transcript from the J. P. was duly filed in the common pleas and the other steps taken to perfect the appeal, such defect in the petition should be taken advantage of by demurrer. If this is noted done, it may be shown by evidence at the trial that the necesssary steps to perfect the appeal were duly taken, and judgment on the bond rendered accordingly.</p> <p>Same — Failure to perfect appedl — Cause to be remanded—</p> <p>Appeal case from a J. P. if dismissed for failure to comply with sec. 6586, Rev. Stat.,in filing transcript in time,Case is to be remanded to the J. P. to be proceeded with as if no appeal had been taken.</p>

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

<p>Injury to person on R. R. track — Duty to look — Engine running backward—</p> <p>Where one suddenly steps on a railroad track without looking whether a train or engine is coming, and is run down, he can not recover when it appears that he, by first looidng, would have seen an approaching engine, and that although the engine was coming with tender forward with no light thereon, where those in charge of the engine were not aware that the deceased would suddenly step on the track in this manner.</p>

<p>Application for insurance — Revocation—Agent’s right to sue for premium individually—</p> <p>Where a party contracts with the agent of a Life Insurance Co. for a certain amount of insurance, for which he agrees to pay a certain sum as first installment of premium, but before the policy is issued and before there is any liability from the company to such/ applicant, he revokes his application, the agent of the company can not bring an action in his own name for the first installment of premium agreed upon, nor for the amount of the commission to which he would have been entitled out of the premium if the insurance had been completed. If there were any right of action for the premium or any part of it, it would be in the company or its assignee of such claim, but not in the agent personally.</p>

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

<p>Motion to strike petition in error from the files.</p>

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

<p>Application for disinterment of body — Parents next of Tain where ■ brothers and sisters are minors—</p> <p>'Under the act of 1894, 91 O. L., 231, providing for the manner in ' which application is to be made for the disinterment and delivery of bodies from cemeteries by the trustees thereof, to the next of kin of the deceased, the brothers and sisters are the next of kin of the deceased; but where the brothers and sisters are minors, the parents are the next of kin, and entitled to make the application.</p>

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

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

<p>Damages for unlawfully selling liquor to plaintiff’s husband— When premises where sold not liable—</p> <p>In an action to hold the premises liable for the payment of a judgment recovered for unlawfully selling intoxicating liquor to plaintiff’s husband, on the ground that the owner permitted such unlawful sales, but where it appeared that the premises were the property of the wife of the judgment debtor; that she never consented to the use of the premises for such purpose, but always objected thereto, and that there was no collusion between her and her husband, the property can not be held liable for the payment of the judgment, and the fact that she did not institute legal proceedings against her husband will not avail. It is not the purpose or polity of the laws of Ohio to stir up lawsuits between husband and wife. •</p>

<p>Assessment on unimproved corner lot — Lines of recorded sub-division control—</p> <p>Where several lots of a platted and recorded sub-division forming one piece of ground, one of which ie a corner lot on the intersection of two streets, are owned by one person, in assessing such corner lot for the improvement of the side street, the assessment should be for the number of feet of its actual frontage only, under the rule laid down in the Haviland case, according to the lines of the lot as platted, unless the 'property, as a whole, is improved so as in fact to make it front on the side street.</p>

<p>Railroad — Foreman of "gang” employed in unloading ears represents company — Duty to furnish safe utensils—</p> <p>A foreman who is placed over a body of men — “a gang” — and who controls them and directs them in their business, and whose orders they are bound to obey, represents the company, and the duty rests upon him as it would on the company itself to use all or. dinary means to see that the men are protected in the performance of their work, so that they may not be injured while obeying his orders. It is therefore the duty of such foreman to see that the utensils he uses are at least ordinarily fit for the purpose for which they are used.</p> <p>fame — Knowledge of insufficiency of utensil by employe — When discharges employer of liability—</p> <p>Where an employe, a member of a “gang” of men employed under a foreman in unloading heavy stone, is aware,that a sticu furnished by the foreman for the purpose, is insufficient, and he continues to work with the same without calling the foreman’s attention to the insufficiency of the stick, he can not recover for any injury sustained by the breaking of the stick. But where such employe comes in while the stick is being used the first time, and takes hold in assisting to unload the stone as it was his duty to do, and he is injured by the breaking of the stick, this rule does not apply- _</p>

<p>Administrator — Allowance of his commissions after final account accepted, without opening up account and notice, unauthorized—</p> <p>Where an administrator with the will a'nnexed flies his final account for settlement of the estate, showing a large amount of money distributed according to the provisions of the will after all debts were paid, which final account is accepted by the probate court, that court can not, several months later, without opening the account after due notice to parties interested, make an allowance-in favor of the administrator for his commission in administering the estate. Such allowance would not be in the nature of a judgment, and such claim would be barred in six years.</p>

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

<p>Auditor’s compensation — Allowances by commissioners—</p> <p>1. The claim of a county auditor for compensation for recording ditch and road proceedings, as well as for other services required by law, must be presented for allowance to the county commissioners, and be allowed by them, before he is authorized to draw his warrant for the same on the county treasury.</p> <p>Action to recover alleged overcharges not proper — Appeal from commissioners finding proper remedy—</p> <p>2. If the claim is disallowed in whole or in part, his only remedy is by appeal to the court of common pleas. But where’such claims have been allowed by the commissioners, and their allowance spread upon the minutes of the board, an action upon the official bond of the auditor to recover back as illegal and excessive, parts of the bills so allowed, will not lie, so long as the record of such allowance is not impeached for fraud or collusion — such allowance being in the nature of a judicial act.</p>

<p>Mechanics’ Lien — For what obtainable — Ordinary sale of machinery—</p> <p>The provisions of the mechanics’ lien law, sec. 3181, R. S., and sections following, are not available to enable the seller of personal property to perfect a lien for the unpaid purchase price, on the property sold, where the sale was an ordinary one, and the property was not furnished for the purpose of entering into and becoming part of a completed oil or gas well, or other structure, named and described in the section ; and not upon a contract with the owner of such well or structure, his agent, or some one authorized to act for and bind him ; or, where the property sold was not intended, and does not in fact, become part of such well or structure.</p> <p>Same—</p> <p>The provisions of said lien law, have application and are available to _obtain a lien, in favor of the seller and furnisher of personal property, material or machinery, only, where the property is sold and furnished, by virtue of a contract with the owner, his agent, trustee, contractor or sub-contractor, for the purpose of entering into the construction, and becoming a constituent part of such oil well or structure, and does in fact become a part thereof, so that it is not susceptible of being separated therefrom and separately pursued and subjected, by due legal process, to the payment of the purchase price.</p>

<p>An act to prevent corrupt practices at elections construed — Who entitled to present application to Attorney General—</p> <p>Under the act to prevent corrupt practices at elections, passed April 18, 1896, the authority for presenting the application to the Attorney General, asking for the institution of proceedings thereunder against a public officer, is limited to persons entitled to vote at the election at which the candidate whose office is to be affected by the proceeding, was elected.</p>

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

<p>Interest on mortgage — When computation with annual rests not admissible—</p> <p>Where the condition in a mortgage provides that interest at the rate of six per cent, shall he paid annually for the term of five years, without providing also that after the five years interest should be continued to be paid annually, interest' must be computed after such term of five years without annual rests.</p> <p>Same — Sale of school lands — Conditions in purchase money mortgages, not required by statute, void—</p> <p>Where a statute providing for the sale of school lands, directs that interest on purchase money mortgages should be paid at the rate of six per cent, until paid, a provision written into the mortgage that interest at the rate of six per cent, per annum, should be paid annually, would be ultra vires, and the interest on such a mortgage can not be computed with annual rests.</p>

<p>Gower Map of Toledo — Owners who failed to sign plat bv.t sold lots as designated on and with reference to it, bound by designation of streets—</p> <p>The ‘ ‘ Gower Map, ’ ’ of the city of Toledo, made in 1886-7, subdivided a tract of land, known as the Bartlett farm, laying it out in streets and alleys, which were duly accepted by the city, and in lots numbering the same. The tract belonged to a number of parties undivided, and some after-wards signed and acknowledged the plat. Those that did so, and their successors in title, are bound by the plat.of subdivision and the dedication of the streets as designated by the map. There was afterwards a partition proceeding to which all the joint owners, were parties, each receiving a number of the lots as designated on the Gower Map in severalty. Those owners who had failed to sign and acknowledge the Gower Map, afterwards sold lots which they had received in severalty, by numbers and descriptions as designated on the Gower Map. Held, that these owners and their successors in title, were estopped as against the other purchasers of lots in the subdivision, from claiming any title and right to possession in the streets as they were laid out on the Gower Map.</p> <p>Unauthorized taxation of and assessment on land embraced in streets as laid out, no estoppel to city to afterwards claim street—</p> <p>The fact that the land embraced in any such street while it was yet unopened and unimproved, was subjected to taxation and assessment by the city, does not estop the city from now claiming the same as a public street. Such taxation and assessment was unauthorized, and the parties who paid them voluntarily, were in no wise compelled to do so, and by voluntarily paying them, took their chances of any subsequent assertion by the city of the land as a public street.</p> <p>Adverse Possession — Fencing in street for more than 21 years—</p> <p>Adverse possession to give title must have been open, notorious, continuous and adverse for twenty-one years,, and where it appears that land, part of a dedicated and accepted public » street, while yet unopened and unimproved, was fenced in by an adjoining owner for twenty-one years, such fact is only one element of evidence necessary to establish his right to possession, and would not be conclusive to establish such right. The question remains under what circumstances and claim the fence was built and maintained. And where it appears that the predecessors in title of the claimant, within twenty-one years, had in their deeds and mortgages recognized the existence of the street as such, and had described the lots as extending to and bounded by the street, the fact that the land, part of such street, was kept fenced in by them, would not be construed as a claim against the city to the same as a public street.</p> <p>Decree of court in action against city recognizing land embraced in street as private property, not binding on owners of other lots not parties to such suit—</p> <p>Where in an action to quiet title to a strip of land, which on a plat o'f subdivision appears as part of a public street, as against an assessment levied by the city, to which aetion the city was a party, the court enters a decree wherein it recognized the land as subject to taxation and assessment as private property, and where in another suit by the predecessor in title of the claimant here, to restrain the city from opening 14th street in the same subdivision, the plaintiff described his land as embracing the part of 16th street here in question, and the court found for the plaintiff, the subject in controversy in such suit however being the land embraced in 14th street, even if the city would be estopped by such record which is doubted but not decided, yet such record would not estop private owners of lots in this subdivision, all purchased as designated and with reference to the Gower Map as to the location of the public streets therein, and who were not parties to such actions, to bring suit for the maintenance of the public streets as laid out in such map, against any other property owner who obstructs the same, as in the case at bar.</p> <p>Fencing in street adjoining lot not conclusive as eviclenee of intention to claim possession—</p> <p>The fact that an owner of lots in a subdivision, in selling the : same, conveys the lot as described in such subdivision, and also the strip of land adjoining, part of a public street as laid out in such subdivision, can not be construed as evincing an intention to claim that part of the street adversely. It may be a mere matter of precaution, to secure the legal title to the land covered by the street, so that in case of vacation of the street, or, if otherwise the question would arise, the title would be in the purchaser.</p>

<p>Proceedings in error — What necessary to complete—</p> <p>The mere filing of a petition m error and the issuing and service of a summons thereon, within the six months limitation, does not avail to commence an action in error.</p> <p>To accomplish that result there must be filed with such petition, within the six months’limitation, “either a transcript of the final record,or,a transcript of the docket and journal entries, and such original papers, or transcripts thereof, as are necessary to exhibit the error complained of;” to the reviewing court.</p>

<p>Negligence of R. R. Co. to fill up empty spaces between .ties near switch—</p> <p>1.. In action to recover for personal injuries sustained by an employe of a railroad company, it was alleged that it was the duty of the defendant railroad company to have filled the open spaces between the ties projecting' outside of the rails of its track, in such wise as to protect its employes engaged in coupling and uncoupling ears, from having their feet caught in the open spaces between the ties outside of the rails, and being thrown down and run over by the cars, etc.; that the railroad company wrongfully and negligently omitted and neglected to fill the spaces between the ties near a switch, by reason of which the plaintiff had his foot caught in such open space and was thrown down and injured by a car passing over his arm. Held, the petition stated a ease of negligence: the company being bound to use reasonable and proper care in filling the spaces between the ties near switches where it is known the track will be used by brakemen for the purpose of coupling and uncoupling cars, to prevent the feet of employes being caught while in the performance of their duties.</p> <p>Uncoupling cars while in motion as contributory negligence—</p> <p>2. It is not negligence per se on the part of a brakeman to uncouple cars while the cars are in motion, when it is necessary to have them in motion to get the proper slack to enable the brakeman to do the work.</p> <p>Where evidence as to contributory negligence conflicting, verdict will not be disturbed by reviewing court—</p> <p>3. Where the evidence is conflicting whether the plaintiff had before switched cars at a place where he is injured in such wise as to charge him with knowledge of the conditions at such place, and his attention while uncoupling cars at such place. Held, the question of his contributory negligence in stepping into an open space between the ties, is for the jury, and a court of review will not set aside a verdict in favor of the plaintiff in such ease on the ground of contributory negligence.</p>

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

<p>Municipal corporation located in tivo counties, may be sued in either county—</p> <p>When the territory comprising a municipal corporation is located in two counties, partly in each, the corporation lias a situs in both, and suit against it may be brought in either, at the election of the plaintiff.</p> <p>Same — Summons^on defendants in other county—</p> <p>When suit is brought in one of the counties in which a municipal corporation is situated, it is properly brought, and summons, on the petition filed therein, may be issued to any other county, against one or more defendants. Such summons may be served on the mayor of the defendant corporation.</p> <p>Same — Mayor’s office located in county other than where suit brought — Service by sheriff of other county—</p> <p>Where a petition, stating a cause of action against- a municipal corporation, was filed in one of the counties in which such corporation has a situs, and summons was duly issued and served on the mayor thereof, in the other county, at the mayor’s office in said municipal corporation where the said mayor has his office and residence, and return of such service was made to the court in the county where the petition was filed. Held: This accomplished the commencement of an action, and gave to the court full and complete jurisdiction of the defendant corporation and the subject matter of the action.</p> <p>Water-works — Extent of right of municipal corporation to use stream for water supply—</p> <p>A municipal corporation, being the owner of lands lying on a natural water course, has a legal right to gather its water supply from such water course, by proper appliances erected for the purpose; but it may not, in exercising such legal right, permanently dam or obstruct the flow of the water thereof to the substantial hurt of other riparian owners, or to the injury of the water course itself. Such dam or obstruction is a nuisance per se, and will in every instance be abated by the mandatory order of the court, unless equitable estoppel has arisen.</p> <p>Equitable estoppel — When arises—</p> <p>Equitable estoppel is only called into existence for the prevention of wrong or the redress of injury; and to create it, there must be some element of wrong or fraud present in the action of the party creating it.</p> <p>Same — Never arises by implication — Failure to speak—</p> <p>Equitable estoppel can never arise by implication alone, except by some conduct which induces action in reliance upon it, to an extent which renders it a fraud to recede from what the party has been induced to except. Nor will it arise because of silence, unless there is a duty to speak.</p> <p>Same—</p> <p>Before the remedy of equitable estoppel can be invoked, there must be some injury to be redressed or prevented.</p>

<p>Toivnship matters — Subject of general nature — Special acts unconstitutional—</p> <p>The subject matter of townships — the division and creation of a civil township — is of a general nature, and can only be legislated upon and regulated, by laws which are given and have a uniform operation throughout the state, in every county in the Btate.</p> <p>The Act of the General Assembly, passed March 17, 1896, detaching territory from Perry and Bokescreek townships, Logan county, Ohio, and creating a new township of Logan, in said county, .is • not given and does not have such uniform operation, and is therefore invalid, being in contravention of the provisions of sec. 26, art. 2, of the constitution.</p>

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

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

The plaintiff in error, Mary M. Moon, being the plaintiff in the court below, resided on Garfield Avenue in the city of Middletown. The said city,in November 1897, through certain contractors, was putting in cement sidewalks on said-street, making the necessary excavations therefor. • Late in the afternoon of a dark November day (November 23), an excavation for said purpose was made in /the sidewalk immediately in front of the premises of plaintiff.

<p>Side walks — Assessment limited to 25 per cent, of value of lot—</p> <p>Sec. 2271, limiting assessments for street improvements to 25 per cent, of the value of the property, applies to side-walks.</p> <p>Assessments within five years on corner lot for improving intersecting street and side-walk on one of them are within the 25 per cent, limitation—</p> <p>Where there are assessments on a corner lot for the improvement of two intersecting streets, and for constructing a side-walk on one of them, all within five years, the three assessments may all be added together, and if they in the aggregate amount to more than 25 per cent, of the value of the property such surplus is illegal.</p> <p>Ttvo different improvements such as for pavement and side walk within five years — Assessments in the aggregate not limited to 25 per cent, of value of lot—</p> <p>Assessments for paving a street and for building a side-walk, are for different improvements, and there is no statute limiting the amount of assessments for two different improvements, such as paving a street and making a side-walk, if made within five years, in the aggregate to twenty-five per cent, of the value of the property.</p> <p>Two assessments for paving same street within five years not within 20 per cent, limitation—</p> <p>Two assessments within five years for improving the same street are not limited to 25 per cent, of the value of 'the lot in the aggregate.</p> <p>Sec. 2283, relates to improvements of intersecting streets.</p>

<p>Admission to Longview Asylum — Trial of question of sanity— Presence of person required—</p> <p>1. Sec. 738 et post, regulating the commitment of persons to the Longview Lunatic Asylum of Hamilton county, contemplate an adversary proceeding, with the right to contest and question of the person’s insanity,and such person should be present and have the rights given by statute.</p> <p>Presumption in favor of correctness of proceedings where record is silent—</p> <p>2. Where the record fails to show that such person was present or was deprived of her rights, it should be presumed that she was so present and had a fair trial. _</p> <p>Inquiry into sanity — Right to habeas corpus—</p> <p>3. All persons confined as insane, are entitled to the benefit of the writ of habeas corpus, and the question of his sanity or insanity, can not be heard on the application for the writ, bút the writ must issue and the question heard and determined on the issue made.</p>

<p>Assessments — Street improvements under special act— When general statutes do not apply—</p> <p>Where street improvements are made under an act of the legislature applying to villages of a certain population, and the act provides in itself for the making of the improvements -> and for the collection of the necessary funds therefor, the provisions of the general statutes regulating the manner in which such improvements are to be made by municipalities and limiting the amount of the assessment that may be levied therefor on the abutting property to 25 per cent, of its value, will not apply.</p>

<p>Right to take depositions of the adverse party as on cross-examination under sec. 5423, Rev. Stat., and to compel him to answer or he imprisoned for refusal—</p> <p>It, is in the interest of fair dealing-, of good practice and of justice that neither party to a suit should have the right to compel the other party to disclose his evidence by means of taking- his depositions as in cross-examination, under sec. 5423, R. S., and send him to prison for his refusal to answer questions, where the object is only to get out what the other party might intend to testify to if called as a witness in his own behalf. Sec. 5423, R. S., construed.</p>

<p>Storing dangerous explosives — Liability without proof of negligence—</p> <p>One who taxes and keeps upon his own premises, material or substance which in itself is dangerous and liable to explode and do injury to person or property on adjoining premises, or on premises in the neighborhood, or vicinity, and it does explode, such person is liable in damages for the injury directly caused theroon by such explosion, without proof of negligence in storing or caring fur such material or substance.</p>

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

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

<p>Evidence — Expert testimony, when admissible—</p> <p>The question whether expert testimony is competent, is not always clear. If in the opinion of the court the opinion of one experienced in the particular calling, would aid the jury in dealing with the facts of the case, it is proper to admit expert testimony. To a certain extent the calling of such testimony is discretionary with the court, and if a reviewing court can not say that the expert testimony would have had a biasing effect on the jury, against the rights of the party excepting, the judgment will not be reversed.</p> <p>Injury to R. R. employe in other state for which under law of that state R.R. Co. liable — Statute and decisions of other state admissible in evidence — Court to construe them—</p> <p>Where an injury was suffered by the employe of a railroad in Indiana, of such nature and under such circumstances that the R. R. Co. would be liable in damages to such employe under the statute of Indiana, an action may be brought for such damages against such R., R. Co. in Ohio, under the act of May 21,1894, it appearing that by the statute of Indiana ' in cases of a similar kind arising in Ohio actions may be prosecuted in Indiana; and in such case it is competent to introduce and prove the statute of Indiana and the decisions of the courts of that state construing the same, and it is for the trial court in instructing the jury to construe such decisions.</p>

<p> Devise to be paid over to devisee personally, cannot be reached by devisee's creditors in hands of executor— </p> <p>A testator may provide in his will, that no part of his estate given to any of his children, should by any process of law be seized or appropriated by a creditor before payment to such child, but should only be paid to such child personally; and a creditor of any of such children can not, by any process, obtain the application of money so devised,in the hands of the administrator, in satisfaction of his claim.</p>

<p> Appeal from. J. P. —Power of Common Pleas to extend time for filing petition on appeal— </p> <p>In actions coining into the common pleas court on appeal from a J. P., the power given by sec. 5098, R. S., to courts of common pleas, to extend the time for filing petition on appeal beyond the time fixed by statute, may be exercised by the court at any time and in any manner it sees fit, unless exception is taken to that order of the court at the time or subsequently; and the court may take up and consider the case when the petition is filed out of rule, without making any order on that subject.</p>

<p>Bill of exceptions to action of judge in granting a bill of excep« ions; or in a matter considered by judge himself only—</p> <p>There is no provision in the satutes for taking a bill of exception to the consideration by the judge of the question whether he shall sign another bill of exceptions, consisting of .facts occurring in a trial in court; or for taking a bill of exceptions in a matter considered alone by the judge.</p> <p>Injunction bond — Attorney’s fees recoverable—</p> <p>Where plaintiff obtains a preliminary injunction, but on the trial of the case on the merits it is found that the injunction was improperly granted, the defendant in such case may, in a suit for damages on the injunction bond, recover reasonable attorney’s fees paid by him in defending thq injunction suit.</p> <p>Bight of owner of land on Lake Erie to fish in front of his land as against rights of public—</p> <p>The waters of Lake Erie are subject to the right of fishery by the public, and the owner of land abutting on Lake Erie has no greater rights to fish in the waters on the shore in front of his land than anybody else.</p> <p>Injunction to restrain fishing at particular spot in Lake Erie— Damages on injunction bond—</p> <p>Where the owner of land abutting on Lake Erie brings a suit for an injunction and for damages against a party for fishing in the waters in front of his land, and obtains a preliminary injunction restraining such party from fishing in such waters, which injunction on the hearing of the case on the merits is dissolved as improperly granted, the defendant in such suit, in an action on the injunction bond,can not recover more than nominal damages for being prevented from fishing on that particular spot m Lake Erie,during that season, by the injunction.</p>

<p>Disbarment of attorney — What act will amount to moral turpitude under statute — Erasing Judges marks on paper to deceive other Judge—</p>

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

<p>Railroad Crossing — Negligence—</p> <p>1. The failure of a railroad company to place a flag-man or erect bars or gates at the crossing of its tracks by a street of a village, does not constitute such negligence, as alone makes it liable to a person injured, by one of its trains at such crossing. The company may, by the location of its tracks, and the speed of its trains, make it necessary in the exercise of ordinary care, to place a flagman or take other equivalent precaution for the protection of persons passing upon the highway.</p> <p> Contributory Negligence— </p> <p>2. Negligence in a railroad company in not giving signals, or in omitting precautions of any kind, will not excuse a person, about to cross its tracks, in his omission to be diligent in the use of his senses, as a means of avoiding danger, and his omission to do so, is concurring negligence, which should prevent his recovery.</p> <p> Charge of the Court— </p> <p>3. Where the evidence properly raises the question of such care on the part of the plaintiff, the defendant is entitled to have the jury charged in plain and concise words, to the effect that if the plaintiff, before he attempted to cross the track on which he was injured, could, by looking,have seen and avoided the approaching train, but failed to look, and by reason of such failure was injured, he can not recover.</p>

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

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

<p>In error proceedings all the several parties interested in the judgment below, must be made parties — Six months’ limitation—</p> <p>A proceeding in error can not be instituted by one of several parties to the suit who are alike interested in the judgment below, without making- them parties to the error proceeding, and where a petition in error has been dismissed for _failure to make the parties below interested in the judgment __ below, parties to the error proceeding, and more than six months after judgment below have elapsed, new error proceedings are^barred by the statute.1! ~</p>

<p>Appointment of officer for term commencing after expiration of term of appointing officei—</p> <p>When authority is given to an officer to make an appointment, such officer can not make an appointment the term of which is to begin after the expiration of his term. But when the statute expressly provides that the appointment shall bé made on a certain day, or as soon thereafter as practicable, the appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer.</p>

<p>Bastardy suit — Evidence of cohabitation with other men before time of conception—</p> <p>1. In a bastardy proceeding-, testimony offered on behalf of defendant to show that at times from six months to a year prior to the time the prosecutrix conceived the bastard child, she associated with a man other than defendant under circumstances and in situations that afforded them opportunities to have sexual intercourse, unaccompanied by an offer to prove that they had shown a disposition to have sexual intercourse, was properly excluded: first, because of the remoteness of the time; and secondly, because evidence of mere opportunities without evidence of disposition also to commit such acts, was immaterial.-:</p> <p>Excessiveness of judgment in bastardy case — When reviewdble—</p> <p>2. A reviewing court is not authorized to disturb the judgment of the trial court on the ground that the judgment required to be paid by the reputed father for the maintenance of the bastard child is excessive, unless it shall appear that there has been an abuse of the discretion vested in said trial court, and in this case the court refuses to disturb a judgment of $1800.</p>

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

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

<p>Insurance — Adjustment agreement — Implied promise—</p> <p>Where, after a loss, the insured and an adjuster of the company enter into an agreement in writing, fixing the amount of the damage, and providing in the contract that “said sum as agreed, is binding and conclusive upon said parties, as to the amount of the loss and damage, and this agreement and the examination by said special agent, do not in any respect waive formal proofs of loss, or any of the conditions of said policy, nor a breach thereof, whether known to- the said company at the date of the execution of this agreement or otherwise, ’ ’ there is no implied agreement that the^company will pay the adjusted amount, nor can an action be sustained on such agreement alone, independent of the policy.</p>

<p>Appeal — Mandamus—</p> <p>1. Mandamus is not a civil action, and is not appealable.</p> <p>Same — Township trustees must give appeal bond—</p> <p>2. Township trustees do not act in a trust capacity within the meaning- of sec. 5226, of the Rev. Stats., and are not thereby exempt from giving bond on appeal.</p>