Volume 14 — Ohio Circuit Court Decisions

Indictment follows form approved in Blair v. State, 3 Circ. Dec. 242 (5 R. 496j. Deliberate and premeditated malice is not essential to be averred. Robbins v. State, 8 Ohio St. 131. ■ 1 The charge that the murder was committed by all five defendants without an allegation that one of them committed the crime is proper. Jones v. State, 7 Circ. Dec. 305 (14 R. 35). The act of one is the act of all jointly engaged in the unlawful act.

<p>Heard on Error.</p>

Equity suits and suits not triable to a jury are appealable. See Sec. 5226 Rev. Stat. This case being an ancillary proceeding, and having been referred by the court, and by agreement of the parties, is equivalent to a reference under Sec. 5210 Rev. Stat.; and an equity case, tried before a referee or master, is in all cases appealable.

At Chambers. Hearing on motion for temporary injunction. This is an action brought by John H. Coss against Mansfield Lodge No. 56, of the Benevolent and Protective Order of Elks, a corporation, and Geo. W. Herring, its treasurer, to enjoin the lodge from the payment of the expenses of George A. Clugston as representative delegate to the grand lodge, upon the ground that he was illegally elected.

Heard on Error. Where the subscription to stock is merely a colorable compliance with the statute, the whole transaction is usurious. Falls v. Savings, L. & Bldg. Co., 13 So. Rep. 25, 29 [97 Ala. 417; 24 L. R. A. 174; 38 Am. St. Rep. 194]; Fidelity Sav. Assn. v. Shea, 55 Pac. Rep. 1022. (Idaho); Mutual Ben. L. & Bldg. Co. v. Lynch, 63 N.. Y. Supp. 835 [30 Misc. 499], • The amount imposed by way of fines must be reasonable. Hagerman v. Building & Sav.

Heard on Error. If the nature and extent of the improvements and uses of the street or alley have not been so indicated or defined by the city or village, abutting proprietors must, at their own peril, improve their lots with reference to such future uses or changes in the streets as may be made and adopted by the city or village while acting within the scope of its mur cipal authority. Crawford v. Delaware, 7 Ohio St. 459, 460; Cincinnati v. Penny, 21 Ohio St. 499 [8 Am.

<p>DECEASED INSOLVENT DEBTORS.</p> <p>L The Remedial Provisions of Sec. 5464 Rev. Stat. are Available To all Creditors.</p> <p>The remedial provisions of Sec. 5464 Rev. Statu, permitting judgment creditor8 to proceed against equitable assets, are available for every judgment crédito* entitled to an execution against property, and apply to proceedings in aid of execution against estates of deceased persons, as well as to actions in favor of, and against, the living. Therefore, judgment having been rendered against an administrator, the eighteen months allowed by Sec. 6105 Rev. Stat., before which execution may not issue against an administrator, or the farther time allowed by court for the collection of assets, having expired, mnd there being no property in the hands of the administrator subject to levy an execution sufficient to satisfy the judgment, a proceeding in aid of execution to subject money in the hands of debtors of such estate is properly brought.</p> <p>i. Judgment Dismissing Proceeding in Aid of Execution not a Bar, When.</p> <p>A judgment, dismissing a proceeding in aid of execution to subject money in the hands of defendants due the estate of a deceased debtor, brought before the expiration of the eighteen months allowed by Sec. 6105 Rev. Stat., because prematurely brought but not Heard upon the merits, is not an adjudication of the rights of the parties concluding the bringing of another proceeding in aid of execution upon the same cause of action and between the same parties after the expiration of the eighteen months’ limitation, the probate court not having granted further time for the collection of assets.</p> <p>8. Only One Suit Upon Same Subject Matter Between Same Parties.</p> <p>A party is not permitted to have more than one lawsuit concerning the same subject, between the same parties, in the same court, and at the same time. Bringing more than one suit, as above, is vexatious and improper, for which the party so offending may be required to dismiss the vexatious suits, pay the costs made in bringing them, and, perhaps, subject him to an action for damages, but the fact of the bringing and dismissal of such suit will not amount to a complete defense to a good faith action.</p>

Consent by insurer to a sale and assignment of the policy, does not carry with it consent to an encumbrance which is a part of the transaction of sale, and of which it has no knowledge. German-American Bank v. Insurance Co., 8 Mo. App. 401, 407, 408; First National Bank v. Insurance Co., 60 N. W. Rep. 345, 346 [58 Minn. 492]; 24 Ins. E. J. 561; Titus v. Insurance Co., 81 N. Y. 410,417,418; Brown v. Insurance Co., 58 Pac. Rep. 276 [9 Kan. App. 526]; Aetna Ins.

<p>BENEFICIAL INSURANCE.</p> <p>L Widow, as beneficiary and members of Beneficiad Order are Withhc Sec. 5242 Rev. Stat.</p> <p>The widow of a deceased member of a beneficial order, who brings an action against such order upon an insurance policy, issued to her husband and payable to her, claims as heir of a deceased person within the meaning of Sec. 5242 Rev. Stat., which provides that a party shall not testify where the. adverse party claims as heir, grantee, assignee, devisee or legatee of a deceased person, but the adverse interest of the order will not prevent the members thereof from testifying to matters that occurred in the lodge room when the deceased was present.</p> <p>2. Insurance Podicy Part of Insured Estate Where he has Right to Change Beneficiary — Rude as to His Decdarations, etc.</p> <p>Where a person insured in a beneficiary order has the right, under the constitution of such order, to change the name of the beneficiary under his policy at any time he sees fit, the policy remains part of his estate and is his during life. Hence, any declarations, admissions or statements he may make affecting the policy may be offered in evidence against the beneficiary in an action upon the policy.</p> <p>8. Pacts Justifying Presumption Against Insured Precduding Recovery by Beneficiary.</p> <p>A member of a beneficial order who, upon being charged, in the presence of the lodge, by its presiding officer, with misrepresentation as to his age at the time he became a member, makes no-attempt to1 deny the charge, but after using defiant and abusive language toward the lodge and its presiding officer, leaves the lodge room and never thereafter attends any meeting of such order, pays any dues or communicates with it in any way will be presumed to confess the truth of the charge, and in an action upon an insurance policy issued to such member the court will direct a verdict for the defendant.</p> <p>t Paidure of Beneficiad Order to Observe Formadities in Expelling Member — Effect.</p> <p>Where a beneficial order, in expelling a member, does not observe the formalities prescribed by its constitution, the expulsion is illegal and does not deprive him of his rights as a member, but a member so expelled who, for many months thereafter, makes no effort to be reinstated, pays no dues, attends no meetings, nor in any manner recognizes himself as a member of such order, may be held as a matter of law to have acquiesced in his expulsion, thereby defeating any recovery by the beneficiary upon an insurance policy issued to him by such order.</p>

Heard on Error. It was error to admit in evidence, account standing in plaintiff’s book in name of another person than defendant. Richardson v. Win-gate, 1 Re. 478 (10 W. L. J. 145). Books of account unsupported by other evidence, insufficient proof upon which to base a verdict. Sheridan v. Tanner, 3 Circ. Dec. 10 (5 R. 19); Wood Practice of Ev. 407.

<p>PUBLIC CONTRACTS — DAMAGES.</p> <p>1. Remedy oe Lowest Bidder — Injunction—Mandamus.</p> <p>Under Sec. 794, Rev. Stat., directing the proper officials, in making contracts for public improvements, to award the contract to the lowest responsible bidder, but authorizing them, at their discretion, to reject all bids, the only-remedy by which a person making a bid, alleged to be the lowest responsible bid, can prevent officials from awarding the contract to another, is an injunction to restrain officials from making such contract and requiring the matter to be referred back for proceedings according to statute, mandamus will not lie to compel officials to award the contract to the plaintiff.</p> <p>2. Remedy where Work has Been Commenced.</p> <p>If, at the time suit is commenced, the work under a contract awarded to a person other than the lowest bidder, the only remedy is to enjoin such party from proceeding further with the work, set aside the contract and refer the matter back to officials for proceeding according to the contract.</p> <p>3. No Action for Damages After Completion of the Work.</p> <p>Where it appears, when the action is commenced or during its pendency, no injunction having been obtained to enjoin the contract or work under it, that the work has been completed, accepted and paid for, no such right or interest exists in the plaintiff as Will entitle him to maintain an action for damages.</p>

<p>STREET RAILWAYS — RISKS ASSUMED.</p> <p>1. Brakeman Having Knowledge of the Failure to Provide Cars with Automatic Couplers Assumes Risk.</p> <p>A servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. Hence, a brakeman who, before he enters the service of a railway company, has full notice and knowledge that none of the cars of the company are provided with automatic couplers, as required by Sec. 3365-23 Rev. Stat., cannot recover for an injury received by reason of the use of hand couplers instead of automatic couplers, although the use of automatic couplers is required by statute, and such brakeman is not guilty of any negligence contributing to the injury.</p> <p>2. Section 3365-23 Rev. Stat. Does not Apply to Construction Cars on Blectric Railways.</p> <p>Section 3365-23 Rev. Stat., requiring railway companies to equip their cars with automatic couplers, is not applicable to electric cars or railways in process of construction, and cars in use for that purpose.</p> <p>8. Rule applied.</p> <p>A brakeman who is injured by a car loaded with rails which project a foot beyond the end of the car, the brake-staff of such car being removed and the wheels blocked, he being familiar with the method usually adopted in loading such cars with rails, and knowing that the rails project beyond the end, and that the brake is not set, and having such knowledge, undertakes to make a coupling, assumes the hazard of any injury he may receive.</p> <p>4. Refusal to Direct Verdict not Error — When.</p> <p>Where, in such case, the evidence is not explicit and certain as to the knowledge of the plaintiff of the projecting rails and the removal of the brake staff, it is not error to refuse to direct a verdict for the defendant.</p>

<p>Heard on Error.</p>

<p>SET-OFF.</p> <p>An Admitted Liability fob. Cost of Certain Repairs may be SET- pm Against Balance Due on Contract.</p> <p>In an action against the county commissioners fora balance due for work done on a public building, the fact that the plaintiff so negligefatly operated the heating system in the building as to render it useless without repairs, and that at this time plaintiff admitted his liability for the injury to the heating system and agreed with the county commissioners that the cost of the repairs thereon should be deducted from the amount due him on the contract, constitutes a valid set-off to the plaintiff’s action, although there is no consideration for plaintiff’s agreement to pay for such repairs other than hi's admission of liability, and notwithstanding the injury to the heating system was caused by the negligence of an independent contractor whom plaintiff had employed to do the work.</p>

<p>GIFTS.</p> <p>Gift of Mortgage to Daughter Executed by record Thereof by Donor.</p> <p>Where the owner of land conveys the same to his son, and, to secure payment of the purchase money, takes a mortgage upon the land so sold, payable in annual installments to himself during life, after his death to his wife during her life, and, at her death, the residue still unpaid, to his daughter, and the' same is duly recorded by him, a valid gift of the residue thereof is . xecuted to the daughter, the record taking the place of manual delivery, and acceptance by the daughter being presumed under the circumstances. Hence, the daughter dying before her father, and the wife shortly after his decease, the residue unpaid belongs to the estate of the daughter.</p>

<p>PUBLIC IMPROVEMENTS — BIDS.</p> <p>1. Certificate oe Money in Municipal Treasury not Required Under Sec. 2330b Rev. Stat. ¡</p> <p>Section 2702 Rev. Stat., which provides that no contract involving the expenditure of money shall be entered into by a municipal corporation unless the clerk shall first certify to the council of such corporation that th'e money required for the contract is in the treasury to the credit of the fund from which it is to be drawn, does not apply to contracts by municipal corporations for the construction of sidewalks under Sec. 2330b Rev. Stat., for the reason that the latter section itself contemplates that the money is not in the treasury, but is to he raised by an issue of bonds at the election of the electors pf the corporation.</p> <p>2. Discretion op Council Under Sec. 2330b Rev. Stat. to Select Material After Bids Received.</p> <p>The council of a village, in acting upon bids for the construction of sidewalks under Sec. 2330b Rev. Stat. will be governed by the last clause of that section which provides that the council may reject any or all such bids, and not by some former section prescribing a different rule. Hence, the council of a municipal corporation, having advertised for bids for the constructon of sidewalks of either stone or cement, under Sec. ?330b Rev. Stat. in acting upon such bids, may select that one which is most satisfactory as to kind and quality of material, whether such hid be high or low in amount.</p>

<p>TRUST ESTATE — PLEADING.</p> <p>1. Demurrer, not Motion for . Judgment in . Pleadings, Required to Settle Question of Law.</p> <p>A motion for judgment on the pleadings is fiot available to settle important questions of law, or to dispose of the merits of the case; this is the office of a demurrer to which resort must be had.</p> <p>2. Failure to Disclose .Injury to Trust Estate Defeats Suit for Accounting.</p> <p>Where, in a suit for an accounting as to a trust estate, the petition does not disclose in what particular, if any, the trust estate was injured by the compromise agreement complained of, the plaintiffs are not entitled to the relief prayed for. ,</p> <p>8; Power of Trustees as to Disposition of Partnership Interests.</p> <p>Where trustees are authorized by will to continue a partnership business, a power to settle its affairs at the time appointed for dissolution will be implied. If clearly in the interest of the trust, settlement may properly be made before such time.</p>

Heard on Error. All legislative acts relating to the same subject matter should be construed together. State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424]. Injunction to stay erection of a hospital in the neighborhood of a town and near to dwelling houses. Wolcott v. Welch, 8 Stocks, N. Y. 209. Pesthouse, a nuisance. Wood Nuisances, 7, 67 and 68, Sec. 66; Haag v, Vanderburg Co. (Comrs.), 60 Ind. 511 [28 Am. Rep. 654]; 9 Am. & Eng. Enc.

<p>Error to the court of common pleas of Summit county.</p>

Defendant was in legal jeopardy at the first trial of this case, and the verdict was, in legal effect, an acquittal. 28 Am. & Eng. Enc. Law (1 ed.) 368; State v. Arrington, 3 Murphy (N. C.) 571; Thompsoh v. People, 17 N. E. Rep. 749 [125 111. 256]; People v. Wells, 8 Mich. 104; Iowa v. Arthur, 21 la. 322; Iowa v. Redman, 17 la. 329; Clark Crim. Prac. 483, 484, 488; Nicely‘s Appeal, 18 Atl. Rep. 737 [130 Pa. St. 261]; Commonwealth v. Breyesse, 28 Atl. Rep. 824 [160 Pa.

Heard on Error. A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. Section 3644 Rev. Stat.; Insurance Co. v. Leslie, 47 Ohio St. 409, 415 [24 N. E. Rep. 1072]; Insurance Company v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474]. Representations.

<p>STREETS — STEAM RAILROADS.</p> <p>1. Abutting Owner’s Easement in Street is a Property Right — Compensation eor Impairment.</p> <p>An owner of land abutting upon a street has an easement in the street which is “ as much property as the land itself,” and if the.construction of a proposed track by a railway company will materially interfere with this easement, an injunction will be allowed to prevent such construction until the rights of the property owner have been obtained by proper appropriation, purchase or other proceedings whereby its property interest in this easement is to be acquired by the railway company.</p> <p>2. Construction of Railway in Street an Impairment of Abutting Owner’s Rights.</p> <p>The construction and operation of a railway in a street, within twenty-six feet of a factory, which impairs the convenience of unloading teams at an entrance to the factory upon that street and of driving teams around the corner of the factory nearest the track, is a material interference with the rights of the owner of the factory. It is a diversion of the street from the purposes to which it was dedicated, and is a taking of the property of the abutting owner within the meaning of Sec. 19, Art. 1, of the constitution.</p>

<p>DOWER.</p> <p>L Dower Interest Subject to Subrogation Though assigned.</p> <p>Under Sec. 5464, Rev. Stat., the dower interest of the judgment debtor may be subjected to the payment of his debt, notwithstanding such interest has not been assigned.</p> <p>2. Error — Findings of Fact must be Made Part of Record in Order to Review.</p> <p>Findings of fact and conclusions of law, made in the court below, not made part of the record by journal entry or otherwise, cannot be considered on error.</p>

<p>NUISANCE — PROSECUTION.</p> <p>1. No» Necessary that Accused be Owner of Business to Comvxy a Nuisance.</p> <p>Where a person, in managing a business for another, creates and maintains a nuisance, for instance, one within the prohibition of Sec. 6921 Rev. Stat., he will be liable therefor, although he is only an employe ot the proprietor and has no interest in the business.</p> <p>2. Prosecution for Nuisance not Affected by Sec. 6920 Rev. Stat., When.</p> <p>A prosecution for creating and maintaining a nuisance is not affected by Sec. 6920 Rev. Stat., which provides that, “ the continuance of any nuisance for five days after prosecution commenced therefor, shall be deemed an additional offense,” where it is not charged that there has been a prior prosecution or that the offense charged is an additional offense.</p> <p>t. Proof Limited to Period Charged, When.</p> <p>In a prosecution for creating and maintaining a nuisance by carrying on a business producing “ noisome and offensive smells,” as prohibited by Sec. 6921 Rev. Stat., evidence of the existence of the odor at times other than that charged in the information is inadmissible, especially when, if such evidence was admitted it would not tend to prove that the odors complained of were produced during the time charged.</p> <p>4. Evidence of Sickness Caused by Nuisance.</p> <p>In such a prosecution it is competent to show that a witness, who had lived in the neighborhood of the establishment complained of, was sick during the period of the continuance of the nuisance as set up in the information, and to refuse to strike out the testimony of such witness that the offensive odor was the cause of her sickness is not prejudicial error, where, from evidence clearly competent, the court might well have come to the conclusion at which it arrived in the case.</p> <p>5. Motion to Strike Evidence out of Stenographer^ Notes, Properly Refused, will not lie.</p> <p>A motion to strike from the stenographer’s notes testimony which has already gone to the trial court or the jury will not result in taking such testimony from the court or the jury, for the reason that the law does not contemplate that either the court or the jury read what is written by the stenographer before passing on the case, and where the trial is to the court without a jury it will be presumed that no evidence was considered that was not competent.</p> <p>6. Right of Trial by Jury.</p> <p>The constitutional provision that, “ the right of trial by jury shall remain inviolate,” has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the constitution. Hence, those statutes which define and punish by fine only, in a summary manner, and without trial by jury, certain immoral practices, mala prohibita, in which the right to trial by jury did not exist at the time of the adoption of the constitution, are not unconstitutional as in contravention of Sec. 5 or Sec. 10, Art. 1, of the constitution.</p> <p>7. Demand of Trial by Jury, Quaere.</p> <p>Whether a demand for a trial by jury does not come too late after the accused has unsuccessfully objected to the admission of any evidence, quaere.</p>

<p>Heard on Error.</p>

<p>ELECTRICITY — PRACTICE.</p> <p>1. A Pasty cannot be Permitted to Impeach his own Witness.</p> <p>A party will not be permitted to impeach his own witness by showing, by other witnesses, that he made statements out of court contrary to those made in court. Hence, evidence that a witness, when called upon by counsel outside of court, to state what he knows about the case, omits certain facts at the time, which he afterward states upon the witness stand, tends to impeach him, and such evidence is inadmissible if offered by the party calling him.</p> <p>2. Contributory Negligence — Plaintiff Having Notice of Defect of which he Complains.</p> <p>The business of furnishing electric lights is attended with danger, compelling a company carrying on such business to use a very high degree of care for the protection of its patrons, but this does not relieve persons using such, lights from the exercise of ordinary care. Therefore, plaintiff cannot recover for injuries resulting from an electric shock received while turning-out an electric light furnished by an electric company, where it appears that he had just been advised of the dangerous condition of the connecting wire, and had knowledge that it was overcharged and unsafe to handle in the ordinary way.</p> <p>¿. Implication from Failure to put Material Witness on the Stand to Testify. ' .</p> <p>In an action in which the nature of an illness suffered by the plaintiff was a point in issue, which fact was peculiarly within the knowledge of plaintiff’s attending physician, and such physician is present at the trial, under subpoena of plaintiff, but is not called as a witness, the jury may reasonably infer that if called his testimony would have been adverse to the plaintiff.</p>

<p>CIVIL RIGHTS.</p> <p>1. Civie Rights Law Appeies to a Public Boweing Aeeey.</p> <p>A person who procures a ticket for the privilege of bowling, in a bowling alley maintained by a corporation as a part of a pleasure resort operated by it, who is denied the privilege of so playing for tbe reason that he is a colored man, may recover damages in an action against such corporation, under Secs 4426-1 and 4426-2 Rev. Stat.</p> <p>4. “Person” Inceudes Corporation Under Sec. 4426-2 Rev. Stat.</p> <p>The word “ person,” as used in Sec. 4426-2 Rev. Stat., providing “ that any person who shall violate” any of the provisions of the civil rights law shall be amenable thereto, is not restricted to natural persons, but applies to artificial persons, and hence Includes a corporation.</p>

The defendant below, under Sec. 3140-2 Rev. Stat., could be found guilty of a felony alone, and the fact that he might be imprisoned in a jail or workhouse does not alter the case. See Secs. 6795 and 6862' Rev. Stat.; State v. Hamilton, 2 Circ. Dec. 6 (3R. 10). Authority cannot be created by implication, and none is granted under this statute to order a person convicted under it, to stand committed until the costs of prosecution are paid.

Heard on Error. Provisions and exceptions in by-laws of insurance company are to be strictly construed against the defendant company. 1 May Insurance 174; Hobman v. Insurance Co., 32 N. Y; 405. Ambiguous words construed against the company. 2 May Insurance 533n.; Kratzenstein v. Assurance Co., 22 N. E. Rep. 221 [116 N. Y. 54; 5 L. R. A. 799]; Hoffman v. Insurance Co., 32 N. Y. 405; Foot v. Insurance Co., 61 N. Y. 571.

<p>Heard on Error;</p> <p>There is no implied reservation or grant of way of necessity in the deed in question. 2 Ballard Real Prop., Sec. 174; Boyd v. Woolwine, 21 S. E. Rep. 1020,1022 [40 W. Va. 282]; 4 Ballard Real Prop. 198; Nichols v. Luce, 41 Mass. (24 Pick.) 102, 104,105 [35 Am. Dec. 302]; Baker v. Willard, 50 N. E. Rep. 620 [171 Mass. 220; 40 L. R. A. 754]; Baxter v. Schweitzer, 58 N. Y. Supp. 163, 165 [40 App. Div. 519]; Opening One Hundred and Sixteenth St., In re, 37N. Y. Supp. 508, 512 [1 App. Div. 436] ; Huttemeier v. Albro, 18 N. Y. 48, 50; Hildreth, v. Googins, 39 Atl. Rep. 550 [91 Me. 227] ; Washburn Easements 32, 33; Seely v. Bishop, 19 Conn. 128, 134.</p> <p>Title to driveway by grant. National Ex. Bk. v. Cunningham, 46 Ohio St. 575, 586 [22 N. E. Rep. 924]; Shields v. Titus, 46 Ohio St. 528, 539 [22 N. E. Rep. 717]; Baker v. Rice, 56 Ohio St. 463, 476 [47 N. E. Rep. 653].</p> <p>Driveway is an appurtenance, and the right thereto passes without being expressed in deed. Shields v. Titus, 46 Ohio St. 528, 540 [22 N. E. Rep. 717]; National Ex. Bank v. Cunningham, 46 Ohio St. 575, 587 [22 N. E. Rep 924]; Morgan v. Mason, 20 Ohio St. 401 [55 Am. Dec. 464]; Meredith v. Frank, 56 Ohio St. 479, 489, 490 [47 N. E. Rep. 656]; Bell v. Bell, 7 Dec. 516 (7 N. P. 150).</p> <p>Defendant had right of way from necessity. Washburn Easements 162, 163; Gill v. Trout, Tap'pan (251) 293; Goddard Easements (4 ed.) 317; Baker v. Rice, 56 Ohio St. 463, 470 [47 N. E. Rep. 653].</p> <p>Necessity for driveway cannot he removed by fact that one may be purchased lrom a third party. Meredith v. Frank, 56 Ohio St. 479, 491 [47 N. E. Rep. 656].</p> <p>The deed not a mortgage. The rule when may be so declared. Slutz v. Desenberg, 28 Ohio St. 371; Miami Exp. Co. v. Bank, Wright 249 252.</p> <p>Contracts for repurchase is strong evidence that instrument was not intended to be a mortgage. 80 111. 188.</p>

<p>PROCEEDING IN AID OF EXECUTION.</p> <p>Debtor oe Judgment Debtor Having Admitted Indebtedness m Aid oe Execution Proceeding Estopped to Deny it, When.</p> <p>A person who, on examination in a proceeding in aid of execution before a justice of the peace, admits indebtedness to the judgment debtor, and is thereupon ordered by the justice to pay a certain sum in money to the judgment creditor, is thereby estopped to deny such indebtedness in an action against him in the common pleas by the judgment creditor to enforce such order.</p>

<p>Error to court of common pleas.</p>

<p>COURT STENOGRAPHERS.</p> <p>1. Section 475 Rev. Stat. not Applicable to Summit County.</p> <p>Summit county is not within the provisions of Sec. 475 Rev. Stat. et seq. providing for court stenographers in certain counties, but the appointment and duties of stenographers in said county are regulated by Sec. 1 of 90 O. L. 68 and Sec. 2 of 87 O. U. 93, and such county is not required to pay the stenographer’s fees for a bill of exceptions ordered by the defendant in a criminal case. Whether said Sec. 475 Rev. Stat. et seq.-, Sec. 1 of 90 O. h. 68 and Sec. 2 of 87 O. U. 93 are not in contravention of Sec. 26, Art. 2, of the constitution, quaere.</p> <p>2. Accused not Deprived oe Constitutional Rights by Failure oe Statute to Provide Payment oe Stenographer’s Fees.</p> <p>A person tried for crime is not deprived of any constitutional ’right by the failure of the statute to provide that stenographer’s fees for bills of exceptions, ordered by defendants in criminal cases in the county in which he is tried, shall be paid for out of ”the county treasury.</p>

<p>Heard on Error.</p>

<p>STREET IMPROVEMENTS — SPECIAL BENEFITS.</p> <p>1. An Assessment in Excess of Benefits — Estoppel.</p> <p>The fact that a railroad company pays an assessment levied upon its property on account of an adjoining street improvement, for a number of years without objection, does not estop its setting up that the amount assessed was in excess of the special benefits accruing to its property, where it appears that it had received no notice of this proposed improvement and assessment, and such steps had 'been taken without its knowledge, and it had not participated in the carrying forward of the improvement. The burden of proof, under such circumstances, rests upon the railroad company to establish that the assessment exceeded the special benefit accruing to its property.</p> <p>2. Same — Separate Parcels — When Beneeits as to One Parcee Exceed Assessment.</p> <p>Where the railroad company, having paid part of such assessment levied on two separate tracts situated on opposite sides of a street, shows that the amount already paid is equal to the special benefits accruing to one parcel of its property abutting on the improvement, but fails to establish that the assessment upon another abutting parcel is in excess of the special benefits accruing thereto, its defense as to the first parcel will be sustained, but a decree for the full amount of the assessment due upon the second parcel will be given against it.</p>

<p>Heard on Error.</p>

Heard on Error. A party having filed a general exception to a charge as a whole* without asking the court specifically upon the subject complained of, is bound by the whole charge. He cannot afterwards pick out a single sentence in a paragraph and complain of it. Toledo v. Radbone, 13-23 O. C. C. 268; Shaffer v. Railway Co., 8 Circ. Dec. 66 (14 R. 488) ; Curry v. Cincinnati, 4 Circ. Dec. 545 (12 R. 736); Ohio & Ind.

<p>Heard on Error.</p> <p>The making and filing, lor the purpose of profit, of articles of incorporation in the office of the secretary of-state, do not make an incorporated company; such articles are simply authority to do so. No company exists within the meaning of the statute, until the requisite stock has been subscribed and paid in, and the directors chosen. State v. Insurance Co., 49 Ohio St. 440 [31 N. E. Rep. 658'; 16 E. R. A. 611; 34 Am. St. Rep. 573].</p> <p>The court will take judicial notice of the population of a village according to the federal census. 1 Jones Evidence, Secs. 127, 133; Abbott Trial Brief 533.</p> <p>A corporation, in its organization, must comply with the statutory requirements. Secs. 3821-6 and 3821-7 Rev. Stat.; Huber v. German Congregation, 16 Ohio St. 372; Medill v. Collier, 16 Ohio St. 599; Trust Co. v. Eloyd, 47 Ohio St. 525 [23 N. E. Rep. 110; 12 L. R. A. 346; 21 Am. St. Rep. 846].</p> <p>Plaintiff in error was prohibited by Sec. 3797 from doing business. By the other sections above quoted, it was made criminal, and a penalty attached. In this connection we desire to call your attention to the case oí Bloom v. Richards, 2 Ohio St. 387.</p> <p>This pretended bank was not organized and was not authorized to do a banking business. Its acts, in that respect, were illegal and criminal. Its purchase of this property to use in its illegal and criminal purpose gives it no right or claim, if the sale to it was fraudulent and wrongful to recover. This proposition is well settled in the case o£ Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dec. 266] ; Goudy v. Geb. hart, 1 Ohio St. 262.</p> <p>Something more must.be shown than the mere fact that a contract was made by a corporation with an individual who was at the time a director of the corporation, and who participated as such in the making of the contract, in order to render the contract invalid. United States Roll. Stock Co. v. Railway Co., 34 Ohio St. 450 [32 Am. Rep. 380; Browne v. Board & Paper Co., 11 Circ. Dec. 102 (20 R. 351).</p> <p>The parties were dealing at arm’s length. One was trying to get as much, the others give as little, as he could. The purchaser had no right to rely upon the assertions made; there was no relationship between the parties such as justified the reposing of confidence by one in the other. Smith v. Patterson, 33 .Ohio St. 70; Kerr Fraud 83, 84, 87; 1 Benjamin Sales, 5(50, 561, 562, notes.</p>

<p>STREET RAILWAYS.</p> <p>1. Power of Municipalities to Authorize Construction and Operation of Street Railways Limited.</p> <p>Municipal corporations have no inherent power to regulate and control streets therein, for streets and highways belonging to the state are under its control. Nor has a city power to regulate and control the construction and operation of street railways therein merely upon a grant of power to establish, regulate and control streets given at a time when street railways were not contemplated. Such power is only obtained by statutes expressly conferring tbe power and then only under the limitations and conditions attached thereto.</p> <p>2. The Entire Route Advertised Must be Definitely Bid Upon and Let.</p> <p>A city, having established by ordinance a certain street railway route as an entirety over certain designated streets under Secs. 2501 and 2502 Rev. Stat., and advertised for bids thereon to construct a street railway route at the lowest rates of fare, has no authority to grant the right to construct a street railway upon a part of such designated route, upon which bids have not been taken separate and apart from the other portions. Nor can such city, after having received bids thereon, without afterwards publishing notice by which others may be permitted to bid, grant a route which includes a street not in the route as established and published.</p> <p>8. Provision for Determination • of Difficulties Between Employes and Contractor Invalid.</p> <p>A provision, in an ordinance establishing a street railway route under Sec. 2501 Rev. Stat., which determines the method in which differences between any street railway company constructing a road over such route, and the employes thereof, shall be settled, is contrary to the spirit of said section as tending to keep persons from bidding and to increase the rate of fare bid.</p> <p>A Proper Parties Under Séc. 1778 Rev. Stat.</p> <p>Section 1778 Rev. Stat., providing when a taxpayer may institute suit to enjoin certain corporate acts, does not require that a party bringing such action shall not have a personal motive or be influenced otherwise than for the mere protection of the public.</p>

<p>JUSTICE OF THE PEACE — ADMINISTRATORS.</p> <p>1. Liberal Rules Should Govern in Reviewing Proceedings of Magistrates."</p> <p>It is the duty of a reviewing court to adopt liberal rules in reviewing the proceedings of justices of the peace and other inferior tribunals, so far aa respects regularity and form, provided they act within the limits of their jurisdiction.</p> <p>2. Sufficient Pleadings in Justice Courts.</p> <p>No particular form of bill of particulars or pleading is required before a justice of the peace. It is sufficient if it simply states the nature of the claim in general terms, or substantially states the facts constituting the cause of action; it is not required to state a cause of action before a justice of the peace .with the accuracy of a petition in the court of common pleas. There was no error in the justice overruling the motion of defendant below to dismiss the action, on the grounds that the plaintiff’s bill of particulars did not allege his appointment and capacity as administrator, or that the claim was duly presented to him and rejected, or in overruling the motion for a new trial.</p> <p>3. Exceptions Embodying Evidence Before a Justice of the Peace not ReviewablE, When.</p> <p>That the finding or verdict is against the weight of the evidence does not' come within Sec. .6565 Rev:Stat., authorizing exceptions in cases before justices of the peace,, which provides, “ In all • cases before a justice of the peace, whether tried by jury or by the justice, either party shall have the right to except to the decisions of the justice upon any matters of law arising in the case,” and the bill of exceptions embodying the evidence cannot be considered by the reviewing court with a view of reversing the judgment.</p> <p>(. Sufficient Evidence of Capacity of Administrator.</p> <p>In an action against a party as administrator, who is properly summoned as such administrator, and who appears and makes a defense before a justice of the peace, and prosecutes error proceedings in the court of common pleas, and as such administrator answers to the summons of the plaintiff in error in this court, and contests the plaintiff’s claim in all the courts, is sufficient evidence by admission of his capacity as such administrator to sustain a judgment against him as such.</p> <p>5. Presumption That Proceedings are Regular.</p> <p>Where the transcript on its face shows that the proceedings of the justice of the peace were regular, every presumption will be made in favor of the judgment. It will therefore be presumed that every fact necessary to establish the liability of the defendant was properly proven before the justice and jury.</p> <p>6. Objection after Verdict Will not lie to Venue, When.</p> <p>Under an agreement of the parties, to avoid a change of venue or place of trial, there can be no objection made alter verdict by either party to the justice making a statement to the jury, as evidence for the plaintiff, such statement having been made by consent of parties.</p>

<p>APPROPRIATION — STREETS—DAMAGES.</p> <p>1. Rule as to Recovery eor Property Taken eor Street.</p> <p>Damages for property taken for street purposes should be recovered in condemnation proceedings and be awarded with reference to the establishment of a reasonable grade. Hence, the fact that the court erred in the proceedings to condemn will not allow the circuit court upon error to another action to right a serious wrong to the parties, especially when the grade has been established for more than fifty years and is a reasonable one.</p> <p>2. Rule as to Recovery for Widening Street.</p> <p>Where property is condemned for the purpose of widening a street having an established grade, the damage awarded should, in the absence of a showing that some other grade is contemplated, cover the injury which would be caused by the improvement of the strip to the grade corresponding to the grade of the street as already established.</p>

<p>APPEAL — INHERITANCE TAX.</p> <p>1. Notice of Appeal Where State is Party.</p> <p>Where the state is a party to a suit, and prosecutes an appeal, notice entered upon the record is a proper notice of appeal.</p> <p>2. Collateral Inheritance Tax Act Limits Exemptions to Ohio Institutions. *</p> <p>It is the purpose of the collateral inheritance tax act to limit exemptions to purely Ohio institutions; denominational corporations organized for purely charitable purposes under the laws of other states are not a care of the state of Ohio, and bequests to such institutions are not entitled to exemption notwithstanding some portion of such bequests may be used in Ohio.</p>

<p>BENEFICIARY ORDER — DISTRIBUTION OF FUNDS.</p> <p>Mutual Division op Dodge Funds Upon Surrender op Charter Valid, Though Irregular.</p> <p>A division of tlie funds of a subordinate lodge, upon the surrender of its charter and records to the grand lodge, made among all the remaining members thereof, will not be disturbed where such division comprehends everybody absolutely or contingently, presently or remotely interested in such funds, and no one having any real or substantial interest in the property, objects to the distribution made. The fact that the constitution provides for the distribution of such funds by the grand lodge as trustee will not defeat the division made, it appearing that a just and equitable result has been irregularly reached.</p>

<p>Heard on Appeal.</p>

<p>Heard on Appeal.</p> <p>Sections 2H5 and 2140 Rev. Stat.; Hibbs v. Franklin Co. (Comrs.), 35 Ohio St. 48.</p> <p>Section 2702 Rev. Stat. does apply to the action of the board of health in this case. Lima Gas Co. v. Lima, 2 Circ. Dec. 396 (4 R. 22, 28); Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294); Wilson v. Cin-' cdnnati, 10 Re. 123 (19 Bull. 10).</p> <p>All the authorities cited by counsel for defendants in-relation to this Sec. 2702, it will be noticed, are held to apply to contracts lor improvements and contracts made by the city council. And even in cases involving contracts for improvements, the many courts ot this state have held that section not to apply where the improvements are to be paid for by special assessments. Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224); Cincinnat v. Honnigfort, 1 Dec. 563 (32 Bull. 32).</p> <p>It is a rule constantly observed in the construction of statutes, that where the general provisions ol a statute conflict with the mere specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514]; State v. McGregor, 44 Ohio St. 628, 631 [10 N. E. Rep. 66] ; Knox Co. (Comrs.) v. McCombs, 19 Ohio St, 320, 345; State v. Newton, 26 Ohio St. 200.</p> <p>All the provisions of the board of health statute, in relation to the council, are mandatory. Even the first provision of the statute compels the council to establish the board of health, and in like manner compels the council to provide for its expenses. Even the expenses of the board of health in quarantining infectious cases of contagious diseases are provided for by this same Sec. 2115 and Sec. 2140, and come clearly within the exercise of the police powers of the state. 18 Am. & Eng. Enc. Raw (1 ed.) 744; Thomas v. Mason, 20 S. E- Rep. 580 [39 V/. Va. 526; 26 E. R. A. 727]; Davock v. Moore, 63 N. W. Rep. 424 L105 Mich. 120; 28 E- R. A. 783, 788]; Rae v. Flint (City), 15 N. W. Rep. 887 [51 Mich. 526].</p> <p>It would be contrary to public policy to endanger the public health by snaking it imperative to employ help who would not be sure of compensation. Elliott v. Kalkaska, 25 N. W. Rep. 461 [58 Mich. 452].</p> <p>The law does not require the performance of a duty, and at the same time withhold the means necessary for its payment. Eabrio Manchester, 59 N. H. 120, 122 [47 Am. Rep. 179],</p> <p>Findlay (City) v. Pendleton, 62 Ohio St. 80 [56 Kf. 38. Kep. 649]; Comstock v. Nelsonville (VIL), 61 Ohio St. 288 [56 N. E. Rep. 15|; McGrew v. Elmwood Place (Vil.), 6 Circ. Dec. 106 (17 R. 676); State v. Hofiman, 25 Ohio St. 328; Bister v. Springfield, 49 Ohio St. 82, 100 [30 N. E. Rep. 274]; Stone v. Davenpo'rt, 7 Re. 83 (1 Bull. 102); Harrell v. State, 1 O. S. C. D. 101 (23 Bull. 150); Commercial Gaz. Co. v. Dean, 11 Re. 207 (25 Bull. 250); Cope v. Wellsville (Vil.), 11 Re. 205 (25 Bull. 250); Bond v. Madisonville (Vil.), 1 Circ. Dec. 581 (2 R. 449); Drott v. Riverside (Vil.), 2 Circ. Dec. 565 (4 R. 312); Rhodes v. Toledo, 3 Circ. Dec. 825 (6 R. 9); Holmes v. Avondale (Vil.), 5 Circ. Dec. 188, 189 (11 R. 430); Ampt v. Cincinnati, 2 Dec. 504 (2 H. P. 332); Dowry v. Cincinnati, 7 Re. 81 (1 Bull. 102); East St. Eouis v. Freels, 17 111. App. 339; Prince v. Quincy (City), 28 111. App. 490-; Culbertson v. Fulton (City), 18 N. E. Rep. 781 [127 111. 30]; Prince v. Quincy (City), 21 N. E. Rep. 768 [128 111. 443]; Prince v. Quincy (City), 105 111. 138 [44 Am. Rep. 785]; French v. Burlington, 42 Iowa 614; Cook v. Cook, 57 N. W. Rep. 1085, 1086 [99 Mich. 63].; Superior (City) v. Norton, 63 Fed Rep. 357 L12 C. C. A. 469; 24 U. S. App. 59]; Thompson v. Phillips, 12 Ohio St. 617; Parker & Worthington Pub. Health & Safety, Sec. 142, p. 160; Watt v. Altoona (City), 23 Pa. Co. Ct. Rep. 410; Watt v. Altoona (City), 9 Pa. Dist. Rep. 235; Wood v. Pleasant Ridge (Vil.), 5 Circ. Dec. 516 (12 R. 177); Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E- Rep. 514] ; Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Platt v. Pennsylvania Co., 48 Ohio St. 228 [1 N. E. Rep. 420]; Mills v. Norwood (Vil.), 11 Re. 416 (26 Bull. 348); Clark v. Columbus, 10 Re. 760 (23 Bull. 289); Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10); see Sec. 3085; Cincinnati v. Honnigiort, 1 Dec. 563 (32 Bull. 32); State v. Burleman, 4 Circ. Dec. 506 (8 R. 482); 14 Am. & Eng. Ene. Raw (1 ed.) 182; State v. Yeatman, 22 Ohio St. 546.</p>

<p>Heard on Error.</p>

<p>Appeal by Defendants.</p>

<p>MUNICIPAL CORPORATIONS — SIDEWALKS.</p> <p>1. Resolution of Council Locating Sidewalk.</p> <p>The council of a city may prescribe, by resolution, that portion of the street ■which shall be used as a sidewalk.</p> <p>2. General Acceptances of Dedication — Effect Upon Line of Sidewalk Marked in Plat.</p> <p>An ordinance of a city, general in its terms, accepting an addition thereto, is not tantamount to an act of its council approving and fixing the line of the sidewalk of a street marked bv the dedicator in the plat of such addition. To have such effect more than a general acceptance must be shown. It must clearly appear that the council intended to make the line indicated the line of division between the street and sidewalk.</p>

<p>INSURANCE — FIRE.</p> <p>1. Delay in Furnishing Proofs of Ross not Available to Insurance Company, When.</p> <p>Delay in furnishing proofs of loss on a fire policy requiring such proofs to be forwarded to the company within a reasonable time, but imposing no penalty for failure to do so except that payment cannot be enforced until such proofs are furnished, does not affect the rights of the insured to recover on the policy, notwithstanding the proofs are not filed within a reasonable time.</p> <p>2. No Recovery in Action for Total Doss Unless Proven — Partial Loss —Charge.</p> <p>Under Sec. 3643 Rev. Stat. prescribing the extent of liability upon a policy of fire insurance in cases of total loss, the amount to be recovered is a matter of public policy, and cannot be waived, nor arbitrated unless the loss is a partial one. Hence, in an action for the total loss of a building, in which the defendant set up an award, which is not denied, no recovery can be had unless a total loss is proven, and the only question for the jury to determine is whether the loss is partial or total.</p>

Quo Warranto. George W. Conser was declared elected to the office of trustee in Hanover township by a majority of one in the spring of 1902. George Figley, his competitor for the office, had five votes which the judges refused to count. He commenced a contest proceeding in the nature of a quo warranto. Construction of Secs. 1, 6 and 21 of the constitution. State v. Marlow, 15 Ohio St. 114, 133. When no specified mode of contest is given quo warranto applies.

<p>NEGLIGENCE — RAILROADS.</p> <p>1. Duty of Railroads to Protect the Public at Established and Customary Crossings.</p> <p>A railway company must-use ordinary care to protect persons crossing its track upon the public highway or at a place where the public are so accustomed to crossing that the knowledge and consent of the railway company will be implied, but it owes no duty to mere trespassers upon its private right of way except to do what it can to protect such persons after they are seen.</p> <p>2. Mutual Negligence — Proximate and Remote Causes of Injuries.</p> <p>The rule that in case of injury by negligence, where the parties are mutually in fault, the plaintiff may recover if the negligence of the defendant is the proximate cause of the injury while his own negligence is only the remote cause, consisting of some act or omission not occurring at the time of the injury, does not apply where the negligence of each party was the same in character, time and duration and equally active in causing the injury.</p> <p>J. Contributory Negligence Precluding Recovery.</p> <p>A hoy fourteen years of age who has lived near a railway and understands the mode of operation of railway cars and the dangers attending it, who passes through a train of cars standing upon a street crossing, and without looking about him or taking any precautions against possible danger, looks under the train in search of a companion, and in so doing stands so near another track that he is struck by -an engine and injured, is guilty of contributory negligence, and cannot recover.</p>

<p>Appeal by defendant, The Erie Ry. Co.</p>

<p>CRIMINAL LAW — STATUTES.</p> <p>1. Identical Acts Prescribing Same Offense, Differing in Punishment Imposed, the Last Passed is in Force — How Determined.</p> <p>Where the authorized printed volume of the statutes contains two amendatory acts, in substance identical, providing for the punishment of the same offenses and bearing the same date, but differing as to the amount of the penalty imposed by them, the act last passed, is the one in force, and a court will resort to the journals of the two houses of the general assembly to determine which act actually was so passed.</p> <p>2. Same — 94 O. L. 321 Superseded by 94 O. L. 349.</p> <p>The act amending Sec. 6998 Rev. Stat, 94 O. L. 349, prescribing certain violations of the fish and game laws, though bearing the same date as another act amending the same section, 94 O. L. 321, is and has been since its passage the-law of this state, it appearing from the journals of the two houses of the general assembly that the former act was passed after the latter.</p> <p>3. When Defendant May be Discharged.</p> <p>Where a justice, in sentencing a person convicted of a misdemeanor, imposes a fine under a law repealed before the commission of the act, in excess of the amount authorized by the laws in force, the sentence will be reversed; and if the time during which the justice may sentence has passed, the defendant must be discharged.</p>

<p>RAILROADS.</p> <p>Proof of Compliance with Sec. 3365-1 Rev. Stat., as To Spark-Arrester on I/Ocomotive, Sufficient Defense.</p> <p>Where the evidence offered by the plaintiff in an action against a'railway company, under Secs. 3365-5 and 3365-6 Rev. Stat., to recover for property destroyed by sparks from defendant’s locomotive, tends to show that the fire was caused by sparks from such locomotive, though there is no direct evidence to that effect, evidence on the part of the defendant that it has complied with all the requirements of Sec. 3365-1 Rev. Stat., that such locomotive was properly equipped with a spark-arrester that would most effectually guard against the emission of fire and sparks, was in the hands of an experienced engineer and fireman, and was being run in a proper manner and without emitting any sparks, constitutes a good defense to such action.</p>

<p>Heard on Appeal.</p>

<p>RAILROADS.</p> <p>1. A Side Track Within Meaning of Sec. 3281 Rev. Stat. — Eminent Domain.</p> <p>Where the main line of a railway, built entirely around a city, and about 28 miles in length, running across and connecting with all the railways that enter the city, and whose main object is to carry freight from one railway to another and from various manufactories and other establishments to diferent points in and about the city, is connected with the plant of a furnace company and with other industries by a track about one mile long which is used by such railway company in the ordinary course of its business as a common carrier of persons and property, such track is for a public use, and is a side track within the meaning of Sec. 3281 Rev. Stat., and a right of way may be appropriated and condemned for such track by the exercise of the power of eminent domain.</p> <p>2. Expert Testimony as to What Constitutes a Side Track Admissible.</p> <p>Where the point in issue in an action in qtw warranto against a railway company, is whether a certain track is a side track or not, expert testimony as to what constitutes a side track is admissible.</p>

<p>WILLS.</p> <p>t. Facts From Which Undue Influence Over Testator Cannot be Inferred.</p> <p>Where a testator in disposing of an estate of $32,000, bequeaths $18,500 to his son’s wife, $25 to his adopted daughter, and $13,500 to his widow, the bequest to the widow is not so far in excess of her natural rights as to raise any presumption of undue influence, especially where it is shown that testator feared that the son’s creditors would seize any bequest made to him direct, and that testator had loaned the’ husband of the adopted daughter $4,700, which had never been paid.</p> <p>2. Competency of Testator to Draw Wide.</p> <p>A person eighty-four years of age who without suggestion from anyone, is able to enumerate all of his property except a single item of small value, and in his instructions to the person drawing his will shows himself acquainted with its nature and disposition, and also that he remembers those who would natturally be the objects of his bounty, and who, up to the time of his last sickness, retains sole charge of considerable business interests and successfully conducts them, is of sufficient mental capacity to make a valid will.</p>

<p>Heard on Error.</p>

On Appeal. A grant of land which has no outlet to the street except over the grantor’s lot carries with it a right of way over such lot. Kringel v. Nitschmann, 40 S. W. Rep. 68 [15 Tex. Civ. App. 641]. On the sale of a tract of land surrounded in part by the lands of the vendor and in part by the lands of strangers the purchaser has an implied grant of a way over the other lands of the grantor. Pleas v. Thomas, 22 So.

<p>Heard on Appeae.</p>

Heard on Appeal. Parental or quasi parental relation will raise the presumption of fraud or undue influence. Nor does this presumption cease when child becomes of age, but continues until there is a complete emancipation. See Clark Contracts, 366, 367; Berkmeyer v. Kellerman, 32 Ohio St. 239, 250, 254 [30 Am. Rep. 577].

<p>PAYMENT.</p> <p>1. Rule as to Acceptance of an Order, Check, etc., as Payment on Account.</p> <p>The giving of an order, check, or other instrument is not absolute payment unless it is shown that it was understood and agreed by the parties to be accepted as absolute payment and satisfaction of the amount, and the burden is upon the person claiming the payment to show these facts.</p> <p>2. Rule applied.</p> <p>Where, in awarding a contract for the construction of a canning factory, the canning company offer by letter, in which they specify the terms and conditions of the contract, to give the contractors, as part payment, an order on a “ citizens committee ” for a sum of money, supposed to be subscribed by the citizens of the place where situated to secure the location of the plant, which letter is marked “ accepted ” and signed by the contractors, but no committee is appointed and no money raised, from which the order can be paid, such order cannot be considered as absolutely accepted in payment of the contract, precluding the right to recover from the canning company. Nor is it necessary to recover thereon that the order be tendered back.</p> <p>X. Conclusive Presumption as to Terms Embodied in Written Contract.</p> <p>A written contract in the absence of mistake or fraud is conclusively presumed to embody the agreement between the parties thereto, and parol evidence is inadmissible to prove any agreement made prior to the execution of the written instrument.</p>

<p>Heard on Appeal.</p>

<p>Error to the court of common pleas.</p>

<p>Heard on Error.</p>

<p>Appeal from court of common pleas of Hancock county.</p>

Heard on Error. The method provided by Sec. 1071 Rev. Stat., for compensating the auditor for causing omitted property to be listed for taxation, was sustained in Probasco v. Raine, 50 Ohio St. 378 [34 N. E. Rep. 536]; Hickox v. Shields, 55 Ohio St. 681 [48 N. E. Rep. 1113].

<p>RAILROADS — CARRIERS.</p> <p>1. Liability of Railway for Unlawfully Ejecting Passenger Between Stations.</p> <p>A person lawfully on a train and unlawfully put off at a point on the railway track where there is no station and no stopping place, who is injured in ' walking upon a cattle guard at the next highway while going along the railway track in order to reach his destination, may recover for such injury.</p> <p>2. Exception — Knowledge of Passenger that Train Does not Stop at His Station.</p> <p>A person who goes upon a train knowing that it does not stop at his destination and refuses to pay fare to the next station at which it does stop, may be put off at any reasonably safe place. The railway company is not required to carry him to the next station or highway or to a place where it will be convenient for him to get off.</p>

<p>2 Kent Commentaries, 118, 188, 184, 454, 455, 463; Gilmore" v. Lewis, 12 Ohio 281; Rea v. Smith, 12 Re. 398 (2 Handy 193); 21 Am. & Eng. Enc. Law (1 ed.) 400; Smith v. Whildin, 10 Pa. St. 39 [49 Am. Dec. 572]; Spurgeon v. McElwain, 6 Ohio, 442, 444 [27 Am. Dec. 266]; Clark Contracts 184, 186, 418n., 502; Story Conflict Laws, Sec. 244; Oscanyan v. Arms Co., 103 U. S. 261; McCann v. Pennsylvania Co., 6 Circ. Dec. 610 (10 R. 139); Cincinnati, H. & D. Ry. Co. v. Morris, 6 Circ. Dec. 640 (10 R. 502); Moore v. Cassily, 9 Circ. Dec. 305 (16 R. 708) ; Leavans v. Bank, 50 Ohio St. 591 [34 N. E. Rep. 1089]; Ott v. Railway Co., 10 Circ. Dec. 85 (18 R. 395); Alexander v. Pennsylvania Co., 48 Ohio St. 623 [30 N. E. Rep. 69]; Riley v. Grace, 33 S. W. Rep. 207 [17 Ky. Law 1007] ; Witty v. Southern Pac. Co., 76 Fed. Rep. 217; Van Horn v. Water Co., 47 Pac. Rep. 361 [115 Cal. 448] ; Warner v. Grace, 14 Minn. 487; Ohio Cr. Law & Prac. 714; 1 Bishop. Cr. Proc. 639.</p>

<p>BENEFICIARY INSURANCE.</p> <p>1. Constitution and By-laws of Beneficiary Association.</p> <p>Under the charter of the Protected Home Circle, the supreme circle has full authority to enact a constitution and by-laws lor the association and to amend the same.</p> <p>2. Effect of Amendment as to Death by Suicide.</p> <p>Where the constitution and by-laws of a beneficiary association provide that the same may be altered and amended, and the application for the beneficiary certificate sets forth that the member will comply with all the laws, rules and regulations then in force or that may thereafter be enacted; an amendment to the constitution and by-laws providing that committing suicide by a member, sane or insane, shall avoid the certificate and forfeit all benefits thereunder, is valid, and applies to a certificate issued under such application, previous to such amendment.</p>

The words “next of kin” describe a class of persons to be ascertained by the rules of law and the degrees of consanguinity are to be computed according to the rules of the civil law. Clayton v. Drake, 17 Ohio St. 367, 368. Brothers of the whole and half blood are of the same degree, and would share equally unless distinction is made by statute. Oliver v. Sanders, 8 Ohio St. 501, 506.

<p>Heard on Error.</p> <p>3 Wood Railway Law, Sec. 382; Kroy v. Railway Co., 32 Iowa, 357; Wood Master and Servant, Sec. 403; 3 Elliott Railroads, Sec. 1288; Cooley Torts 555; Portance v. Coal Co., 77 N. W. Rep. 875 [101 Wis. 574]; Gulf C. & S. F. Ry. Co. v. Williams, 39 S. W. Rep. 967; Houston T. C. Ry. Co. v. Strycharski, 26 S. W. Rep. 253 [6 Tex. Civ. App. 555]; Smith v. Sellars, 4 So. Rep. 333 [40 La. Ann. .527] ; Crilly v. Railway Co., 10 So. Rep. 400 [44 La. Ann. 95]; Leary y. Railway Co., 2 N. E. Rep. 115 [139 Mass. 580, 584]; Naylor v. Railway Co., 11 N. W. Rep. 24 [53 Wis. 661]; Mad River & L, E. Ry. Co. v. Barber,-5 Ohio St. 541 [v67 Am. Dec. 312]; Lake Shore & M. S. Ry. Co. v. Knittal, 33 Ohio St. 468; Wolsey v. Railway Co., 33 Ohio St. 227; Krause v. Morgan, 53 Ohio St. 26 [4Ó N. E. Rep. 886]; Railway Co. v. Leech, 41 Ohio St. 388; Circleville v. Throne, 1 Circ. Dec. 200 (1 R. 359); Pittsburgh, C. & St, L. Ry. Co. v. Eis, 1 Circ. Dec. 329 (2 R. 3); Coal Co. v. Estievenard, 53 Ohio St. 43, 58 [40 N. E. Rep. 725] ; Railway Co. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26] ; Pennsylvania Co. v. Morel, 40 Ohio St. 338; Grant v. Railway Coi, 6 Circ. Dec. 516 (10 R. 362); affirmed by Supreme Court without report, Grant v. Railway Co., 54 Ohio St. 660 [46 N. E. Rep. 1158]; Cleveland, C. C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340,-Railway Co. v. Depew, 40 Ohio St. 121, 127; Wabash Ry. Co. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576] ; Stephen’s Digest 58; Baltimore & O. Ry. Co. v. Whitacre,'35 Ohio St. 627; 7 Am. Neg. Cas. 594; Bassett v. Shares, 27 Atl. Rep. 421 ['63 Conn. 39, 43]; Busby v. Finn, 1 Ohio St. 409, 410; Wells v. Martin, 1 Ohio St. 386.</p> <p>On suggestion of diminution of record:</p> <p>Doty v. Rigour, 9 Ohio St. 526; Wood v. Newkirk, 15 Ohio St. 295, 298; Irwinw. Bank, 6 Ohio St. 81, 8'7; Negley v. Jeffers, 28'Ohio St. 90; Burton v. Insurance Co., 26 Ohio St. 467, 470; Martin v. Railway Co., 13 S. W. Rep. 765 [53 Ark. 250] ; Churchill v. Hill, 26 S. W. Rep. 37$ [59 Ark. 54] ; Beckwith v. Talbot, 2 Colo. 604; Harris v. Tomlinson, 30 N. E. Rep. 214 [130 Ind. 426] ; Marley v. Hornaday, 69 Ind. 106; Mor-* gan v. Hays, 91 Ind. 132; Hannah v. Dorrell, 73 Ind. 465; Firestone v. Firestone, 78 Ind. 534, 535; Runnels v. Moffat, 41 N. W. Rep. 224 [73 Mich. 188] ; Lefferts v. State, 6 Atl. Rep, 521 [49 N. J. L.' 26].</p>

<p>HUSBAND AND WIFE — SEPARATE PROPERTY OF WIFE.</p> <p>1. Separate Property of Married Woman not Liable for Antecedent Debts.</p> <p>A married woman, before the' act of April 14, 1884; 81 O. L. 209; Sec. 3109 Rev. Stat., could charge by contract only her present separate property. Hence, a promissory note given by a married woman in 1879 binds only the separate property owned by her at that time, and insurance upon the life of her husband, collected by her in 1901, cannot be subjected to the payment of such note. 76 O. L. 3, affected only the manner in which a married woman might sue or be sued, and did not enlarge her power to contract.</p> <p>2. Jurisdiction of an Ohio Court to Enjoin Proceedings in Other States.</p> <p>A court of this state having jurisdiction of the parties to a judgment of another Ohio court, which has become inoperative and void, will enjoin the judgment creditor from proceeding to enforce such judgment against property of the judgment debtor in another state,</p>

<p>LOST INSTRUMENTS.</p> <p>1. Prooe or Execution Essentiar to Estabrish Rost Deed.</p> <p>To establish a lost deed by parol the evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and evidence that a deed of certain property was drawn by a certain abstract company and that the persons alleged to have been grantees therein had in their possession at various times thereafter a deed describing the same property, without any evidence that such a deed was executed by the alleged grantors or uro-'erly acknowledged and attested, is not sufficient.</p>

<p>MUNICIPAL CORPORATIONS — WORKHOUSE.</p> <p>1. Governmental Powers of City — Workhouse.</p> <p>A city, in constructing and maintaining a workhouse, acts not in its corporate, but in its governmental capacity, and hence is not liable to a prisoner in such workhouse for injuries received by him through the wrongful' acts of the superintendent thereof.</p> <p>2. Inherent Powers of Officers of Workhouse to Make Reasonable Rules for Discipline.</p> <p>Officers of prisons have an inherent power to prescribe reasonable rules and regulations and to enforce obedience to them by the infliction of appropriate punishments for their infraction. Hence, the superintendent of a workhouse is not liable to a prisoner for injuries sustained by the latter as a result of punishment by confinement in a small and damp dungeon, where it does not appear that such punishment was cruel or excessive or was inflicted maliciously or with intent to injure.</p>

<p>ACTION — HIGHWAYS.</p> <p>Injury to Public Highways — County Commissioners — Injunction.</p> <p>A board of county commissioners cannot maintain a suit in equity for an injunction to restrain an injury to a county road; its only remedy is an action at law for damages under Sec. 364 Rev. Stat.</p>

<p>WILLS.</p> <p>1. Next of Knsr.</p> <p>The words “next of kin” will not be taken in their technical sense in construing a will, where it clearly appears from the context that a different meaning was intended.</p> <p>2. Bequests to Charitable Institutions.</p> <p>If bequests are made to charitable institutions under defective appellations which are not generic, the ambiguity may be removed by extrinsic evidence.</p>

Heard on Error. Where leave of court is necessary before filing a petition in error, and when the common pleas court refuses such leave, the refusal is not reviewable by a higher court for the reason that it is not a final judgment or order in a pending case. Rothwell v. Winterstein, 42 Ohio St. 249; Carroll v. O’Connor, 25 Ohio St. 617; Sec. 6610 Rev. Stat.; Dennis v. Hanson, 5 Circ.

<p>STREET IMPROVEMENTS — ASSESSMENTS.</p> <p>1. Determination of Excess of Benefits not Required.</p> <p>An assessing committee of a city council, having determined that the benefits accruing from an improvement to all the property upon the street to be assessed therefor, is as much as the amount to be assessed thereon, is not required to go further and determine the extent that the benefits exceed the amount to be assessed, and an assessment upon any parcel of such property is valid if not in excess of the benefit accruing thereto nor more than its just proportion of the amount to be assessed.</p> <p>2. Irregularities in Proceeding Determining Amount of Assessments not Fatal.</p> <p>An assessment for a street improvevnent is not invalid for the reason that the council or its assessing committee 'did not proceed by a certain or prescribed method in determining its amount, if a just and equitable result is obtained, and even though the method pursued by the council or its committee is unscientific or informal if the amount assessed against a parcel of land does not exceed the benefits thereto resulting from the improvement, or its just proportion of the benefits thereby resulting to all the property subject to assessment therefor, the owner has no ground of complaint.</p> <p>3. Valuation of Property Assessed not Essential to Validity of Assessment.</p> <p>An assessment for a street improvement in the city of Toledo is valid against a property owner signing the petition therefor, although the assessing committee of the council does not fix the value of the property assessed. Section 2272 Rev. Stat., which provides that such an assessment shall be valid, although it exceeds twenty-five per cent, of the value of the property, applies, and a valuation of the property is unnecessary.</p> <p>4. Incorrect Minutes will not Defeat Contractor’s Rights, When.</p> <p>The mere failure of the recording clerk of a city council to make correct minutes of its proceedings in authorizing a public improvement will not defeat the rights of a contractor who has constructed such improvement.</p> <p>5. Presumption from Journal as to Number of Councilmen Voting Upon a Resolution.</p> <p>Where the journals of the council of a city show that a resolution was adopted in each branch of the council by a certain number of votes and such numbers correspond with the number of councilmen shown by such records to have been in attendance, it will be presumed that all those present voted aye, and such vote and record is sufficient under Sec. 1693 Rev. Stat., which requires that the vote on the adoption of ordinances, resolutions and by-laws shall be taken by yeas and nays, and recorded on the journal.</p>

<p>Heard on Appeal.</p> <p>Crawford v. Rambo, 44 Ohio St. 279, 284 [7 N. E. Rep. 429]; Angelí Water Courses, Secs. 333, 334;'Illinois Central Ry. Co. v. Bethel, 111. App. 1; Bell v. McClintock, 9 Watts 119 [34 Am. Dec. .507] ; Pittsburg, Ft. W. & C. Ry. Co. v. Gilleland, 56 Pa. St. 445 [94 Am. Dec. 98] ; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65 [42 Am. Rep. 529]; Kansas'City, M. & B. Ry. Co. v. Smith, 17 So. Rep. 78 [72 Miss. 677; 27 L. R. A. 762; 48 Am. St. Rep. 579] ; Village v. Kallagher, 52 Ohio St. l'83 [39 N. E. Rep. 144]; Pittsburgh, Ft. W. & C. Ry. Co. v. Brigham, 29 Ohio St. 374; Ohio & M. Ry. Co. v. Ramey, 28 N. E. Rep. 1087 [139 111. 9] ; Frazier v. Brown, 12 Ohio St. 294, 312; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765],</p>

<p>TRIAL.</p> <p>The Qualification of an Interpreter a Matter of Judicial. Discretion.</p> <p>The determination of the qualifications of an interpreter is peculiarly within the sound discretion of the court and it is for the court to determine the ■character of the testimony which will satisfy that discretion, and such finding is conclusive.</p>

<p>MORTGAGE.</p> <p>Extent of Lien Acquired Under a Mortgage by an Insane Person.</p> <p>Where part of the consideration of a mortgage executed by an insane person is applied to the payment of a prior mortgage given by such person, the former mortgage is valid to the extent of the amount so applied with interest and costs.</p>

<p>NEGLIGENCE — MACHINERY.</p> <p>1. Contributory Negligence of Fireman of Sand Unloading Machine.</p> <p>The fireman of a sand unloading machine who attempts to close the windows of the engine room thereof while the engine is in motion, a duty not usually or properly performed until after all machinery in the room has been stopped, is guilty of contributory negligence which will prevent any recovery by him for injuries received from the moving rods of the engine among which he falls while so occupied.</p> <p>2. Reciprocating Parts of Engine not Included in Act Requiring Shafting, etc., to be Guarded.</p> <p>94 O. L. 42, which provides that owners and operators of machinery shall place guards or casings upon all revolving wheels and shafting, and upon all belts connected with such machinery, does not include the reciprocating parts of a steam engine.</p>

<p>PRACTICE — BILL OF EXCEPTIONS.</p> <p>Statement that Bill Contains “All the Testimony” not Sufficient to Allow Review of the Evidence.</p> <p>Evidence, within the meaning of the rule that a reviewing court will not consider a case upon the weight of the evidence unless the bill of exceptions affirmatively shows that it contains all of the evidence submitted to the lower court, includes not only testimony but also documentary evidence, exhibits, and every other thing which may properly give information to the court upon the issues presented. Hence, a statement that the bill contains “all of the testimony” in the case, is not sufficient.</p>

<p>Heard on Appeal.</p>

<p>Appeal from the court of common pleas.</p>

<p>SPECIFIC PERFORMANCE.</p> <p>1. Venue of Action for Specific Performance of Land Contract.</p> <p>An action under Sec. 5024 Rev. Stat., to compel the specific performance of a contract for the sale of real estate, may be brought in the county where the land lies, although no defendant is resident therein, and service may be had upon nonresident defendants by publication.</p> <p>2. Ownership of Property at Filins of Petition Does not Affect Service.</p> <p>In an action for the specific performance of a contract for the sale of real estate it is. immaterial, so far as service is concerned, whether or not the defendants were the owners of the property when the petition was filed.</p>

<p>Heard on Error.</p>

<p>TRIAL.</p> <p>Endorsement of Summons in Foreclosure.</p> <p>No endorsement for money is necessary uppn a summons in a suit for foreclosure of a mortgage, and personal judgment. The fact that the amount due at the time of filing such petition is endorsed on the summons does not prevent a personal judgment for the amount found to be still due after the sale of the mortgaged premises, notwithstanding such judgment is in excess of the amount so endorsed.</p>

<p>RAILROADS — TRESPASSERS.</p> <p>1. Duty of Railway Companies to Trespassers.</p> <p>A railway company is not bound to look out for and protect trespassers or mere licensees upon its track except to use all reasonable diligence to protect such persons after discovering their peril.</p> <p>2. Leaving Place of Safety — Contributory Negligence.</p> <p>A person who leaves a place of safety between two railway tracks and goes upon the track in order to pass around a switch light, without looking or listening or taking any precaution to save himself from possible danger, is guilty of contributory negligence which will prevent a recovery for injuries received by him from an engine moving upon such track.</p>

Sections 5702 and 5703 Rev. Stat. must be construed together with the prior written or unwritten laws in reference to alimony. Bishop Mar. & Div., Secs. 1040-2. Alimony as we recognize it in Ohio, can be either permanent or pendente lite, and if granted on absolute divorce and the amount is agreed upon as final, the court will refuse to modify. Law v. Law, 64 Ohio St. 369 [60 N. E. Rep. 560]. If granted on application for alimony only, it is only a decree for maintenance.

<p>ACTIONS — BONDS.</p> <p>1. Improper Joinder oe Actions.</p> <p>Causes of action against several defendants are improperly joined where the action is upon bonds which were not signed by the same parties, or given in the same court, or in courts of the same jurisdiction, or answering to the same parties, or containing the same conditions.</p> <p>2. Bond Required by Court Having no Jurisdiction is a Nullity.</p> <p>The probate court has no jurisdiction but such as is conferred by the constitution and statutes of Ohio. Hence, under Sec. 5803 Rev. Stat. conferring jurisdiction on the common pleas to sell entailed estate, no power being •conferred on the probate to do likewise, any action taken by the latter in the sale of such estates is coram non judice. Hence, a bond given in a proceeding in the probate court to sell an entailed estate is an absolute nullity, and the fact that such court finds that it has jurisdiction fails to give it any effect, and the want of such jurisdiction may be shown in any action founded upon such bond.</p>

<p>COURTS — JURISDICTION.</p> <p>1. Circuit Court of United States — General, but Limited Jurisdiction.</p> <p>The circuit court of the United States is a court of general though limited jurisdiction and as such has the right to pass upon'its own jurisdiction, and its judgment, while entitled to all the presumption in its favor which attaches to judgments of courts of general jurisdiction in our own and sister states, may be contradicted as to the facts necessary to give jurisdiction. Therefore, such court is not a court of special jurisdiction within the contemplation of Sec. 5090 Rev. Stat., providing that it shall be sufficient to state where the judgment is of a court of special jurisdiction, that it was duly • given or made, which fact must be established on trial if controverted.</p> <p>2. Waiver of Technical Defect in Pleading.</p> <p>An answer, “now comes the defendant and says that she denies,” etc., is technically not in good form, but the parties having gone to trial without objection thereto on the assumption that it is a good traverse to the allegations of the petition, it will be treated on error as a sufficient denial, especially since it could have been cured by amendment.</p>

<p>MANDAMUS.</p> <p>1. Mandamus Will not Lie to Compel Board of Elections to Provide Voting Machines.</p> <p>A writ of mandamus to compel a board of elections to grant the petition of sixty-five per centum of the electors of a voting precinct for the providing of a voting machine for their precinct, under the provisions of 95 O. L. 420, will not be issued, where it does not appear that there are funds on hand applicable to payment for such a machine, or that the hoard has been derelict in providing by proper levy a fund applicable to such purpose.</p> <p>2. Mandamus Does not Lie to Anticipate Omission of Duty.</p> <p>The rule that mandamus cannot be granted in anticipation of a supposed omission of duty, forbids the issuance of a writ to compel the purchase of a voting machine which will not be needed until three months hence, where it does not appear that it is necessary to purchase the machine at this time in order to have it in readiness when needed.</p>

<p>ATTORNEY AND CLIENT.</p> <p>Assignment of Judgment to Attorney for Professional Services.</p> <p>One who assigns all right, title or interest in a judgment to an attorney, in consideration of professional services theretofore rendered, the said attorney to account to the assignor for one-half of’the amount realized on the judgment, does not make the attorney an agent for the collection of the judgment, but invests him with full title thereto, and the attorney has the right to prosecute an action in his own name against the judgment debtor.</p>

<p>JUSTICE OF THE PEACE — APPEAL.</p> <p>Perfection of Appeal Before Justice Originally Having Jurisdiction.</p> <p>Where a justice of the peace sits in a case and renders judgment in a case filed before another justice who is temporarily disabledj the appeal bond must be perfected before the justice originally having jurisdiction.</p>

<p>AGENCY — ESTOPPEL.</p> <p>Agency Established.</p> <p>To establish agency, one or the other of two things must be proven — either that the_ agency actually existed and the agent had the authority he assumed to exercise or that the principal is estopped from disputing it.</p>

<p>Two cases are here decided — German National Bank v. Bode, Guardian; and Bode, Guardian, v. Ruehrwein.</p>

<p>HUSBAND AND WIFE — MORTGAGE—ESTOPPEL.</p> <p>1. Mortgage of Wife’s Separate Property — Surety of Husband’s Debt.</p> <p>Where it appears from the record that the wife’s separate property has been mortgaged to secure the husband’s note, it is evidence tending to show that her property sustains the relation of surety to his debt.</p> <p>2. Notice of Mortgage Covering Both Husband’s and Wife’s Separate Property.</p> <p>Where the mortgage covers both the wife’s separate property and property of the husband, the fact that the mortgage secures the husband’s note is sufficient to put any one dealing with husband’s property covered by said mortgage on inquiry as to the true relation sustained by the wife’s property, and to put the burden of proof on the one dealing with such property of the husband to show that the true relation of the wife’s property is different from that indicated by the record.</p> <p>3. Same — Purchase of Husband's Property — Past Due Indebtedness.</p> <p>The foregoing is especially true as to one who purchases such property of the husband, where the only consideration is the husband’s past due indebtedness.</p> <p>4. Estoppel by Passivity — Fraud not Essential.</p> <p>While fraud or bad faith is not essential to estoppel, it is a necessary ingredient in misrepresentation by passivity.</p> <p>5. Same.</p> <p>Innocent silence does not estop.</p>

1. Where an annual assessor returns a new structure and.accurately describes the lot upon which it is erected, it is the county auditor’s duty to charge up the valuation thereof to the tax valuation of such lot. Secs. 2753, 2801 Rev. Stat. 2. If the assessor described the wrong lot the auditor cannot transfer the value of the house to the lot on which the house was erected as a correction of his duplicate under Sec. 1038 Rev. Stat.

This is an action wherein the plaintiff in error, Mabel Howard Martin, brought suit in the common pleas court against Austin Gunnison et al., and secured an attachment and garnisheed certain moneys in the hands of the Standard Oil Company.

The acceptance by a creditor of a less sum than his demand on an 'unliquidated claim when tendered with that condition operates as full satisfaction even though the acceptance be under protest. Donohue v. Woodbury, 60 Mass. (6 Cush.) 148.

<p>GAS AND LIGHT COMPANIES.</p> <p>No Legal Right of Plaintiff Having Been Violated Injunction Will not Lie.</p> <p>Where a gas and light company has been duly invested with authority to do business, and for that purpose occupy streets and public grounds, within, a city of this state, and the municipal authorities, under the sanction of an invalid ordinance, allow a competing company like rights and privileges, an action by the former to enjoin the latter from transacting its business in such city, upon the ground that the ordinance authorizing it was.not legally enacted, will not lie; as in such case, no legal right of the complaining party is shown to be violated.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Ordinance Punishing Assault and Battery, Void.</p> <p>A municipal corporation has no power, under Sec. 1692 Rev. Stat., which grants to municipal corporations the general power “to preserve peace and good order,” nor under Sec. 2108 Rev. Stat., which defines the power of the .council as to the public peace, to provide by ordinance for thp punishment of the offense of assault and battery, and such an ordinance is void.</p> <p>Ü. Power of Municipality as to Public Peace Conferred by Sec. 2108 Rev. Stat.</p> <p>The general power “to preserve the peace and good order,” conferred upon municipal corporations by Sec. 1092 Rev. Stat., is limited, and the manner of its exercise definitely prescribed by Sec. 2108 Rev. Stat., and the authority of municipalities to pass ordinances concerning the public peace must be found, if at all, in the later section.</p> <p>3. Ordinance not Invalid Under Sec. 1694 Rev. Stat.</p> <p>An- ordinance whose several sections all relate to one subject, the punishment of offenses against the city, and which contains nothing upon any other subject and nothing not clearly expressed in its title, is not invalid as in violation of Sec. 1694 Rev. Stat., which provides that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”</p>

<p>LIENS — JUDGMENT.</p> <p>Failure to Issue Execution Within One Year Defeats Priority of Senior Judgment Lien.</p> <p>The priority of the lien of a senior judgment by confession upon the lands of the judgment debtor, over the lien of a junior judgment acquired_under a foreign execution and levy, is lost by failure of the owner of the senior judgment to issue execution on his judgment and levy thereon within one year from its rendition.</p>

<p>Error to the court of common pleas.</p>

<p>CONTRACTS.</p> <p>Valid Contract of Unlawful Combination with Agent Enforceable Where Separable.</p> <p>Although a contract between certain manufacturers, providing for the organization of an association to prevent competition and enhance the price of their product, is illegal as in restraint of trade and contrary to public policy, a clause in such contract which provides that one of such manufacturers shall act as agent for the others and receive payment from them for his services as such, being severable from the illegal part of the contract, is valid. lienee, a claim of one of the members of the association against the common agent on an account stated for goods sold under the agency agreement is enforceable at law.</p>

<p>Error to the court of common pleas of Summit county.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>1. Benefit Associations May Limit Payment of Benefits to Particular Heirs.</p> <p>Although members of mutual benefit associations cannot designate as beneficiaries persons outside the classes specified in the statutes regulating such associations, they may limit the payment of benefits within the classes designated by law. Hence, a benefit association organized under 69 O. L. 82, which provides for the formation of such associations “for the purpose of mutual protection and relief of members, and for the payment of stipulated sums of money to the families or heirs of deceased members,” may provide, by by-law that in case a member fails to make any designation as to whom his endowment shall be paid, it shall be paid to his wife, or if there is no wife, to his children or grandchildren, and in case there be none such, then no endowment shall be paid.</p> <p>2. By-law of Benefit Association Disposing of Endowment of Deceased Member in Default of Certain Heirs, Valid.</p> <p>Where the by-laws of a mutual benefit association require a member to designate a beneficiary and upon his failure to do so provide that the benefits shall be paid to certain heirs in an order_ named, there being no such heirs as are specified in the by-laws, the association has the right to designate what shall be done with the endowment.</p>

<p>Error to the court of common pleas.</p>

<p>Error to the court of common pleas of Delaware county.</p>

<p>Error to the court of common pleas of Richland county. ■</p> <p>The indictment should be specific in charging the crime committed, Lamberton v. State, 11 Ohio 282; Greenland v. State, 6 Dec. 313 (é N. P, 122) ; State v. Philorick, 31 Me. 401; United States v. Hess, 124 U, S. 483 [8'Sup. Ct. Rep. 571]; 10 Am. & Eng. Enc. Law (1 ed.) 566,</p> <p>To maintain an indictment charging the unlawful uttering and publishing of a false, forged and counterfeited check the proof must show:</p> <p>First. That the instrument is a check for the payment of money as stated. (The proof shows this fact.)</p> <p>Second. That the accused knew the same to be false, forged or counterfeited. (The proof fails to show this fact.)</p> <p>Third. The uttering and publishing at the .time and place, by the accused, to the person stated in the indictment, as true and genuine</p> <p>Fourth. That said check is really forged. Ellars v. State, 25 Ohio St. 385.</p> <p>A check having been in no way altered, an indictment for forging it must fall for the reason that the most essential element of the crime is not supported by the evidence. If the writing is really what it purports to be, then there is not a false making, and the crime of forgery has not been committed. For the same identical reason there could be no unlawful uttering. Hawley, Criminal Law 225.</p> <p>This defendant was squarely indicted for “uttering and publishing as true and genuine, a certain false, forged and counterfeited check; The check was proven to be good and without “alteration.” Thereupon counsel for state, having failed to prove the check a forgery, introduced witnesses to prove that the said defendant forged the indorsement on the back of said check, and was allowed so to do over the objection of this defendant. This was error.</p> <p>This evidence was not even admissible to show guilty knowledge in the case at bar- — all that is claimed for it by the plaintiff in error.</p> <p>First. Because the check was genuine, and if so, the defendant could have had no knowledge that it was a “forgery.”</p> <p>Second. Because this defendant was not charged with the crime of “uttering or publishing a forged indorsement.”</p> <p>It is fundamental, as a general proposition, that proof of one offense is not competent in order to prove that the party committed another distinct, unrelated offense. Such facts are regarded as collateral, 1 Green-leaf, Evidence Sec. 52; Knight v. State, 54 Ohio St. 365, 379 [43 N. E. Rep. 995],</p> <p>An indorsement on a check is not a part thereof. 8 Am. & Eng. Enc. Law (1 ed.) 211; Story, Promissory Notes (7 ed.) Sec. 487; 2 Daniel, Neg. Inst. 528; Webster’s Unabridged Dictionary; Century Dictionary.</p> <p>The check was a complete instrument in every respect without the indorsement. Poage v. State, 3 Ohio St. 230; Aymar v. Sheldon, 12 Wend. 439 [27 Am. Dec. 137].</p> <p>As between indorser and indorsee, every indorsement is a new bill. Ballingalls v. Gloster, 3 East 481; Heylin v. Adamson, 2 Burr. 674.</p> <p>The indorsement is a new and substantive contract. The indorsement is understood to be not simply the transfer of the paper, but a new and substantive contract. Slacum v. Pomeroy, 10 U. S. (6 Cranch) 221; Story, Conflict of Laws 261; Case v. Heffner, 10 Ohio 180.</p> <p>The indorsement of a note is not a part of it. It is made subsequent to the execution and delivery of the note, is separate and distinct from it, and the description is as complete without the indorsement as without the filing of the maker’s name, or the amount due; neither of which can be said to form any part of the note itself. Montgomery v. State, 10 Ohio 220; 19 Ark. 354.</p> <p>A case directly in point, in that it refers to the indorsement on a check, the court decisively says that the check was a complete instrument without the indorsement; there is no averment or proof that the indorsement was forged. The charge was for forging the check and uttering it as true. The indorsement did not form any part of the check, but was a distinct contract. Miller v. People, 52 N. Y. 304.</p> <p>The indorsement is no part of the note, but an act presumed to be done after the note is complete. Commonwealth v. Ward, 2 Mass. (1 Tyng) 393, 397; Commonwealth v. Bailey-, 1 Mass. 62; Commonwealth v. Stevens, 1 Mass. 203; Hess v. State, 5 Ohio 5, 9 [22 Am. Dec. 767] ; B.urdge v, State, 53 Ohio St. 512, 514, 515 [42 N. E. Rep. 594]; Martin v. Cole, 104 U. S. 30, 37.</p> <p>To further maintain the proposition that the indorsement on the back of any check or note is not a part of the check or note, I would put this question: Assuming money to be advanced on a check of this kind and under the same circumstances, who would be compelled to pay this check ? Can the bank paying said check deduct the amount therein specified from the depositor’s account? No. Cincinnati Nat. Bank v. Creasy, 10 Re. 121 (18 Bull. 410) ; Dodge v. Bank, 30 Ohio St. 1.</p> <p>A charge of unlawfully uttering and publishing a forged check will not be sustained by evidence that the indorsement only is forged and that the check is genuine.</p> <p>In such a case the indictment should be for uttering and publishing a forged acceptance, and not for the forging of the instrument itself. Rex v. Hornwell, Moody C. C. 405.</p> <p>There was not only a material variance between the allegations of the • indictment and the proof offered at the trial, but there was a total and absolute failure of proof.</p> <p>The evidence clearly shows the check to be genuine. Therefore there could not have been an unlawful uttering and publishing of a forged check.</p> <p>On an indictment under Sec. 6820 Rev. Stat. for maliciously cutting with intent to kill, the prisoner cannot be convicted of “maliciously cutting with intent to wound.” They are offenses of the same degree, and may be punished with equal severity. Cutting with specific intent of wounding not being charged in this indictment, there can be no' conviction under it of that offense. Barber v. State, 39 Ohio St. 660.</p> <p>In conclusion we maintain that the defendant was squarely charged for uttering and publishing as true and genuine a false, forged and counterfeited check, and not for “uttering and publishing a forged indorsement,” which is entirely a separate and distinct offense.</p> <p>Second. That there is not a single iota of evidence in the record to maintain this indictment.</p> <p>Third. “An altered instrument is one that was genuine before alteration, but a forged and counterfeited instrument is one that was never genuine.” Stoughton v. State, 2 Ohio St. 562, 566.</p>