Volume 15 — Ohio Circuit Court Reports

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

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

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

<p>Employer and employe — Injury through defective machinery — Employment of man to inspect machinery — Fellow servant — What necessary to be shovm to relieve employer of liability—</p> <p>Where, in an action by an employe against his employer for damages for injury received by such employe through defects in the machinery, it appears that the machinery furnished was defective in the particular claimed, and it was dangerous to use it in that condition, and the danger could, by reasonable care, have been discovered and guarded against, and that plaintiff was ignorant of the defect and it was not incumbent on him to examine ■ as to this, and as a result of this the plaintiff received the injury, the case should be submitted to the jury on the question of negligence and liability of the employer, unless something else appeared which, as matter of law, deprived the plaintiff of his right to recover. And where it appears that the defendant had in its employ a man whose duty it was to inspect the machinery' and have it in order, but there was no evidence that he was competent for that purpose, or that he was by his employers supposed to be such, or that he had ever examined this particular machino, then the injury thus happening would not be through the negligence of a fellow servant, and the employer would be liable, and the court would not be warranted in withdrawing the case from the jury, but the case should be submitted to the jury' for determination.</p>

<p>Bill of exceptions in mayors’ courts—</p> <p>1. There is no statute conferring authority upon the Mayor of a municipal corporation to allow a period of ten days from and after the overruling of a motion for a new trial, as time in which to prepare, have allowed and file a bill of exceptions, setting forth the evidence and the rulings of the mayor thereon.</p> <p>Same — Allowance of time to prepare—</p> <p>2. The statute relating to bills of exceptions in civil cases before justices of the peace is not applicable to criminal cases in mayors’ courts.</p>

<p>Final order—</p> <p>Under section 4452, Revised Statutes, as amended April 19, 1894,(91 Ohio Laws, page 160), the finding of the county commissioners determining the necessity of a ditch improvement, is such a final order and determination of the rights of the parties affected thereby, from which error will lie.</p> <p> Petition in error— </p> <p>In such case, a petition in error must be filed within six months from the date of such ■ finding or determination of the county commissioners, in order for the reviewing court to obtain jurisdiction of the subject matter of the proceeding of the county commissioners; otherwise, the petition in error should, on motion, be dismissed.</p>

<p>1. A party may appeal from a final judgment rendered by the court of common pleas in a mandamus proceeding.</p> <p>2. County commissioners and county treasurers are not exempt from giving bonds for appeal by sec. 5228.</p>

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

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

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

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

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

<p>Gas and oil lease — Construction—Forfeiture—Record of extensions—</p> <p>'The owner of a tract of land by a written lease granted to the lessee all the oil and gas in or under the soil, upon condition that the lessee should drill wells within a time limited, or to pay the lessor a certain sum per year at the beginning of each and every year during the continuance of the term named in the lease, or re-convey the premises, under which agreement the lessee elected to pay the sum named in the lease at the time stated, and did not drill the wells nor reeonvey the premises; the parties thereto, by subsequen written agreement endorsed on the lease, extended the term indefinitely, and provided for the payment of a larger sum per year than originally agreed upon. These terms were fulfilled by the lessee by payment of the amount of annual rental, and at the expiration of the last year for which payment was made and accepted, he tendered to the lessee the proper sum for another year which was. refused, and the lessee thereupon treated the lease as forfeited and immediately re-let the premises to another. Held:</p> <p>First: That the second lease was void; that if lessor had the right to refuse the tender of payment for a succeeding year, still the lessee had the right, after the expiration of the year for which he had paid for delay in drilling, to a reasonable time thereafter, in which to drill and operate the premises.</p> <p>¡Second: That the original endorsements upon the lease of extension of time and of a change in the amount to be paid for delay in drilling, were not of themselves leases, or assignments of leases, or assignments of an interest in a lease required by the statute to be recorded, and no record thereof was necessary in order to be of binding force upon the parties to the agreement.</p>

<p>Disbarment of attorney — Not mere punishment—</p> <p>(1.) Disbarment of an attorney is not for the purpose of punishment, but for the purpose of preserving the courts of justice ’ from the official ministrations of persons unfit to practice in them. _</p> <p>Same — Reinstatement—Moral character—</p> <p>(2.) A court ought not to reinstate an attorney who has been disbarred unless satisfied that he is of good moral character.</p>

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

<p>4ppeal — Notice—Judge’s docket not part of record—</p> <p>(1.) The judge’s docket is no part of the records of the court, and notice of appeal entered upon such docket is not sufficient.</p> <p>Same — Nunc pro tunc entry—</p> <p>(2.) A party desiring to appeal his cause to the circuit court must, within three days after the judgment or order is entered, enter on the records notice of such intention, and an omission to do so cannot be cured by a nunc pro tunc order.</p>

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

The plaintiff below, Simon, sued the C,, O., C. & St. L. Railway Co. as a common carrier, to recover $8,000 damages.

<p>Will — Partly written, partly printed—</p> <p>(1.) The fact that a will is partly printed and party written, does not make it invalid.</p> <p>Contest of will — Order of testimony — Competency—</p> <p>(2.) A plaintiff contesting a will on the ground that the testator was without testamentary capacity, having called as witness in chief one of the devisees, who is a defendant and whose interests are adverse, will not be permitted to inquire of such witness’ at that stage of the case, whether he has not admitted or declared that the testator was incapable of transacting business. It is not competent to prove the incapacity of the testator in that way.</p> <p>Same—</p> <p>(3 ) A non-expert witness will not be permitted to testify to his opinion of the mental condition of a testator until he shall have testified to facts within his knowledge tending to throw light upon shell mental condition and forming a basis for such opinion.</p> <p>Same — Cross examination — Adverse witness called in chief—</p> <p>(4.) A party calling a witness who does not appear to have any interest in the controversy, will not be permitted to cross-examine him upon the mere assumption that he is an adverse witness.</p> <p> Same— </p> <p>(5.) A party will not be permitted to ask his own witness if he has not made certain statements out of court, unless such witness has testified to facts inconsistent therewith, and the party has been surprised by such testimony.</p> <p>Same — ■</p> <p>(6.) A party may not call a witness supposed to be adverse, in anticipation of his being called by the other side, and elicit from him answers otherwise incompetent, with a view of laying ground for his impeachment.</p>

<p>Devise by husband to widow — Death of widow before election—</p> <p>1, Where a husband,by his last will and testament,devises all of his property, real and personal, to his wife who survives him, and such will is duly and promptly presented to the proper court for probate, and continued for hearing, and before it was admitted to probate, (as was afterwards done), the widow departed this life, intestate, such real estate so devised to her, descends to her heirs at law, subject to the payment of the debts of the- testator and the intestate, and not to the heirs at law of the testator — and this is the case though no election in fact to take under the will was made by such widow by her acts and conduct.</p> <p>Same—</p> <p>2. In such ease the provision made for the widow, being in addition to dower, she would retain her dower right free from the claims of creditors, and there can be no controversy but that the provision made for her by the will, is better than that made for her by the law.</p> <p>Same — When land devised passes to widow’s heirs—</p> <p>3. The provisions of sec. 5964, Bev. Stats.,that if the widow or widower shall fail to make the election provided for in sec. 5963, after the probate of the will, and after being cited to do’so,she’or he shall retain dower and such share of the personal estate of the deceased consort,as he or she would have been entitled to by law, in case the deceased consort had died intestate leaving children, do not apply to a case where the will is not probated at the time of the death of the widow or widower.</p>

<p>Title by delinquent tax sale — Strict compliance with statutory requirements necessary—</p> <p>To accomplish a valid sale of lands or lots, at delinquent tax sale, so as to vest the legal title in the purchaser, it is essen7 tial that all the requirements of the statutes with reference to the proceding of levying and collecting taxes, be strictly followed by all officials having any duty to perform in relation thereto.</p> <p>Same—</p> <p>A failure to comply with any one of such statutory requirements, is an irregularity that will invalidate the sale.</p> <p>Invalid tax sale — What purchaser i§ entitled to—</p> <p>After two years from the day of such tax sale, the provisions of sec. 2880, R. S. apply an govern; and in such situation, the purchaser at an invalid tax sale is only entitled to recover against the owner of such land or lot, the aggregate sum of the original purchase and taxes subsequently paid, with interest thereon from the date of payment but no penalty and no'costs incurred in the sale.</p>

The facts necessary to the determination of this case are the following: The will of Madison Munday, deceased, was admitted to probate May 29, 1879, devising one-half of his real estate, in trust,to his son. James M. Munday. On the 2nd day of May, 1890, James M. Monday executed his will, by the terms of which he devised the whole of his estate to his sister, Sarah Decker, who has since deceased, and her heirs are made parties defendant in this action.

QUO W ARRAU TO. The petition reads as follows: “Frank S. Monnett, Attorney General of the state of Ohio, comes here into court, and gives the court to understand and be informed that the defendant, James 0.

<p> The act for suppression of Mob Violence unconstitutional. </p> <p>1. The statute, 92 O. L., 136, for the suppression of mob violence provides that the party complaining shall recover a deflnite sum regardless of the actual damages he has suffered. ■</p> <p>2. In so far as the damages awarded by the statute exceed the actual damages suffered by the complaining party, the county is taxed for private interests.</p> <p>3. The state has no power to tax the public for purely private interests.</p> <p>4. The power of the legislature, under the provisions of the constitution, to levy taxes is not without limitations,and such powers are not only grants, but limitations.</p>

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

<p>Private corporation — Sale of bonds — Power of selling committee to employ broker—</p> <p>1. ^A committee, duly empowered by a corporation to negotiate for purchasers and to sell an issue of bonds, have power to employ a broker to sell such bonds.</p> <p>Same — Compensation of broker employed—</p> <p>% A broker so employed and rendering services under such employment may recover of the corporation the reasonable value of such services.</p> <p>Sale at less than par not without express authority of Board of Directors—</p> <p>3. The Board of Directors not having authorized its said committee to sell the bonds at less than par, the committee could not authorize a broker to secure purchasers for ninety-five per cent of par.</p> <p>Evidence — Hypothetical question must apply to facts of case—</p> <p>1. In proving the value of the services^of such a broker by the testimony of experts, it is improper to include in a hypothetical question the statement that such broker was authorized to sell the bonds at ninety-five cents on a dollar.</p>

<p>Judgment of court of other state — Proof of—</p>

<p>Street railroad — Arrangement by one to allow other road use of its tracks — Arrangement of such other road with third road to use tracks, when will not invalidate arrangement with the first road — •</p> <p>A traffic arrangement between two electric street railroads, by which road A., the city road, agrees to furnish power and permit road B., the suburban road, to run its cars and traffic over the tracks of road A., is not violated by road B. permitting a portion of its cars to run over the tracks of another connecting road as well as over its own and the tracks of road A., where the latter arrangement does not increase unreasonably the number of cars to be carried by road A.</p>

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

<p>Prosecution for conveying into prison things with intention to aid 4n escape — Sec. 6902 R. S.</p> <p>Bn the trial of one charged under sec. 6902, Rev. Stat., with having conveyed into a county jail a revolver and other articles useful to effect the escape of a prisoner lawfully detained .therein, and with intent to thereby facilitate the escape1^ of such prisoner, the court charged the jury that if the defendant gave the revolver to the prisoner with the intent that he should use it to effect an eseapelwhile^he was out of the jail for a temporary purpose in the custody of the sheriff, and to be returned to the jail when such temporary purpose was accomplished, then, while so temporarily out of the jail, he was a prisoner confined in the jail within the meaning of the statute, and such intent would be an intent to facilitate the escape of a prisoner detained in the jail within the meaning of the statute. Held: Not error.</p> <p>.Action' of trial court in overruling motion fin arrest of judgment based on many alleged defects in the indictment, sustained.</p>

The facts, as they appear from the record in this case, are as follows: S. H. Bartram, defendant in error, was plaintiff in the lower court, and brought suit on a joint claim in his favor, arising on a joint contract of lease, against Osbun and four other persons; and in his petition stated a joint cause of action against all of them, with a prayer for a joint judgment, Summons was issued and served on all the defendants; all of them answered,in some form or other, except…

<p>Building of blacksmith shop near a dwelling house in village — Injunction—</p> <p>Plaintiff sought to restrain defendant from moving a building upon a lot in the village of Bowling-Green and use of the same for a blacksmith shop:</p> <p>Held: Under the facts of the case an injunction should not have been allowed.</p>

On a petition filed for that purpose, a receiver was duly appointed for the Peerless Refining Company, a corporation having its principal place of business at Findlay, Ohio, by a judge of the court of common pleas of Hancock county, at Chambers, on August 13, 1897.

<p>Tenant holding over becomes tenant from year to year—</p> <p>During the year, tenant left the premises claiming the right to do so without liability to pay the rent thereafter.</p> <p>Held: That in order to admit proof by parol evidence of a surrender, there must have been a surrender in fact of the premises, accompanied by delivery of possession to the landlord, accepted by him as such surrender.</p>

The Board of County Commissioners of Putnam county, filed a petition against Joseph R. Megrue, James B. Townsend and Nelson E. Mathews, alleging in substance: That on the 25th day of November, 1895, the defendants named, executed and delivered to the plaintiff their certain writing obligatory, whereby they became bound to the said board for the use of Putnam county, in the sum of one thousand dollars.

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

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

<p>Estate owning chattel mortgage — Administrator can not buy property for the estate—</p> <p>Where among the assets of an estate there is a chattel mortgage, , the administrator can not buy the property mortgaged and bind the estate by a promise made in his capacity as administrator of the estate to pay the purchase money. It is hot the part, but a violation of his duty as administrator, to buy any property for the estate even though he may think it will turn out to the advantage of the estate, and even if it so turn out.</p> <p>Same — Suit against administrator as such on his promise to pay purchase money — Judgment binds the administrator personally, not the estate—</p> <p>In such case a judgment, recovered against the administrator, in a suit instituted against him as administrator on such promise, made as administrator, to pay the purchase money, will not bind the estate, but will be effective against the administrator personally. *</p>

<p>Railroad crossing turnpike — Low bridge — Remedy—</p> <p>Where an injunction is asked to restrain a railroad from building a bridge over a turnpike which would leave only a space between the surface of the pike and the bridge not sufficient for the purposes of the public using such pike, and it appears that much work has been done in building such bridge before the Turnpike Co. objected; that the cost of - raising the bridge and the approaches thereto, would involve a heavy expense,and that the difficulty could be remedied at a much less expense and trouble by lowering the surface of the pike at the point in question, the court will order that the latter be done at the expense of the Railroad Co.</p> <p>Same — Power of Turnpike Co. to acquire land in fee-simple—</p> <p>Where it appears that after making the application for such injunction, the Turnpike Co., to further prevent the building of the bridge,had acquired the fee-simple of the land occupied by the turnpike and the bridge at that point, in which before it held only an easement of right of way, such fee not being necessary to the Turnpike Co. for any other purpose than to prevent or delay the building-of the bridge, Held: that the Turnpike Co. has no legal right under our present laws to acquire and hold the fee-simple estate in such land for such a purpose.</p>

<p>Divorce and alimony — Defendant’s interest in any property may be averred in petition—</p> <p>The plaintiff in a divorce proceeding may describe in the petition all the property in^which^the defendant has any interest, no matter what that interest is, and make others who claim any interest in such property parties to the suit, and the court has power to determine in such action, what the interest of defendant or of other parties to the suit is, and take it into account in the allowance of alimony.</p> <p>.Same — Property described in petition bound from date of filing of petition and service c/ summons—</p> <p>Where the petition alleges that defendant has fraudulently, without consideration, conveyed property to a third’person to defeat her claim for alimony, and that said third party is about to sell the same and has instituted proceedings in the probate court for the sale of the property to pay creditors of the defendant,and prays for an injunction to restrain such party from proceeding further, an injunction may properly be granted for that purpose. But where the property is fully described in the petition, no injunction is necessary to bind the property from the date of filing the petition and service of summons as to any claim plaintiff may be determined to have by the court.</p>

<p>Taxation — Addition of value of new building already embraced in valuation by Board of Equalization — Clerical error — Owner entitled to refunder of taxes paid in such case—</p> <p>Where,by a mistake of the county auditor, a sum for a new building returned by the assessor was added to the valuation of land, while the value of such building had already been embodied in the valuation as fixed by the county board of equalization,this is a clerical error,to the correction oí which the owner of the property is entitled,and he is also entitled to a refunder of the amount of the taxes paid by him on such erroneous addition to the valuation of his property.</p> <p>Same — Appraisement made on different day than provided by law.</p> <p>Although the law requires that the appraisement of real estate in decennial years shall be made as of the second Monday of April, yet it will not be presumed that the _ appraisements were made as of that date when it is shown as a matter of fact that the valuation was made at a different time.</p>

<p>Divorce — Dismissal of petition on ground of insufficiency — Appeal —Sec. 5706 Rev. Stat.</p> <p>Where a petition for divorce fails to state a cause of action for that relief, the court, on objection by the defendant, may properly refuse to admit or hear any evidence offered by the plaintiff; and if no leave to amend the defective petition be asked, the court may dismiss it at the costs of the plaintiff, and such order and judgment is not a dismisal of the petition “without final hearing,’’ from which an appeal will lie to the circuit court under sec. 5706 of Revised Statutes, and such appeal should be dismissed.</p>

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

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

<p>. Oil & Gas Lease — Forfeiture—Not enforeible for indefiniteness—</p> <p>A lease of lands for purposes of operating and producing oil and gas found therein, contained the following provision of forfeiture: “Second party agrees to complete four wells the second year, two the first six months of the second year andjiwo of them the last six months of the second year. If the four wells are not completed within the time specified, twenty-two acres of this grant shall be forfeited for each well not so completed” Held:</p> <p>(1.) The completion of four wells on the leased lands, within and during the second year, is such a substantial and sufficient compliance with the provisions of the lease, with respect to forfeiture, as will obviate and defeat a forfeiture.</p> <p>(2). The stipulation that twenty-two acres shall be forfeited, for éach well not so completed, is entirely too vague and indefinite in the matter of description, and furnishes no reliable data —no certain starting point, from which the twenty-two acres can be measured and accurately located, and for that reason is void for uncertainty.</p>

<p>Harboring vicious animal — Liability for injury—</p> <p>1. All who taKe part in harboring a vicious animal may be sued jointly in an action for damages resulting from the vicious conduct of such animal.</p> <p>Evidence — Cross-examination —Hypothetical question—</p> <p>2. A witness testifying in chief that from his knowledge and observation he believes or is of the opinion that a certain dog is “peaceable” and “good natured”, and not “vicious”, upon cross-examination may be asked whether, if such dog should-do certain acts described in the question, witness would consider him a “peaceable” and “good natured” or a “vicious” dog, for the purpose of determining what witness means by the terms “peaceable” and “good natured”, and “vicious.” Whether such supposed acts are such as have been done by the dog in question is immaterial.</p> <p>Argument of counsel — Absurd deductions from the evidence—</p> <p>3. The urging by counsel in argument of illogical or even absurd deductions from the evidence, does not amount to misconduct justifying the setting aside of a verdict where it does not clearly appear that the jury was thereby misled or prejudiced.</p> <p>Executors harboring vicious dog as property of estate — Liability—</p> <p>4. Where an.answer of defendants who are executors,but who are not sued as such, admits that they kept and harbored a dog, but avers that they did so as executors only, such attempted qualification of the admission will be disregarded, and the admission will be given effect.</p> <p>Same — Notice to one joint owner—</p> <p>5. Notice to one of several joint keepers or harborers of a dog of his vicious propensities, is notice to all.</p> <p>6. Such notice need not be actual,but may be inferred from circumstances.</p> <p>Scienter—</p> <p>7. The question of scienter is for the jury.</p> <p>Keeper of vicious dog — Duty of care—</p> <p>8. The keeper or harborer of an animal of a kind that frequently develops and displays vicious propensities, is chargeable with Knowledge of such vicious habits of such animal as must have become known to him if he had exercised such reasonable care and watchfulness as a prudent man ought to exercise under the ■circumstances. A dog is an animal of that kind.</p> <p>Special verdict following language of pleading—</p> <p>9. A special verdict that follows the averments of a pleading in which the facts found are well pleaded, is not therefore faulty.</p> <p>Silence as to one issue in special verdict—</p> <p>10. The absence of an affirmative finding in a special verdict as' to any issu9, amounts to a finding thereon against the party upon whom rested the burden of proof as to such issue.</p> <p>[Verdict for $7,500, reduced to $5,000 by. remittitur, because excessive, and affirmed for latter amount. ]</p>

<p>Quo Warranto.</p> <p>On demurrer to answer of John J. Sullivan,</p>

<p>Chattel mortgage — Refiling—</p> <p>(1) . Under section 4155, Revised Statutes, it is not required of a person authorized to make the affidavit for the re-filing of a chattel mortgage, to name or enumerate the mortgagors, or state under oath more than the amount of the claim secured, that it is just and unpaid, together with a statement exhibiting the interest of the mortgagee in the property at the time the same is made and claimed by virtue of the mortgage.</p> <p>Subrogation — Equity—</p> <p>(2) . A purchaser of chattel property from a mortgagee having possession, will, in equity, be subrogated to all the rights and equities of such mortgagee in and to the mortgage covering the same, to the extent of his interest therein, as against a subsequent mortgagee seeking, in proceedings in foreclosure, to recover the same.</p> <p>Interest—</p> <p>(3) . The interest of such purchaser in the property, by subrogation, is the amount paid not exceeding its entire value; and where it is shown or conceded that such purchaser paid full value for such property, he will be Bubrogated to it's entire interest, and his title thereto protected in equity as against a suit in foreclosure by a susbequent mortgagee claiming the same.</p>

<p>City ordering sidewalk — Notice to property otvner—</p> <p>A city has no power to lay a side-walk and assess the abutting property for the cost of it, until the owner has been notified to lay it,and has had the opportunity to do so.</p> <p>Resolution for improvement of street — Notice to property owner jurisdictional—</p> <p>The notice to the property owner of the resolution declaring the necessity of improving the street, is necessary to confer jurisdiction upon the municipality to make the improvement, and a failure to give such notice is not a mere technical irregularity or defect within the meaning of curative section 2389, R. S., but invalidates the assessment.</p>

<p>Insurance — Fire caused by third party — Bight of Insurance Co. to sue for damages—</p> <p>(1.) If insured property is destroyed by fire through the fault or negligence of another than the insured, the insurer, upon payment of the loss, will be subrogated to the rights of the inspred to the extent .of the indemnity paid. __</p> <p>Interrogatories for jury — Befusal by court to submit—</p> <p>-.(2.) It isjnot error for,a court to refuse to submit interrogatories to a jury at the request of a party, when such request is absolute and unconditional, and not with the qualification and condition that they are to be answered in the event that a general verdict is returned.</p> <p>Same- —Improper interrogatories—</p> <p>(3.) A court is not bound to and should not propound interrogatories upon questions having no legitimate bearing upon the issues, or the answer to which can have no influence on the general verdict.</p> <p>Same — Interrogatories requested to be submitted as a whole—</p> <p>(4.) Where a party requests the court to propound all or none of a series of interrogatories, some of which are proper and some of which are improper, it is not error for the court to refuse to submit the whole or any part of such series.</p>

<p>-Evidence—</p> <p>Where the question whether the city or the property owner on a street, in the course of improvement of the same,had built a retaining wall to protect such owner’s property and' building thereon from injury by a fill in the street, and was-responsible for the negligent manner in which the same was built whereby such owner’s building was damaged, and the-city claims that such wall was built by the contractor having the contract for the improvement of the street, under a private arrangement between the contractor and the property owner to which the city was not a party, it is competent for the city to prove that it did not authorize the building, of the wall, and did not pay for its cost.</p>

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

<p>Chattel mortgage, not filed, has priority over subsequent mortgage with notice—</p> <p>A chattel mortgage,although not filed as the statute directs,has priority over a chattel mortgage subsequently executed to a third party and properly filed, where such subsequent mortgagee has notice at the time of the existence of the first mortgage.</p> <p>Evidence — Rebuttal—</p> <p>Where in replevin the defendant attempts to prove his right to the possession of the article by producing a chattel mortgage under which he acquired such possession, it is competent for the plaintiff to introduce evidence to defeat defendant’s claim under such chattel mortgage, and defendant would then be entitled to introduce evidence in rebuttal.</p> <p>Replevin suit under chattel mortgage — Holder of other mortgage not bound to become party—</p> <p>A party holding a chattel mortgage is not bound to intervene and set up his claim in a replevin suit instituted by a third party holding a chattel mortgage on the same property, if not made a party to such suit, hut may afterwards commence an action for the recovery of the property under his own chattel mortgage.</p>

S. Isaac & Son, being insolvent, on the 8th day of February, 1896, made a assignment to Louis J. Grossman, defendant in error, by deed filed in the probate court of Cuyahoga county, Ohio.

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

<p>Election — Garfield law — Members of the regular committee of the party acting as agents of candidate—</p> <p>While a candidate may pay an assessment to the' committee of his party, and have nothing further to do with the management and conduct of his campaign, and then the committee or the members thereof would not be his agents in the management of his campaign, yet the question of agency is a question of fact, and a candidate for an office can make the regular chosen committees of his party his agents in the management of his campaign for that office.</p> <p>Same — Money expended by agents of candidate for his benefit—</p> <p>It makes no difference, so far as the law is concerned, whether the candidate paid any money directly and out of his own pocket, or whether it was paid for him and for his benefit * by his friends and agents. If the amount thus paid out exceeds the amount allowed by law as the limit of his expenses, his election is void.</p>

<p>Practice — Where, reply necessary but not filed, case being tried as if reply filed without objection—</p> <p>Where, in an action for damages for assault and battery, the answer sets up the defense of justification, a reply to such defense should be filed. But where no reply is filed, but the case is tried and dealt with by court and jury as if a reply had been filed without any objection being raised by the defendant, a verdict and judgment will not be set aside, on error, on account of the omission of filing a reply.</p> <p>Action for damages for assault and battery — Attorney fee—</p> <p>An action for damages for assault and battery belongs to that class where the jury might in their discretion include a reasonable attorney fee for counsel of plaintiff as part of the damages, but evidence as to the value of such attorney fee would not be competent.</p>

<p>Where there is a double track in front of a station, and snow having fallen, what would be sufficient for the R. R. Company to secure safe and convenient passage from the platform across . the first track, to enable passengers to reach the second track.</p>

<p>Negligence — Railroad permitting oil to accumulate on track—</p> <p>(1.) A railroad company permitting crude oil to accumulate in large quantities and remain for an unreasonable time upon its side tracks, where brakemen are accustomed to go in coupling and uncoupling cars, and whereby such woik is made dangerous, is guilty of negligence, and answerable therefor in damages to a brakeman who, while in the performance of his duty, slips upon such oil and is injured.</p> <p>Same — Connecting railroads working under traffic arrangement— Injury to employe of one R. R. Co. through negligence of other R. R. Co. — Liability—</p> <p>(2.) Such tracks bemg used to transfer cars from another railroad to defendant’s railroad in pursuance of a traffic arrangement between the companies owning such roads, the owner of such transfer tracks is liable for such negligence resulting in an injury to a brakeman not in its employ, but in the employ of such other company, if at the time he receives such injury he, in the discharge of his duty, is assisting in such transfer of cars.</p> <p>Admission of improper testimony, but afterwards jury instructed to disregard it — When not ground for reversal of judgment—</p> <p>(3.) When upon a trial, testimony is improperly admitted over the objection of a party, and the jury is subsequently instructed to disregard such testimony, the judgment will not be reversed on account of the error committed in admitting such testimony, when it is not evident that the jury failed to follow the instruction given to disregard it, or it does not otherwise appear that "^prejudice resulted therefrom to the party complaining.</p>

<p>Alimony — Power of court to afterwards change amount of alimony decreed, where amount had been fixed by agreement among the parties— . '</p> <p>The court of common pleas which had granted to the plaintiff a divorce from her husband, for gross neglect of duty, and which had in the same decree made to her an allowance of alimony from his estate, has the right for good cause shown, at a subsequent term of the court, to modify such decree for alimony and to reduce the amount to be paid to her each year, and on appeal, the circuit court has the same right.</p> <p>,[Contra — Where the amount of alimony was arrived at by an agreement between the parties themselves, with the provision that such alimony should De' in lieu and full satisfaction of all claims and rights of the wife in the property and estate of the husband, and the wife thereupon,by written instrument, duly relinquished all her rights and interest in the property of her husband, the decree not providing for any change in the condition of the parties the happening of which in the course of nature, might and could have been foreseen ‘by the parties, the court has no power to change the contract of the parties, and can not change the amount of the alimony so decreed — Minority opinion by Smith, J. ]</p>

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

<p>Advancement to child to take effect after death — Evidence required—</p> <p>Where a decedent, at .his death, holds .promissory notes and a mortgage executed to him by his daughter and her husband,, • in order to establish a claim that the money for which such instruments were given was a gift to the daughter by way of advancement or otherwise, the evidence must be clear and convincing.</p> <p>Same—</p> <p>Evidence that such money was advanced by the father to build a home for the daughter, with the intent that interest there- ■ • on should be paid to him during his life and that the principal should be the daughter’s at his death, is not sufficient to establish an advancement, or a gift inter vivos or causa mortis.</p>

This case was commenced by the defendant in error as •plaintiff in the common pleas court of Cuyahoga county, to recover damages against the defendant Railroad Co. plaintiff in error here, for negligently killing George Kirk-hope at a highway grade crossing of the Railroad Co. The accident happened about 7 o’clock, in the month of December. The decedent was driving with his son in a one-horse wagon.

<p>Appeal from the Court of Common Pleas of Cuyahoga county,*</p>

<p>Defect in bridge in municipal corporation — Liability for injury—</p> <p>Where the proper authorities of a municipal corporation, after knowl edge of the existence of a dangerous hole in a street bridge over a stream or canal within the corporate limits, permit the same to remain open without guards or signals to warn pedestrians of the danger, they neglect a duty imposed by sec.2640,Revised Statutes, and the corporation is liable in damages to any one, who, being without fault, is injured by falling into such unguarded place; and this is so, notwithstanding the provisions of secs. 860, 4936 and 4938, Revised Statutes., which make it the duty of the county commissioners to construct and keep such bridges in repair.</p>

<p>Contract — Misunderstanding between parties—</p> <p>When an alleged agreement was entered into by an honest misunderstanding and through a mutual mistake of the parties, there is no legal contract, and the remedy is to set it aside, and not to enforce it.</p>

<p>Order raising assignment and discharging assignee at assignee’s request — Valid until set aside in proper proceeding, or reversed on error — Mandamus, when not proper remedy—</p> <p>Where the Probate Court makes an order discharging an assignee for the benefit of creditors, at his own request and vacating the assignment, such order is binding on such assignee and on all parties having notice of such application, until set aside by proper proceeding or reversed on error. And when the assignee, after such discharge,comes into the Probate Court and asks that such order of discharge be set aside and he be permitted to continue to act as assignee, and for leave to hie an additional account and for an allowance for his expenses, which application and motion is refused by the Probate Court on the ground of want of further jurisdiction in the matter, such assignee can not petition the Circuit Court for a writ of mandamus to compel the Probate Court to entertain his said application, so long as the order of the Probate Court discharging the assignee remains in force and , unreversed.</p>

<p>Quo warranto — Prosecuting Attorney need not verify petition, nor give security for costs—</p> <p>1. Where the Prosecuting Attorney has filed, by leave of the ' court, a proceeding in quo warranto, on the relation of other persons, challenging the right of'.several persons, claimed to unlawfully hold and who were usurping the rights, privileges and functions of certain public offices, such petition • need not be verified, and sec'urity for costs need not be given.</p> <p>Same — Demurrer to petition — What grounds insufficient—</p> <p>2. The petition in this case is not subject to a demurrer on the grounds, 1st, that the plaintiff-has not capacity to sue; or 2nd, that there is a misjoinder of parties plaintiff; or 3rd, because there is a defect of parties plaintiff; or átb, because there is a defect of parties defendant; or 5th,because several causes of action,and separate causes of action against several defendants are improperly joined; or 6th,because the petition does not state facts sufficient to establish a cause of action.</p> <p>Same — Joint proceeding against several defendants—</p> <p>3. If it had appeared on the face of the petition, what seems to be conceded as true, that separate charges were brought against each of these defendants, and a separate trial had and a separate judgment of removal in each case, the demurrer would be sustained on the 5th ground set up, viz: that several causes of action,’ and separate causes of action against several defendants are improperly joined. In such case there could not properly be a joint proceeding against all.</p>

<p>Sale of business — flight of purchaser to trade-mark subsequently adopted by vendor—</p> <p>1. B. sold to C. certain specific property together with certain existing patents, and agreed that C. should have the right to use any future patents in its shop that B. might obtain; afterwards B. procured a patent upon a new invention of his own, and entered into the manufacture of the newly patented article on his account, and adopted and placed on his product a trade mark which he used for several years when C. adopted and used the same trade mark on its product. Held: That in an action by B. to enjoin C. from using such trade mark, it is not a defense to show that B., at the time of such sale or Subsequently, had also agreed that he would not engage in the manufacture of the same or similar articles.</p> <p>Same—</p> <p>2. That while C. might have acquired the right to use B’s. new patpnt in its shop, it had nqt acquired the right to B’s. future trade marks.</p> <p>Same — Proper remedy for breach of contract not to manufacture — ■</p> <p>3. That if B. had violated his agreement not to manufacture, C’s. remedy was by an action brought either to enjoin such work, or for damages.</p> <p>4; Whether such contract not to thereafter manufacture, unlimited as to duration or place, would be enforcible. either at law or in equity,is not decided.</p>

<p>Legacy — When interest on to commence—</p> <p>When no time is fixed in the will for the payment of a general legacy, and there are sufficient assets in the hands of the executor for the payment of all debts and legacies, though there is not enough money on hand to make all such payments at the expiration of one year from the date of the executor’s bond, such legacy bears interest from such expiration of the year.</p>

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

<p>Olaim for personal injuries — Settlement only to be set aside for fraud—</p> <p>Settlement of a claim for and a cause pending to recover damages for personal injuries will not be set aside unless there is clear evidence of fraud and undue influence.</p> <p>Same — What will not be considered fraud— -</p> <p>That the injured person had not fully recovered, could neither read nor write, and his attorneys were not present and had no knowledge of the settlement, will not be sufficient to warrant the setting aside of such settlement.</p>

<p>Appeal from the'jCourt of Common Pleas of Franklin county.</p>

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

<p>Appeal from J. P. —Failure of applicant to file transcript, etc., within statutory time — Fjfect—</p> <p>Where on appeal of a case from a J. P.,the appellant has failed to file the transcript and other papers with the clerk of common pleas within thirty days from the rendition of the judgment -appealed from, the app^lleeknay have the case docketed in the common pleas and ask for a judgment in his favor similar to that entered by the J. P., and it is then too late for the appellant to file a cross-petition to have the judgment of the J. P. vacated upon the ground of want of jurisdiction.</p> <p>Bill of Particulars — What sufficient to give J. P. jurisdiction-—</p> <p>It is sufficient to give the J. P. jurisdiction if the Bill of Particulars filed with the J. P. gives the adverse party a fair intimation of plaintiff’s claim.</p>

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

<p>Action by taxpayer to enjoin illegal contract by city on third party’s agreement to pay costs—</p> <p>A tax-payer may bring an action to xestrain the city from entering into an illegal contract under sec 1777, R. S., after having requested the city solicitor to do so as required by sec. 1778, R. S., and his refusal; although one of the competing bidders for the contract who may be the beneficiary ot such action, has agreed - to indemnify such tax-payer against all the costs and expenses he may incur thereby, it appearing that such tax payer intended to bring the action, but was unable to pay the costs and expenses himself.</p> <p>Record of proceedings of council — Duty of clerk — Correction by council — Mandamus—</p> <p>It is the duty of the clerk of the city council to make an accurate record of the proceedings of council, and the council has the power to determine whether thejournal truly sets forth its proceedings; but when the record of the previous meeting of the council .is read at a succeeding meeting under the rules adopted by council, and council has corrected and disposed of the journal, the clerk has no further right and therb is no further duty enjoined upon him by law to correct the same, and mandamus will therefore not lie to compél him to do so.</p> <p>Same — Power of council over its journal—</p> <p>A municipal council is a legislative body clothed by law with the power to correct and dispose of the journal of its proceedings, and in the absence of any charge of fraud or corruption in the action of the council in correcting its journal, its action is final and conclusive,and courts have no right to interfere therein.</p> <p>Power of council, after rejecting all bids, to reconsider its action—</p> <p>The council has the power, after having once voted to reject all bids offered for a public contract, to reconsider its action and accept one of the bids, where no rights have vested under the first action of the council,or where its first action has not so fully disposed of the matter that council could not take any further action in the matter.</p> <p>Same — Power of council to accept next lowest bid without re-advertising—</p> <p>Council, after having rejected all bids for a public contract, may, at a subsequent meeting, without re-advertising fcr bids, reconsider its first action, and award the contract to one of the original bidders.</p> <p> Power of council of Cleveland, under Federal Plan Law, to advertise for bids under sec. 2419, B. S. </p> <p>“Ihe Federal Plan Law” leaves the right to the council of the city of Cleveland, to proceed under sec. 2ál9, to advertise for and dispose of bids for furnishing a pumping station for the waterworks of that city, and under that section has the option to award te contract to the next lowest bidder, if in their opinion the lowest bidder can not be depended upon to do the work with ability, promptness and fidelity, and courts can not interfere with that option in the absence of any charge that the council acted fraudulently or corruptly.</p>

g On June 11, 1896, the plaintiff filed in the Probate Court of Hardin county, his application, in form an affidavit, setting forth,in substance,that he was a creditor and interested injihe proper administration of the estate of William Westervelt, deceased; that the defendant Magdalena Westervelt was widow of the deceased William Westervelt, and administratrix of his estate; that the said administratrix unlawfully and fraudulently conceals and withholds from the inventory…

<p>Appropriation for street purposes — Assessment of compensation and costs on owner’s remaining land by foot front—</p> <p>Under the decisions of the Supreme Court it is not unconstitutional for a city to condemn a strip of land for street purposes, pay for ; it, and then assess the amount of the damages awarded for the land and the expenses of condemnation proceeding on the abutting lots and lands by the front foot, although by such proceeding the owner of the strip taken will be. compelled to pay back by way of assessment the money awarded to him together with the costs of the condemnation proceeding.</p>

<p>Pleading — Averments in, bind party — Different parties defendants—</p> <p>(1) . A party is concluded by the averments of his pleadings, and will be bound by the averments as between himself and one of the defendants, although evidence may have been properly admitted as between himself and another party in the case to the contrary.</p> <p>Independent contractor — Liability of property- ovmer—</p> <p>(2) . Application is made in discussing the charge of the court and facts of the case,of the rules laid down in 47 Ohio St,, p. 207 and 49 Ohio St., p. 69, in regard to the liability of property owners for-acts of contractors.</p> <p>Hack driver — Duty of care — Excavation in street—</p> <p>(3) . The petition charged that the driver of the Transfer Company’s back, did not use ordinary and reasonable care in driving and looking out along the street. The court charged “that it was the duty of the driver while driving to keep a prudent and careful lookout ahead of him, and to use all reasonable care to avoid obstructions and excavations in the street; that is, such care as an ordinarily prudent person in his situation and under the circumstances surrounding him, is accustomed to exercise.” Held: A correct statement of the law governing this case.</p> <p>Action for damages for tort against different defendants — Verdict against all, only for joint tort of all—</p> <p>(4). In an action in tort against several defendants, the jury were charged that if they found against all of the defendants, they could only assess damages which resulted from the acts of all the defendants.</p>

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

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

<p>- Action for wrongfully causing death — Authority of administrador—</p> <p><1). Letters of administration issued by a probate court of competent jurisdiction authorized the administrator to maintain an action for death caused by wrongful act etc., though such letters disclose the fact that deceased left no estate either real or personal, and fail to indicate that the appointment was made for the purpose of bringing the suit.</p> <p>Same — Limitation—■</p> <p><2). The limitation of an action under sec. 6135 of the Revised Statutes, for causing death from wrongful act, runs from the death of the person who dies from the wrongful act; and the right to -maintain the action, is not affected by the lapse of time between the injury and the death, unless recovery by the deceased person, had not death ensued, is barred by the statute of limitations at the time of death.</p> <p>Same — Settlement of cause of action in life-time of deceased—</p> <p>(3) . A contract of settlement, unimpeached for cause, made by the deceased in his life-time with the person whose unlawful act is the cause of deaths fot the injury which resulted in the death, the terms of which contract were complied with, in the life-time of the deceased, by the party whose unlawful act caused the death; when so pleaded, and established, is a bar to an action by his administrator under sec. 6134 of the Revised Statutes.</p> <p>N.o double liability for wrongfully causing death — Sec.6134, R.S.—</p> <p>(4) . See. 6134, which warrants an action for causing death by wrongful act, does not create a second liability, and is not double liability for the same wrong, but implies that the liability for the wrong has not been satisfied; that the pen- . alty for the wrongful act and result, has not been paid; and the wrong doer being deemed to be still liable for the . wrong, the statute determines in whose favor the liability still exists, and points out the remedy by which satisfaction of it may be enforced.</p> <p>Action maintainable by administrator, only if deceased could have maintained action for damages—</p> <p>(5) . An action for death by wrongful act, can only be maintained by the personal representative of deceased, when* such condition exists, at the time of death, that the deceased, had not death ensued, could have maintained an action for the injury.</p> <p>Deceased having debarred himself of right to sue, administrator can not sue—</p> <p>(6) . If deceased in his life-time debarred himself from recovery,, and had no cause of action at the time of his death, no action would arise in favor of-his next of kin at his death, and his administrator would be precluded from maintaining an action under sec. 6134.</p> <p>Proof of contract of settlement on general denial—</p> <p>(7) . When a contract of settlement, pleaded in the answer, is-met by a general denial, once its execution is established, the contract is beyond further attack, under the issue as-tendered by the general denial.</p>

<p>Authority of municipality to require lighting of railroad tracks— Sec. 2495, M. S., constitutional—</p> <p>(1). Sec. 2195 and following of Bevised Statutes granting the power to municipal bodies to require railroads running trains in the corporation to light their track,doss not violate the constitution of the United States, nor that of this state. It is in the exercise of the police power in the interest of the welfare and safety of the public.</p> <p>Headlight on locomotimes — Duty of Railroad—</p> <p>(2) . If it be necessary for the protection of the lives of passengers and the safety of property entrusted to its care to use a headlight upon a locomotive, it is the right and duty of the railroad company to so use it.</p> <p>Lighting railroad tracks — Reasonableness of requirement in ordinance—</p> <p>(3) . While the municipal corporation is authorized to prescribe the kind of light to be used on the railroad-track within its limits,it must not be such light as would east an unreasonable burden upon the railroad company. While the municipality has a right to fix the place and kind oi lights to be erected by the railroad company,in doing so it must exercise it with reference to the safety and protection of the public in crossing said railroad and so as not to interfere with the just rights and duties of the railway company while passing through the village, nor so as to cast an unreasonable burden upon the railway company.</p> <p>Same — Light required on track interfering with safety in opera-. tion of railroad—</p> <p>(4) . Where an action is brought to compel a railroad company to pay the expenses of lighting a track with light of a particular candle power, it is a good defense to the action that the power is so great as to obscure the headlight upon a locomotive and render nugatory the power of the employes of the railroad to manage the trains so as to protect the lives of the passengers entrusted to their care, and that persons who cross the railroad will be greatly endangered in being prevented from seeing headlights of approaching trains, and a demurrer to an answer setting up this defense should be overruled.</p> <p>Same — Reasonableness of ordinance—</p> <p>(5) . The reasonableness of such an ordinance,when questioned, is-a proper subject to be tried by the courts.</p>

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

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

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

<p>Corporation municipal — Liability for negligence of its officers—</p> <p>1. An action cannot be maintained against a municipal corpora. tion or its officers in their official capacity,based upon acts of negligence of its board of health- or health officer, for damages claimed to have resulted therefrom.</p> <p>Health officer — Power to malee contract for nursing side person—</p> <p>2. The board of health of a city, or its health officer with the approval or ratification of the board, may enter into a lawful contract for nursing and caring for the sick and for the use of premises occupied as a temporary hospital.</p>

<p>■, Review of case upon the facts — What motion for nev> trial below must contain—</p> <p>,(T.) When a case is submitted to the court upon the facts; in order to bring the evidence embodied in the record up for review, objection must be mads in the motion for new trial to the finding. 'The motion must assign as a reason for new trial, in substance, that the decision of the court as to what the facts determine, is not warranted by the weight of the evidence.</p> <p>Attachment for non-residence — Owner's domicile does not determine situs of property—</p> <p>(2). Wherever the owner may maintain a suit to recover property, the property may be attached as his property if the grounds of attachment exist. The situs of the property not being determined by the owner’s domicile.</p> <p>Option as to place of delivery — Lost by refusal to deliver at all—</p> <p>■(3). Where'a storer or common carrier of property, has, by contract, an option as to the place of delivery to the owner and refuses to deliver at all, the option as to the place of delivery is waived by such refusal.</p> <p>Storer and common carrier of oil operating in Ohio and Indiana— Attachment of oil—</p> <p>v(á). The Buckeye Pipe Line Co. is a storer and common carrier of •oil. Oil placed in its custody loses its identity. All the oil so held '’by it is a common stock of oil, owned by various persons, whose interests are represented by the run tickets of the company. 'This common stock of oil is stored both in the states of Ohio and indiana; and the interests of the owners represented by their respective run tickets, is deliverable, .at the option of the company, at any of its oil delivery stations in Indiana or Ohio:</p> <p>Held : That the situs of this common stock of oil,being as well in •Chio as in Indiana, the interest represented by a run ticket is •subject of garnishment in this state. And this though the actual oil upon which the run ticket issued, was produced in Indiana, and never was in Ohio.</p>

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

<p>Mechanic's lien law of 1894 — Being unconstitutional, former law remains in force—</p> <p>The act of April 13, 1891, (91 Q. L., 135), to amend the mechanics’ lien law, being unconstitutional and void, was not effective to repeal the law in force at the time of its passage.</p>

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

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

<p> Journal entry prevails over statement in bill of exceptions— </p> <p>(1.) Where it is shown by a journal entry that a motion for a new-trial was overruled on a certain day, but the bill of exceptions recites that it was overruled on a different day, the former must govern.</p> <p>Same—</p> <p>(2.) A motion for a new trial was overruled on July 22, but was entered on the minutes as having been overruled on the preceding dune 29, the last day ef the term at which the trial occurred. A bill of exceptions was allowed and signed on September 9, forty-nine days after the overruling of the motion, Held — That the fifty days allowed for signing the bill began to run from the date of the entry, and not from the date of the overruling of the motion as shown on the bill.</p>

<p>Error to the Court of CommonjPleas of Allen county.</p>

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

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

<p>Court limiting argument to jury to subjects averred in pleading-not error—</p> <p>(1.) It is not error for the court to limit the held which might be covered by counsel in their address to the jury, to the matters averred in fhe pleadings — in this instance, an action on promissory notes, where not mere failure, but utter want of consideration was set up as a defense, to confine them to the claim of total; want, and not mere failure, of the consideration.</p> <p>Holder of notes acquired before maturity for value, lmowing_ the consideration therefor, which is found without substance, not innocent holder—</p> <p><2.) The holder of notes acquired before maturity for value, who has full knowledge of the pretended considerations for which they were- executed, which considerations are found of no substance, if not a fraud, is not an innocent holder, and can not enforce payment.</p>

<p>Fire insurance — Appraisement of loss claimed to be void — Direct action on policy proper—</p> <p>(1.) In. an action against an insurance company for the amount-which it should pay on account of a loss by fire which loss--had been appraised by appraisers as provided by the policy, but which appraisement,[the'insured claimed, was improperly made and void, the action was correctly brought upon the policy for the whole amount it was claimed the company was liable to pay</p> <p>Same — Action to have appraisement set aside not necessary— •</p> <p><(2.) In such a case it is not necessary by a separate action,or a separate cause of action, in the petition, to first attack and seek to have the appraisement-set aside by the court.</p> <p>Appraisement — What will not amount to—</p> <p>.(3.) The property injured was a stock of goods, some of which were entirely, and others, partly destroyed. Held, the appraisers could not make a proper appraisement of the whole loss by a mere inspection of the stock remaining, nor without consulting books and papers, and hearing witnesses upon values of the articles destroyed.</p>

<p>Absolute devise claimed to be in trust — Proof required to establish trust—</p> <p>Where a will devises property absolutely to a devisee, with the-oral understanding that such devisee shall take the property in trust for other parties, sufeh trust may be established by parol evidence,but the proof must be “clear,convincing and conclusive.”</p>

While the mechanic’s hen law of Ohio, enacted in 1894, was in foroe, Waltz et al. took the contract for the erection of a building for George C. Schneider, and while the work was in progress the J. M. Blair Brick Company (who had obtained judgment for $471.15 against Waltz et al. for brick used in another building), filed a creditor’s bill against Waltz et al., based on said judgment, and subsequently made the owner, Schneider, a party defendant.