Volume 16 — Ohio Circuit Court Reports

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

<p>Bill of exceptions — Clothing put in evidence must be sufficiently described for identification—</p> <p>1. Where a bill of exceptions shows that articles of clothing were in evidence, and they are referred to and made parts of tbe bill, as exhibits, but not attached to it, nor so described that they could be identified, except by evidence de hors the record — Held: lhat by a court of review, these things cannot be considered as in the bill of exceptions, nor can the bill be regarded as containing all the evidence in the case.</p> <p>Same — What evidence necessary to he set out on error for refusal of court to arrest case from jury and when motion granted—</p> <p>2. While the refusal of a trial court to arrest a' case from the jury, can be reviewed only on a record which contains all the evidence offered; yet when a motion to arrest is granted, and the correctness of that action is to be passed upon, all the testimony may not be indispensable to its reversal. It will in such case be sufficient for that purpose, to set out in the bill evidence which tends to prove all of the facts necessary to enable the plaintiff to maintain his action.</p>

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

<p>Deed of corporation for land — Corporate seal not required—</p> <p>Under the laws of this state, prior to 1883, a deed of lands by a corporation must have been sealed, in order to make it operate as a legal conveyance. But now, by force of section 4, R. S., then so amended as to abolish private seals, and of changes at the same time made in sections 4106 and 4107, whereby deeds are no longer required to be sealed, the seal of ■ a corporation is not necessary to the execution of a valid deed of its lands in this state.</p>

<p>Contract for use of patent — Sum stipulated for use of patent without lieense is penalty, not liquidated damages—</p> <p>Where a contract between a patentee and licensee for the use of his patent provides that the latter shall have the use of the patent for one year at $250.00, with the option of having the lieense extended at the end of the year for five years-more at'the same rate, but that if the licensee, after the expiration of the termination of the license, shall use the patent without renewing the license, he shall have to pay $500 a year for such use; and it appears that the licensee, having at the end of the five years declined a renewal of the license, yet has used the patent during -two years more, in a suit for the $500 for each year .stipulated in the contract for such use without license, Held, that the $500 a year fixed in the contract for such use without a license, is a penalty, and not liquidated damages, and plaintiff can only recover for. such use compensation at the rate of $250.00 a year.</p> <p>Same — What recoverable under such contract — -</p> <p>To determine whether the sum so fixed in the contract is a penalty or liquidated damages, courts have to look to the intention of the parties; also whether the damages arising from the use are easily ascertainable. If they are conjectural or necessarily uncertain, courts will construe such contracts as for liquidated damages; but if the damages can be definitely determined, then courts will prefer to construe such provision as a penalty. If the circumstances show that the parties have fixed the amount much larger than would reasonably be expected actually to flow from a violation of the contract, then the tendency is always in favor of construing the contract to mean a penalty. The actual loss may exceed that penalty,or may be less; but when once ascertained,then the party is entitled to recover his actual loss, be it more or less than the penalty stipulated.</p>

<p>Review in criminal case — Bill of exceptions must be attached to petition in error—</p> <p>•(1.) To authorize the review of a judgment of conviction for a misdemeanor, it is necessary that a certified transcript of the record, including the bill of exceptions be attached to the petition in error.</p> <p> Request by defendant in criminal ease of trial by court without jury— </p> <p>.(3.) Defendant not entitled as a matter of right to have cause topied by the court, instead of a jury.</p> <p>Juror — Power of court to excuse sua spónte—</p> <p>(8.) Court may, sita sponte, excuse an unsuitable juror, such as for defective hearing.</p> <p>Challenge to array, too late after impaneling begun— i(4.) Challenge to the array, after the impaneling of the jury has been begun, comes too late.</p> <p>Jury commissioner de facto—</p> <p>■(5.) A person duly appointed and acting as a jury commissioner is defacto an officer, and his acts valid, although he may not be.a free-holder.</p> <p>■Libel — Knowledge of manager or editor of a newspaper—</p> <p>¡(6.) The manager or editor of a newspaper is primp facie criminally liable for a libel published therein, and cannot escape responsibility simply by showing that it was published without his knowledge or consent. It is incumbent upon him to •show that the publication did not occur through any neglect or want of ordinary eare on his part.</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>Appeal from Court of Common Pleas of Sandusky county,</p>

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

<p>Er’-or to the Court of Common Pleas of Cuyahoga county.</p>

<p>Railroad — Not located, within county where suit brought — Service in other county when sued jointly with railroad within ■ the ■county—</p> <p>(1.) A railroad company may be served with summons in a county through which it does not run-when properly joined as a co-defendant.</p> <p>Same — Railroads may be joined in action for joint negligence—</p> <p><2.) Railroads may be sued jointly for injuries occasioned by their joint negligence.</p> <p>Negligence — Necessary averment—</p> <p>{3.) Negligence must be averred in the petition to constitute a good cause of action.</p> <p>Ordering verdict for defendant, when groper—</p> <p>{4.) Court should direct a verdict for defendant when such contributory negligence clearly appears from the plaintiff’s evidence as will preclude recovery.</p> <p>Jury — Interrogatories—Duty to answer—</p> <p>{5.) Duty of jury to fairly and honestly answer an interrogatory submitted to them, especially so, when there is no conflict in the evidence upon the fact submitted in the interrogatory.</p>

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

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

<p>Officer appointed under unconstitutional statute — Validity of acts—</p> <p>(1.) The official acts of one, who performs the duties of an office created by an unconstitutional statute, are, until the statute which creates the office and enjoins the duties, is declared invalid by a court of competent jurisdiction, the acts of a de facto officer.</p> <p>Judgment — Settles status of property—</p> <p>(2.) Until impeached for cause, or reversed, a judgment not only binds the parties to the action, but it settles the status of property in controversy, against anybody who would question it by a title, other than one paramount to the title ascertained by the judgment.</p>

<p>Construction of section 640S, R. S., as to appeals by trustees to common pleas court, and section 6407, R. S., as to whether an order confirming a sale is a final order —</p>

<p>Railroad — Causing -fire — Sec. 3365-5, R. S., constitutional—</p> <p>(1). Sec. 3361-5, R. S., which provides “That every railroad company operating a railroad within the state of Ohio shall be liable for all loss or damage by fire originating upon land belonging to'such railroad, caused by operating such railroad and etc.,” extinguishes no property rights and interferes with no privilege of the railroad company ; and is not an infringement upon constitutional inhibition.</p>

<p>Marshalling liens — Other party’s interest — Necessary averments—</p> <p>(1.) Though a plaintiff in his petition to marshal liens is not required to set out another claimant’s cause of action and the facts which constitute his claim; yet where the plaintiff does attempt in his petition, to define such person’s interest m the property sought to be subjected to his liens, he must — in order that a default will operate to preclude such person — allege facts, which will make it clearly appear that their interests are adverse; and that there is issue between them, in the determination of which the rights of such person in the property will be in some manner affected.</p> <p>Same — Bar of party joined, when—</p> <p>(2.) In order to operate as a bar, it must further appear, that the judgment entered by default and offered in bar, is based upon the facts so pleaded, either as they are shown by the evidence, or undenied in the controversy.</p> <p>Dower — Set aside by agreement of parties — Absence of approval of probate judge — Creditor of one of heirs bound—</p> <p>(3.) The widow of a deceased husband and his heirs, having the next immediate estate of inheritance in his property, being all of age, entered into a written contract which, by its terms, purported to set off to the widow certain of the real estate as and for her dower. Under it the widow took possession, made lasting and valuable improvements, and in compliance with its terms, released to said heirs all her statutory dower in the residue of her husband’s estate. All the terms of the contract being executed by the parties to it, and the assignment of dower being fair as to value,and as it relates to residue of the estate,</p> <p>Held — That the absence of a written approval by the probate judge, on the document thus assigning the dower (sec. 8707, R. S.), can not be taken advantage of by a creditor of one of said heirs whose debt arose after dower was thus assigned. And that the signing of the contract by the widow was an acceptance of the assignment under sec. 5707, R. S.</p>

<p>Attachment — Actual seizure of property necessary—</p> <p>(1.) In a proceeding to attach personal property it is contemplated that the officer entrusted with the service of the writ, must by steps known to the statute, actually seize the property against which the writ is directed; and that he must retain it under his control to await the process of the law, by which the attachment may be discharged, for the judgment of the court may be executed against the property.</p> <p>Same — Intangible or unaecessible property—</p> <p>(2.) If the property sought to be attached, is intangible, or is so situated that it cannot be actually seized, then the steps pointed out by the statute must be taken, which bring it into the hands of the court, or subject it to the court’s order.</p> <p>Same — Against non-resident — Garnishee must bring property into court—</p> <p>(3.) In attachment proceedings against a non-resident debtor, a failure to require the garnishee to either bring the property into court, or to give undertaking that it be forthcoming upon the court’s order, loses the court both jurisdiction of the property, and authority to proceed to judgment in the case, and discharges the garnishee from liability.</p> <p>Same—</p> <p>(4.) An order made by a J. P. in an action, "that the garnishee retain the property in his possession, until final disposition of the case; and in event of judgment for plaintiff,that he turn the property over to the constable to whom an order of sale may issue, ” is not in compliance with the method, pointed out by the statute, by aid of which jurisdiction is obtained against a non-resident defendant.</p> <p>Statute of limitations — Liability created by statute—</p> <p>(5.) An action in the nature of the one at bar,is upon a liability created by statute, in which case the limitation is six years, and not four years,</p>

<p>Attachment — Certificate- of stock of non-resident corporation, the property of a non-resident, but deposited with a resident of this state, not subject to jurisdiction of Ohio courts—</p> <p>1.) S.,a non-resident of this state, was the owner of shares of capital stock of a corporation which was also anon-resident of this state. The certificate of the stock so owned by S. was in the hands of M., a resident of this state, and within the jurisdiction of its courts. In a proceeding in attachment at the suit of S. H. Co., against S. to subject the stocK of this corporation so owned by S. to the payment of his debt to S. H. Co.,</p> <p>Held, that the capital stock of the corporation cannot be attached by levying the writ upon the certificate in the hands of M.</p>

<p>Insolvent husband — Employment by wife — Proceeds of work wife's property, not subject to husband’s debts—</p> <p>(1.) The husband, who was a farmer, had failed, and after all his property had responded to his debts, he was still largely in arrears to his creditors. His wife, from her own resources.rented and stocked a farm. This farm was managed by the husband; the wife also gave her personal attention to the business. She paid him by the month the full value of his services, kept with him strict account, and all the money paid out and received for all that was bought and sold was paid and received by her directly or by his hand. He put no money in the business. The family was supported partly out of the proceeds of the farm,and partly from the money paid the husband by the wife. The residue of the proceeds of the business, was invested in real estate in the name of the wife.</p> <p>Held, upon an action to subject said real estate to the payment of the husband’s antecedent debts, that the wife can claim the whole of the property, as profits arising from her separate money.</p>

<p> Trustees of gas works public officers— </p> <p>(1.) The “Trustees of the gas works” of a city, are officers of a municipal corporation within the meaning of sections 1545-79 and 6976 of the R. S.</p> <p>Proceeding prescribed by statute exclusive — Quo warranto—</p> <p>(2.) The statute having made provisions (sec. 1732 et seq.) which afford a remedy for violation of sec. 1545-79 and 6976 — on authority of State v. Marlow, 15 Ohio St., 114, and State ex rel. Att’y General v. McClain, 40 W. L. B., 28,, 58 Ohio St., the remedy thus provided is exclusive, and quo warranto will not lie.</p>

<p>Bastardy — That defendant has become the husband of the complainant pending the suit, is no bar now of itself to its further prosecution by her—</p> <p>The defendant in this case answered alleging that since the beginning of this action he and complainant were married and are now husband and wife, A demurrer to the answer was overruled. The complainant, by reply, admitted the marriage, but alleged that the defendant refused to acknowledge that he was the father of the child, and denied that he was its father, and that he had abandoned the mother and child immediately upon marriage and gone to another state.where he now resides. A demurrer to the reply was sustained. The complaint comes >nto this court alleging error in the court below in sustaining the demurrer to the reply and in overruling the demurrer to the answer.</p>

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

<p>Descent — Ancestral and non-ancestralproperty--Secs. 4158 & 4159. JR. S.—</p> <p>(1) . In determining whether land owned by one dying intestate descends as ancestral property under section 4158, or as non-ances•tral property under section 4159, the court will be governed by the title under which the intestate held the property at the time of her death.</p> <p>Same — Equitable title merges in legal title—</p> <p>(2) . Where the intestate in her life-time inherited from her father his entire equitable interest in property, and thereafter acquired the legal title to the same property, her equitable interest or title merges into her legal title, and thereafter her entire interest is under the deed.</p> <p>Same — Legal title controls—</p> <p>(3) . In determining the title of the intestate at the time of her death, under the statute, the court is to look alone to the legal title, and will not be guided by equitable titles or by equitable principles.</p> <p>Same—</p> <p>(4) . Where a father puts title to property in the hands of a trustee to hold for him and his heirs, and the father dies' testate willing to his child all his property, the child takes by the will her father’s equity in the property, and when thereafter the trustee deeds the land to the child, the child thereafter holds the property as by purchsae, and the samé will descend to the heirs of the child, under section 4159, Revised Statutes.</p>

<p>Street improvement — Property owners petitioning for, bound by their representations in their petition—</p> <p>Where the owners of three-fourths of the abutting property sign for improvement of a street, the signers are estopped from resisting the assessment on the ground that they did notown three-fourths-of the “assessable” frontage; and the twenty-five per cent... limitation does not apply.</p>

<p>Lost or spoliated will — Admission to probate — Error from, probate court will not lie—</p> <p>A petition in error will not lie to reverse the judgment of the probate court admitting to probate and record a will lost or spoliated subsequent to the death of the testator, on the ground that the evidence did not justify such judgment.</p>

<p>Building association — Settlement of borrowing member with association does not relieve him from liability to creditors—</p> <p>1. While a borrowing or a depositing member of a building and loan company, may make any reasonable compromise as to his liability, either as a borrower or as a subscriber to the stock of the company, 85 Ohio St., 258, 47 Ohio St., 250, — yet this right, as declared by the courts, does not contemplate that he may avail himself of that which would be gross inequity or fraud upon the other shareholders.</p> <p>2. The proper basis of assessment upon the stock of an insolvent Building & Loan Company to pay its debts, both in the case of borrowing and non-borrowing members, is dues and earnings which should stand to the credit of his stock.</p>

<p>A village in Hamilton county in passing an ordinance to widen a street, proceeding under section 2271, R. S., provided that the expense of the improvement should be assessed by the front foot on the abutting lots and lands to the depth of 150 feet. It ap- • peared that some lots to the said depth belonged to different owners, being divided in such a way that some parts of such lots within the 150 feet in depth belonging to different owners were not abutting on the improvement at all.</p> <p>Held, that the council had a right to determine the depth to which all abutting land should be assessed for the improvement, and that all the land within the distriit thus established was liable to the assessment whether it abutted on the improvement or not.</p>

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

<p>. Annual "financial report of county commissioners of Wyandot Co. under the act of May 21, 1894—</p> <p>,(l.)'The act entitled “An act lo supplement section 917 of the Revised Statutes "of Ohio,” passed May 21, 1894, providing for publishing the annual report of the County Commissioners of Wyandot county, by printing small folders of,the_same ” and delivering them to the county treasurer for distribution among the tax-payers as they call to pay taxes, was repealed by new sec. 917 as passed April 17, 1896.</p> <p>Same — Act of May 21, 1894, unconstitutional—</p> <p>,(2.) The said act to supplement sec. 917 of the Revised ^Statutes, passed May 21, 1894, was in conflict with ,'section„26,'article 2, of the constitution of Ohio, which requires that “all'laws of a general nature shall have uniformqoperation throughout the state.”</p> <p>(This ease was affirmed by the supreme coftrt without report, Nov. 30, 1897. See vol. 38 Weekly L. B., 280.)</p>

<p>Bill of Exceptions — Additions after signing and sealing — Effect—</p> <p>A bill of exceptions is probably rendered invalid where subsequent to its being signed and sealed and allowed special charges asked and refused are added thereto, and the bill, as thus enlarged, is not re-signed and sealed and allowed.</p>

<p>- Murder in second degree — Presumption of intent to kill from use of deadly weapon—</p> <p>The death of P. resulted from a wound in a vital part inflicted ny a pocket knife in the hands of B. who was convicted of murder in the second degree, The fact that P. was thus slain by him, was ■■admitted by B. All of the circumstanees of the ho.micide were fully shown by the evidence. There was some evidence tending ••to show that the wound was inflicted by B. while he was under great fear and excitement, and that he did not intend to kill P.</p> <p>The court charged the jury inter alia as follows:</p> <p>“When one person assaults another violently with a dangerous ■weapon likely to kill and not in self-defense or in defense of habitation, property or person, and not in a sudden heat of passion ■caused by provocation apparently sufficient to make the passion irresistible or involuntary, and the life of the party thus assaulted is destroyed in consequence of such assault, then the legal and natural presumption is that death or great bodily harm was intended, and in such case' the law implied malice, and such killing would be murder.”</p> <p>Held: .Prejudicial error, because it required the jury to return a verdict of murder in the event of their finding that the defense of self-defense was not established, and that the defendant was not moved by passion produced by sudden provocation,' though they may have believed that the defendant did not intend to kill.</p>

<p>Street Railroad on country roads — Property owner's right to injunction—</p> <p>.A street railroad located in a public highway, furnishes a legitimate mode of travel or transportation, and imposes No additional burden upon the lot-owner, and he is entitled~~tb no compensation whether he owns the fee to the center of*the street, or whether the title of the hig way or the street is in the public. But when the location o£ a street railroad upon the highway appropriates any substantial property right of the lot-owner| he is entitled to an injunction to prevent the appropriation of that propert right until it has been appropriated in the man er pointed out by the constitution and the statutes.</p>

<p>Taxation — Appraisement of Property — Power of Boards of Equalization to Change—</p> <p>(1.) In the appraisement of property for taxation, annual boards of equalization may change the appraisement in any one year of the decennial periods; but such.re-valuation must be based upon some change of value or condition.</p> <p>Same — Change in valuation must be based on change of conditions —</p> <p>(2.) Where there has been no such change, the re-appraisement is unauthorized; but the burden is on the property owner to prove that no change has occurred.</p> <p>Same — Review of action of Board of Equalization by Auditor of State.</p> <p>(8.) Under the provisions of the statutes, the auditor of state is without authority in a city of the first grade of the first class to review fundamental errors in the valuation of real estate, unless it be on appeal as provided by law.</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>Devise of the proceeds of all testator’s real estate, equivalent to -devise of the real estate itself—</p> <p>Where a will disposes of all the property of the testator, the last disposition being a gift to his wife of “all the proceeds of his real estate’’, not the real estate itself, but the proceeds thereof —that is equivalent to a devise of the corpus of. the real estate itself.</p> <p>.(Affirmed by the Supreme Court without report November 30, 1897, 2 38 Bull., 280.)</p>

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

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

<p>Divorce — Not to be granted lohere defendant is insane—</p> <p>Where in a proceeding for a divorce on the ground of gross negligence it appears that the defendant is insane, no divorce can be-granted.</p> <p>Same — Appointment of guardian ad litem in such case not admiss- - ible—</p> <p>In such case a prayer for the appointment of a guardian ad litem, on the ground of the^insanity of the.defendant, is not admissible.</p> <p>Same — Review of judgment of dismissal, where not authorized— The judgment of the common pleas dismissing the petition in. such case on the ground of the insanity of the defendant, ■ is not such a “dismissal of the petition without final hearing” as would authorize a review of such judgment on error by the’ circuit court..</p>

<p>Charge of contributory negligence in answer — Failure to reply— When not ground for new trial—</p> <p>(1) .Where in an action for damages for injury through defendant’s negligence the answer charges contributory negligence, and no reply theretp is filed, but defendant, without objecting, proceeds to tryj the ease as if the charge of contributory negligence were denied by a reply, and there is verdict for plaintiff, plaintiff’s failure to reply will not be considered a ground for granting a new trial.</p> <p>Defect in street — Presumption of notice to city—</p> <p>(2) . Where a defect in the side walk is of such character and existed for so long a time that the city should have had notice-of it, jury is justified in presuming that the city had notice-of it.</p> <p>Seeing defect, no bar to recovery of damages—</p> <p>(3) . The mere fact that plaintiff saw a hole 'or® depression in the walk would not of itself be sufficient to prevent her from recovering, unless she knew, or by the exercise of reasonable care, might have known that it was dangerous to pass over it.</p> <p>[Affirmed by Supreme Court without report, Minshall, C. J., and Shauok, J., dissenting, see 34 Bulletin, 209; see also same case,in Notes of Oases decided by Supreme Court without Report, 34 Bulletin, 213.]</p>

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

<p>Board of Equalization — May act on complaint or of its own motion—</p> <p>(1) . A complaint or suggestion to the board of equalization is not a condition precedent to its action in changing values for gross inequality. It may take action on its own motion, or from, its own knowledge.</p> <p>Same — Conditional action—</p> <p>(2) . While a conditional action of the board is irregular, under the circumstances of this case, it was not prejudicial to the. plaintiff,and did not render the action void.</p> <p>Same — Majority may act— ,</p> <p>(S). Where an authority has been delegated to a board or committee, permanent and continuous in its nature and organization, the authority thus delegated to such board orcommitteomay be exercised and performed by a majority of the whole. number, if all have been notified to attend the meeting. And if a majority do attend, their act will bind the whole body.</p> <p>■Same—</p> <p>(4). Where one member of the board of equalization of Cincinnati was absent for two weeks, by leave of the board after its organization for the year, and while it was holding regular meetings daily, the remaining members may meet and continue the work of the board, and their action will be the legal action of the board.</p>

<p>Taxation — Increase of valuation as Axed by assessor, by board of equalization—</p> <p>(1) . It is not necessary that the board of equalization should give notice of its proposed action, to a property owner, before increasing the return of the assessor for a new building or structure erected by such owner.</p> <p>Same — “New structure” defined—</p> <p>(2) . Improvements made in an existing building, not so radical that the identity of the original is destroyed, and amounting only to a repair, alteration or modification of the old structure, will not, be considered as being a new structure or new building to be placed on the duplicate under section 2753,R. S.</p>

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

<p>Ordinance for licensing show, etc. — Mayor can not revolee license unless expressly thereto authorized—</p> <p>Where as ordinance authorizes the mayor to issue annual licenses for carrying on shows etc., at a certain license fee to be paid to nim, but does not provide for a revocation of such license by the mayor where such show etc. is claimed to be improperly ■conducted, the mayor has no power, on complaint being made, to •revoke the license and by virtue of such revocation to stop and interfere with such show, etc., and if he assumes such authority, he is liable in damages for such interference; but a suit for the ■recovery of any part of the license fee paid, against him or the ■city, can not be maintained.</p>

<p>Verbal contract between father and son concerning possession of farm — Specific performance—</p> <p>• (1). A parol promise by a father to his son that a farm bought by the father should be the property of the son if he would move on the same and contribute by his services and money to the payment of the purchase price and if plaintiff would, together with his wife, assist the father on his own place on which he then lived, until such farm would be paid for, and which conditions the son performed, will be enforced in equity, and possession'being given to the son, is not within statute of frauds. Courts are quite liberal in giving effect to such contracts between father and son.</p> <p>Same — Relinquishing possession of farm by threats of father—</p> <p>(2). When such contract was performed by the son and the farm almost paid for, the father by threats compelled the son to remove from such farm, specific performance of the contract will be decreed at the suit of the son, notwithstanding such loss of possession byhim of tbe farm, the son being ready and willing to fully complete the contract.</p>

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

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

<p>Street Railroad — Rights in street as against other vehicles—</p> <p>(1). A Street Railway Co., for the operation of its cars along the public streets, has certain rights different from those of the general public using the same streets. One of the public has a right to drive his team and vehicle upon the track, and to pass along it lengthwise of it, as well as to cross it at the intersections of streets. But the right of such person to he upon the track, and to pass along it, is abridged. The street railway company has the exclusiv» right to such part of the track, al any time its cars are passing or just about to pass, and all others then upon such track are then and" there bound to leave it to the unobstructed use of the company.</p> <p>Same — Common use of trade by cars and other vehicles—</p> <p>(2) . The track of a street railway is susceptible of a common use of the street railway and those of the public who are using the track with their vehicles, so far as that, when the cars of the ; company are not upon it, it may be occupied with a team and vehicle uf the ordinary kind. Yet, as the power to make the track clear for the use of the street railway company, is solely with the individual temporarily occupying it, and as his right to use it is only when it is clear, there is upon him the duty of using reasonable care, skill and diligence to keep such traca clear, free, and unobstructed by his vehicle for the use of the street railway company.</p> <p>Same — Measure of care required—</p> <p>(3) . The movement of cars by electricity along the streets of a city is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways and those using the streets in the ordinary manner. It is the duty of the railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of the approach of their cars. On the other hand, new appliances, rendered necessary by the increase in business and population, impose new duties upon the public. And it is the duty of the public using vehicles upon the street, to use reasonable care to avoid unnecessarily obstructing or occupying the tracks of street railways in their opperation, and to avoid collisions between such vehicles and such street railway cars.</p> <p>Same — Sounding gong—</p> <p>(4) . If plaintiff heard the warning bell or gong of the street railway car, or by the exercise of reasonable care and diligence might have heard it, then it was his duty to exercise reasonable care . and diligence in leaving such track for the passage of the street railway car, in time to avoid a collision.</p> <p>Same — Covered carriage — Care required—</p> <p>(5y. A man driving along a street railway track in a covered carriage is not excused fiom the fact that he is in a covered carriage, from looking back to see if cars are approaching him from behind. He is bound to know that cars are liable to approach from behind him as well as from the other direction; and it is as much his duty to look in one direction as in the other.</p> <p>Same — Speed of cars—</p> <p>(6). The Street R. R. Co. is not limited to run its cars upon astree^ at no greater rate of speed than the rate of speed of other vehicles for carrying passengers, drawn by horses in the absence of an ordinance to the contrary. But in the absence of any ordinance regulating the ^speed of - street cars, all that would be required of these companies would he to use ordinary and reason' able care, in reference to the existing circumstances, in the runing of their cars.</p> <p>Contributory negligence — When not excuse for failure to use proper care — Party not ‘ ‘bound” to know danger of other—</p> <p>(7). If a party negligently exposes himself to danger and is injured, and the party who injured him observed the danger, the latter should govern himself accordingly so as to avoid injuring the other,otherwise the party committing the injury may be liable notwithstanding the negligence of the party injured; but a party is not liable in such case upon the doctrine that he “ought to have Known” that such other party was acting negligently. lhere is no duty imposed upon a person who is lawfully pursuing a legitimate business in an ordinarily careful manner, to know that somebody is exposing himself to danger.</p>

<p>Error to the Court of Common Pleas of Hamilton coun- %-</p>

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

<p>Mortgage to administrator, “successors and assigns,” omitting “heirs" — When will pass fee simple estate—</p> <p>A mortgage made to an administrator and to “his successors and assigns forever,” the word “heir” being omitted, will pass a fee simple title, and not a life estate only, where the language employed in, and the recitals and conditions of the mortgage plainly evidence an intention to pass the entire estate Of the' mortgagor as security for the mortgage debt,and the express provisions of the instrument cannot be otherwise carried into effect.</p>

<p>Appeal — Money judgment not appealable because joined parties assert liens—</p> <p>Where a party asks a money judgment, the fact that other parties joined in the action with him assert liens, will not entitle such party to an appeal of the. case as against the opposite party against whom he asks a money judgment.</p> <p>Appeal in interpleader cases — Sec. 5016, B. S.</p> <p>Where money is sued for, and it is brought into court under the provisions of sec. 5016, R. S.,on the ground that there is a controversy as to who is entitled to it, either of the parties is entitled to a trial by jury on such issue, and the case is not appealable.</p>

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

<p>Appeal — Oral announcement of decision of court, with instructions to counsel to make computations and prepare decree accordingly — Notice of appeal—</p> <p>In an action brought by an administrator in the Probate Court for an order to sell real estate of the deceased in order to pay debts, several mortgage lien holders were made parties, and there was a contest between some of such lien holders as to the amount due on them, and also their order of priority; and the questions arising on such contest were heard and submitted to the court and taken under advisement, until the 18th day of October, at which time the court (there being no trial docket for said court), orally announced the order of priority of the liens and their probable amount, but made no accurate or exact finding of said amounts, and at the same time directed counsel in the case to prepare an entry showing the true amounts due on the several liens and a full finding of facts and a decree accordingly, which was so prepared and filed and entered upon the journal on the 12th dayjof November of the same year.</p> <p>Held: The true date of the findings and decree is November 12th, and that a party to such decree may give the required notice and perfect his appeal within the statutory time thereafter; and that a writ of mandamus to compel the Probate Judge (he being his own clerk), to enter said findings and decree as of the 18th day of October, will be refused.</p>

<p>Appeal bond from J. P. — May be amended—</p> <p>Where in an action before a J. P. againt two parties, one as principal and the other as surety, plaintiff'recovers judgment against the principal, but her case is dismissed as against the surety, and she files within ten days an appeal bond, reciting only that she intends to appeal from a judgment recovered by her against the principal, when it appears that she entended to appeal also from the judgment against her in favor of the surety, the appellant will be permitted to amend the appeal bond to include the judgment in favor of the surety.</p>

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

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

<p>Covenant against encumbrances runs with the land—</p> <p>(1.) A covenant in a deed that the land is free from incumbrances is a covenant running with the land for the benefit of all subsequent grantees, and is not broken until eviction.</p> <p>Trusts exempt from statute of limitations—</p> <p>(2.) One of the requisites to establish a resulting trust in the case of a conveyance made by deed absolute on its face, on the ground that the purchase money was furnished by the party claiming the trust, is that the money' should have been furnished con tempóranepusly.with the purchase. . , ></p> <p>Resulting trust — Requisite to establish—</p> <p>(3.) It is not every relation called trust, that is exempt from the statute of limitations, but only those trusts peculiarly cognizable in a court of equity.</p>

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

<p>Note. — For decision of the Court of Common Pleas in this'case see 1 Nisi Prius Kep., 166.</p> <p>Injury from defective sidewalk — Evidence of repairs, when admissible—</p> <p>(1.) Where,in an action for damages for injury caused by a defective sidewalk, the defendant introduces as a witness, the contractor who held the contract from the village to keep the sidewalk in repair,and he testifies that immediately after the accident he examined the sidewalk at the point in question, and found it in a good condition, it is competent for the plaintiff in cross-examination to ask the witness whether he did not, a few days later, repair the sidewalk at the point in question.</p> <p>Suit by administrator — Admissions by deceased admissible—</p> <p>(2.) Where death was caused by the injury, and the action is brought by the administrator's under the statute, admissions of the deceased as to the manner in which the accident happened are admissible.</p> <p> Expressions of deceased as to condition admissible— </p> <p>(3.) Expressions by the deceased after the accident, as to her condition, tending to show that the accident was not the cause of her death, are admissible in such case.</p> <p> Contributory negligence in going on sidewalk known to be defective </p> <p>(4.) A person who in the day time voluntarily attempts to pass over a sidewalk of a village, which he knows from any cause to be defective or unsafe, and which he might easily have avoided, cannot be regarded as exercising ordinary prudence, and therefore cannot maintain an action against said village for damages sustained on account of any such known defects, even if the village was guilty of negligence in allowing such defects to exist.</p> <p>Excessive Verdict—</p> <p>(5.) Where the deceased was sixty-eight years old, of frail constitution, suffering from heart disease, and from the consequences of a fall sometime previous to this accident, a verdict of $2500.00 is excessive.</p>

<p>Conveyance by insolvent to one of his creditors to satisfy his own ■claim and those of two others, not a trust for general, creditors—</p> <p>Where an insolvent debtor conveys property to one of his creditors, the consideration being the satisfaction of the indebtedness to such creditor and that he agrees to assume the payment of certain two other creditors of the grantor, the grantee is a purchaser, and not a trustee for the benefit of general creditors of the grantor under section 6843 R. S.</p>

<p>Error from the Oourt of Common Pleas of Stark county.</p>

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

<p>Change in classification of city by increase of population—</p> <p>The city of Newark, having a population of more than ten thousand and less than twenty thousand by an official abstract of the census of 1890, was made a city of the third grade, second class, by the acts of Peb. 10th, 1892. 89 O. L., 18; Feb. 6tn, 1894 (91 O. L., 14), and March 13th, 1894 (91 O. L., 58).</p>

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

<p>Foreclosure suit in state court — After petition in voluntary bankruptcy filed by the mortgagor, the trustee in bankruptcy entitled to the property—</p> <p>Where a suit is brought to foreclose a mortgage in the court of common pleas, and thereupon the mortgagor files his petition to be declared a bankrupt, a motion made by the mortgagee in the state court for the appointment of a receiver after such petition in voluntary bankruptcy was filed by the mortgagor,"can not be entertained, but the state court should order the property mortgaged to be turned over to the trustee in bankruptcy.</p>

<p>Ü Statutory liability — Settlement with part of creditors — Bights of remaining creditors—</p> <p>The stockholders of an insolvent corporation, in settlement of their statutory liability which, if paid in full, would not have fully paid the creditors, made an arrangement with the creditors Whereby the latter agreed to accept a certain percentage of such statutory liability in full settlement of their claims. One creditor did not take part in such arrangement, aud after-, wards brought suit, asking that his claim should be paid in full, as it appeared that after paying the percentage agreed upon to the other creditors, the balance of the statutory liability of the-stockholders, would be sufficient to pay his claim in full. Held, that such creditor was entitled only to such percentage of the total amount of the statutory liability as he would have received if the statutory liability had Deen paid in full and divided pro rata among all the creditors on their claimsi</p>

<p>Life Insurance — Agreement for paid-up policy—</p> <p>A “note” attached to a policy of life insurance in which the company agrees, in case of failure to continue to pay premiums, to-give a paid up policy in an equitable amount, is not an independent contract, but part of the conditions of the policy.</p> <p>Paid-up policy demandadle during life of policy on surrender of receipted policy — Agent’s power to release conditions — Excuse for failure to receipt policy—</p> <p>A ten years’ policy provided that it should be void iffany premium is not promptly paid, but that the company will give a paid up policy for an equitable amount if demanded and the policy properly receipted is surrendered while the policy is still alive. The policy was payable to the wife of the insured, or in case of her death to the childien or their guardian. 'After five years the insured failed to pay further premiums. After the death of the insured his wife sued for a paid-up policy, claiming that demand for a paid up policy had been made of the agent of the company and the policy, but not receipted, surrendered to him at the proper time. Held, the agent could not waive any of the conditions of the policy, as the policy on its face expressly stated so. Held further, that the fact that at the time of such demand and surrender the insured was still alive and that the wife could not receipt the policy, as the policy being payable to the children if she did not survive. •the insured, it could not be known whether she or the -children would >be the beneficiary of the policy, did not excuse •the failure to surrender the policy receipted by her or by a, .guardian appointed for that;purpose for the children.</p>

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

<p>Pleading— Demurrer — ■</p> <p>(1.) A demurrer to the petition for want of jurisdiction of the court over the person of the defendant or the subject matter of the action, is only admissible wh'ere the want of jurisdiction appears on the face of the petition.</p> <p>Corporation chartered by special statute for limited number of years, continuing to act after term expired—</p> <p>'(2.) A corporation chartered under a special statute for a certain number of years, but which after the expiration of the time for which it was so chartered continues to exercise its corporate powers, may still be treated as a corporation.</p> <p>Sick benefits — Testimony as to condition of applicant—</p> <p>(3.) Where-plaintiff claims sick benefits to which he would be entitled from a lodge in case of sickness disabling him 'from work, his own testimony as well as that of witnesses not experts, as to his physical condition, is admissible, Questions to the examining committee of the lodge as to the manner of their proceeding etc. are also competent.</p> <p>Regulation of order precluding resort to courts—</p> <p>(4.) Regulations of orders precluding a member from going into the courts to assert a right, but must submit to the tribunal provided for by the order of which he is a member, are void.</p>

<p>Excavation in street made by Co. Com’rs. in building bridge — Liability of village for injury—</p> <p>Where, in a village which, under the statute,is not entitled to a portion of the bridge fund of the county to take charge itself of the construction and maintenance of bridges within the municipal limits, the county commissioners undertake to have a bridge constructed in a street of such village, and an excavation is left unguarded during the night time, in conse•quence whereof a person is injured, the village, having full notice of such dangerous and unguarded condition of the ¡street, is, under sec. 2610, R. S., liable for the injury to such person.</p>

<p>Error to the Court of Common Pleas of Licking county.</p> <p>On Re-hearing.</p>

<p>Exemption — Concealment of property—</p> <p>If a debtor, demanding as exempt under sec. 4341, R. S., property taken by process of law and in the custody of the court, has-at the time of such demand and the hearing thereon to determine his right to such exemption, other property of the same kind and of the value of S500 in his possession or under his control, which he conceals or withholds from his creditors, he will be deemed to have selected the property so concealed or withheld, and his demand for the property in the ¡custody of the court will be refused.</p>

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

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

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

<p>Civil action for assault and battery — Docket of J. P showing «charge and plea of guilty, admissible subject to explanation—</p> <p>In an action for damages for assault and battery, the docket of the Justice of the Peace before whom the prosecution therefor was had, showing the affidavit of the charge and the plea of guilty, will be admitted, not as absolute proof of the guilt of the defendant, but only as evidence subject to explanation.</p> <p>Same — Wealth of defendant — Evidence admissible—</p> <p>In an action for damages for assault and battery, evidence of the wealth of defendant is admissible as showing his ability to respond in damages.</p> <p>Same — Punitive damages—</p> <p>If the blow was struck for the purpose of injuring plaintiff with ill will or under circumstances of insult, punitive damages may be found.</p>

<p>Ditches — From upper into lower county — Commissioners’ authority to construct ditches confined to their own county—</p> <p>Under our ditch laws the authority of county commissioners to construct ditches is confined to their own county, and in a proceeding for the construction of a ditch from an upper to a lower county, the commissioners of each county have the exclusive ■ jurisdiction and authority in the construction of the ditch in their own county.</p>

<p>Warranty of harvesting machine — Loss of crop — What damages attainable—</p> <p>Where a harvesting machine is warranted, and during the term of the warranty breaks down through a defect in the machine, or even when there was an implied warranty that the machine was fit for the purpose for which it was sold,and when the hired hands had been collected, and no other machine could be procured on account of the harvest going on generally in the neigh • borhood, in consequence whereof the crop of ripening grain was injured and there was loss of wages of the hands assembled, in determining the damages the court will not permit proof of the depreciation of the crop,etc., but will only allow the actual expenses of getting notice to the warrantor and of repairing the machine to put it in working order.</p> <p>Sealed verdict — Opened by counsel before being handed to court— Where a sealed verdict is handed in by the jury to be opened by the court on Monday, but counsel for the parties from curiosity opened the verdict and ascertained its contents, whereupon, on Monday, it was read by the court as if it had never before been opened, while this is an irregularity, yet the verdict would not be set aside on the motion of the party who has been guilty thereof.</p>

<p>Injury from, defective sidewalk — Proof of like defective condition of walk on other side—</p> <p>(1) . Where plaintiff’s action is for personal injury through a defective sidewalk, he can not be permitted, in his evidence in chief, after showing the defective condition of the sidewalk where he was injured, to further show that the walk on the other side of the street was in just as defective condition, although such evidence would be proper in rebuttal, if the city attempted to show that there was the sidewalk on the other side of the street which the plaintiff might have used.</p> <p>Same — Repairs after accident—</p> <p>(2) . Evidence that the city repaired the sidewalk after the accident, is not admissible where there is no question of the duty of the city to keep the sidewalk in repair.</p> <p>Conversations with councilman—</p> <p>(3) . Conversations of plantiff with one of the councilmen of the city after the accident, are incompetent, as admissions by the city.</p> <p>Testimony competent in part and incompetent in part, given as a whole—</p> <p>(4) . Testimony competent in part and incompetent in part, but offered as a whole, should not be admitted.</p> <p>Damages — “Probable” effects of injury—</p> <p>(5) . Plaintiff is not entitled to damages for probable suffering, or for the probable effect of the injury in the future, but only for such effects as would follow with reasonable certainty.</p> <p>Instructions after testimony and before argument — Duty of court —Sec. 5190, R S.—</p> <p>(6) . Under sec. 5190, Revised Statutes,a party has a right to ask the court at the close of the evidence and before arguments by counsel, to give instructions to the jury on matters of law. Where the instructions asked to be given are proper, it is the duty of the court to give them then, from wihch duty the court is not relieved by giving these instructions after argument0 of counsel, in his general charge.</p> <p>(Judgment of circuit court 'reversed, and that of common pleas affirmed, 54 Ohio St., 523, on the only point that while the ruling of the circuit court is to the 6th point of the syllabus was correct, yet the record does not show that counsel requested the court to give the instructions before argument of counsel, and that it is necessary such request by counsel and refusal by the court and proper exception should appear in the record.) •</p>

The plaintiffs brought suit for $750 against the CarterOrume Company, and garnished funds in the hands of Diem & Wing, the attachment being secured on the ground that the defendant company was a foreign corporation and a non-resident of the state. At the trial below Judge Sayler dissolved the attachment.

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

At the first trial of the case in the common pleas there was an instructed verdict for the defendant. Error was prosecuted, and the circuit court reversed the common pleas, and the supreme court affirmed the circuit court. At the second trial in the common pleas there was a hung jury, and the plaintiff thereupon filed his motion and affidavits, under section 5033, for a change of venue, which motion was denied.

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

<p>No merger where judgment is taken against one of the two parties on a joint claim, the other being returned, “not found,” but being afterward brought in on an alias summons.</p>

. Error to the Court of Common Pleas of Hamilton county* This is the case where an electric car was obstructed and stopped cn the C.,H. & D. tracks at Brighton,by the balking directly in front of it of a team of horses, which belonged to the street railway company and were hitched to a wagon. Before the horses could be gotten out of the way so as permit the car to be moved, a train came round the curve and crashed into the street car.

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

This is a suit on the part of owners of property abutting on Michigan avenue, Hyde Park, to enjoin the collection of a cement sidewalk assessment.

<p>'' Land appropriated by railroad without compensating owner — Action for possession of the land—</p> <p>The owner of lands which have been invaded by a railroad company may bring a proceeding to compel the defendants to condemn, •''' ■ and upon a failure of the railroad company to proceed to con- .• . demn, the owner himself may take proceedings to have ascer- . , tained the amount of compensation to which he is entitled and " judgment rendered foi it, and to obtain an injunction to re- ■ strain the railroad company from using the land until the judg- -,- ment has been paid. But where the owner brings an action claiming title; that-he was in possession and was unlawfully -evicted by the defendant; that the defendant wrongfully claims ' ', title, and he prays that he may have judgment restoring posi session to him, and that the defendant may be enjoined from interfering with the lands until the railroad company has paid compensation, the action is under secs. 6448, 6449 and 6450,</p> <p>■ >■ Rev. Stat., to recover possession of the premises.</p>

<p>Error to the Court of Common Pleas of Hamilton county.</p> <p>The City Hall Bank obtained a magistrate’s judgment against E. E. Evans & Co. for $288.40 and costs, and made a levy thereunder upon machinery in the defendant’s factory previous to the making of the assignment. Thereafter an agreement was entered into between the bank and Ben B. Dale, assignee, that the property thus levied upon should be sold by the assignee, and the fund so derived should be held by the asignee for the bank to the ■ extent of its judgment with costs, the lien of the bank being thu's recognized to be the first and best against said property. At^the hearing below Judge Sayler held that the lien of the bank as obtained was first and best, and was prior to the claims of the operatives who, subsequent to the assignment, filed with the county recorder itemized statements of the amount, kind and value of the work performed by them in the said factory within a period of three months preceding the assignment, with all credits and off-sets, and the amounts severally due therefor.</p>

<p>Time necessary for premeditation and deliberation in murder-cases—</p>

<p> Sec. 2575-53, R. S., authorizing the mayor of every city of the first grade of the first class to appoint a Building Inspector for such city, is unconstitutional— </p>

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

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

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

<p> Mandamus in circuit court to control action of sheriff under writ issued by common pleas, not entertained— </p> <p>(1) . The circuit court of Ohio has original jurisdiction in mandamus proceedings. But where a writ is issued in a case pending in the court of common pleas, and under its authority, over which that court has full control, the circuit court will not entertain a proceeding in mandamus to direct the sheriff how to proceed under such writ and thus interfere with the authority of the lower court.</p> <p> Mandamus aslced, in effect an injunction, not entertained in circuit court— </p> <p>(2) . A proceeding instituted in the circuit court as a mandamus proceeding, the r3al purpose of which is to restrain the defendant from doing a specific thing, and which therefore is in effect a proceeding for an injunction, will not he entertained, as the circuit court has no original jurisdiction in injunction proceedings</p>

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

<p>Dissenting opinion by Smith, J.</p> <p>(For opinion of majority of court,see ante, p. 633.)</p> <p>Error to the Court of Common Pleas of Hamilton county.</p>

The plaintiff and the testate of the defendant in error were respectively U. S. Inspector of Hulls of steam vessels and U. S. Inspector of Boilers of steam vessels for the district of Cincinnati from January, 1880, till May 24, 1894, at the same annual salaries; and defendant being in bad health, requested plaintiff to assist him, and plaintiff, during the entire period, did perform the greater part of the work connected with plaintiff’s office.