Volume 16 — Ohio Circuit Court Decisions

Plaintiff in this action bad a right to set np in the probate court all matters alleged in his petition herein as a defense to the condemnation proceedings. This right afforded him a complete and adequate remedy at law. Injunction will not be granted to restrain the occupation or lands sought to be taken for public use where the owner has a plain and adequate remedy at law in the condemnation proceedings. Chicago & N. W. Ey.

<p>LEASE — SPECIFIC PERFORMANCE.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>Specific Performance of Lease Renewal Refused When Condition Precedent not Performed.</p> <p>Equity will not decree specific performance by lessor of his covenant to renew when lessee, in consequence of his own ignorance, negligence and default, to which lessor in no way contributed, failed to perform his covenant, which was a condition precedent to renewal, to give lessor written notice of his intention to accept cr decline the additional term six months before the expiration of the lease.</p>

<p>ASSESSMENTS — INJUNCTION—COURTS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Court may Hear Evidence as to Special Benefits From Street Improvements. ,</p> <p>The court has power to hear evidence as to the amount of special benefits when the collection of assessments, made against property abutting on a street improvement to pay the cost thereof, is sought to be enjoined.</p> <p>2. Finding of Benefits by Assessing Board Prima Facie Correct — Not Disturbed, When.</p> <p>A finding of benefits by the assessing board, and the making of an assessment on that basis against properly abutting on a street improvement to pay the cost thereof, is prima facie correct, and will not be lightly disturbed or inquired into when plaintiff, in an action to enjoin the collection of the assessment, fails to allege some of the grounds usually invoking equitable intervention.</p>

A ■ codicil or will when attacked must stand or fall as a whole. Walker v. Walker, 14 Ohio St. 157, 166 [82 Am. Dec. 474]. Joint wills by the gréat weight of authority, are not invalid. I Underhill, Wills 18, 19, 20; Page, Wills Secs. 65 to 69; Walker v. Walker, 14 Ohio St. 157, 167 [82 Am. Dec.-474]. Holding -joint wills invalid in Ohio, has been weakened as an' authority by Betts v. Harper, 39 Ohio St. 639, 641 [48 Am. Rep. 477]; Reformed Church (Tr.) v. Wise, 6 Circ.

<p>CONTRACTS — EVIDENCE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>Parol Evidence Inadmissible to Establish Parol Modification of Parol Agreement, When.</p> <p>Where a written order for goods, stating, the time when the goods shall be shipped, is accepted in writing, but with a modification as to the time of shipment, with respect to which modification the party giving the order makes no objection, and such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreement between the purchaser and the agent respecting the time of shipment, parol evidence is not competent to support a claim by the purchaser that a different time for the shipment of the goods was agreed upon orally between him and the agent of the seller, and that his subsequent order was given in pursuance of and was based upon such prior oral agreement.</p>

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

<p>ERROR to court of common pleas.of Hamilton county.</p>

<p>Erbob to Cuyahoga common pleas court.</p>

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

<p>ADVERSE POSSESSION — LICENSE — RAILROADS — DEEDS — EVIDENCE.</p> <p>Giffen, 'Jelke and Swing, JJ.</p> <p>1. Executed Parol License Irrevocable.</p> <p>An executed parol license in land is irrevocable when granted for a valuable consideration; and where a definite understanding exists between competent parties, an executed license is not affected by reason of not being in writing, but if such .understanding be lacking claimant must establish his right by an . adverse possession for twenty-one years.</p> <p>2. Accepting and Recording Deed and Entry not Conduct of a Mere Licensee.</p> <p>Acts of an abutter in accepting and recording a deed for and in taking possession of disputed land cannot be construed as the conduct of a mere licensee.</p> <p>3. Adverse Possession of Railroad Land- Must be Inconsistent With Company's Right, and not Permissive.</p> <p>To acquire title to a railroad right of way by adverse possession, an abutting owner, whether he owns the fee or not, must occupy and use the land in a manner inconsistent with the paramount rights of the company. Possession and user of part not used, needed or required for immediate railroad purposes and in a manner not necessarily -adverse or inconsistent with the company’s title or easement, but which is defined by the company’s then actual needs, and is consistent with the company’s right to reclaim the property when, needed or required for the purpose for which it was acquired, will be held to be permissive only.</p> <p>4. Necessities of Railroab and Whether use of its Land is Adverse, Questions of Fact.</p> <p>Whether the necessities of a railroad company demand exclusive occupancy of land acquired for its right of way, and what use of -the property by an abutting owner is a detriment to or interference with the company’s rights, are questions of fact and not of law.-</p> <p>5. Common User and Mixed Possession Evidence Against Adverse Possession.</p> <p>Evidence of common .user, or mixed possession of a railroad • right of way between an 'adverse claimant and the company is competent evidence to rebut a claim of adverse possession and to strengthen the company’s title.</p> <p>6. Deed for Fee and Entry Thereunder Evidence of - Adverse Claim Against Another Feeholder.</p> <p>While the acceptance and entry by a grantee under a deed from a third person, conveying the fee to land in which a railroad company has acquired an easement for a right of. way is not necessarily inconsistent with the company’s easement, and though color of title is wholly immaterial to obtain title by-prescription where the possession has been continuous, exclusive and adverse-for twenty-one years, yet where the company owned the fee at the time, the acceptance and recording of such deed and .the .entry thereunder by the grantee is evidence tending to explain the character of his act in taking posssssion, and is notice to the company that his claim and occupancy is hostile and adverse ; and if possession thereunder is continuous, hostile and adverse for twenty-one years a title by prescription in favor of such grantee is acquired.</p>

as of Hamilton county. If a city so constructs its streets, that the surface water from the adjacent territory is collected into a channel and cast upon the premises of a lotowner, -thereby causing damage, the city will be liable therefor. Rhodes v. Cleveland, 10 Ohio 159 [36 Am. Dec. 82] ; McCombs v. Akron, 15 Ohio 474; Springfield v. Spence, 39 O. S. 665; Zanesville tv. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; McBride v. Akron, 6 Circ.

This action was brought by Loia A. Moore against B. F. Bretz„ Henry Moore and Minnie Huffman.

<p>ERROR — BILL OF EXCEPTIONS — RECORD—STATUTES.</p> <p>Day, Mooney and Norris, JJ.</p> <p>1. Errors Must Appear Upon Record Under Sec. 6709 Rev. Stat., to Confer Jurisdiction.</p> <p>The circuit court has jurisdiction only to review, vacate or modify a judgment of the common pleas court for errors appearing upon the record, under Sec. 6709 Rev. Stat.</p> <p>2. Question Raised by Motion to Strike Bill of Exceptions Prom Piles of Circuit Court.</p> <p>A motion made in the circuit court to strike a bill of exceptions from the flies involves only the question whether the bill was and is a proper part of the record in the common pleas court, and not whether it was properly i filed in that court.</p> <p>3. Only Orioinal Papers Which are Part of Record can be Piled Under Sec. 6716 Rev.-Stat.</p> <p>Only such original papers as are part of the record in the court below can be filed with a petition in error under authority of Sec. 6716 Rev. Stat. No warrant exists for bringing up original papers which are properly filed in the lower court, but which are not properly a part of the record of tbat court.</p> <p>4. Order of Trial Court Making Bill of Exceptions Part of Record Necessary Under Secs. 5302 and 5334 Rev. Stat.</p> <p>A bill of exceptions is not a part of the record unless an order is made by the trial court making it a part thereof, which order must be evidenced in the reviewing' court by a proper transcript of the journal; and, in the absence of such order, the bill will, on motion, be stricken from the files of the reviewing court. The mere filing of the bill, with the signature of the trial judge allowing, settling and signing the same, does not, by force of Secs. 5302 and 5334 Rev. Stat., make it part of the record, nor can such order be presumed from the fact of prior allowance and signing by the trial court.</p> <p>5. Section 5302 Rev. Stat. (96 O. L. 17) Construed.</p> <p>Section 5302 Rev. Stat., as amended October 22, 1902 (96 O. L. 17), dispensing with the necessity of an entry upon the court journal of the settling, allowance and signing of bills of exceptions, and providing that the signature of such bills by the trial judge shall be sufficient evidence of their settling, allowance and signing, does not dispense with any other entry relating to bills of exceptions, nor with the necessity of an order by the trial court making them a part of the record.</p>

<p>ERROR to the common pleas court of Lorain county.</p>

<p>ERROR to Crawford common pleas court.</p> <p>Tbe indebtedness of an heir may be deducted from his share of the ancestor’s personal estate. Ellis, In re, 5 Dee. 330 (5 N. P. 207); 11 Am & Eng. Enc;.Law (2 ed.) 1170,1171; Howland v. Heekscher, 3 Sandf. Ch. 519, 526; Livingston v. Newkirk, 3 Johns. Ch. 312; Smith v. Kearney, 2 Barb. Ch. 533; Bogart, Ex parte, 28 Hun (N. Y.) 466; Smith v. Murray, 1 Dem. 34, 36; Clarke v. Bogardus, 12 Wend. 67; Wright v. Austin, 5ft Barb. 13, 17; Close v. Van Husen, 19 Barb. 505, 509; Blackler v. Boott,, 114 Mass. 24; Webb v. Fuller, 85 Me. 443 [27 Atl. Rep. 346; 22 L. R. A. 177] ; Bowen v. Evans, 70 Iowa 368, 369 [30 N. W. Rep. 638]; Earnest v. Earnest, 5 Rawle (Pa.) 213; Strong v. Bass, 35 Pa. St. 333; Girard Life Ins. Co. v. Wilson, 57 Pa. St. 182; 2 Woerner, Administration 1236.</p> <p>The same rule is applicable to the assignee of the heir, or persons otherwise succeeding to his interest. 11 Am. & Eng. Enc. Law (2 ed.) 1171; Keim v. Muhlenberg, 7 Watts (Pa.) 79; Martin v. Martin, 5ft Ohio St. 333 [46 N. E. Rep. 981]; Baker v. Carpenter, 69 Ohio St. 15.</p> <p>The debt may be deducted from the interest in land, as well as from a legacy or distributive share. Keever v. Hunter, 62 Ohio St. 616 [57 N. E. Rep. 454]; Woodruff v. Woodruff, 13-23 O. C. C. 408, 410.</p> <p>The right of retainer is applied to debts barred by the statute of limitations. This is based on the theory that the legacy or distributive share is subject to a lien for the amount of the debt. 11 Am. & Eng. Enc. Law (2 ed.) 1172; Holmes v. McPheeters, 149 Ind. 587 [49 N. E. Rep. 452] ; Harrett v. Pierson, 29 Iowa 304; Smith, In Matter of, 14 Mise. 169 [35-N. Y. Supp. 701]; Bogart, In Matter of, 28 Hun (N. Y.) 466.</p> <p>The cases of Milne’s Appeal, 99 Pa. St. 483; Drysdale’s Appeal, 14 Pa. St. 531 ¿ Reed v. Marshall, 90 Pa. St. 345; Harrod v. Carder, 2 Circ. Dec. 274 (3 R. 479), announce the rule that debts barred by the statute-of limitations in the lifetime of the decedent cannot be retained out of the distributive share, and are not applicable to this case.</p> <p>The statute of limitations does not operate to extinguish a debt, but bars the remedy only; hence, such debts may be áet off against legacies, distributive shares, or the heir. 2 Woerner, Administration 1237, 1238; Angelí, Limitations 77, 78; Welsh v. Childs, 17 Ohio St. 319; Gary v. May, 16 Ohio 66, 80; Kerr v. Lydecker, 51 Ohio St. 240, 253, 254 [37 N. E. Rep. 267; 23 L. R. A. 842]; Fisher v. Mossman, 11 Ohio St. 42.</p> <p>The statute of limitations is not a defense unless there was in existence both some one who could sue, and some one who could be sued. Where an action accrues to the estate of a deceased person, the statute does not begin to run until the qualification of a personal representative. Brown Co. (Treas.) v. Martin, 50 Ohio St. 197, 204 [33 N. E. Rep. 1112] j, 19 Am. & Eng. Enc. Law (2 ed.) 220; Angelí, Limitations 55, 56; Taylor v. Thorn, 29 Ohio St. 569, 574; Kinkead’s Practice 15.</p> <p>The statute of limitations has no bearing in this ease, because it is not an action upon a specialty, or upon an agreement, contract, or promise in writing. Section 4980 Rev. Stat.</p>

<p>ERROR to the common pleas court of Lorain county.</p> <p>Cannot show changes since accident to show prior negligence. Cleveland Provision Co. v. Limmermaier, 4 Circ. Dec. 240 (8 R. 701) ; Toledo Ry. Co. v. Beard, 11 Circ. Dec. 406 (20 R. 681) ; Morse v. Railway Co. 30 Minn. 465 [16 N. W. Rep. 358] ; Elliott, Roads & Streets Sec. 864.</p> <p>Purchase of reputable dealer. Thomas, Negligence 745; Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537 [31 Am. Rep. 321] ; Carlson v. Bridge Co. 132 N. Y. 273 [30 N. E. Rep. 715] ; Ballard v. Manufacturing Co. 51 Hun 188 [4 N. Y. Supp. 940],</p> <p>There is no presumption of negligence. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Railway Co. v. McMillan, 37 Ohio St. 554; Ruffner v. Railway Co. 34 Ohio St. 96; Central O. Ry. Co. v. Lawrence, 13 Ohio St. 66; Jones v. Pipe Co. 8 Circ. Dec. 168 (15 R. 26) ; Rock Falls (City) v. Wells, 169 Ill. 224 [48 N. E. Rep. 440]; Deisenrieter v. Malting Co. 97 Wis. 279 [72 N. W. Rep. 735] ; Keigher v. St. Paul, 69 Minn. 78 [72 N. W. Rep. 54] ; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; 1 Thompson, Negligence 53, 73; Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613] ; Dobbins v. Brown, 119 N. Y. 188 [23 N. E. Rep. 537] ; Booth, Street Railways 397, 399 ; Bergert v. Railway Co. 34 Iowa 571.</p> <p>Not competent to show disconnected acts of negligence. Lake Shore & M. S. Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 32) ; 21 Am. & Eng. Enc. Law (2 ed.) 510, 511,-512, 517; Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633] ; Kramer v. Fay, 6 Dec. 335 '(4N. P. 233) ; Cleveland Terminal & Yal. Ry. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821] ; Dayton (City) v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480],</p> <p>Act of God. 1 Rapalje 18; Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480].</p> <p>The test of negligence in methods, machinery and appliances is the ordinary usage of the business. Titus v. Railway Co. 136 Pa. St. 618 [20 Atl. Rep. 517, 518; 20 Am. St. Rep. 944] ; Mad River & L. E. Ry. Co. v. Barber, 5 Ohib St. 541 [67 Am. Dec. 312] ; Northern Cent. Ry. Co. v. Hussen, 101 Pa. St. 1, 7 [47 Am. Rep. 690] ; Bailey 23 et seq.; Mt. Adams & E. P. Ry. Co. v. Cavagna, 3 Circ. Dec. 608; (6 R. 606) ; Croswell 206, 218; Uggla v. Street Ry. Co. 160 Mass. 351 [35 N. E. Rep. 1126; 39 Am. St. Rep. 481] ; Albany v. Turnpike & R. Co. 76 Hun 136 [27 N. Y. Supp. 848] ; Little Rock & M. Ry. Co., v. Barry, 84 Fed. Rep. ■944 [28 C. C. A. 644; 56 U. S. App. 37; 43 L. R. A. 349] ; 1 Thompson, Negligence Sec. 28.</p> <p>Common carriers are not responsible 'for remote and extraordinary ■consequences of their negligence, but for those that are ordinary and ■proximate. Morrison v. Davis, 20 Pa. St. 171 [57 Am.' Dec. 695] ; Rice v. Homer, 12 Mass. (11 Tyng) 230 ; Denny v. Railway Co. 79 Mass. (13 Gray) 481, 486 [71 Am. Dec. 645] ; Michigan Cent. Ry, Co. v. Burrows, 33 Mich. 6, 15; Memphis & C. Ry. Co. v. Reeves, 77 U. S. (10 Wall.) 176, 190; Hoadley v. Transportation Co. 115 Mass. 304, 308 [15 Am. Rep. 106]; Daniels v. Ballantine, 23 Ohio St. 532 [13 Am. Rep. 264]; Fleming v. Beck, 48 Pa. St. 309, 313; 1 Thompson, Negligence 48, 49, 70, 72; Goodlander Mill Co. v. Oil Co. 63 Fed. Rep. 400 [11 C. C. A. 253; 24 U. S. App. 7; 27 L. R. A. 583] ; Freeman v. Accident Assn. 156 Mass.'351 [30 N. E. Rep. 1013; 17 L. R. A. 753] ; Allegheny v. Zimmerman, 95 Pa. St. 287, 295; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; Rodgers v. Railway Co. 67 Cal. 607 [8 Pac. Rep. 377] ; Pittsburgh, Ft. "W. & C. Ry. Co. v. Brigham!, 29 Ohio St. 374; 2 Am. & Eng. Ry. Cas. 170.</p>

<p>CONSTITUTIONAL LAW — MARKET HOUSES.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Section 216, Par. 4, 96 O. L. 88, Unconstitutional.</p> <p>The act oí October 22, 1903 (96 O. L. 20, known as the new municipal code), being an act of a general nature, the provisions of Sec. 26, Art. 2 of the constitution require that it shall have a uniform operation throughout the state; but inasmuch as it is provided by Sec. 216 of this act that after the first Monday of May, 1903, boards of public 'service shall have control of market houses and the constitution of all public works and authority to appoint a board for the construction of market houses in all the cities of the state except Cleveland, this portion of the act, exempting from its operation for an indefinite time members of the market house commission appointed under the provisions of the act' of April 26, 1898 (93 O. L. 668), and which applied to Cleveland alone, cannot have a uniform operation throughout the state, and, therefore, is invalid.</p> <p>2. Market House Commissioners Appointed Under Invalid Act not Entitled to Office Under Subsequent Invalid Act.</p> <p>Market house commissioners appointed under an act that was in violation of Sec. 26, Art. 2 of the constitution because, although upon a subject matter of a general nature, its operation was limited to a single city, and con- ( ferring upon them no legal right to act as such, cannot, by virtue of a subsequent act limited in its application to the same city, and, therefore, coming within the same constitutional inhibition, be entitled to continue in the performance of the duties of the commission.</p> <p>3. Resolution Continuing old Officers in Office Temporary Only.</p> <p>A resolution adopted by the board of public service, continuing in office all officers and employes theretofore appointed iri connection with any department or division of the city government, and providing that the “division and organization * * * existing * * * in all such work shall be maintained and shall continue until the same shall be changed in accordance with law,” does 'not have the effect of a permanent appointment, but is temporary only until the board of public service could take proper con-tool of tlie various matters entrusted to them under tiie new code, and when the hoard subsequently takes action discontinuing all further action, by a market house commission appointed under the unconstitutional act of April 26, 1898 (93 O. L. 668), and requiring all matters and property in their hands to he turned over to such board, the authority and power of said commission immediately ceased.</p>

MOTION to strike petition from files. Emil Clauss, a pawnbroker of Cincinnati, secured three judgments before a justice of the peace against William Schaller, maker, and Michael Gaeb, indorser, on promissory notes. Transcripts of the judgments were thereupon filed in the common pleas court. Michael Gaeb-being execution proof, repeated attempts to collect by levy and execution were unavailing.

This action was brought by Margaret Bennett against Phoenix Council No. 85, Junior Order of United American Mechanics, to recover $250 as death benefits, for which judgment was rendered in the common pleas. Bennett v. Phoenix Council, 14 Dec. 593. Cornelius Bennett, plaintiff’s deceased husband, became a beneficiary of the order, October 7, 1899, and died May 22, 1901, the result of a sunstroke, occurring the latter part of July or beginning of August, 1900.

<p>EXECUTORS AND ADMINISTRATORS — PRINCIPAL AND SURETY — APPEAL—COURTS.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Letters Testamentary not Necessary — Merely Evidence oe Appointment as Executor.</p> <p>A person eligible to appointment as executor of a will may be appointed as such by proper order of the probate court entered upon its journal without the issuance of letters testamentary. Such letters ara merely evidence of appointment.</p> <p>3. Surety Entitled to Reimbursement and has Lien, etc., When.</p> <p>Where a surety company upon an executor’s bond, who is also sole residuary legatee after the payment of certain legacies and debts of thg testator, takes from such executor a bond of indemnity, secured by a trust deed upon the residuary estate, conditioned to indemnify the surety company against all demands, liabilities and expenses, including attorney fees, incurred by reason of its having signed the bond as surety, and also to secure all premiums due it therefor, the surety company has, to the extent of any payments made under such obligation, for the executor, together with premiums due upon the bond, a lien upon the residuary legatee’s interest in the property covered by the trust mortgage, and upon sale of the property by an administrator <fe bonis non, for the purpose of paying the legacies, charged thereon and the debts of the estate, is entitled to payment out of the proceeds of the sale as against the interest of such residuary legatee and former executor, notwithstanding letters testamentary were never issued to the executor, whether the bond' could not have been enforced against it or not.</p> <p>3. Action by Administrator Under Sec. 6137 Rev. Stat. to Sell Land, a Civil Action — Appellate Jurisdiction.</p> <p>An action commenced either in the probate or common pleas court by an' administrator under Sec. 6137 Rev. Stat.', et seg., to sell real estate is a civil action, and the rights of all parties in the subject matter thereof may be determined by the court; and should such action be commenced in the probate and appealed to the common pleas court, the jurisdiction of the latter is as though the case had been originally commenced therein.</p> <p>4. Probate Court has Exclusive Jurisdiction as to Credits and Payment op Unsecured Claims. i</p> <p>The probate court has exclusive original jurisdiction, by virtue of Sec. 524 Rev. Stat., to determine what credits shall be allowed or disallowed to the administrator, and what unsecured 'claims shall be paid by him.</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Jurisdiction. The John E. Rumbell, 148 U. S. 1, 11 [13 Sup. Ct. Rep. 498] ; Moran v. Sturges, 154 U. S. 256 [14 Sup. Ct. Rep. 1019] ; The Glide, 167 U. S. 606 [17 Sup. Ct. Rep. 930].</p> <p>Defendant in error has no lien. The St. Jago De Cuba,'22 U. S. (9 Wheat.) 409; The General Smith, 17 XT. S. (4 Wheat.) 438; The Samuel Marshall, 54 Fed. Rep. 396, 401; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 196, 197.</p> <p>No coal was sold “on account” of the vessel, as required under Sec. 5880 Rev. Stat.</p> <p>The coal was furnished to the company on an agreement as to prices that were to control for the year and there could be no lien. The Iris, 100 Fed. Rep. 104, 106; Cuddy v. Clement, 113 Fed. Rep. 454.</p> <p>cited:</p> <p>Section 5880 Rev. Stat.; Rodd v. Heartt, 88 U. S. (21 Wall.) 558; The John E. Rumbull, 148 U. S. 1 [13 Sup. Ct. Rep. 498]; Moran v. Sturgess, 154 U. S. 256 [14 Sup. Ct. Rep. 1019].</p> <p>Has no application whatever to this case.</p> <p>It is only proceedings in'rem that dre forbidden to state courts in enforcing these statutes. Hind v. Trevor, 71 U. S. (4 Wall.) 555; Wagoner v. St. John, 57 Tenn. (10 Heisk.) 503; Stewart v. Harry, 66 Ky. (3 Bush) 438; the act of congress of 1789.</p> <p>The interpretation of local statutes is for local courts.</p> <p>Section 5880 needs no interpretation, as its terms are so plain and conclusive that it only needs to be applied to the facts.</p> <p>The Ohio statute was not passed as were similar statutes in coast states to supply a seeming' defect in the admiralty law as to domestic vessels, but to give to the lake supply men a security similar to that of the maritime law at a time when it was held the jurisdiction of the admiralty courts did not extend to the lakes. This condition continued until the passage of the act of 1845 extending the admiralty jurisdiction to the lake,'subsequently nullified by the Propeller Genesee Chief v. Fitzhugh, 53 U. S. (12 How.) 443.</p> <p>The lien given by the Ohio statute is “coeval and coexistent with the liability,” add is superior to á mortgage and the purchaser takes the property subject to the lien. Johnson v. Ward, 27 Ohio St. 517.</p> <p>It is incumbent upon one seeking to deny the lien to show that exclusive credit was given to the owner or master. The Chusan, 2 Story 455, 457 [5 Fed. Cas. 680]; Peyroux v. Howard, 32 U. S. (7 Pet.) 324, 344. (i '</p> <p>The necessity of supplies furnished at a foreign port need not be proved as it is in such a case conclusively presumed. 2 Conklin, Admiralty (2 ed.) 596; The Grapeshot v. Wallerstein, 76 U. S. (9 Wall.) 129, 139; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 192, 203.</p> <p>Necessity for credit is also presumed. Hazlehurst v. The Lulu, supra.</p> <p>That Hanlon has. an unsecured claim cannot prejudice the claim for which he has a lien under See. 5880 Rev. Stat. There can be no presumption that he waived such a claim. • The H. E. Foster, 3 Ware 165 [11 Fed. Cas. 952].</p>

<p>NEGLIGENCE — RAILROADS.</p> <p>Scribner, Haynes and Bentley, JJ.</p> <p>1. Switch Staff Located Near Railroad Tracks, Negligence, When.</p> <p>It is actionable negligence for a railroad company to maintain along its right of way a switch staff so constructed and arranged that when the iron flange is turned to stand perpendicular to passing cars the edge thereof will come within such close proximity to such cars as to endanger the lives and limbs of employes in getting on and off the cars at places along their sides which have been provided for such purpose and where they are expected to get on and off, where such employes have no knowledge of its location or danger and have not been warned to look out for it.</p> <p>2. Inexperienced Brakeman not Charged With Dangerous Obstructions Along Track.</p> <p>A brakeman on a railroad train inexperienced in railroading, who is making his first trip over the road has no actual knowledge of the location of switch staffs along the right of way which would endanger the lives and limbs of employes getting on and off cars at the places provided for such purposes, and who has not been warned by the company of the dangerous situation or of other obstructions along the track except a general instruction to look out for overhead bridges, switch standards, etc., when making couplings, cannot be charged with the duty of knowing of dangerous obstructions along the line, nor does he assume the risks of being struck and injured by the iron flange on a switch'staff located along the track and so close thereto as to strike an employe of a passing train getting on a car at the place provided for such purpose.</p> <p>3. No Absolute Duty on Brakeman to Look for Danger at all Times.</p> <p>While it is the duty of a railroad brakeman to be cautious and careful while engaged in the performance of his duties, yet no.absolute duty is enjoined upon him to look in any particular direction under all circumstances, or to watch for a particular danger, but whether he must do so or not depends upon all the circumstances of the particular case, his knowledge of the existing danger, the warning given him in reference thereto, and the particular situation in which he may be placed at the time. ■</p>

<p>NEGLIGENCE — CHARGE TO JURY — EVIDENCE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Jury Must Find From Preponderance op Evidence That Plaintiff was Without Fault, When.</p> <p>Where, in an action for negligence, there was evidence tending to show that plaintiff was guilty of contributory negligence it was not error to charge the jury that to entitle the plaintiff to a verdict the jury must find from a preponderance of the evidence that the plaintiff was without fault.</p> <p>2. Charge to Jury Should be Considered, as a Whole.</p> <p>A charge should he considered as a whole and not in fragments.</p> <p>3. Burden Upon Plaintiff to Exercise Ordinary Care in Going Upon Defective Sidewalk.</p> <p>Where it appeared that plaintiff was injured while walking in the daytime upon a sidewalk, claimed to be out of repair, the court properly charged the jury as follows: “ If you find from the .evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe or dangerous and so appeared td persons of ordinary intelligence passing along or over the same, it was the duty of the plaintiff to exercise ordinary care, and in that case the burden of proof is upon her to show by a preponderance of the evidence that she exercised such care.”</p>

<p>ERROR to the court of common pleas of Cuyahoga county.</p>

The jury should have been instructed that if any fact assumed by the expert, as the basis of his opinion, was not established by the evidence, they should regard the opinion of no value; a charge that the expert’s opinion “is of little, if any, value” is erroneous. Williams v. JBrown, 28 Ohio St. 547; Saffin v. Thomas, 4 Circ. Dec. 438 (8 K. 253) ; Williams v. Brown, 28 Ohio St. 547; Sharkey v. State, 2 Circ. Dec. 443 (4 R. 101) ; Lake Erie & W. Ry. Co. v. Mulcahy, 9 Circ.

Plaintiff is a steam railroad company and owns and operates two lines of. railway both of which pass through the city of Bellefontaine and cross Columbus avenue, a street of said city, at grade. These crossings of said street and railroad lines are in the immediate vicinity of the passenger and freight stations, the railway yards, the roundhouse and the extensive máchine and repair shops of plaintiff.

In the orginal action commenced in the court of common pleas of this county, defendant in error was plaintiff and plaintiff in error was defendant.

<p>BILLS AND NOTES — PLEADING—EVIDENCE.</p> <p>G-iffen, Jelke. and Swing, JJ.</p> <p>1. Detriment to Promisee oe Note a Sufficient Consideration.</p> <p>As detriment or loss to the promisee of a negotiable promissory note is a sufficient consideration to support the promise of the maker, want of consideration moving to the promisor is, alone, insufficient as a defense to an action on the note, as the possible fact of detriment or loss to the promisee is not thereby precluded.</p> <p>2. Delivery of Negotiable Instrument Presumed and Need not Be Pleaded.</p> <p>Delivery need not be specially pleaded in an action to recover on a negotiable instrument, as it is, as a general rule, presumed from the mere possession of the note; the word “promised” in the petition implies delivery, and, in such event, an answer alleging that defendant did not deliver the note to plaintiff does not set up new affirmative matter calling for a reply.</p> <p>i 3. Maker may Make Payment to Holder, When.</p> <p>Where a negotiable promissory note is not, at its maturity, in the hands of the payee whose indorsement appears thereon, the maker may proceed upon the assumption that it has been transferred, and make payment to the holder.</p> <p>4. Note in Evidence Makes Pbima Facie Case.</p> <p>A prima facie case in favor of plaintiff is made out by his offering in evidence a negotiable promissory note, and the burden of proof is then cast upon the defendant; and where the latter offered no evidence, the plaintiff is entitled to a verdict and judgment in his favor.</p>

The words “whenever the death of a citizen of this state” in Sec. bl34a Rev. Stat. are merely cumulative to the right existing at the common law for the enforcement of a cause of action by plaintiff in any jurisdiction where the defendant may be found, the effect of said statute being only declaratory of the right of citizens of this state, wherein the provision was enacted, and does not in any manner affect the rights of citizens of other states from attempting the…

<p>FOOD LAWS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Police' Regulations not Interpreted as are Revenue Laws.</p> <p>Police regulations are not to be interpreted as are revenue laws, wbicb admit of favored classes, but must be applied with the purpose of preventing all persons from doing the thing prohibited.</p> <p>45. Word “Dealer” as Used in Sec. 4200-11 Rev. Stat. Includes One Who Sells Milk From His Own Cows.</p> <p>The word “dealer,” therefore, as used in Sec. 4200-11 Rev. Stat., relating to the sale of skimmed milk, includes one who sells milk obtained from his own cows, as well as one who buys and sells milk.</p>

<p>ERROR to Lucas common pleas court.</p>

<p>PRINCIPAL AND SURETY — OFFICE AND OFFICERS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>Sureties on Official Bond not Liable for Money Received by Principal not T® Colore Officii. . '*</p> <p>The sureties on the bond of a school official are not liable for money received by their principal not colore officii, but by virtue of a rule adopted by the board of education without authority and contrary to law; nor does the failure of such official to order the person who paid him the money to pay if to the officer entitled to receive it, constitute a breach of his official bond such as will render his sureties thereon liable, when the loss was caused not by such failure, but by reason of their principal unlawfully appropriating the-money to his own use after it had improperly come into his hands, together with the confusion created by the unlawful rule referred to.</p>

Tbe right to claim the benefit of the exemption laws should be considered a “privilege or immunity,” within the meaning of Sec. 2, Art. 4, and the fourteenth amendment to the federal constitution. See Jacoby v. Dotson, 7 Dee. 412 (5 N. P. 282) ; Sproul v. McCoy, 26 Ohio St. 577; Mack v. Degraff & R. Quarries, 57 Ohio St. 463, 482 [49 N. E. Rep. 697; 63 Am. St. Rep. 729].

Quo Warranto. ' The clerk of tbe board of education is a public officer elected for the term of two years, and is “a person holding an office or public trust,” and under the provisions of Sec. 8 Rev. Stat., continues in office until his successor is elected and qualified; he is one of the officers in such -office under the provisions of said See. 3 of the new school code.

Evidence explaining, but not contradicting or varying ambiguous writings, is not within the rule which excludes parol evidencé to contradict or vary a written contract. Goldshede v. Swan, 1 Exeh. 158; McDonald v. Longbottom, 1 Ell. & Ell. 987; Woods, Prac. Ev. 87, 44; Stephens, Evidence 114; 2 Wharton, Civil Ev. Secs. 937, 939, 940, 944; Masters v. Freeman, 17 Ohio St. 323, 329; Boggs v. Taylor, 26 Ohio St. 604. Informal memoranda are not within the rule.

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>Hale, Marvin and McCarty, JJ.</p> <p>(Judge McCarty, of the Fifth Circuit, sitting in place of Judge Winch, of the Eighth Circuit.)</p> <p>1. PEDESTRIAN BOUND TO LOOK BEFORE CROSSING STREET CAR TRACK.</p> <p>A pedestrian, in crossing a street car track, is hound to look for approaching cars, and if, with nothing to obstruct his vision for several hundred feet in the direction of an approaching car, he fails to look when he should have looked and is injured, he is guilty of such contributory negligence as will defeat recovery, even though the defendant street railway company also, through its servants, was guilty of negligence, if the negligence of the latter was not wilful and wanton.</p> <p>% Not Error to Instruct for Defendant When Contrirutorv Negligence is Apparent from Plaintiff’s Testimony.</p> <p>In an action for injuries occasioned by the alleged negligence of a street railway Company, where it appears that plaintiff was familiar with the situation where the injuries complained of were received; that he knew defendant’s cars ran at that time of day every four or five minutes; that h,e knew one was liable to come along at any time; that bad be looked he could have avoided the danger, and from his own testimony it is shown that he did not so look, it was not error for the court to direct the jury to-bring in a verdict for the defendant.</p>

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

<p>ATTACHMENT AND GARNISHMENT — EVIDENCE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Evidence .Sufficient to Sustain Attachment.</p> <p>Evidence showing that a defendant corporation, in order to financially em barrass the plaintiff, bought of it a very large amount of goods, refused to pay for the same, and at the time suit in attachment was brought ■against it, was about to turn nearly half of its stock into debenture bonds which authorized the holder thereof to seize the assets of the company -upon short notice, thereby creating an indebtedness that did not exist when the goods were bought, and which would prevent plaintiff from collecting any judgment it might recover, is sufficient to sustain an attachment upon the goods of defendant.</p>

<p>REPAIR OF A TURNPIKE AS REQUIRED BY ORDINANCE.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Equity may Require Performance of Franchise Conditions by Mandatory Injunction or Specific Performance.</p> <p>While, as equity never decrees a forfeiture, injunction cannot be employed to woyk an ouster or to forfeit a franchise, nevertheless a court of chancery may, by mandatory injunction or decree for specific performance, require the performance of the conditions under which a corporation exercises a franchise.</p> <p>2. Court Will Decree Specific Performance Notwithstandino Necessity of Continuing Supervision, When. '</p> <p>Although a court should he slow to enforce, by mandatory injunction ór " specific performance, the performance of the conditions under which a corporation exercises a franchise because of the continuing supervision which the enforcement of such an order or decree would entail upon the court, nevertheless this is not a conclusive obstacle, and when public rights are. involved, a court of chancery will not shrink from the maintenance, through its duly appointed officer, of such continuing supervision as is necessary to preserve the rights of the public.</p> <p>S. “Repair” of Turnpike Means What.</p> <p>The word “repair” as used in an ordinance stipulating that a given turnpike shall be “put in repair from gutter to gutter” does not mean a new road made to a new grade, but it does mean a filling of all the holes and an evening up of the surface so that the ordinary and expected travel of the locality may pass with reasonable ease and safety.</p>

The president pro tem, as acting mayor, is an officer de facto, and his decisions cannot be collaterally impeached. State v. Gardner, 54 Ohio St. 24 [42 N. E. Hep. 999; 31 L. E. A. 660]; Strang, Ex parte, 2'1 Ohio St. 610; Gitsky v. Newton, 9 Circ. Dee. 682 (17 E. 484) ; State v. Bingham, 7 Circ. Dec. 522 (14 E. 245). The municipal code conferred judicial power upon the president pro tem of the council as acting mayor. Section 1831 Eev.

<p>Appeal from Auglaize common pleas court.</p>

A dedication or sale of lands to a corporation for general purposes, creates a perfect fee simple estate, with complete power to make any use of it, and especially the power to alienate completely, where there is no provision for forfeiture or reverter in the event of a change of the use for which the grant was made. Reynolds v. Stark Co. (Comrs.) 5 Ohio 204; Brown v. Manning, 6 Ohio 298 [27 Am.

MANDAMUS. Upon, the expiration of the officer’s term unless he is authorized by law to hold over his rights, duties and authority as a public officer must ipso facto cease. Mechem, Pub. Off. 398; See. 3980 Rev. Stat. The legislature has unlimited power to vacate or abolish officers,'or change the terms of incumbents at pleasure, unless they are created or fixed by the constitution.

Section 5355 Rev. Stat. does not apply to divorce cases. Similar statutes in other states in many well-considered decisions have been held not to apply to divorce decrees unless so expressly provided by the statute itself. O’Connell v. O’Connell, 10 Neb. 390 [6 N. W. Rep. 467]; Owens v. Sims, 43 Tenn.

<p>Error to Hamilton common pleas court.</p> <p>Part performance took the agreement out of the statute of frauds. Wilbur v. Paine, 1 Ohio 251, 254; Moore v. Beasley, 3 Ohio 294; Wag-goner v. Speck, 3, Ohio 293; Grant v. Ramsey, 7 Ohio St. 157; Blanding v. Sargent, 33 N. IT. 239 [66 Am. Dec. 720]; Martin v. Batchelder, 69 N. H. 360 [41 Atl. Rep. 83]; Frey, Spec. Perf. 286, Secs. 56z, 563; Pomeroy, Spec. Perf. Sec. 104; Armstrong v. Kattenhorn, 11 Ohio 265, 272; 8 Am. & Eng. Ene. Law (1 ed.) 637.</p> <p>Severance. Fox v. Althorp, 40 Ohio St. 322.</p>

<p>EXECUTORS AND ADMINISTRATORS — WILLS — ESTATES.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Paid Legatees hot Proper Parties in Controversy Over Residuary Estate.</p> <p>Legatees who have been paid their legacies are not necessary parties to an action involving a controversy over the residuary estate.</p> <p>2. Bill of Exceptions not Containing all the Evidence Sufficient, When.</p> <p>A bill of exceptions which recites that it contains all the testimony, instead of all the evidence offered in the case, will not, on this ground, be stricken from the files, when the weight of the evidence is not involved. In this case certain exhibits offered in evidence were not attached to the bill of exceptions.</p> <p>S. Trust Companies Appointed Under Invalid Statutes Entitled to Compensation, When — Measure of Compensation.</p> <p>A trust company which was, without objection, appointed executor of an estate by the probate court prior to the recent decision of the Supreme Court holding Secs. 3821c and 3821f Rev. Stat. unconstitutional, and which has since fully performed and the estate received the benefits of such services, is entitled to a reasonable compensation therefor. The measure of such compensation is that allowed by statute to legally appointed executors and administrators.</p> <p>4. Executor Entitled to Counsel Fees in Defending Will.</p> <p>An executor is entitled to an allowance of reasonable counsel fees incurred by him in successfully defending actions contesting the validity of the will, although the verdict and judgment were based upon a subsequent agreement of compromise between the parties.</p> <p>5. “Personal Estate” in Sec. 6188 Rev. Stat., Includes Stocks, etc.</p> <p>The phrase “personal estate” used in Sec. 6188 Rev. Stat., which allows 'executors full compensation upon the amount of personal estate collected and accounted for by them, includes stocks, bonds and other securities belonging to the estate, and an executor is, therefore, entitled to the statutory commissions thereon.</p> <p>6. No Compensation Under Sec. 6188 Rev. Stat. When Real Estate Sold Under Agreement of Heirs.</p> <p>Where real estate forming part of a residuary estate is Sold under an agreement between the heirs, and not under directions of the will, an executor is not entitled to the statutory commissions from the proceeds thereof under Sec. 6188 Rev. Stat.</p>

<p>ERROR to Hamilton common pleas court.</p> <p>Evidence. Abbott, Trial Ev. Secs. 63, 68, 69, 70; 27 Am. & Eng.. Enc. Law (1 ed.) 496, 499, 501, 504, 505, 507, '508; Kinkead, Instructions & Journal Entries 484; Page, Wills Secs. 394, 401, 404, 423, 429.</p> <p>Misconduct of jurors. Wright v. Burchfield, 3 Ohio 53; Hayward v. Calhoun, 2 Ohio St. 164; Tracy v. Card, 2 Ohio St. 431; Snyder v. Beam, 1 Dayton 167, 168; Thomas v. Clark Co. (Comrs.) 5 Dee. 510 (5 N. P. 453); 17 Am. & Eng. Enc. Law (2 ed.) 1166, 1169, 1170, 1204, 1206, 1208, 1209; Fitzpatrick v. People, 98 Ill. 269, 270; Eastman v. Wight, 4 Ohio St. 156, 157; Kenrick v. Beppard, 23 Ohio St. 333; Watts, v. Buth, 30 Ohio St. 32; Drinkwater v. Jones, 7 Circ. Dec. 173 (13 B. 489); Toledo Beal Estate & Invest. Co. v. Putney, 10 Circ. Dee. 698 (20 B. 486); Ludlow v. Park, 4 Ohio 5, 44;.Hinton v. Wade, 5 Ohio 509, 513 [24 Am. Dee. 315]; Breek v. State, 2 Circ. Dec. 477 (4 B. 160).</p> <p>The cases of Thompson v. Bennett, 194 Ill. 57 [62 N. E. Bep. 321] - Butherford v. Morris, 77 Ill. 397; Mer riman’s Appeal, In re, 108 Mich. 454, 458 [66 N. W. Bep. 372]; Thompson v. Thompson, 13 Ohio St. 356; Page, Wills See. 130, eited by plaintiff in error, do not support his contentions.</p>

In Mandamus. This is an action or proceeding in mandamus to compel the city treasurer of the city of Lancaster, Ohio, to deposit the public moneys of which he has charge in a bank selected as depositary pursuant to an ordinance of the city council, under Secs. 135 and 136 of the municipal code (96 O. L. 64, 65).

<p>USURY — BUILDING AND LOAN ASSOCIATIONS — CONSTITUTIONAL LAW.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Usuey Laws Subjects of Legislative Conteol.</p> <p>Usury laws are statutory, and their application may be extended or limited at the pleasure of the legislature.</p> <p>2. Section 3836-3 Rev. Stat. Exempting Building and Loan Associations feom^ Usuey Laws is Constitutional.</p> <p>Section 3836-3 Rev. Stat. exempting building and loan associations from the operation of the usury laws of the state, with respect to loans made to members and depositors, is neither violative of Sec. 26, Art. 2 of the constitution which requires all laws of a general nature to have uniform operation throughout the state, nor Sec. 1, Art. 13, which provides that the general assembly shall pass no special act conferring corporate powers, nor of Secs. 1 and 2, Art. 1 of the constitution.</p>

To constitute an eviction, there must be some act of the landlord that compels an abandonment of the property; notice to vacate or demand for possession is not an eviction. Wood, Landl. & Ten. 481; 11 Enc. Law (2 ed.) 466, Par. 4; 2 McAdam, Landl. & Ten. 407, 418. The statutory notice to vacate is only a preliminary step, it may or may not be followed by a judgment of eviction, and till there is such judgment, the tenant is in no way disturbed in his possession. .

<p>LIMITATION OF ACTIONS.</p> <p>Laubie, Cook and Burrows, JJ.</p> <p>When Statute or Limitations Begins to Run upon a Claim that Becomes Due at the Death op a Debtob.</p> <p>When a. debt becomes due at the death of a debtor, upon failure of next of kin to have administration taken out upon the estate, it is the duty of the creditor, in order to save the claim from the bar of the statute, to have letters issued in a reasonable time from the decedent’s death, as the statute begins to run from the time the creditor should have had the administrator appointed and not from the time he did have letters issued. What is a reasonable time depends upon the circumstances of each particular case.</p>

<p>PLEADINGS — EVIDENCE—PAYMENT.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Proof of Payment Must be Specially Pleaded in Action Undeb Sec.. 6086 Rev. Stat.</p> <p>In an action upon an account under Sec. 5086 Rev. Stat., although it is necessary to aver nonpayment of the debt in order to show a breach of the contract, yet proof of the same is not required, and, in order to prove payment, the debtor must specially plead it.</p> <p>2. Payment from Proceeds of Note upon Account with Maker Final Payment, When.</p> <p>An exchange of notes without any limitation upon the use of the same vests the title thereto in the holder, and when discounted the proceeds may be applied as the holder directs, and should he pay any of such proceeds to the maker upon an account with him, or upon notes given in settlement of the account, it would constitute a final payment on account, although the holder failed to pay his own notes given in exchange therefor when due.</p>

<p>ERROR to Pickaway common pleas court.</p> <p>cited:</p> <p>State v. Schuchmann, 133 Mo. Ill [33 S. W. Rep. 35]; State v. Green, 6 N. J. Law 123; Hall v. State, 20 Ohio 7; Denbow v. State, 18 Ohio 11; Shultz v. Cambridge, 38 Ohio St. 659; "White v. Woodward, 44 Ohio St. 347 [7 N. E. Rep. 446]; Bishop, Or. Law See. 98; Williamson v. State, 44 S. W. Rep. 1107 [39 Tex. Or. App. 60]; Woodworth v. State, 26 Ohio St. 196, 198; Thalls v. State, 21 O. S. 233; Cline v. State, 43 O. S. 332 [1 N. E. Rep. 22]; Weybright v. Fleming, 40 O. S. 52; Adams v. State, 31 Ohio St. 462; Morehead v. State, 34 Ohio St. 212.</p>

This was a suit brought before a magistrate by Amy B. Foote against the Central American Commercial Co. to recover for advertising, cash advanced, stenographic service, etc. Summons was issued for the company and returned not found. An alias summons was issued and served upon Herman Duhmé as “managing agent” and so returned.

If a judgment sought is for money only, though it would have been an equity case before the code, a jury is demandable. Gunsaullus v. Pettit, 46 Ohio St. 27; Dodsworth v. Hopple, 33 Ohio St. 16. Prayer alone does not determine whether an action is appealable but it depends upon the facts in petition and case made. Reed v. Reed, 25 Ohio St. 422; Corry v. Gaynor, 21 Ohio St. 277. Where injunction is not primary relief asked case not appealable.

<p>Appeal from Lucas common pleas court.</p> <p>A power must be strictly complied with. 18 Am. & Eng. Enc. law (1 ed.) 937; Taylor v. Galloway, 1 Ohio 232, 234; Breuer y. Hayes, 10 Re. 583 (22 Bull. 144) ; Cleveland v. Bank, 16 Ohio St. 236, 241, 256 [88 Am. Dec. 445]; Shillaber v. Robinson, 97 U. S. 68, 78; Williams y. Peyton, 17 U. S. (4 Wheat.) 77; Daly v. James, 21 U. S. (8 Wheat.) 495, 535, 536; Stokes v. Payne, 58 Miss. 614, 617 [38 Am. Rep. 340]; Dolan y. Baltimore (Mayor), 4 Gill (Md.) 394, 405; Taylor v. Galloway, 1 Ohio 232 [13 Am. Dee. 605] ; Perry, Trusts Secs. 783, 785, 789, 831; Owen y. Reed, 27 Ark. 122; Yernon v. Board, 47 Miss. 181; Frink v. Roe, 70 Cal. 296, 297, 309 [11 Pac. Rep. 820] ; Hunt v. Rousmanier, 21U. S. (Wheat.) 174; Kerr, Real Prop. Secs. 1836, 1843; Minot v. Pres« nott, 14 Mass. 495; 2 Sugden, Yend. & Pur. 48; Hill, Trustees 178.</p> <p>A person dealing with the trustee and trust property cannot safely rely upon the statements of the trustee. He is bound to know the terms-of the trust and whether the facts represented to be true do in fact exist or not. Loring v. Brodie, 134 Mass. 453, 459, 470; Pettis Co. v. Gibson,. 73 Mo. 502, 506; Hancock v. Whybark, 66 Mo. 672, 674; Neilson v. Char-iton County, 60 Mb. 386; Story, Equity Sec. 1131; Perry, Trusts Secs. 795, 800; Clyde v. Simpson, 4 Ohio St. 445.</p> <p>Unless specially authorized so to do the trustee cannot issue negotiable papers executed in his trust character so as to bind the trust estate. Patapsco Guano Co. v. Morrision, 2 Woods 395 [18 Fed. Cas.. 1284].</p> <p>The power in a trust deed to sell does not include the power to-mortgage, Stokes v. Payne, 58 Miss. 614, 618 [38 Am. Rep. 340] O’Brien v. Flint, 74 Conn. 502 [51 Atl. Rep. 547] ; Benedict v. Arnoux, 39 N. Y. Supp. 793 [7 App. Div. 1] ; Ferry v. Laible, 31 N. J. Eq. 566; Patapsco Guano Co. v. Morrison, 2 Woods 395 [18 Fed. Cas. 1284] ; Hoyt y. Jaques, 129 Mass. 286; Breuer v. Hayes, 10 Re. 391 (21 Bull. 29); Breuer y. Hayes, 10 Re. 588 (22 Bull. 144); Russell v. Russell, 36 N. Y. 581 [93 Am. Dec. 540]; Minot v. Prescott, 14 Mass. 496, 497; Hubbard, v. German Cath. Cong. 34 Iowa 31, 32; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Loring v. Brodie, 134 Mass. 453, 459, 470; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Waldron v. MeComb, 1 Hill (N. Y.) Ill; Morris v. 'Watson, 15 Minn. 212; Jones, Mortgages Sec. 129; Price v. Courtney, 87 Mo. 387, 393 [56 Am. Rep. 453]; Perry, Trusts 768, Í69; Taylor y.. Galloway, 1 Ohio 232 [13 Am. Dee. 605].</p> <p>The probate court has no jurisdiction to construe an instrument creating a trust fund. Rothgeb v. Mauck, 35 Ohio St. 503, 505; Sec. 6202 Rey. Stat.; Wiswell y. Church, 14 Ohio St. 31, 32; Merrick v. Merrick, 37 Ohio St. 126, 129, 130 [41 Am. Rep. 493].</p>

<p>PLEADINGS — ERROR—EVIDENCE—SPECIFIC PERFORMANCE.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>^ 1. Reviewing Court will Consider Pleadings as Presenting Certain Issue I Notwithstanding Failure op Averment, When.</p> <p>Where a case is tried upon the theory that the pleadings present an issue which, in reality, is averred as a mere conclusion of law, a court will consider the pleadings as presenting that issue, and allow amendments according to the proof.</p> <p>2. Alleged Admission op Dependant Insuppicient to Establish Right to Specific .Performance, When.</p> <p>An alleged admission of the defendant in reference to a statement made in a saloon by the plaintiff that he had bought a lot of the defendant upon certain named terms under a parol contract is not sufficient to establish, the defendant’s claim for specific performance against the positive testimony as to the terms of the agreement of both the defendant and his wife, who, with the plaintiff, were the only persons present when the contract was made.</p>

<p>WILLS.</p> <p>Giffen and Jelke, JJ.; Swing, J., absent.</p> <p>1. Heirs Take Nothing by Descent Undeb Will Modifying Statute.</p> <p>The expressed wish of a testatrix that all oh her property “shall go as the law directs with the following modifications,” is a testamentary disposition of her property, and her heirs take nothing by descent.</p> <p>2. Plain and Unambiguous Language of Will Must be Given Effect.</p> <p>The language of a will being plain and unambiguous to the effect that it was the intention of the testatrix to divest her child or children of the title in fee in the event that they or either of them died before her husband, it must control, although no good reason appears why a child leaving issue should thus be divested of title.</p>

<p>EQUITY — DAMAGES—SPECIFIC PERFORMANCE.</p> <p>Giifen, Jelke and Swing, JJ.</p> <p>Equity may Award Damages in Lieu of Specific Performance — Measure ob Damages is Actual Loss.</p> <p>Damages, alone, may be awarded by a court of equity in a proper case, in lieu of specific performance, in order to do full justice between tbe parties and to confer complete relief in one judicial proceeding. Such damages will be limited to saving the parties from loss, but will not include speculative or accidental profits.</p>

<p>ERROR to Wood common pleas court.</p> <p>The description of the property was fatally defective. Secs. 5095, €416 Rev. Stat.; Cox v. Freedley, 33 Pa. St. 124 [75 Am. Dec. 584]; Reed v. Shenck, 3 Dev. Law (N. C.) 65; Mann v. Taylor, 4 Jones Law (N. C.) 272 [69 Am. Dee. 750]; Gwynne v. Jones, 3 Circ. Dec. 148 (5 R. 298).</p> <p>Although Sec. 3237 Rev. Stat. does not require the townships through which a railroad is to pass to be named, but only the counties, nevertheless having named the townships, as well as the counties, the right of eminent domain must be confined to property in the townships thus formally named. “Expressio unius est exelusio alterius.” Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604, 614; Toledo & W. Ry. v. Daniels, 16 Ohio St. 390, 394; Brieker v. Brieker, 11 Ohio St. 240, 246; Wilkins v. Insurance Co. 30 Ohio St. 317, 338 [27 Am. Rep. 455].</p> <p>The right of eminent domain must be strictly construed. Platt y. Pennsylvania Co. 43 Ohio St. 228, 244 [1 N. E. Rep. 420]; Atlantic & O. Ry. v. Sullivant, 5 Ohio St. 276; Sec. 6416 Rev. Stat.; Valley Ry. v. Bohm, 34 Ohio St. 114.</p> <p>When a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber or crops upon the remainder, in so far as it depreciates the value of the property, may properly be considered. It is immaterial that the railroad company is made absolutely liable for its fires. Lewis, Eminent Domain (4 ed.) Sec. 497; Bangor & P. Ry. v. McComb, 60 Me. 290; Adden v. Railway, 55 N. H. 413 [20 Am. Rep. 220] ; Pierce v. Railway, 105 Mass. 199.</p>

<p>JUDGMENTS AND DECREES — LIENS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Satisfaction ok Dormancy, Only, Kills Judgment Lien — Effects Thereof.</p> <p>The satisfaction or dormancy of a judgment are the only contingencies upon which a judgment lien created under favor of Sec. 5375 Rev. Stat, ceases to exist against the real estate of the judgment debtor. The effect of such satisfaction and dormancy is to release the land of the judgment debtor, both in the counties wherein the judgment was rendered and in those into which it has been extended by the issuing and levying of a foreign execution".</p> <p>2. Issuing Second Execution, Without New Levy, Sufficient to Keep Judgment Lien Alive.</p> <p>The issuing of a second execution to, and placing it in the hands of the sheriff of a county other than that wherein the judgment was rendered within five years from the date of the issue and levy of the first execution will prevent the judgment from becoming dormant as a lien against the real estate of the judgment debtor in such county, Whether issuing the execution to the sheriff of the county wherein the judgment was rendered, and having it there returned, instead of to the sheriff of the county wherein the land was situate, would keep the lien alive, quaere.</p> <p>3. Issuing of Second Execution Need not be Entered on Foreign Docket— Purchaser must Search Records.</p> <p>There is no statutory requirement that an entry he made upon the foreign execution docket of the issuing of a second or subsequent execution from the county wherein the judgment was rendered; and when the record shows that a judgment lien has been acquired, the duty devolves upon a prospective purchaser to search the .records of the latter county, and ascertain whether the lien has been kept alive or is dormant.</p>

<p>MANDAMUS — ACTIONS—SHERIFFS-ERROR.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Mandamus to Comped Sheriff to Levy Execution Refused, When Adequate Remedy at Law foe Failure.</p> <p>Mandamus will not lie wher^ there is a plain and adequate remedy by due course of law; the fact that the remedy by mandamus is more speedy than an action at law is not, alone, a sufficient reason for issuing the writ. Section 6744 Rev. Stat. which adopts this rule, is only declaratory of the common law. Hence, as an action-at law may he maintained against a sheriff on his official bond for the damages resulting by reason of neglect to levy an execution against the property of a judgment debtor to satisfy a money judgment; and as the sheriff may also be amerced therefor under Sec. 5594 Rev. Stat., and as the measure of - damages in such case is clear and free from difficulty, where it also appears that the judgment debtor will, in all probability, continue solvent so that its property may be reached during the life of the writ, and the execution satisfied; in such case, a writ of mandamus will not issue to compel the sheriff to make” the levy.</p> <p>2. “Adequate Remedy at Law” Defined.</p> <p>The existence of a right of action at law to recover a personal judgment, where the measure of damages is clear and free from difficulty, and the ultimate right and purpose is to obtain pecuniary satisfaction, constitutes an “adequate remedy at law.”</p> <p>3. Judgment Debtor may Take Full Time to File Petition in Error.</p> <p>As a judgment debtor has four months within which to file a petition in error in the circuit court, it may pursue any legitimate means to avail itself of all the time allowed by statute. In so doing it cannot be said to be guilty of culpable conduct.</p>

<p>DAMAGES — NEGLIGENCE —EVIDENCE —CHARGE TO JURY.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Question as to Experience Necessary to Work at an Occupation Safely, Improper, When.</p> <p>In a suit for damages for personal injuries resulting from an employer’s negligence in permitting inexperienced plaintiff to perform a certain act in connection with the pumping of an oil well, the admission of questions as to the length of time it would require one of ordinary intelligence to acquire sufficient experience to pump a well with safety, etc., is error. Such questions are not only indefinite in meaning, but are too broad in application; they should have been directed to the particular act, which might in fact have required little or no experience.</p> <p>2. Physician’s Bill Paid by Defendant, not an Element of Damages.</p> <p>A charge to the jury in a suit for personal injuries caused by defendant’s negligence, that they should consider physician’s charges in making up the amount of damages, when it appears that defendant paid the bill, and plaintiff incurred no liability therefor, is improper.</p> <p>2. Minor Plaintiff Cannot Recover for Mother’s Services, Unless Manumitted.</p> <p>In such case, plaintiff cannot recover for the value of the services of his mother as nurse, in the absence of a special contract between them, or proof of his manumission.</p> <p>4. Minor Plaintiff not Entitled to Recover for Wages When not Emancipated.</p> <p>Under such circumstances, a charge which submits to the jury the consideration of the question of the length of time plaintiff had been earning wages, where it appears that plaintiff had not been emancipated and that therefore his time belonged to his parents, is improper.</p> <p>5. Immaterial Questions Concerning Defendant’s Conduct, Prejudicial.</p> <p>Under the above facts the admission of questions as to whether defendant employed “child labor,” concerning his financial responsibility, as to subsequent promises of employment made to plaintiff, as to his conduct toward plaintiff, etc., is prejudicial to defendant, and is error.</p>

<p>ERROR to Wood common pleas court.</p> <p>cited:</p> <p>Section 4162 Rev. Stat., 74 O. L. 81; 78 0. L. 107; 84 O. L. 134; 86 O. L. 87; 87 0. L. 66; Stembel v. Martin, 50 Ohio St. 495; [35 N. E. Rep. 208]; Russell v. Bruer, 64 Ohio St. 1 [59 N. E. Rep. 740]; Bruer v. Johnson, 64 Ohio St. 7 [59 N. E. Rep. 741]; Caruthers v. Tarvin, 8 Re. 344 (7 Bull. 127); Tarvin v. Broughton, 8 Re. 451 (8 Bull. 21); affirmed by Supreme Court, November 11, 1884, without report; McDermott, In re, 13 Dec. 390.</p> <p>The property at the time it came to Sarah A. Digby came to her as real estate for the reason that it is personal propety derived from the sale of oil received from the lands owned'by her husband, John E. Digby. At the time it was devised to her, it was real estate for the reason it was a part and parcel of the real estate and had not been separated therefrom. Kelley v. Oil Co. 57 Ohio St. 317 [49 N. E.. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721].</p>

<p>INTERSTATE COMMERCE — EXCISE TAXES.</p> <p>Voorhees, Donahue and McCarty, JJ.</p> <p>.1. INTERSTATE COMMERCE, WlIAT IS — GOODS NOT SUBJECT TO STATE TAXATION, When.</p> <p>The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. Such commerce is not subject to state taxation even thougn there be no discrimination between it and domestic commerce.</p> <p>2. Same — The Sale in One State ox Goods Manufactured in Another State is Interstate Commerce, and not Subject to State Taxation.</p> <p>A manufacturer of goods which are the legitimate subject of commerce, who carries on his business of manufacturing in one state, can send an agent into another state to solicit orders for the products of his manu-factory without paying to the latter state or a municipality within such state a license for the privilege of such soliciting to sell his goods.</p> <p>2. License Tax, a Tax on Goods.</p> <p>A license tax required for the sale of goods is in effect a tax upon the goods themselves.</p> <p>•4. Same — A Direct Burden on Interstate Commerce, When.</p> <p>A license tax imposed by a municipal corporation within one state upon an agent of a citizen of another state, for the privilege of selling or seeking to sell his goods in the former state, is a direct burden on interstate commerce, and, therefore, beyond the power of the state and of the municipality thereof.</p> <p>¡5. Same — Ordinance ox Municipality in Conflict with Sec. 8, Art. 1 of the Constitution of the United States, When.</p> <p>An ordinance of a municipality of this state under which a license fee is required from the agent of a portrait company residing in another state for the privilege of canvassing for orders for the copying or enlarging of pictures to be manufactured by said company in said foreign state and delivered to customers in said municipality is in conflict with Sec. 8, Art. 1 of the constitution of the United States, and, therefore* void.</p>

■Error to Richland common pleas court. On June 21, 1900, the plaintiff in error, Amanda Edwards; plaintiff below, filed her second amended petition in the court of common pleas of Richland county, Ohio, against Peter Rissler and William Stoodt as defendants, and for a cause of action alleged in substance, that the defendants, Rissler and Stoodt, at the time of the happening of the grievances complained of, were the owners of a certain brick building, situated at the corner…

<p>Appeal from Lucas common pleas court.</p>

<p>ERROR to Lucas common pleas court.</p>

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

<p>ERROR to Hamilton common pleas court.</p>

Eeeoe to Cuyahoga common pleas court. County commissioners are liable in their official capacity for damages for wrongfully causing death when the act which caused the death is such as would have entitled the party injured (if death had not ensued), to maintain an action and recover damages in respect thereof. Section 6134 Rev. Stat., which gives a right of action for wrongfully causing death, is purely remedial.

<p>ATTACHMENT — CORPORATIONS—STATUTES.</p> <p>Marvin and Winch, JJ.; Hale, P. J., not sitting.</p> <p>Foreign Corporation Complying with Secs. 148c and 148d Rev. Stat. Exempt from Execution, When.</p> <p>Foreign corporations engaged in interstate commerce business, but not established within the boundaries of this state for the performance generally of their business, when they voluntarily take the benefit of the proviso in Sec. 148d Rev. Stat. and comply with the provisions of Sec. 148c Rev. Stat., are entitled to exemption from attachment under the provisions of Sec. 5621 Rev. Stat. upon the ground that they are foreign corporations.</p>

<p>ERROR to Hamilton common pleas court.</p>

Charlotte Moore had only a life estate in this property with remainder over to the plaintiffs and Josephine Idlor, coupled with two powers, viz.: (a) The power to dispose of any or all of the property in ease she needed it for her support; and (b) to dispose of $5,500 by will, provided there was so much left her at her death. Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Greene v. Greene, 57 Ohio St. 628 [50 N. E. Rep. 1129]; Lepley v. Smith, 7 Circ.

Edward T. Whistler, plaintiff in error, filed his petition in the court of common pleas of Richland county, Ohio, against John K. Cowan et al., receivers of the Baltimore & Ohio Railroad Co., in which it is alleged, that he, on or about April 18, 1898, boarded a freight train of the defendants’ company at Lexington, Ohio, and was bound for Mansfield, Ohio, and other points north on said defendants’ road, which said tr,ain was being conducted over said road by the agents of…

The instrument involved in this action is a lease. Ohio Oil Co. v. Kelly, 6 Circ. Dec. 470 (9 R. 511); Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. B. Rep. 1093; 34 L. R. A. 62]; Brown v. Fowler, 65 Ohio St. 507 [63 N. B. Rep. 76]. The language of this contract should be construed in its usual and ordinary sense. Detier v. Holland, 57, Ohio St. 492, 503 [49 N. E. Rep. 690].

<p>JUDGMENTS AND DECREES — ERROR—ACTIONS.</p> <p>Hale, Marvin and McCarty, JJ.</p> <p>(Judge McCarty of the Fifth Circuit sitting in place'of Judge Winch.)</p> <p>1. No Reversal and Modification of Judgment Unless Based on Finding of Fact, etc.</p> <p>The reversal and modification of a judgment by a reviewing court is only warranted when based upon the state of the pleadings, a finding of facts by the trial court, or upon facts brought before the court by a bill of exceptions. The rule that a reviewing court may, on reversal and under proper conditions, render such judgment as the trial court should have rendered in the action, has no application where the record only shows that the case was heard, argued by counsel, and a judgment of dismissal without prejudice rendered.</p> <p>2. Dismissal “Without Prejudice” Materially Different from Unqualified* Dismissal.</p> <p>The legal effect of the dismissal of an action “without prejudice,” is materially different from a dismissal without qualification, or with, prejudice.</p>

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

<p>CRIMINAL LAW — TRIAL—COURTS.</p> <p>Laubie, Cook and Burrows, JJ.</p> <p>Change of Judges During Trial.</p> <p>Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with: Held, that there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed, and a new trial granted.</p>

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

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

<p>GAS AND OIL-t-EVIDENCE — LEASE,</p> <p>Parker, Hull and Haynes, JJ.</p> <p>Failtjbe to Pay Rent Renders On. and Gas Lease Void, When.</p> <p>Under an oil and gas lease providing that “in case no well is completed within ninety days from this date, then this grant shall become null and void unless second party shall pay first party five dollars for eaeh month thereafter said completion is delayed,” the lessee having done no drilling, within the time specified his failure to pay the monthly rental when it becomes due will render the lease void, unless it is shown by clear and convincing evidence that the lessor waived its payment; and after such default, lessee will be enjoined from drilling wells or extracting oil or gas from the premises.</p>

<p>ERROR to Hamilton common pleas court.</p>

<p>Erkok to Wood common pleas court.</p>

<p>INSURANCE — EVIDENCE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. APPRAISEMENT AND AWARD NOT CONDITION TO RIGHT OE ACTION ON FlRE INSURANCE Policy, Unless Demanded by Insurer.</p> <p>No obligation is imposed upon the insured to cause either an appraisement to he made of the loss, or to furnish an award of an appraisement, as a condition precedent to a right of action on a fire insurance policy to recover the loss, unless such appraisal has been demanded- by the insurer, under a policy which provides, that in event of disagreement as to the amount of loss, the same shall he ascertained by appraisers chosen by both parties, and that the loss shall not become payable until sixty days after satisfactory proof of loss has been received by the insurer, including an award of appraisers when appraisal has been required. Failure to demand an appraisal and award, in such case, constitutes a waiver thereof. Grand Rapids F. Ins. Co. v. Finn, 60 O. S. 513, and Insurance Co. v. Carnahan, 63 O. S.' 258, distinguished.</p> <p>2. Inventory Taken Every Twelve Months, or Within Twelve Months Preceding Loss.</p> <p>Insured is not required to take an inventory of stock every twelve months, nor must an inventory be taken within the twelve months immediately preceding the loss, under a fire insurance policy in which he covenants and agrees to keep, and also produce in ease of loss, the last detailed inventory of stock ■“which shall have been taken within twelve months prior to the date of the happening of any loss,” etc. An inventory taken one year and seven days before the loss, is a sufficient compliance with the policy.</p> <p>8. Books ok Insured Which Substantially Show Amount ok Stock, Sukkioient.</p> <p>Where the amount of goods on hand at the time of a fire can be fairly, reasonably and substantially ascertained from the hooks kept by insured, and there is no charge of an attempt to defraud the company, such books show a sufficient compliance with the policy requiring him “to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash, credit and exchange,” etc.</p> <p>4. Failuee to Keep Certain Book in Sake Will not Prejudice Insured, When.</p> <p>The failure of insured to have his bill hook and cash hook in the safe at the time of the fire, which occurred at a late business hour in the evening, will not defeat a recovery on a policy providing that insured shall keep his books of account securely locked in a fire proof safe at night, and at all other times when the store is not actually opened for business, etc., when it appears that the principal books required to be kept were in the safe at the time, that the condition of insured’s stock could be fairly ascertained therefrom, that the books were destroyed without any fault of insured, and that insured acted as an ordinary prudent and honest man would have acted under similar circumstances in trying to save the buiiding and its contents from destruction.</p>

<p>APPEAL — ACTIONS—ERROR.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. No Rights to Appeal Unless Given by Statute.</p> <p>The right of appeal is purely statutory, and where no authority therefor is-given, the judgment of the trial court is final.</p> <p>2. Oedeb Dismissing Action at Cost of Attorney not Appealable.</p> <p>An order of the trial court dismissing an action at the costs of plaintiff’s attorney of record, because commenced by him without authority, is not appealable under Sec. 5226 Rev. Stat., notwithstanding the right of trial-, by jury did not exist. Such proceeding is merely incidental or ancillary to the main action, and is not a “civil action” within the meaning of’ said statute. Error is the remedy, if any exist.</p> <p>«3. Questions of Fact not Considered Unless Evidence Incorporated in Bill of Exceptions, When.</p> <p>The question whether or not the finding of the trial court that an action' was commenced by plaintiff’s attorney of record without authority, wa® sustained by the evidence, will not be considered in the absence of a bill of exceptions setting forth the evidence.</p>

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

Taking a deed subject to an outstanding mortgage, creates no personal liability on tbe grantee to- pay off tbe ineumbranee, unless be- has by contract, expressed or clearly implied, specially agreed to do so.

<p>CONSTITUTIONAL LAW — MUNICIPAL CORPORATIONS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>‘Ordinance Prohibiting Conveyance Through Streets of Condemned Food, Etc., Void, When.</p> <p>A municipal ordinance which provides that “the- word ‘garbage’ shall be held to include all refuse of animal and vegetable matter which had been used for food for man, and all refuse animal and vegetable matter which was intended to be so used, and includes condemned food;” that no person other than the city contractor or his agents shall convey through the streets of the city any garbage, dead animals and fish; and that no person shall place any refuse animal and vegetable matter upon any private property whether owned by such person or not contravenes the fourteenth amendment of the constitution of .the United States, and is ' void as to such provisions.</p>

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

<p>RAILROADS — NEGLIGENCE—TRIAL—ERROR.</p> <p>Parker, Hale and Marvin, JJ.</p> <p>Hale and Marvin, JJ., of Eighth Circuit, sitting in place of Hull and Haynes, JJ..</p> <p>1. Duty. Imposed Upon Railroads to Euenish Reasonably Safe Place fob Employes to Wobk.</p> <p>A duty is imposed upon a railroad company to provide a reasonably safe place for its employes while engaged in the performance of their duties, or at least to exercise reasonable care to that end.</p> <p>2. Employe Bound to Know Dangers When Facts Simple and Conditions not Complex, etc.</p> <p>When the facts are simple and the conditions not complex, and the circumstances such as to be easily comprehended, one who knows the facts, conditions and circumstances, is bound and conclusively presumed to know' the dangers resulting therefrom. Hence, a charge to the jury, that if they find there was no rule of the railway company requiring the giving of notice to section men of the approach of trains while they were at work upon the track, and that decedent knew there was no such rule, and continued in the service of the company as section hand without complaint or objection, he assumed the risk incident to such failure to provide such rule, is not defective in that it neither expressly embodies the element that decedent did not know the dangers incident to the lack of such rule, nor in that it does not also, .expressly allege that decedent had knowledge that the absence of such rule created danger.</p> <p>8. Rule Stated as to Bueden of Peoof in Case of Contributory Negligence.</p> <p>Where the evidence offered by an administrator plaintiff does not disclose any want of ordinary care on the part of his decedent, the burden of proof is on defendant to show by a preponderance of the evidence that decedent contributed directly to his death. But where the evidence in support of the administrator’s cause of action raises the presumption of decedent’s contributory negligence, the burden rests upon him to remove the presumption by a like preponderance of evidence.</p> <p>4. Evidence as to Plaintiff’s Location Before Time of Accident not Competent, When.</p> <p>Where the nature of a section man’s work is such as to require an almost constant change of position, the fact that he was in a certain position some ten or fifteen minutes before he was struck and injured by a train, is not conclusive that he was in the same position at the time he was struck; and where it is also clear that he could not have gotten himself into any position where, in the exercise of ordinary care, it was not his duty to have observed the approach of the train, the exclusion of evidence as to his position is not prejudicial.</p> <p>5. Presumption of Negligence Arises From Lack of Obdinaby Cabe.</p> <p>Where the evidence shows that if plaintiff, in the exercise of ordinary care by looking, would 'have seen the approach of the train, or by listening, would have heard it, a presumption of negligence arises on his part which he must either rebut or fail in his case.</p>

<p>NEGLIGENCE — TRIAL—ERROR—PLEADING.</p> <p>Parker, Hale and Marvin, JJ.</p> <p>Hale and Marvin, JJ„ of Eighth Circuit, sitting in place of Hull and Haynes, JJ.</p> <p>1. Refusal of Pasties to Amend Petition Warrants a Dismissal Under Secs. 6313 and 5314 Rev. Stat.</p> <p>The refusal of plaintiff to amend his petition as required by the court is, in effect, a neglect upon his part to prosecute his action, and the court may, in such case, dismiss the action under favor of Sec. 6313 Rev. Stat. Such failure is, also, in effect, a disobedience of an order concerning the proceedings, and will warrant the court in dismissing the action under the fifth clause of Sec. 5314 Rev. Stat.</p> <p>2. Order Dismissing Action Without Prejudice for Failure to Amend Reviewable on Error.</p> <p>The order of the trial court in dismissing an action without prejudice and at plaintiff’s costs, on account of failure to amend his petition as required by the court, is reviewable on error.</p> <p>3. Mere Averment That Certain Thing Was Proximate Cause, Insufficient.</p> <p>An averment that a certain thing was the proximate cause of any injury is not sufficient; the pleading must disclose the facts which show the proximate cause.</p> <p>4. Particular Defects and Faults Should be Pleaded Definitely, When.</p> <p>Where the alleged proximate cause of an injury to an employe arises out of alleged defective tools or appliances furnished to him by the master, the faults or defects therein should be alleged definitely and distinctly. And if the alleged fault of the master consists in directing or making it necessary for the employe to pursue an improper and unsafe plan or method in his work, the respects in which such plan or method is improper and unsafe should be alleged definitely and distinctly.</p> <p>6. No Presumption of Negligence From Mere Happening of Accident.</p> <p>The defendant in an action for negligence is entitled to know the precise fault charged against it, on account of which plaintiff seeks to recover. A court cannot infer that appliances used by a servant were defective or that defendant was at fault, from the mere happening of an accident.</p> <p>6. Petition Demurrable for Want of Certain Averments, When.</p> <p>Where the petition discloses that the proximate cause of injury was some fault in the immediate tools used or methods of work employed by plaintiff, but there is no express allegation to the effect that defendant was at fault in furnishing tools that were improper or- unsafe, or in directing plaintiff to proceed by a method that was improper or unsafe, or that plaintiff did not know of the defect, fault and dangers, or, that being informed, he was excused because of the promise of his employer to remedy the defects or cure the faults, it is, in such case, demurrable.</p>

<p>EVIDENCE — TRIAL—NEGLIGENCE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Evidence Contrary to Allegations oe Pleadings and Theory of Case 13 Incompetent.</p> <p>Evidence that defendant was negligent in a matter other than that alleged in the petition as plaintiff’s cause of action, and which is also in support of a theory contrary to the one upon which the case is being tried, is incompetent, and should be ruled out.</p> <p>2. Negligence Must be Established by Direct Proof, or Must be Reasonably Inferred Prom Pacts Proved, etc.</p> <p>Negligence must be established by either direct proof of the facts constituting it, or by proof from which it may be reasonably inferred; there should be no guessing by either court or jury; and if the negligence charged is not so established, the court should direct a verdict for defendant.</p>

Mandamus. ,. Section 4105 Rev. Stat., amended May 3, 1904, is merely permissive of directory, and is prospective in operation. Section 28, Art. 2, Const.; Kelly v. Kelso, 5 Ohio St. 198; State v. Staley, 3 Circ. Dec. 294 (5 R. 602). • An officer cannot be removed by the legislature without abolishing the office. State v. Cave, 26 O. C. C. 301; State v. Staley, 3 Circ. Dec, 294 (5 R. 602). Section 27, Art. 2, Const., prohibits legislature from exercising any appointing power.

Heard on error. The mere fact that the ear was moving slowly at the time plaintiff attempted to alight, would not prevent her from recovering; bnt, whether attempting to get off a street ear while in motion, is negligence or not, is a question for the jury to determine. Holmes v. Transit Co. 10 Circ, Dec. 638; Nichols v. Railway, 38 N. Y. 131 [97 Am. Dec. 780]; Sec, 5294 Rev. Stat.; Hoffman v. Gordon, 15 Ohio St. 211.

Corey v. Hayes, 7 Circ. Dec. 272 (13 R. 185); Dempsey v. Busb, 18 Obio St. 376; Sidener v. Hawes, 37 Obio St. 532; 3 Pomeroy, Eq. Jurisp. Sec. 1298; Stéers v. Kinsey, 68 Ark. 360 [58 S. W. Rep. 1050], When plaintiff in an action to quiet title bad paid taxes on land in question, and judgment went agáinst bim as having no title, under tbe doctrine of equitable subrogation be still bas a lien on tbe land for amount of taxes so paid. Simmons v. Lyles, 73 Va.

The suspension and reinstatement of members was a mere formality-concocted for the purpose of receiving assessments at any time they might be paid, ,if the member was well, and of refusing past due assessments if the member died.

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

<p>Error.</p> <p>cited:</p> <p>21 Ene. Law (2 ed.) 1097, note 4, and cases cited; Blewitt v. Boorum, 142 N. Y. 357 [37 N. E. Rep. 119; 40 Am. St. Rep. 600]; Reynolds v. Robinson, 110 N. Y. 654 [18 N. E. Rep. 127]; Ware v. Allen, 128 U. S. 590 [9 Sup. Ct. Rep. 174; 32 L. Ed. 563] ; Michels v. Olmstead, 157 U. S. 198 [15 Sup. Ct. Rep. 580; 39 L. Ed. 671]; Naumberg v. Young, 44 N. J. Law 331, 336 [43 Am. Rep. 380]; Thompson, Trial Evidence Sec. 423; Heisel v. Heisel, 8 Dec. Re. 653 (9 Bull. 110); Richards v. Hale, 24 O. C. C. 468, 472.</p>

<p>MUNICIPAL CORPORATIONS —EMINENT DOMAIN —PROBATE COURT.</p> <p>Laubie, Cook and Burrows, JJ.</p> <p>.APPROPRIATION OF PROPERTY BY A MUNICIPALITY — NECESSITY OF PASSING RESOLUTION Required by Section 1536-105.</p> <p>In a proceeding by the council of a municipal corporation to appropriate property against the will of the owner, for the purpose of extending a street, it is necessary for the council to pass the preliminary resolution, and give notice to the owners of the land as required by Lan. R. L. 3589 (B. 1536-105); but the probate court, before which application is made to assess compensation, has no jurisdiction to determine whether or not the preliminary resolution so required was passed, and the notice given; the only remedy of the landowners in such case is an action to restrain the municipality from proceeding to assess compensation, and from taking possession of the property.</p>

Respecting the election of widows, Lan. R. L. 9503 (R. S. 5964) imposes a duty upon the probate court to explain the provisions of the will and the right under it and the law in event of tjie refusal of the widow to take under the will. TO Am. & Eng. Enc. Law (2 ed.) 351; 26 Am. & Eng. Enc.

<p>OFFICE AND OFFICERS — WORDS AND PHRASES.</p> <p>Voorhees, McCarty and "Winch, JJ.</p> <p>(Judge Winch of the eighth circuit sitting in place of Judge Donahue.)</p> <p>1. Superintendent of County Children’s Home Appointed Under Lan. R. L. 2217 (R. S. 930) not a Public Officer, but an Employe.</p> <p>The superintendency of a county children’s home, which is provided for by Lan. R. L. 2217 (R. S. 930), is not a public office, but a mere employment, and the incumbent thereof is an employe and not a public officer. Hence, a proceeding in quo warranto under Lan. R. L. 10357 (R. S. 6764) to recover the position from a wrongful incumbent, cannot be maintained.</p> <p>2. Pubmc Office Never Created by Contract, etc.</p> <p>A public office is never created by contract, but owes its origin and authority in some act or expression of the governmental power; where authority is conferred by contract, it is regarded as an employment, and not as a public office, notwithstanding provision for the employment is made by statute.</p> <p>3. Terms “Franchise” and “Office,” Used in Lan. 10360 (R. S. 6767), Distinguished.</p> <p>The term “franchise,” as used in Lan. R. L. 10360 (R. S. 6767), is con-tradistinguishable from the term, “office,” in that the former is ordinarily applied to a private corporation, or something in connection therewith, while the latter ordinarily has reference to the governmental or sovereign power.</p>

The plaintiff below, Emmett Bell, an infant of the age of seven years, by his next friend, Andrew W. Bell, commenced this action in the court of common pleas of Richland county against The Citizens Electric Railway Light and Power Company, to recover damages for a personal injury which he alleged to have suffered by reason of the negligence of the defendant company.

The court in construing this act, should give it a strict construction in favor of the estate. 27 Am. & Eng. Enc. Law (2 ed.) 340, and cases cited under note 3. This law was not in force at the time of testator’s death. The law in force at the time of his death should control and govern the disposition of his estate. This is well settled. 27 Am. & Eng. Enc. Law (2 ed.) 341; Howe v. Howe, 179 Mass. 546 [61 N. E. Rep. 225; 55 L. R. A. 626]; Provident Hospital & Training Sch.

<p>ERROR — TIME—TRIAL.</p> <p>Laubie, Cook and Burrows, JJ.</p> <p>¡Withdrawing Evidence From Jury — When Petition in Error Must be Filed.</p> <p>Where the court withdraws the evidence from the jury and dismisses the petition of plaintiff for the reason that there is no evidence to support the claim of plaintiff and upon the same day a motion for a new trial is made which is overruled at a subsequent term of the court; a petition in error which is filed more than four months from the rendition of the judgment dismissing the petition of plaintiff but within four months from the overruling of the motion for a new trial is too late and the proceeding in error should be dismissed.</p>

<p>ERROR to Lucas common pleas court.</p>

<p>ERROR to Summit common pleas court.</p>

<p>MUNICIPAL CORPORATIONS — BURNS LAW.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. What Acts or Municipal Corporations hot Within Burns Law Lan. R. L. 3999 CB. 1536-205; R. S. 2702).</p> <p>No contract, agreement or other obligation involving the expenditure ot money is entered into, within the meaning of Lan. R. L. 3999 (B. 1536-205; R. S. 2702), formerly called the Burns law, by the mere passage of a resolution declaring the necessity of a municipal improvement, the adoption of an ordinance authorizing the improvement and assessing the cost thereof, advertising for and receiving bids, and awarding the contract. All such acts are only preliminary to the contract, agreement or obligation referred to.</p> <p>2. Clerk’s Cep.tieicate Under Burns Law Lan. R. L. 3999 (B. 1536-205; R. S. 2702) in Time dt Filed Before Contract Signed, etc.</p> <p>The certificate of the municipal auditor or clerk that the money required to carry out a proposed municipal contract is in the treasury to the credit of the fund from which it is to be drawn, and is not appropriated for any other purpose, required by Lan. R. L. 3999 (B. 1536-205; R. S. 2702). formerly called the Burns law, is in time if filed before the contract is signed and the ordinance for the appropriation or expenditure of the money is passed.</p>

A municipality does not have the authority or power to absolutely prohibit the storing or transportation of nitroglycerine; their power is limited to regulating the transportation of the same, and fixing the quantities which may be transported or stored. Section 1692 Rev. Stat. (repealed 96 O. L. 96) ; Lan. R. L. 10622 (R. S. 6953) ; Hays v. St. Marys (Vil.), 55 Ohio St. 197,198 [44 N. E. Rep. 924].

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Failuee of City Council to Fix Valuation of Property in Advance of Making Assessment not Fatal Under Sec. 2271 Rev. Stat. (Repealed 96 O. L. 96), etc.</p> <p>The failure of the city council and assessing committee to fix in advance the valuation of property to he assessed for a sewer improvement, or the failure of the council to make a record of such valuation in case it is reported by such committee, are not such vital irregularities under Sec. 2271 Rev. Stat. (repealed 96 O. L. 96) as will invalidate the , assessment, if a just and equitable assessment was made, and the amount thereof neither exceeds the benefits resulting to the property, nor the limitation of 25 per cent of the true market value of the property.</p> <p>2. No Presumption That Assessment Inequitable Fbom Failure to Record Valuation of Property Assessed.</p> <p>The presumption that an assessment is inequitable does not arise from the mere failure of the municipal council to make a record of the valuation of the property charged therewith.</p> <p>3. Report oe Assessing Committee not Absolutely Binding Upon Property OWNEES.</p> <p>The report of the assessing committee appointed by council to determine and report an estimated assessment of the cost on the property to be assessed for a sewer improvement, is not conclusive as to the owners of the property. But an assessment based upon such report will not be set aside in the absence of proof that injustice or inequity has been done.</p> <p>4. Allegation That Assessment Exceed 25 Per Cent of Property’s Tax Valuation, Immaterial, When.</p> <p>Where the statutory limitation of an assessment against property is fixed at 25 per cent of the value of the property, which valuation shall not exceed a fair market value of such property after the improvement is made, an allegation of defendant, in an action to collect the assessment, that the assessment against her property exceeded 25 per cent of its general taxable value, is immaterial, and should be stricken out.</p>

<p>COUNTIES — ERROR—HIGHWAYS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. County Commissioners not Required Under Lan. R. L. 7951 (R. S. 4658)„ to Proceed De Noyo After Report of Reviewers.</p> <p>Where the report of road reviewers appointed by the board of county commis-; sioners is in favor of the establishment of the road petitioned for, or otherwise in agreement with the report of the viewers, the commissioners are not required by Lan. R. L. 7951 (R. S. 4658) W then proceed de . novo by reading and rereading the report of the reviewers upon two different days of the same session, but the proceedings should be resumed! where discontinued at the time of the filing of the petition for review.</p> <p>2. Order of County Commissioners as to Damages and Costs Sufficiently Complied With, When.</p> <p>Where the board of county commissioners orders the payment of the costs and damages forthwith as a condition precedent to the establishment of a road it must affirmatively appear that they were not paid forthwith in order to constitute error for which the proceedings should he reversed, It would be in substantial conformity with such order if the costs and damages were paid immediately prior to the time that the order was made for the establishment and opening of the road. As the commissioners could modify or waive the requirements of the order all defects in the record in that respect would be cured, if afterwards they permitted the payment to be made.</p> <p>8. Payment of Costs and Damages Should be Made Into County Tkeasuby.</p> <p>The costs .and damages arising from the establishment of a county road under the provisions of Lan. R. L. 7908 (R. S. 4637) et seq. should be ■ paid into the county treasury, and not directly to the claimants.</p>

The proceedings were absolutely void and not erroneous; the mayor had no jurisdiction to impose the sentence of imprisonment and fine which he did. Laning R. L. 3348, 3349, 3351, 3352, 3353, 3354, 3355,' 10899 (R. S. 1816, 1817, 1818, 1819, 1820, 1821, 1822, 7146); Ward v.' State, 5 Dee. 230 (5 N. P. 81) ; Hanaghan v. State, 51 Ohio St. 24 [36 N. E. Rep. 1072],

<p>MUNICIPAL ASSESSMENTS — ESTOPPEL.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Assessment Should be Apportioned Among All Lots Under Sec. 2601-1 Ret. Stat. — Rule por Apportionment.</p> <p>Under Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), which provides that before the common council of certain cities shall accept the plat of any property upon which there is due any special assessment, the city civil engineer shall apportion the assessment among the different lots of such plat which are affected by such assessment, such assessment should ' be so spread out on all the tract that each part or lot will bear its just share. Rule adopted in this case apportions to each lot its share according to the square feet, after excluding streets and alleys.</p> <p>2. Owner op Tract Acquiescing in Irregular Apportionment op Assessment Under Sec. 2601-1 Rev. Stat. (Repealed 96 O. L. 96) — Estopped prom Objecting, etc.</p> <p>The fact that the city civil engineer in making the apportionment required by Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), relieved certain lots altogether, will not, in the absence of evidence that injustice was done, invalidate the assessment as against the owner of the tract, or his grantee, who acquiesced in the apportionment at the time it was made.</p> <p>S. City Clerk Without Authority to Certify Apportionment Under Sec. 2601-1 Rev. Stat. (Repealed 96 O. L. 96), When.</p> <p>No authority is vested in the city clerk' to certify the apportionment of an assessment against a tract of land, provided by Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), before the city civil engineer has proceeded thereunder. •</p>

<p>CONSTITUTIONAL LAW.</p> <p>G-iffen, Jelke and Swing, JJ.</p> <p>Act of April, 1904,- for Relief of Certain County Officers not Unconstitutional.</p> <p>Act of April, 1904, entitled an “act for the relief of 'county treasurers and county commissioners,” does not.contravene Sec. 16, Bill of Rights; See. 32, Art. 2; or Sec. 1, Art. 4, Const, as being legislative interference with the judgment of a court; neither is said act opposed'to Sec; 28, Art. 28, Const, as being retroactive.</p>

Every principle of law wbicb should govern and control this case is laid down and discussed in Youman v. Lazley, 40 Ohio' St. 200; Fetters, Equity Secs. 38, 39; 1 Pomeroy, Eq. Jurisp. Secs. Ill, 399; Warvelle, Vend. & Pur. 851; Burch v. Smith, 15 Tex. 219 [65 Am. Dee. 154]; Miller v. Rivers, 138 Pa. St. 270 [22 Atl.

Appeal. Several separate instruments, executed at the same time between tbe same parties and referring to the same subject-matter, will be construed together as one contract or transaction, and the effect of one instrument will be held to be limited or controlled by provisions in the other. Thayer v. Luce, 22 Ohio St. 62; White v. Broeaw, 14 Ohio St. 339; 17 Am. & Eng. Enc. Law (2 ed.) 9, 10; 4 Kent’s Commentaries 135, 141; 11 Am. & Eng. Enc. Law (1 ed.) 514; 2 Smith Lead.