Volume 17 — Ohio Circuit Court Reports

<p>Examination of witnesses — Interruption with questions by adverse party — Discretion of court.</p> <p>(1). Counsel has no right to interfere by questions, etc., with the examination of witnesses by adverse counsel, but should wait until his turn comes to examine the witness; yet this is a matter in the discretion of the court, and where it does not appear to have been prejudicial to the party, it will not be sufficient ground for a reversal of the judgment.</p> <p>Res Gesta — Expressions of party after occurrence — Admission for erroneous reason, when not ground for reversal of judgment.</p> <p>(2). An expression by one of the parties after the occurrence, being one of surprise, is not admissible as part of the res gesta. If however the expression was otherwise admissiole under the state of the pleadings in the case, the fact that it was admitted for an erroneous reason would not warrant a reversal of the judgment.</p> <p>Expert testimony — When not proper.</p> <p>(3). Where the danger was so plain and obvious that any ordinary workman could notice it, expert testimony should not be admitted.</p> <p>Employer and Employe — Liability for defects in appliances.</p> <p>(4). The employer is not a guarantor of the sufficiency of all the appliances furnished the workman for use, but he must use ordinary and reasonable care in providing safe appliances.</p> <p> Same. </p> <p>(5), A workman takes his chances in working in a dangerous place or situation regarding which he knows the facts,yet he is not chargeable with the risk to the same extent as is the master. He is not under the same obligation to search for hidden defects or possible dangers as is the master.</p> <p>Injury to apprentice. — Contributory negligence.</p> <p>(6). Where the workman injured was an apprentice, yet if he had ordinary intelligence, he was bound to apply it, and if by the exercise of ordinary care he could have known the conditions he was working under, he is presumed to know them, and the law charges him with such knowledge.</p>

<p>Gas and Oil Lease construed — Forfeiture—</p> <p>Where the owner of real estate made a lease, granting' the underlying gas and oil, with the right to drill wells in order .to procure-said products, which, if obtained, were to be divided between the lessor and-lessee in certain stipulated ratios,and where the lease contained the provision that if no well-, is completed within one year from thé date of the lease, then ■the grant shall-be null and void, unless the lessee1 .shall pay to the lessor, a certain amount of money- -agreed upon, -for each year thereafter that such completion is delayed, find where the lessee did not complete a well within the year from the date of-the lease and did not pay or -tender-the amount'of ■ money agreed upon mntil -after the . expiration- of the year next after the.dale-of the lease, which was -then refused ,-by the- lessor, held:</p> <p>1st, That the -lease became forfeited by virtue'of its own- provisions and is void, and an election on the-part of the lessor to terminate.it, is-not-required.</p> <p>. Lessor’s ovtion of forfeiture — What will ■amount to exercise—</p> <p>2nd. That in such case, the making of another or second lease of the same real estate;.for the same purposes, after the expiration of the year stated in the above provision, to a third party, would be evidence of an exercise of an, option to forfeit the first lease and of an election- to terminate it.</p> <p>- Life tenant can not-grant oil and- gas lease—</p> <p>3d. That a tenant for life has no right to operaté for oil or gas, on the premises- in which such estate is hhld, or to make an oil or gas lease thereon, when .operations for oil or gas were not commenced before the life estate accrued.</p>

<p>Change of venue — Bias, etc. of judge — Statutes construed.</p> <p>(1). It is not necessary to incorporate an affidavit of the interest, bias or prejudice of a judge, made and filed as provided in section 550, of the Revised Statutes, into a bill of exceptions in order to bring it before a reviewing court, but it is sufficient to file it with the petition in error.</p> <p>(2). It is not necessary in such an affidavit to state facts showing interest, bias or prejudice, but merely to aver interest, bias, prejudice or other disqualifying fact.</p> <p>(3). The right to file such recusation is not limited to cases in which all of the judges of a subdivision are so disqualified, but exists in every cause or matter, pending before the court of common pleas in any county, which may come before a judge so disqualified.</p>

<p>Insurance of several distinct items of chattel property in one policy — Entire contract, cannot he split up in several suits—</p> <p>(1). Where several items of personal property are insured in one policy the amount of insurance for each being severally stated, yet it is one contract of insurance, and where loss occurs, several suits to recover the insurance for each item can not be maintained. A suit on one item insured in such policy, is a bar to other suits for the other items.</p> <p>Same—</p> <p>(2). Where suit is brought in the common pleas under such policy to recover the insurance for one of the items insured therein, and subsequently another' suit is brought before a J. P. to recover the insurance for another item insured therein, in which latter suit a judgment is recovered first, such judgment recovered before the J. P. will be a bar to the action pending in the common pbas.</p>

<p>Railroad--Liability for injury notwithstanding contributory negligence of injured—</p> <p>(1). In an action against a railroad company for damages for causing the death of plaintiff’s intestate at a street crossing, where it appears that the deceased went onto the track without looking for approaching trains which he could easily have avoided, he would lee guilty of such negligence that no re-1 covery could be had. But where it also appears that the train was running at a greater speed thán the city ordinance per-, mitted, and a dangerous speed for that locality without sounding the whistle or ringing the bell continuously as the statute provided; that the men on the engine discovered the man when the engine was about 100 feet from him, and that the danger signal being sounded, they saw the man apparently in a dazed condition hesitating what to do, and they failed to stop the train, which might have been done with proper appliances within eight or ten feet, and thus prevent the collision, if the train was running at the slow rate of speed claimed by them, che plaintiff wonld be entitled to recover notwithstanding the negligence of the deceased.</p> <p>Joint use of street — Rights of public — Duty of Railroad—</p> <p>(2). Where a street is used by the public and a railroad jointly, the public is entitled to the use of any part of the street; but the fact that the railroad is also entitled to the use thereof and thus makes the use by the public dangerous, calls for a high degree of care by those using it to avoid such danger.</p> <p>Duty of Railroad towards person in perilous position—</p> <p>(3). If the railroad by its agents or employes in charge of the train, knows a party to be in a perilous position, and might, after obtaining this knowledge, by the use of ordinary care have avoided tne injury to him, and did not do so, but carelessly and negligently caused the injury to him, then such party is entitled to recover notwithstanding he imprudently placed himself in the position of peril, if he was apparently unconscious of his danger or from some cause' appeared unable to escape it.</p> <p>Same — Duty to stop train—</p> <p>(4). It is very common for persons to walk upon a railroad track, even where they have no right to be, and they are often discovered by those running the train at a long distance ahead. It is not required that the very moment such person is so seen, every reasonable efEort must be made to stop the train. The presumption would be, that such person is . possessed of the ordinary senses of mankind, that he can hear and see, and when notified by the whistle or bell of the engine, or the noise made by the train itself, that he will leave the track in time to escape from the threatened danger, and the trainmen are justified in acting upon this presumption until the contrary appears to be the case, using due care in the premises. But if there is anything"disclosed which raises a suspicion that the person is deaf, or blind, or helpless, then the obligation on the part of the trainmen to use all necessary and proper care to avoid injury by stopping the train, if necessary to do so, immediately arises.</p>

<p>Dedication — What requisite to constitute—</p> <p>(1). To constitute a common law binding .dedication of ground to ■ public use, there must have been an intention to dedicate and an actual dedication on the part of the owner,and an acceptance by the public, which may be shown by circumstances.</p> <p>Same — Twenty one years'1 use by the public—</p> <p>(2). Where an owner in building a barn on his lot left a space of eight feet at the end of his lot open, for the convenience of himself and his tenants merely, the fact that such open space was also used by the public without open objection by such owner to such use, will not be sufficient to show an intention to dedicate such space to the public for all time to come, although such condition may have continued *or more than twenty-one years.f</p>

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

<p>Fraudulent action of bank direetors breaking bank — Right of one who lost his stock thereby to sue them.</p> <p>(I)- Z. was the owner of stook of a bank incorporated and organized under the laws of the ..United States. An assessment of the stock was made by order of the comptroller of the currency to make good the impairment of its capital. Z.not being able to meet the assessment, his stock was sold at assessment sale. The capital of the bank was dissipated by its officers and directors and through their negligence. Z.brings action against said officers and directors on behalf of himself and all the stockholders to recover for loss thus occasioned to the bank and its shareholders and creditors, and asks for'judgment for himself and the other shareholders.</p> <p>Held: that the cause of action was not in favor of Z., but was in favor of the bank; chat the liability of the defendants was to the bank, and was an asset of the bank; and that the interest of Z. followed the stock so held by him, and when he ceased to lee a stockholder,his right to bring'and maintain the action terminated.</p>

<p>Gas trustees — Incidental powers in management of gas works—</p> <p>(1). When a city has under the law acquired a gas plant, to the end that the inhabitants may be provided with light and fuel, the power to operate the plant and to do the things necessary to accomplish the purpose for which the plant has been _ acquired, and to preserve the property from destruction and impairment to a degree not amounting to rebuilding or extension, is incident to and goes with the power to own as a current necessity.</p> <p>Same — Current expenses not within Burns law—</p> <p>(2). Operating a gas plant of the character and for the purpose thus intended, is a business of hiring and buying and selling in which the current expenses are intended to be paid out of the income, and in relation to which it is not intended that each item of such current expenses shall be anticipated by certificate of the city clerk under section 2702, in order to make lawful the outlay for its payment.</p> <p>Cas Trustees are city officers—</p> <p>(ñ). “The trustees of the gas works” of a city are “officers” of the city, as contemplated by sections 6976 and 1645-79, of the Revised Statutes, and are subject to the provisions and penalties of those sections,</p> <p>Gas trustee can not deal with Board—</p> <p>4.) When a municipality is allowed to embark in the business of buying and selling gas, those who conduct the business and control it, are not permitted by these sections, to directly or indirectly buy for it, and at the same time sell to it either material or labor.</p> <p>Same — Employment by board within one year of expiration of term of office—</p> <p>(6). Neither may they direct its future policy while in office,and upon retirement within the time inhibited in section 6976, take advantage of opportunities which thus may be created.</p>

<p>Will contrued — Demonstrative legacy—</p> <p>•(1). A bequest of ten thousand dollars, payable as follows: twenty shares of the capital stock of the 'First National Bank of Painesvillo,Ohio, at $2,000.00. One thousand dollars in Lake Shore & Michigan Southern Railway Company at_par $1,000.00. $7,000.00 in money or good well secured notes — is a demonstrative legacy, and if the testator at his decease was not the owner of any Lake Shore & Michigan Southern bonds or stocks, the legacy does not abate, but is payable out of assets covered by the residuary bequest, as are general legacies.</p> <p>Legacies to executors in lieu of their statutory commissions—</p> <p>(2). A testator, having by his will given his two sons, Eugene and Arthur, legacies largely in excess of what they would have received had he died intestate, directed “that in consideration of the legacies herein given to said sons that, no fees, commissions or charges for administering upon my estate shall be paid to them, or to either of them, except for actual expenses properly incurred.” E. and A. administered the estate: Held they were not entitled to charge and receive the commissions authorized by sec. 6188, Revised Statutes of Ohio.</p> <p>Construction of will — Direct gift—</p> <p>■(3). The testator having, by his will, bequeathed to his wife in trust for M., his infant daughter, until she arrives at the age of majority, the sum of ten thousand dollars; by a codicil to his will, bequeathed to his said daughter M. “in addition to the sums provided for her in my said will, one thousand dollars in moneyHeld, the one thousand dollars in money given by the codicil, is a direct gift to M., and not to his wife in trust for . until she arrives at the age of majority.</p>

<p>Gift of bonds io infant daughter by handing same to her mother to keep for her — Gift complete—</p> <p>(1). E. O. Warner, having a daughter Marjorie three years of age, and being the owner of two 7 per cent, coupon bonds of the L. S. & M. S. Ry. Co., each for $500.00, endorsed upon each of said bonds the words “This bond I give and set over to my daughter Marjorie Warner this 20 December, 1878. E. O. Warner.1,1 From the date of such endorsement said bonds were in the keeping of Marjorie’s mother until the death of E. O.Warner, which occurred in March, 1884. Held: sufficient to establish a completed gift of the bonds to the daughter.</p> <p>Will and codicil construed—</p> <p>(2). A testator,by his will,bequeathed to a trustee the sum of ten thousand dollars, to be held in trust for an infant daughter of such testator until her ma]ority,when it should be paid to such daughter, with provision as to its disposition in the event of the death of the daughter before attaining her majority, and in a codicil to such will he made a bequest to said daughter of the. sum of one thousand dollars. The executors delivered to such trustee bonds of the value of $1000.00, supposing at the time of such delivery that said bonds were a part of the testator’s estate, whereas in fact they were aireadyjthe property of the daughter, and paying to said trustee the further sum of $10,000.00 under the mistaken belief that said trustee was the proper custodian of the 81000.00 bequeathed by the codicil to the daughter. And the trustee having delivered said bonds to the daughter upon her attaining her majority, Held: that the executors had properly discharged the legacy made in the will, but that the legacy given by the codicil remained . unpaid, and that said executors must pay to said daughter said sum of $1000.00 bequeathed by said codicil, together with interest from a date one year iater than the date of the testamentary letters issued to such executors.</p>

<p>“ Bill of Exceptions filed before overruling of r otion for new trial— Effect — What matters before reviewing court—</p> <p>(1). On April 2nd, 1898, the bill of exceptions was allowed and signed, made a part of the record, and filed with the papers in the action. All this before the motion for new trial which had been filed within the three days was overruled, and before judgment was entered upon the verdict.</p> <p>Held, that the action of the court in that regard must be challenged not before, but after the court has acted. And that the steps to save for review those matters to which the character of error can only be imparted by the trial court in its adverse adjudication of the motion for new trial, or by its decision, muse be taken after the decision is made or the motion is overruled.</p> <p>Presumption that charge responsive to evidence—</p> <p><2). When the charge is in all things applicable to the issue tendered by the pleading, it must be presumed, in the absence of steps taken to save the case for review upon the evidence, that there was sulm'tted to the jurj at the trial evidence to support the issues in the pleadings, and that to the evidence so given, the charge is responsive.</p> <p>Ejection from R. R. train — When action on tort—</p> <p>(3). Where one is wrongfully ejected from a railway train,even in the absence of the use of excessive force by the servants of the railroad company, and whether or not the relation of the parties originated in contract, he may seek his remedy as for tort.</p> <p>Ejection — When an assault, right to be on train no element as to right to recover—</p> <p>(4). When the force used to eject amounts to wanton assault, the fact as to whether the plaintiff was rightfully or wrongfully upon the train, is not an element in the question of mere recovery.</p>

<p>Injunction — Appeal—</p> <p>When a party desires to appeal to the circuit court, from an interlocutory order made by the court of common pleas vacating an injunction, and said last named court by its order suspends the operation o! the order of vacation of the injunction for ten days, the party desiring so to appeal may perfect the same by giving the notice and entering into the undertaking provided by law, and the refusal of two judges of the circuit court in vacation, to order a suspension of the order of dissolution, will not have the effect of defeating the appeal.</p>

<p>Election — Sea. 9 of Election Law — Requirements not mandatory—</p> <p>(1). The requirement of section 9, of the Election Laws of Ohio, (93 Ohio Laws, 189), that in cities where the voters are registered, the nomination of city officers shall be filed with the city board of elections not less thaD fifteen (15) days previous to the day of election, is not mandatory.</p> <p>Same — Filing of certificate of nominations—</p> <p>2). Where it appears that such certificate has been filed in ample time in which to advertise for bids and print the ballots, and no objection is made otherwise, except as to the precise time in which it was done, and that the non-observance in this regard could not affect the result of the election, its fairness or honesty, such certificate so filed will be deemed to be filed in time, notwithstanding the requirement of the statute is mandatory in form.</p> <p>Same — Filing original instead of certified copy—</p> <p>(3). That the duty imposed by section 13 (93 Ohio Laws, 190), relative to the transmission of certified copies of certificates of nomination, is legally performed when such ooard has duly certified the original certificate instead of a copy thereof as provided by tnis section.</p>

<p>Indictment of murder in first degree — Application to be admitted to bail — Refusal to hear—</p> <p>(1). On the facts hereinafter stated, Held: That the trial court did not err in refusing to hear the application of the defendant to be admitted to bail, he being indicted for the crime of murder in the first degree, and the time for Iris trial fixed for an early day at the same term of the court.</p> <p>Appointment of counsel to assist in prosecution — Motives of assistant counsel — Discretion of court—</p> <p>.(2). The appointment of an attorney at law by the court of common pleas, under the provisions of sec. 7196, Rev. Stat., to assist the prosecuting attorney in the trial of a criminal case pending in such court, though on the showing made, it would seem to have been an unsuitable appointment owing to the feeling of the person so appointed against the defendant, and his personal interest in his conviction, is not of itself sufficient to justify a reviewing court in reversing a judgment against the defendant on that ground alone. It might be good ground for so doing if it were made to appear that by reason of such feeling the substantial rights of the defendant were prejudiced,, which does not appear in this case.</p> <p>Dying declarations— When admissible — The evidence brought before the court must be brought before the jury—</p> <p>(3). Where in a homicide case alleged dying declarations of the person charged to have been killed by the defendant on trial, are sought to be offered in evidence against him, (such declarations being in writing and purporting tó be signed by the de-clarant), and the question whether such declarations are competent and admissible in evidence against him is submitted as a preliminary question to the trial judge, in the absence of the jury, and evidence is introduced thereon, and it is held by such judge to be competent and admissible, it is error to allow such alleged declarations to go to the jury as the dying declarations, of such person, unless the state shall first offer evidence to the jury tending to show that they were in fact dying declarations of the deceased person, made by him in articulo mortis, or in extremis and under a sense of speedy and impending death, which excluded from his mind all hope of recovery; that the jury might thus be advised by the evidence so offered by the state, and that offered by the defendant on this point (if any), what the facts as to those questions were, so that they could properly decide whether they were in fact dying declarations of the deceased person, and the weight and credit to be giveD to them, if any.</p> <p>Charges filed in Masonic Lodge — When admissible—</p> <p>(4). The trial court erred in this case in allowing the state to offer evidence as to what took place in the Masonic Lodge in# regard to the proceedings of such lodge, and of its officers as to'a complaint filed therein against the defendant on the charge of un-masonic conduct. It was admissiole to show that a copy of the charges so preferred, was served upon the defendant, by an officer of the lodge, shortly before the killing of McMillan by the defendant, as tending to show a motive on the part of defendant for acting as he did.</p> <p>View — Presence of prisoner—</p> <p>(5). On the facts shown in the record, it does not appear that the defendant was prevented from being present at the view of the premises where the shooting took place, made by the jury under the order of the court at the request of both parties; nor does the'record show that he was not present, and it is not claimed by the defendant or his counsel that he was not present. The claim of defendant being that as he was in the custody of the sheriff, it must be,"conclusively presumed that he was prevented from attending the view. While it is the better practice to have the record show affirmatively that he was present, or that he refused to attend, if such was the case, the judgment should not be reversed if it does not so appear.</p> <p>Court withdrawing evidence from jury after admission—</p> <p>(6). If evidence is admitted under the elaim of counsel, that other evidence would be produced, which would make it competent, and without which other evidence, it would not be admissible, and such other evidence is not produced and the evidence before heard is by the court wholly withdrawn, and the jury clearly and distinctly told to disregard it, the judgment should not for such first admission be interfered with.</p> <p>Evidence of improper relations with wife of deceased — Evidence of character of wife admissible—</p> <p>(7). Evidence tending to show that ‘ improper and criminal rela tions hjd existed between the defendant and the wife of the deceased, for some time previous to the homicide, was properly received. If such were the case, it might be relevant as tending’ to show a motive on the part of the defendant to take th3 life of the husband. But where such evidence was introduced by the state, it was error for the court to exclude evidence offered ny the defendant, tending to show that during all of this time the character and reputation of the wife as a pure and virtuous woman was above reproach.</p> <p>Self defense — When hilling justifiable—</p> <p>(8). In the general charge of the court to the jury on the law of self defense in a case of this kind, the jury was instructed, that to justify the defendant in taking the life of his assailant, “it must appear that the defendant at the time of firing the fatal shot, in good faith, and in the proper and careful exercise of bis faculties, believed, and had reasonable ground for believing that he was in imminent danger of death or great bodily harm from such assault. The mere belief alone of such danger is not sufficient to excuse a homicide. He must have arrived at such belief by the careful and reasonable use of his faculties; and further, he must have had reasonable ground for believing the existence of such danger ;such grounds as would ca.use a man of ordinary courage so to believe. Held, that the language of the said charge in italics, and similar language used in other , special charges given by the court to the jury at the request of the counsel for the state, was erroneous and prejudicial to the rights of the defendant.</p>

<p>Ditch — Grossly unjust assessment — Injunction proper remedy—</p> <p>(1). By the provisions of section 4491, R. S., an action is authorized, and may be maintained to enjoin the placing upon duplicate and collection of an assessment made to pay the cost and expense of locating and constructing a ditch improvement, on tne single ground of gross injustice in the apportionment; and if the fact of gross injustice is established on the trial, the plaintiff is entitled to relief by injunction.</p> <p>Same — Assessment of party disturbing natural drainage—</p> <p>(2). On the trial of such issue, evidence tending to show that plaintiff wrongfully erected obstructions and destroyed the natural drainage, and thereby created the necessity for better drainage and increased the cost and expense of securing it, is competent as bearing on the question of gross injustice in the apportionment of sucn cost and expense'.</p> <p>Excessive assessment between parties benefited — Remedy—</p> <p>3). If,upon such trial,"it is established that plaintiff derives a substantial benefit from the improvement, it is not a gross injustice to apportion some part of the necessary cost and expense of the improvement to the plaintiff. When substantial benefit is made to appear, the remedial right changes, and it becomes a proposition, not of gross injustice, but of equitable apportionment between persons mutually benefited; and in such case the party must pursue such remedy as is provided for by law, and is not entitled to the extraordinary remedy of injunction.</p>

<p>Contest of will — Issue—</p> <p>(1). The only issue that can be submitted to the jury in an action involving the setting aside of a will is, whether the writing produced by the proponents is the last will of the testator or not.</p> <p>Same—</p> <p>(2). In such an action, if the petition sufficiently directs the attention of the court to the fact, that the validity of the will is challenged and that the proper parties are before it, it is for the court to see that the issue is made up, and submit that phase of the litigation to the jury, no matter what other causes of action may be asserted in the petition, or what other parties are drawn into the controversy by the pleadings.</p> <p>Evidence of mental incapacity—</p> <p>(3). Manifestations of mental disturbance by the testator, though remote as to time,are not remote to the issue if, when connected with other evidence of mental weakness of recent date, they tend to reflect light upon testator’s condition at the time the will is made.</p>

<p>irregularities, not of essence, in selecting a jury not available for challenging array—</p> <p>(1). Mere irregularities and defects, not of essence, in the preliminary proceedings of selecting, drawing and summoning a jury, either grand or petit, affords proper grounds of challenge to the whole array or to individual members, but are not available and supply no sufficient basis for a motion to quash an indictment, or for a plea in abatement; nor will an indictment be held invalid for any defect or imperfection which does not tend to the prejudice of a substantial right of the defendant.</p> <p>Burglary and larceny — Possession as evidence of guilt — j! ' UN</p> <p>(2). On the trial of defendant on a charge of burglary and larceny, at defendant’s request, the court instructed the jury in substance, that the fact of possession by defendant of the stolen property, soon after the burglary and larceny was committed, iq not of itself sufficient to warrant a conviction of defendant, but that' to warrant such conviction there must be some direct evidence, implicating defendant in the crime, in addition to the fact of possession. Held: 1. The instruction was inaccurate in the use of the words “direct; evidence”; “competent evidence” “would have been correct”. 2. While the instruction was inaccurate it was not prejudicial to the substantial rights of the defendant.</p>

<p>Contract with married woman — Liability—</p> <p>(1.) The statutes, sections 4996 and 6319, providing in effect that á married woman shall be sued as if unmarried, and that when so sued like proceedings shall be had and judgment rendered as if she were unmarried, afford the exclusive remedy for enfoice-menr of the contracts of married woman.</p> <p>Same — Equity now without jurisdiction to give specific lien on property of married woman—</p> <p>(2.) Courts of equity have no jurisdiction to decree a specific lien on particular property for an amount due on the contract of a married woman made by her since the enactment of those statutes.</p> <p>Same — Action at law—</p> <p>(3.) A suit on such a contract is, under those statutes, at law, and the relief is a personal judgment enforcible by an execution and levy.</p>

<p>Religious association — Trustees without power to dispose of property without consent of association—</p> <p>.(1). Trustees of a religious society or association, organized under the provisions of sec. 3241, of Revised Statutes of Ohio, without consent and authority from the members of such society or association, and without authority from court first obtained for that purpose, have no power to sell or give away the real property cf the society or association.</p> <p>Same — Act of legislature unconstitutional—</p> <p>(2). The act entitled “an act to authorize the trustees of the South Kenton Sunday School Association of Kenton, Hardin county, Ohio, to convey by deed the real estate now held by them as such trustees to the Epworth M. E. Church of South Kenton,” and passed March 17, 1898,(93 O. L., p. 462), is unconstitutional and void, and the deed made by said trustees in pursuance thereof, is likewise void.</p>

<p>Life insurance — Rebate in premium agreed to by sub-agent appointed by agent of Co. — Violation of statute—</p> <p>(1.) T. Bros., being agents of a Life Insurance Company, employed H. as sub-agent. H. arranged with O. to take a policy of insurance from the company, and as an inducement for him to do so agreed to make a rebate on the amount of the premium (giv-his note for the premium less rebate). It was afterwards arranged that C. should give a check dated in future in place of the note. The check was not paid, and was sued upon in the action below.</p> <p>Held, (1) That T. Bros, were responsible for the acts of H. in the transaction; (2) That the transaction was in violation of the provisions of the act of the general assembly, found in 86 Ohio Laws, 220, and that the note and check were void in the hands of Tillinghast Bros.</p>

<p>Conversion of insolvent partnership into a corporation — Assets of .corporation given for stock subscriptions, not payment—</p> <p>(1). 'Where the members of an insolvent partnership convert their business into a corporation, turning over to the corporation all the assets of the partnership in payment for their stock subscriptions, but the corporation also assuming all the liabilities of the partnership. Held, that nothing whatever should be counted as a payment of the stocK subscriptions, and the subscribers to such stock remain liable to the creditors of the corporation for their subscriptions to the stock.</p> <p>Corporation insolvent in fact, but going concern — Bight to pay creditors by way of preference—</p> <p>(2). Where a corporation which is actually insolvent, but still carrying on its business, transfers practically the whole of its assets to one of its creditors, who is not aware of the condition of the corporation and there being no collusion, such transfer will be upheld.</p> <p>Cognovit note to creditor by corporation insolvent in fact, but going concern—</p> <p>(3). A creditor of a corporation which is still carrying on its business, although insolvent in fact, of which such creditor is not aware, may take a cognovit note from such corporation, and take judgment thereon, and his levy of an execution upon such judgment, on the assets of the corporation will be upheld.</p> <p> Insolvent corporation can not pay claims of directors by way of preference— </p> <p>i). An insolvent corporation with no expectation of being able to continue its business, can not rightfully secure or pay debts owing to its directors.</p> <p>Insolvent corporation — Attachment by creditor—</p> <p>(5). An attachment and levy by a creditor on the assets of a corporation carrying on its business although in fact insolvent, will give a valid lien on the assets levied upon.</p>

<p>Railroad — Injury to oar coupler — Defect in drawbar of oar — Attempt to remedy defeat—</p> <p>(1.) In action by an employe of a railroad for damages for an injury, suffered while coupling cars, caused, it is alleged, in consequence of the company knowingly furnishing to him for coupling a defective car, the drawbar of which was seven inches lower than it ought to have been, and that in attempting to couple another car to this one, in the night, he was caught between .portions of the two cars and bis hand was crushed, it appeared that plaintiff in attempting to remedy this defect in the drawbar, placed a block under the strap, for the purpose of holding the drawbar up; but that the block fell out and allowed the drawbar so to act as to catch his hand in the link. ' Held, that the detect in the car coupling must be the proximate cause of the injury to entitle the plaintiff to recover. But the' jury might take into consideration, that the cars were pretty near together when he went in to make the coupling and when he first noticed the condition; that his action was very rapid; that it was in the night, and he thought, that he might block up the drawbar so he could couple the cars. That he attempted to do it and failed, there being but little'time, and all facts and circumstances under which the plaintiff below was acting in that regard, and that the jury was to judge whether under these circumstances the injury was to be attributed to the defect in the car, or to his own attempt to remedy the defect.</p> <p>Error for insufficiency of evidence to sustain judgment — Bill of exceptions must state all the evidence—</p> <p>(2). Where one of the errors assigned is that the verdict was not sustained by sufficient evidence, and it is recited in the bill of exceptions: “This was all the testimony offered in behalf of the plaintiff, which tended to show the manner in which said injury was received, and the cause for the same,” also: “All other testimony offered in behalf of plaintiff related solely to the character and extent of plaintiff's injury;” such bill of excep- ' tions is not sufficient to authorize a reviewing court to reverse the judgment below on the ground that it is not sustained by the evidence,</p>

<p> Rules of R. R. Co. —Violation of, as cause of injury to employe— </p> <p>The non-observance of one,of the rules of a railroad company will not of itself render the company liable for injury to one of its brakemen unless it is shown that the dispensing with such rule of the company was the proximate cause of the injury.</p>

<p> Assessment of school property for sidewalks and sewers in front of it— </p> <p>School property in a city school district is chargeable for an ass ss-menfc by the front foot under our statutes for a sidewalk in front thereof, or for a sewer, and the board of education has to pay the same.</p>

<p>Property damaged by water set bads by city’s action — Recovery—</p> <p>•(1). Where the property of plaintiff was injured by the city filling up street and raising catch basins of sewers already paid for by the property owners, whereby the drainage of her lot was destroyed, and the water sot back on her lot, making the same unwholesome and untenantable, she is entitled to damages.</p> <p>Same — Measure of damages — Injury to health—</p> <p>(2). The measure of damages to which she is entitled in such case, would be the difference in the value in the use of the property before and after the acts of the city, during the four years prior to the commencement of the action, as also damages for the injury to plaintiff’s health during these four years.</p> <p>Same — Continuing nuisance — Limitation of action—</p> <p><3). In such case the injury to plaintiff’s property is a continuing nuisance upon which suit may be brought from time to time, and in which the plaintiff can recover damages for the injury suffered up to the time of commencement of the action, and in which the defendant might plead the statute of limitations as to injuries suffered more than four years prior to the commencement of the suit.</p> <p>Same — Duty to do all to lessen damages—</p> <p>(4). An owner of property is entitled to damages for injuries re- • suiting to the use of her property by reason of the turning of water upon the property by embankments erected by the city, which otherwise would flow off, and from which injuries accrue to her in the use of the property, and if she suffered in . her health from the accumulations of foul water upon her lands caused by these ácts of the city, she would be entitled to recover therefor; also,while plaintiff would have a cause of action for the water thus turned in upon her, still the well established rule of law is that she should use reasonable care to protect herself, to lessen if possible the damages which sue was liable to suffer by the continuation of these causes of action, and it is a question to be submitted to the jury, whether there was any known or reasonable way under her power and control whereby plaintiff could have lessened that injury.</p>

<p>Bight of way — Apiiurtenant and in gross—</p> <p>(1). Where one granted an estate, and in his deed reserved a right of way across it to a certain point, but made no mention of or reference to any estate to which it was to be appurtenant, or with which to be used, it is a way in gross,and is a personal right which is not the subject of a grant to others,or to inheritance.</p> <p> What will constitute right of xoay in gross— </p> <p>(2). Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming it. The owner of a lot separated by four lots from -aright of way, cannot claim the same as appurtenant to his lot; but a covenant in his deed by which the grantor agrees “to leave an open driveway from the south end of said (another) alley along said railway and switch’-1, gives a right of way in gross, and is personal and can not be granted away to others.</p>

<p>Administrator holding over in leased premises — Individual liability—</p> <p>An administrator of the deceased assignee of a permanent leasehold containing covenants to pay rents and taxes, who for some time continued to hold possession of the leasehold, is not personally liable for rents and taxes accruing.</p>

<p>Fire insurance — Temporary removal of goods to other place—</p> <p>(1). Where goods insured are removed temporarily for some reason from the place where they were insured to another place, and then returned to the place where they were insured, where after-wards they are destroyed by fire, the company is liable for the loss.</p> <p>Same — Verbal assent of agent where writing required — Liability—</p> <p>(2). Where the policy provides that the policy shall be void if the goods are removed to another place without the consent, in writing, by the company, and the goods are removed with the verbal consent of the agent, who tells the party to come in after-wards and the policy would be fixed, but the goods are then destroyed before the written consent of the company is endorsed on the policy, the company is liable for the loss, notwithstanding the provision in the policy that its agents are not authorized to waive any of the conditions of the policy.</p>

<p>Refusal of court to issue process on the judgment — Remedy by petition in error in higher court, not by mandamus—</p> <p>Where, in an action for a writ of mandamus, it is averred by the relator that the lower court refused on motion properly made to order certain process on a final judgment heretofore rendered by the court, to which relator claims to be entitled,' his remedy is by petition in error in a higher court, -and not by a petition for a writ of mandamus.</p>

<p>Status of property with reference to street improvement fixed at time improvement is ordered—</p> <p>(1). Ihe assessment of property for a street improvement is fixed iJ.ll by the status of the property at the time of the passage of the , ordinance to improve.</p> <p>Assessment on tract of land afterwards subdivided — Entire assessment charged on lot last sold—</p> <p>(2). Where the assessment was imposed on a tract oí land which was afterwards subdivided into and sold in lots, and whereby, the deeds of conveyance, the burden of the entire assessment was placed on the lot last sold, the municipality may treat such lot as subject to the assessment imposed upon the entire tract.</p>

<p>R. R. car lease — Insolvency of R. R. — Rights of car lessors—</p> <p>Where the court appoints receivers of the property of a railroad company, and directs them to join the company in the execution of a lease, consolidating former leases of rolling stock, the terms of which have not yet expired, the purpose and provisions of which consolidated lease are to provide a lower monthly rental and extend the period of the leases — but leaving the title to the rolling stock in the lessors, with conditions of forfeiture for non-payment of the rentals and other breaches of the covenants, such consolidated lease is not a sale of the rolling stock to ihe receivers, and the lessors are entitled to preference over the bonded indebtedness of the railroad companny, only for the rc4'als which accrue after execution of such consolidated lease • and during the existence of the receivership.</p>

<p>Will — Provision in husband’s will for wife, made during wife’s life, lapsed on her death her husband surviving—</p> <p>Wills were mutually made by a husband-and wife who each owned property. At the same time they entered into a contract in writing, providing that the provisions of these wills should be unalterable and irrevocable “as between the parties to this contract”. After the death of the wife the surviving husband changed his will. On his death the parties who would have been entitled to legacies under the husband’s will as originally made and,as heirs to the wife, to the legacy made'to her in such original will, claimed the legacies, by virtue of the provision of the contract that the will as originally made should be unalterable and irrevocable. Held, the provision in the contract “ that the wills should remain unalterable and irrevocable as to'the parties to the contract,” only referred to the husband and wife as the only parties to the contract; and even if the husband’s original will had remained in force, the provision for the wife made therein had lapsed by her death before the husband, and her heirs would not. be entitled to anything 'under such will.</p>

<p>A custom claimed among cuntraetors to help themselves to each other’s material unreasonable and not binding, but competent to prove absence of criminal intent.</p>

<p>Equity — Marshaling liens — Two parties having liens on same property, where. one also has lien on other property—</p> <p>The general rule is. that if one creditor, by virtue of a lien or interest, can resort to two funds,and another to one of them only, the former must seek satisfaction out of that fund which the latter cannot touch. If, therefore, the prior creditor resorts to the doubly charged fund, the subsequent creditor will be substituted, as far as possible, to his rights. But this rule must be taken with the modification and exception that in its application the paramount encumbrancer shall not be delayed or inconvenienced in the collection of his debt, and that no superior equities of others are interfered with. And where a party takes a judgment and acquires a lien on personal property by levy, all during the pendency of the action of an older en-cumbrancer and after the judgment in the latter’s favor in that action and levy on the personal property of the debtor thereunder by such senior judgment creditor, it is not competent for such junior judgment creditor, whether party to the action or not, to come in and attempt by a subsequent levy upon his judgment to displace the rights of the senior judgment creditor to have the property appropriated to their . earlier judgment, on the ground that the senior judgment creditor had, besides the personal judgment against the judgment debtor under which their levy on his personal property was made, also in thé same action obtained a decree of foreclosure of a mortgage on lands of the debtor, by which their debt was secured, and which it is claimed should have been exhausted'first before levying on and satisfying his claim out of the debtor’s personal property.</p>

<p>Burns Law — When applicable to a contract—</p> <p>A contract by a village which on its face binds it absolutely to pay a certain amount within a certain time to be ascertained thereafter, payment to be made out of the general fund, is within the Burns law, although .it may have been expected that the payment would be made out of the proceeds of a street assessment, such limitation not being expressed in the contract.</p>

<p>Rules of Railroad Co. — Injury to employe in consequence of nonobservance of rules,in coupling cars with hand—</p> <p>Where the rules of a Railroad Co., known to the employe, require its employes in coupling cars¡[to use a stick, for which purpose sticks are provided by the company and would have been furnished to plaintiff if he had asked for one; and the testimony shows that the cpupling in question, in making which the employe was injured, could and should have been made by the use of a stick, such employe is not entitled to recover for an injury received while attempting to make such coupling by hand, in disregard of the rules of the company.</p>

<p>Sale of right of way to R. R. Co.— Vendor’s lien good as against subsequent purchasers—</p> <p>(1.) PlaintiS had entered into an agreement with the Railroad Co., to avoid the vexation of legal proceedings, to convey to them the right of way through his land at a certain price per acre, he agreeing to take such purchase money iri shares of the capital stock of the Railroad Co. if the same should at the end of two years be worth its face value, otherwise to be paid in cash. The stock being of no value at the end of two years, he demanded the cash, which was refused, and suit brought to enforce vendor’s lien. Held, that plaintiff is entitled to a vendor’s lien, and to enforce the same as against subsequent purchasers of the road under foreclosure proceedings to which he was not a party.</p> <p>Same — Order for sale of entire road proper—</p> <p>(2.) To enforce the vendors lien, the proper remedy is an order of sale of the railroad as an entirety! (Railroad Co. v. Lewton, 20 Ohio St., 401.)</p>

<p>Action at law — Cross-petition setting up equitable cause of action —Right to appeal— ”</p> <p>(1). ” Where plaintiff brings an action to recover balance due on a building contract, and defendant in its answer admits some of the allegations of the petition and denies others, and by way of cross-petition asks for reformation of the contract and for damages for non-compliance with its terms, and. the case is tried to a jury and a verdict rendered for the plaintiff, the defendant will have a right to appeal the case on the equitable cause of action set up in its cross-petition. But the appeal would not open up the law matter that was submitted to be tried by a jury; if the appeal takes up anything, it takes up only the equitable matters outside of the law claims which ;have been submitted and tried.</p> <p>Equitable cause of action insufficiently set out — Right to amend in appellate court—</p> <p>(2). A party may set out an equitable cause of action in his petition or in his cross-petition; and if he fail to insert all the material allegations essential to such cause of action, nevertheless, if the complaint be of an equitable nature, he may appeal ; and in an appellate court obtain further leave to amend and perfect; the allegations of his petition.</p>

<p> Statement volunteered by a witness on matter not in issue under allegations of petition, to be ruled out— </p> <p>(1). Where a witness in the course of his cross-examination, volunteers a statement not respon ive to the question, to the effect that to do a thing that the witness is asked whether he had ever seen done, in a general way, that he had seen it done, but that it had been against the rules to do that, and he is inquired of as to what rules he had reference and what was the rule. On cross-examination, counsel, asking to ascertain what the matter was that the witness was talking about, at the very moment it was disclosed that it related toa printed rule of the company, that the witness had seen posted along the line of tbe track, counsel promptly moved to exclude that statement for the reason that the party had not had any notice of any such rule and that no charge or complaint as to any such rule was made in the petition, a motion to rule out such testimony should be sustained.</p> <p>Recalling witness for further cross-examination at any stage of the trial, proper—</p> <p>(2). It is a common practice for counsel, and permitted by ' the courts, to recall a witness at almost any stage of the case, for the purpose of cross-examination, particularly where it is desired to contradict a statement of a witness who has testified, by the evidence of other parties.</p> <p>Witness to state facts, not opinions—</p> <p>(S). It is not for the witness to state to the jury whether it would be convenient or inconvenient or how convenient or inconvenient it would be for a man engaged in certain worn: to do it in a certain way, but the witness could state to the jury the exact facts and situation to enable the jurors tó determine whether or not it was convenient or inconvenient to do it in a certain way.</p>

<p>Action for tort — Interest on damages—</p> <p>(1). Where, in an action for damages for a tort, the jury in its verdict specifies how much the damage amounted to at the time, and how much the interest thereon would amount to, giv ing the sum total as its verdict, such verdict would not be invalid on the ground that no interest can be allowed on damages for a tort. Under the authority of Railroad v. Cobb, 35 Ohio St.', 94, the jury in awarding damages for such an injury may include compensation in the nature of interest.</p> <p>Reversal of judgment below as to one joint party only—</p> <p>(2). The circuit court may, on error in a case where there are several plaintiffs in error joined, reverse the judgment below as to one of them and affirm it as to the other.</p> <p>Bill of exceptions filed during subsequent term of court — Entry, failing to state as of previous term — Presumption—</p> <p>(3). where a party is allowed thirty days to file bill of exceptions and that the journal of that term of court shall be left open for thirty days after adjournment of the term for entry of its allowance, and the bill is filed within the thirty days allowed,, but the entry on the journal only states the date of the filing of the bill without sating that it was filed as of the previous term, the presumption will be that the bill was filed as of such previous term.</p> <p>Sale of furniture and boarding house by false representations— Measure of damages—</p> <p>(4). Where the sale of furniture in a boarding house at a certain price was induced by representations as to the profitableness of the boarding house, and the certainty of a renewal of the lease, which were found to be false, in an action for damages the measure of damages would be the difference of what that property, as it was — on the basis as it was represented, and that re-rental, as it was represented — would have been worth to plaintiff if such representations had been true, and how much was it worth at the time of the gale if these material facts were untrue.</p>

<p>Testimony — Rule as to weighing same—</p> <p>Where witnesses on one side of a controversy give testimony which is reasonable and consistent with itself, and other witnesses on the other side, contradict the testimony and testify to the contrary matter, it is not proper to disturb the finding of the jury either way, though their finding is contrary to the testimony of the greater number of witnesses. But the probative force of the testimony of any witness is not derived solely from his direct deposition as to any given matter, but' is rather the final result of all his averments bearing on the matter, when considered and analyzed with reference to known circumstances and facts. This may leave the matter supported not by the full force of the witness’ observations, but only by such strength as is left in them after they have been weakened by the other statements of the witness himself, or by the known and settled order of things.</p>

<p>Boy on railroad track — Trespass—When not entitled to damages for injury—</p> <p>Where in an action by an admln:strator for wrongfully causing the death of his intestate, it appeared from plaintiff’s evidence that the deceased, with other boys, for no purpose connected with the railroad company, or its operations, or business or interest, and without the consent of his parents, but against the warning of his mother, went upon the railroad tracks of the defendant; that his purpose was to amuse himself, probably, with these other boys, and to pick up coal and carry it away — for he appeared to have had a basket with him-and was apparently in the act of stooping to pick up coal when he was struck dead by the train which came up behind him, his attention being probably directed to this purpose of getting the coal, and he was thus prevented from seeing the train which was approaching him from behind, it is a case in which the deceased if he had survived would not have been entitled to damages from the R. R. Co., and is it proper for the court, on motion of the defendant R. R. Co., to instruct the jury to return a verdict for defendant.</p>

<p>Dower right of wife in land mortgaged by her husband before marriage—</p> <p>A wife is entitled to dower in land of her husband mortgaged by him before marriage, and only those claiming through, or having a right to claim through the mortgage instrument, can defeat the wife’s right of dower. A mere judgment creditor cannot set up the foreclosure proceedings to defeat her right of dower; but as against his judgment, she has dower in the whole premises.</p>