Volume 18 — Ohio Circuit Court Reports

<p>Error to the court of Common Pleas of Defiance county.</p>

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

<p>Gas and oil lease — Modification of terms by assignee of lessor without consent of creditors—</p> <p>(1.) An assignee for creditors of a farm upon which there is a valid oil and gas lease, can not modify such lease and change the “royalty” of the lessor therein provided for; and a subsequent approval of such modified lease, merely endorsed thereon by the probate judge, without the application or consent of the creditors, gives it no validity; and such modification is void as against a purchaser of the farm at the assignee’s sale, although the sale was made subject to all legal contracts for oil and gas, and the purchaser knew of such modification at and before the purchase.</p> <p>Same — “Income” defined—</p> <p>(2.) In such case, where the original lease provided for a “royalty” of one-eighth of all the oil produced and saved, to be delivered to the lessor in tanks or in pipe lines to his credit, free of expense; and if any well should “produce gas in sufficient quantities to justify marketing, the lessor shall be paid at the rate of one-eighth income dollars per year for such well so long as the gas therefrom shall be sold,” the “income” referred to is the gross income, and not the net.</p>

<p>Jurors before justices of the peace, in prosecutions for violation of pure food laws—</p> <p>W. served asa juror, before a J. P., in a prosecution of S. for violation of the pure food laws. S. was convicted and sentenced to pay a fine and the costs of prosecution, and to be committed to jail until such fine and costs were paid. S. began proceedings in error, and gave bond for stay of execution of the sentence, and was not oommitted to jail.</p> <p>J3eld, that W. was entitled to be paid out of the county treasury his fee for such services as juror.</p>

<p>Mechanic's Lien — Necessary averment — “ Authorized Agent”—</p> <p>(1.) An averment in a petition by virtue of which it is sought to perfect a mechanic’s lien under favor of B. S. 8184, stating “That under a certain verbal con ract with the said principal contractor who, at the time of ordering said materials, was an agent and contractor ot said owner, ” is insufficient to satisfy the requirement of the statute which provides that such contract must be entered into by the owner or his authorized agent.</p> <p>Same — Notioe by sab- contractor to owner — Actual Notice required. (2.) Where the statute requires notice to be given to the owner by a sub-contractor in order to secure a lien on the fuod in , his hands, although silent as to its form or manner of service, actual notioe alone will satisfy its requirements, and an averment that the owner has absconded or is inaccessible is not equivalent to notioe or an excuse for failure in that regard.</p>

<p>Contract in restraint of marriage during life of one of parties void — Public policy—</p> <p>(1) . A contract by which a girl agrees to take care of and keep house for a relative and not to marry during his lifetime, in consideration that he would provide for her bountifully, is against public policy as in restraint of marriage, and although faithfully carried out by the girl, can not be enforced in the courts.</p> <p>Consideration part legal part illegal, but a unit — Can not be separated—</p> <p>(2) . Although in such a contract one part of the consideration— the performing of services — is legal, yet the consideration is a unit and can not be separated, and the entire contract is void.</p>

<p>Public contract — Sec. 3303, subd. 4 R. S. — Mandatory—</p> <p>(1) The provisions of sec. 3303, subd. 4, R. S., are mandatory, and must be strictly complied with and the board of city affairs has no right to enter into a contract with a bidder or bidders who fail to comply with the provisions thereof, and in a proper case, the making, of such contract should be enjoined by the court, or if made, should be cancelled</p> <p>Same — See. 2702-2 R. S. mandatory — Contract can not be-awarded to one in default to the city—</p> <p>(2) . Sec. 2702-2, R. S., which provides that “no bid shall be accepted from, or contract awarded to any person who is a defaulter as surety or otherwise, upon any obligation to the corporation” applies to the city of Cincinnati, and is mandatory in its character, and a coitract should not be made with a firm one of the members of which was such a defaulter.</p> <p>Same — Next lowest bidder not absolutely entitled to the contract—</p> <p>(3) . Where, through inadvertance or otherwise, the board has entered into a contract with a person who was the lowest bidder, but who had not complied with the mandatory provisions of the statute, and tnerefore is not entitled to be considered as a bidder, the next lowest bidder, if he has complied in all respects with those requirements, is not absolutely entitled to have the contract awarded to him at his said bid.</p> <p>Same — Serrman v. State. 11 C. C., 504, overruled—</p> <p>(4) . The holding of this court in Herrmann v. State, 11 O. C. C., 301, to the effect that where the bid of the lowest bidder must be rejected for irregularity or other sufficient reason, the next lowest bidder would be entitled to the contract, is overruled.</p>

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

<p>Defective Sidewalk — Constructive notice to city—</p> <p>(1) . The true rule as to constructive notice to city of defective condition of sidewalk is that if the defect is shown to have existed such a length of time that the city authorities by the exercise of ordinary care would have known of its existence and could have repaired it, then the city is chargeable with Constructive notice of such defect.</p> <p>Same — When city liable—</p> <p>(2) . To hold the city liable, the jury must first find that the city was guilty of negligence through want of ordinary care, either in not ascertaining the defect and repairing it, or in not repairing after acquiring Knowledge thereof, actual or constructive.</p> <p>Same — Duty of party to take opposite side of street—</p> <p>('3). Where a party might have avoided injury from a defect in the sidewalk by walking in the street or on the opposite side, yet a party is not bound to take the opposite side of the street unless he had reason to apprehend danger at this place.</p>

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

<p>Evidence as to motive and intention — When competent—</p> <p>(1) , A party whose motives or intentions are called in question and made an issue in the case, may testify as to his motives and intentions.</p> <p>Employer & Employe — Injury from defective machinery — Promise tojepair—</p> <p>(2) . Where a master has expressly promised to repair a defect in the machinery, the employe, without becoming guilty of contributory negligence, may continue to work thereon such reasonable tim6 after the promise as would be necessary for the employer to perform his promise; and in an action for damages for injury from such defective machinery, suffered after such promise by the employer, it is competent to ask such employe whether his belief in and his reliance on the promise of the employer to repair induced him to continue to work on such defective machine.</p> <p>Independent contractor — Distinction, as against employe—</p> <p>(3) . The distinction between an independent contractor and a mere employe, is that a party to be an independent contractor must have undertaken the work as a job, and that in carrying out that job he is not subject to the control of the employer.</p>

<p>Employe employed by several parties jointly, for several services— Liability for injury through his negligence—</p> <p>(1) . Where three families hire a man to serve them all as a coachman, each of such families paying one-third of the wagss, and the carriage and horses belonging to different ones of such three families, the relation ' between the three families is not that of partnership; and where, while driving a member of one of these families, a party is injured by the uegligence of such driver, such family who at the time is using the carriage and horses, is alone liable for damages for the injury.</p> <p>Violation of city ordinance as conclusive evidence of negligence—</p> <p>(2) . A charge that where a party drives his carriage around a street corner in a city faster than a walk, in violation of an ordinance of such city, such violation of the ordinance of itself amounts to negligence independently of all other facts, is erroneous.</p>

<p>Extradition — Habeas corpus to re-hear the case by other judge on other evidence not admissible—</p> <p>(1). Where in an extradition proceeding under sec. 95 et seq., R. S., the alleged fugitive has been brought before a judge having proper jurisdiction, and the case has been heard and the • questions to be determined under the statute have been determined by such judge from the evidence adduced and the alleged fugitive ordered into the custody of the sheriff for extradition; a writ of habeas corpus' can not be issued by another judge having jurisdiction, under the Ohio statute, although a judge of a higher court,, to re-hear the case and to determine the same questions passed upon at the first hearing on the same or on different evidence.</p> <p>Same — Proceeding reviewable on error—</p> <p>(2). Under the amendment of sec. 97, passed in 1898, (98 O. L.„ 255;. such proceeding is reviewable on error where the entire record of the case may be reviewed by the appellate court; but until reversed for error, the judgment and orders of the court in the first proceeding remain in force.</p>

<p>Notes executed under contract not in accordance with it — Burden ■of proof to show agreement—</p> <p>Where in a written contract lor the sale oí land, to be paid lor in installments, the deferred payments being represented by promissory note, the scrivener in preparing the notes for signature makes them bear interest irom an earlier day than appears agreed upon in the contract, and the payor claims that he inadvertently signed such notes, charging fraud against the payee, an inspection ol the contract showing that interest on the notes was chargeable from a later date than that designated in the notes, the burden is on the payee to show that the change in the date from which interest was tobe charged was made by mutual agreement; and where he fails to establish such fact, and has sold the notes to innocent parties, the ■payor may recover the additional amount in interest so ■charged against him from the payee.</p>

<p>Deed, not delivered, left with third party without instructions to deliver, of no effect—</p> <p>(1) . A deed made by a father to some of his children for a strip of ground to be used by them as a roadway, as against other of his children, not delivered, and found several years after the grantor’s death in the hands of third party, not as an. escrow, and without any direction for the delivery thereof under any contingency, confers no rights.</p> <p>Go-tenant holding other out of possession — Ejectment or trespass-proper remedy, not injunction — -</p> <p>(2) . One co-tenant can not enjoin another co-tenant depriving. him of the use of a part of the land where all are entitled to the-possession of it, and if one wrongfully keeps his co-tenant, out of possession, ejectment or trespass would be the proper remedy, but not injunction.</p> <p>Bight of way under verbal contract and possession — Extent~</p> <p>(3) . Where parties claim a right of way by contract not in writing and possession, they are limited to the width of the way so taken possession of and accepted.</p>

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

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

<p>Slander — What words are slanderous per se—</p> <p>(1) . In an action for slander,wherein it is alleged: “In place of</p> <p>trying to track around here you had better been to home tracking the man that burned your house and you would track him in your own door. You know you burned it. You took the money and built a barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money,and had taken the insurance money and built his bain; such words are actionable per se.</p> <p>What may he shown under general denial—</p> <p>(2) . The defendant in view of mitigating damages may give evir dence of a general report in circulation prior to the publication complained of, that the plaintiff was guilty of the charge then imputed to him. This is relevant only to rebut the presumption of malice and thereby mitigate damages, and the fact that, it tends to prove the truth of the charge is no ground for its exclusion.</p>

<p>Salo of property for dilinquent taxes—</p> <p>(1). An entry “payment not tendered” is not sufficient to authorise the placing of property, on the delinquent' tax list.</p> <p>12). The requirements of sec. 2864, R. S., as to advertising delinquent tax sale, and sec. 2870, E. S , fixing the third Tuesday of January for the sale must both be complied with.</p> <p>(3). “Want of time to prepare delinquent tax list",is not one of the reasons under see. 2904a, R. .S, for postponing advertisement of delinquent tax sale. “Mistake or inadvertance” are the only reasons provided by the statute.</p>

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

<p>Refunding Bonds — Power of Council — Must not exceed in amount original bond issue—</p> <p>(1) Under sec. 2701, R. S., a municipality is authorized for the purpose of extending the time of payment of a bonded indebtedness which the corporation is unable to pay at maturity, or when it appears for the best interest of a municipal corporation, to issue refunding bonds “so as to change, but not to increase the indebtedness,” in such amounts and at such rates of interest as the council deems proper. Where therefore outstanding bonds are refunded before their maturity, at a lower rate of interest and at longer time, the council is authorized to issue refunding bonds to an equal amount as the original bond issue. But whero such original bonds were sold at a premium, the council has no authority to provide for the issue of additional bonds in excess of the original bond issue to compensate the holders of such original bonds for the premium so paid on the original bonds,nor can such an issue of additional bonds be authorized by a separate resolution or ordinance, and bonds issued for such purpose are invalid.</p> <p>Same — Bonds executed and sold before time fixed in ordinance for their issue — What not innocent purchasers—</p> <p>(2) . Where the ordinance for the issuing of bonds provides that such bonds should be issued on a certain day, and the bonds in fact are dated on that day, and show that they were signed by the proper municipal officers on that day, and before that day, and before the date the ordinance itself could go into operation under the statute, an injunct’on was allowed restraining the respective municipal officers from issuing such bonds, but as a matter of fact such bonds were signed by the officers and issued before such injunction was allowed, the purchasers thereof who acquired possession of them in such an ' irregular manner, can not be considered innocent purchasers, and are not entitled to any rights as such.</p>

<p>Bill of exceptions — The entry upon the journal of the allowing and signing of the bill must be made within fifty days—</p> <p>Under the last amendment of sec. 6302, R. S., of March 22, 1892, (89 O. L-,125) bills of exceptions must not only be allowed and signed within fifty days after the overruling of a, motion for new trial, but the entry of the allowing, and signing of the same upon the journal must also be made within the fifty days; and where a bill of exceptions was allowed and signed within the fifty days, but by inadvertance the entry upon the journal of such fact was not made within the fifty day», the court can not afterwards by a nunc pro tunc entry as of the time of the allowing and signing of the bill of exceptions cure the defect, and give validity to such bill of exceptions.</p>

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

<p>Street Car Aeeident— Use of divided dashboard on cable car as ■ negligence—</p> <p>(1) . Where the claim of the plaintiff was that while riding as a passenger on a grip car of defendant company he was thrown from the rear platform of the ear and was thereby injured, and that such accident was caused by the negligence of the company in the operation of its railroad, and in furnishing inadequate safe guards for the rear platform of such car, and that by a sudden jerk thereof, he was thrown from the rear platform of said car over a divided dash board, and the evidence offered in chief by the plaintiff showed that a divided dash board for the rear platform of such grip cars was necessary and proper, and that in other large cities such dash boards were used, and that it was a perfectly safe method, and there was no evidence to the contrary of this, it was not proper,against the objection cf the defendant, for the plaintiff to offer evidence tending to prove that on another cable road in the same city, grip cars with divided dash boards had been abandoned, and that the defendant company on their, road was now using some grip cars with solid dash boards. Such evidence, if admitted, standing alone as it did in this case, would not legitimately tend to show that the defendant was negligent in the use of divided dash boards. But as there was no evidence tending to prove that the use of divided dash boards was negligent, or not proper, but all the evidence offered tended to prove that it was not negligence, the ruling of the court admitting it, perhaps was not prejudicial to the defendant.</p> <p>Negligence — Too short stops to leave off passengers—</p> <p>(2) . It was not error to admit evidence on the part of the plaintiff tending to prove that for several years prior to the injury to the plaintiff, the cars of the defendant company were accustomed to make a short stop at the street crossing where the plaintiff wished to alight from the car on this day, and not long enough to allow passengeis to leave the car safely, as he well knew. Such evidence was admissible as tending to show that the plaintiff in leaving his seat and walking to and perhaps upon the rear platform while the car was in motion, did not act negligently and thus contribute to his own injury.</p> <p>Measure of damages — Value of services before and^after accident—</p> <p>(3). Evidence given by a person having knowledge of the facts, that the services of the plaintifi in the line of his business were worth to the firm of which he was a member, before he was injured so much,and that after he was injured,and in consequence thereof, they were worth only so much, is competent. But it is nor competent in such a case for the plaintiff to show on the question of the amount of damages, that before he was injured he received from the firm for his services so much, and that after his injury by arrangement with the firm he was to receive a much less sum for his services.</p> <p>Evidence■ — Impeaching witness—</p> <p>(I). Where a witness, called by the defendant company testified-as to what happened at the time of the accident to the plaintiff and as to the construction of the car and other matters, , and was thereupon cross examined by plaintiff’s counsel as to statements alleged to have been made by the witness to the plaintiff in an interview between them after the accident in conflict with his evidence on the stand, and denied making such statements, and on re-examination testified- that in the interview referred to plaintiff admitted that he himself was to blame for the accident,and that he blamed no one else for it, and on rebuttal by plaintiff, evidence was allowed to be given as to what was said by both parties at said interview — Held, that this was not error to the prejudice of the defendant company. The plaintiff might have contented himself by having his witness say that a particular statement was made by the witness whose evidence was sought to be impeached by the plaintiff, or that the plaintiff did not make the admission as averred. But he might prove all the conversation on the subject, and then prove what be claimed.</p> <p>Duty of Str. R. R. to passenger — Fact of accident as prima facie proof of negligence—</p> <p>(6). A charge of the court to the jury in a case of th.is' kind to the effect, that it was the duty of the defendant company to carry the plaintiff, a passenger, safely to his destination without injury, and that if it was shown that it failed to do so, and the plaintiff was injured without his fault, that such failure put the defendant, prima facie, in the wrong, and the burden devolves upon the defendant company to show that the injury was the result of a pure accident, and that it could not have been averted by the exercise of the utmost care and skill which prudent men are accustomed to exercise under similar circumstances, states the law too strongly against the defendant in a case of this kind, and is erroneous.</p>

<p>Void Assignment for Benefit of Creditors — Jurisdiction of Probatí Gourt—</p> <p>A probate court cannot hear and determine an action brought by stockholders of a corporation to set aside an assignment for the benefit of creditors of such corporation, upon the ground that such assignment was uncalled for, unnecessary and made in fraud of the rights and interests of creditors and stockholders by a minority of the directors of the corporation, as such court has no jurisdiction of the subject-matter of such action.</p>

<p>Notice of appeal — Transcript oj record must show.</p> <p>P). Unless the transcript of the record below shows that due notice of intention to appeal was given, a motion to dismiss the appeal must be granted, notwithstanding bond for appeal was executed.</p> <p>Same — What not sufficient — Nunc'pro tunc entmj.</p> <p>^2). A petition in error to reverse an order of the common pleaa refusing to grant a motion Sled by leave to enter nunc pro tune upon i+B journal a notice of appeal where an entry is found in the papers granting said motion and endorsed with the initial of the trial judge and marked filed by the clerk, but where the trial court refused to permit such an entry to be made, and there are no bill of exceptions or facts before the reviewing court to show that there was error in refusing to make the entry, must be dismissed and the judgment or order affirmed.</p> <p>Same — Correction of Record.</p> <p>(3). Whether a record can be eonected so as to show notice of intention to appeal by a núnc pro tunc entry — Quaere.</p>

<p>Error Proceedings — Failure to malee all parties in record parties defendant.</p> <p>A motion to strike a petition in error from the dies must be granted where there were defendants in the original ease, other than the defendants in error, .who are substantial parties to the controversy, and whose rights were affected by the decree below.</p>

<p>Contract for use of water power of land owner with Hydraulic Co. — Failure to supply powei — Remedy provided in contract to be followed—</p> <p>(1.) Where it appears that about fifty years ago, the defendant, The Hydraulic Company, executed to Riley and others, then the owners of certain real estate situate on the hydraulic race of the defendant company, certain indentures or contracts in writing, signed and executed by all the parties thereto as re- ' ' quired by law in the case of deeds for real estate, and whereby said Hydraulic Company contracted to furnish to said lessees, their heirs and assigns forever, a stipulated quantity of water power, to be furnished- on said real estate then owned by said lessees, at a certain stipulated rental, of so much per year, payable one half on January 1, and the other half on July 1, of each year, and there was no express stipulation therein that the heirs or assignees of such original lessees were to be liable for said rental, but the payment thereof was secured by said indenture by which said original lessees conveyed said real estate to the Hydraulic Company by way' of mortgage, the conveyance to be void on the punctual payment of said rental, and which conveyance was duly recorded in the mortgage records of said county of Butler; and of which lands and of all the rights of the original lessees, the plaintiff is the owner, subject to said mortgage, by assignment from the original lessees. And where it further .-appears, that for several years past there has been a substantial failure on the part of the defendant company to comply ■with the provisions of said leases or indentures in furnishing the stipulated amount of water power to the plaintiff company, the assignee of the original lessees, and in the manner ■provided for, to its substantial injury, but that said leases or indentures contained explicit provisions as to the manner in ■which the original lessees, their heirs or assigns shall be compensated for a failure on the part of the Hydraulic Company to furnish the stipulated power, in the manner provided for for more than ten days in any one year, vis.: First, by a deduction to be made from the rent for the time over and above ten days in any year during which the company shall not supply the proper quantity of water according to the contract, and second, in case the Hydraulic Company shall fail to use reasonable diligence to keep their worKS in order, and thereby the proper quantity of water is not furnished, the said company is to be liable for the damage, over and above the rents to be deducted, as said lessees, their heirs and assigns shall sustain by reason of such negligence and want of reasonable diligence. And it further appearing that settlements of such damages have been made by the parties up to January 1, 1896, or July 1, 1896.</p> <p>Held: First. That on this state of fact, the plaintiff having notified the defendant company that it elected to put an end to said contract as of January 1, 1896, and that after that date it would no longer receive or pay for such water power, and that it requested that said contract be cancelled and held for naught, which the said defeudant refused to do, and asserted that said contract was perpetual; and thereupon plaintiff filed its petition praying the court to decree the contract at an end,-it is not entitled to the ruling sought, and the petition should be dismissed.</p> <p>(2.) The contract under which the plaintiff claims, having pointed out the manner in which the claims of the plaintiff for damages for a failure to comply with the provisions of the contract as to furnishing water power was tobe adjusted and those claims having been adjusted as therein provided, plaintiff can not in addition now call upon a court of equity to cancel such contract on account of such failure.</p> <p>(3) . As between the parties to this suit such indentures or leases, are not leases at will,and are not terminable at the election of the assignee of the original leases.</p> <p>(4) . Whether the plaintiff company as the assignee of the origin inal lessee is personally .liable for the yearly rental is not decided. The reat estate so mortgaged by the original lessors is liable for tne rent that may become due under the terms of the contract.</p> <p>(5) . Under the charter of the Hydraulic Company as amended, it had the authority to make perpetual leases of this character.</p>

<p>Contract ultra vires — Power of legislature to validate—</p> <p>(1) . The legislature may by a subsequent law validate acts and contracts made ultra vires by municipal corporations, if the defect sought to be removed or made harmless be something which the legislature by a prior law might have authorized or made immaterial.</p> <p>Later judgment on same subject, when invalidates former contrary judgment—</p> <p>(2) . Where a party has obtained a judgment or decree in his favor, and afterwards becomes a party to another action in which such prior judgment or decree was or could have been plead as a bar to the second action, but either fails to make the plea, or making it, the plea was overruled for any reason, and a contrary judgment or decree is entered in the second case, the latter judgment will govern, and the former judgment or decree will be in effect annulbd.</p> <p>Sale of Str. Railroad — Franchise—Former judgment superseded by later—</p> <p>(3). A purchaser of a line of street railway under a decree of a United States court in foreclosure, holding that a previous decision of the state supreme court is not conclusive as to the corporate capacity of the defendant mortgagor to acquire the line of railway, has a right to look to such decree as a source of title, and will take a good title to the right of way and franchise of the mortgagor therein held to be valid.</p> <p> Subrogation of purchaser to rights of mortgagor Co.— </p> <p>(á). The purchaser at a sale made for the enforcement of a mork gage or other lien, is subrogated to the rights of the original lien holder even though the proceedings were invalid and his purchase avoided.</p> <p>Street Railroad — Power of village to declare a nuisance—</p> <p>(5) . A village or municipality, which was not a party to the suit in the United States court, can abate said railway as a nuisance in its streets, if at all, only by due process of law; and threats of tearing up the tracks by the municipality gives the railway company a right of action against the village by injunction.</p> <p>Action of council granting franchise to Str. R’y — When can not be annulled later—</p> <p>(6) . Where a village, through its council, invited and induced a street railway company to enter its corporate limits, and occupy its streets with tracks for the purpose of operating a street railway, and the company thereupon built and equipped a railway in its streets, and made large expenditure in so doing, the village cannot thereafter repudiate the action of its council on the ground that their proceedings were irregular.</p>

<p>Bill of Exceptions — From when the fifty days run—</p> <p>The time within which a petition in error mav be filed begins to run from the date of the rendition and entry of the judgment, notwithstanding the trial court on a subsequent date overruled a motion for a new trial and made separate findings of fact and conclusions of law.</p>

<p>Ditch fr,om upper to lower county — Power of upper county to enlarge, etc. —Arrangement with lower county required■—</p> <p>(1). Through parts of the counties of Hancock and Wood is a joint county ditch, located and constructed by the joint action of the Boards of Commissioners of said counties, as provided by law. Hancock county is the “upper county”. The Board of Commissioners of Hancock county, upon petition for that purpose filed with the auditor of said county, order that the portion of said ditch serving in Hancock county, be enlarged by deepening and widening, thereby accelerating the flow of water, and taxing the outlet in Wood county as originally constructed far beyond its capacity; and all this without notice to, agreement with, or the consent of, the Board of Commissioners of Wood county. Held, that such action of the Commissioners of Hancock county is not warranted by the statute, and that their order made in that behalf is inoperative and void.</p> <p>Same — Injunction granted adjacent land-owner— When proper—</p> <p>(2). That the plaintiff, whose lands will be damaged by the enlargement of said ditch and its effect, inasmuch as it does not appear from any information imparted by the record that the action of Baid defendant commissioners is irregular,he may have remedy by injunction.</p>

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

<p>Attorney’s fee in action under see. 1777-9 Rev. Stat. — Measure of compensation—</p> <p>The amount or compensation to be allowed by court, under section 1779, R. S., to the attorney for a tax-payer in the performance of a public duty, should have reference to that paid to public officers for similar services, rather than to the amounts which individuals might feel like paying their attorneys.</p>

Error ot the Court of Common Pleas of Hancock county. The suit in the lower court was upon a promissory note for $450, executed and delivered by Ollie E. Yager to Oscar V. Wood, on the 7th day of November, 1892, which by its terms, was negotiable and to become due and payable with interest four years from its date.

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

<p>Continuing and subsisting trusts — Limitation—■</p> <p>(1) . Section 1971, of the Revised Statutes, in excepting from limitation of actions, continuing and subsisting trusts, simply recognizes and saves an existing rule.</p> <p>Trusts of this character, arising as they do by appointment of law or by contract or by deed, there is no time when the cause of action accrues; but the cause of action exists at all times from the creation of the trust, and continues and subsists with the continuing and subsisting obligation enjoined by the trust, and is a part of it. The trust can only be satisfied by performance.</p> <p> Partner’s claim on dissolution of firm not subsisting trust— </p> <p>(2) . When at the dissolution of a partnership, the only duty of one partner is to pay to his co-partner the amount due him under the agreement of dissolution, such obligation to pay does not assume the character of a continuing trust. But when the obligation to pay becomes absolute, and the obligor ceases .to be a partner and becomes a debtor, the right to compel payment by action accrues and, from that time the statute of limitation runs.</p>

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

<p>Act establishing city and justices’ courts in Toledo — Requirement that appellants from those courts pay all costs adjudged before appeal unconstitutional--</p> <p>So much of the act of the legislature, passed April 25, 1898, (98 O. L., 322 sec. 621-5, R. S., Bates Statutes), as requires parties who taire their cases from the city and justices’ courts of Toledo, created by that act, to the cuurt of common pleas, to pay all of the costs adjudged against them in such city and justices’ eourts, constitutes a condition not required by the general law of the state relating to appeals from justices’ courts,and is unconstitutional ; and the common pleas court of Lucas county has no-jurisdiction to dismiss a case appealed to it from such city and justices’ court, for failure of the appellant to pay all the costs adjudged against him in such lower court.</p>

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

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

<p>Board of Elections of Cincinnati — Authority to employ attorney—</p> <p>(1) . On the admitted facts in this ease, as hereinafter stated. Held, 1st, that the board of elections of Cincinnati had the right to employ the relator, an attorney at law, to perform the services rendered by him to such board, and from the funds appropriated to the use of said board to pay him a reasonable fee therefor, and that the same was not invalid under the provisions of sec. 1781, Rev. Stats.</p> <p>Same — Duty of City Auditor — Voucher failing to state fund on which drawn—</p> <p>(2) . Under the provisions of sec. 1765a. Rev. Stats., sub. 2& 3, it is the duty of the auditor of the city of Cincinnati, “to keep separate accounts for each specified item of appropriation made to each department, and require all vouchers to state specif!eally against which of said items the same are drawn”, and ■ that “he shall not allow the amount set aside for any appropriation to be overdrawn, or the amount appropriated for one item of expense to be drawn upon for any other purpose * * * nor unless sufficient funds out of which said voucher is payable, shall actually be in the treasury at this time to the credit to the item upon which it is drawn”. These provisions are mandatory, and as the voucher it, this case was not drawn upon any particular item, and as there were not sufficient funds to the credit of the account upon which the voucher should have been drawn to meet the same, the auditor was justified in refusing to draw his warrant in payment of the same. ■</p>

<p>Successive assessments for same improvement valid—</p> <p>(1) . One assessment levied to pay the cost of improvement of a-street does not exhaust the power of council in that behalf;.: where such assessment is insufficient to meet the- whole cost of the improvement, a subsequent assessment, levied to pay. damages for change of grade, that item having been omitted' from the first assessment, held valid. Sections 2290 and 2300-construed.</p> <p>Absence of provision in ordinance for payment of assessment in ¡ cash—</p> <p>(2) . That the assessing ordinance does not provide for payment. of the assessment in cash if the abutting owner wishes so to pay, does not make the assessment absolutely null and void;: the owner has this right, and may exercise it if he desires.</p> <p>Change of grade incidental merely to improvement, Cost properly-assessable—</p> <p>(3) . Where a change of grade is not the thing that occasioned' the making of an improvement, but mere incident to such improvement, the cost of such change of grade is a proper item< to be included in the assessment.</p> <p>Condemnation of land to widen street separate from improvement' of its surface—</p> <p>(4) . Independent proceedings for the condemnation of a strip of land necessary for the improvement of a street to width ordered having been taKen, it is no defense that the sum of the condemnation and improvement assessments exceeds the preliminary estimate for the cost of the improvement. The con^-damnation and surface improvements are separate and distinct.</p> <p>Assessment for widening street assessable on lots abutting on the■ part widened—</p> <p>(5) . The condemnation being a separate improvement, the assessment therefor should not be levied on the entire length of the street improved, but only on such leDgth of the street as is' ■ widened, both sides of the street widened to be assessed.</p> <p>Assessment on remaining land of award for land taken by condemnation without regard to benefits unconstitutional—</p> <p>(6) . An assessment re-condemning from a property owner an' award made to him for property taken from him,by imposing on his abutting property an assessment by the front foot, without reference to Bpeeial benefits, is in violation of“both the state and federal constitutions, and invalid.</p>

<p>Taxation — Illegal increase of valuation by Auditor — Payment of half year’s taxes as illegally increased — Injunction from collecting second half—</p> <p>Where the county auditor, without legal authority, has increased the valuation of a party’s property on the duplicate, and such party pays the half of the taxes for the year so placed on the duplicate without protest, the half of the annual taxes as increased being more than the entire annual taxes on such property as legally valued, and he then ,brings an action to enjoin the collection of the second half of the taxes for the year on the ground that his payment on account of the first half of his taxes as. illegally increased by the auditor amounted to more than the amount of the taxes on his property as legally assessed for the. whole year, such injunction will be granted, although his first payment was intended by him and accepted as the half only of his taxes for the year, he being then unaware of the illegality ■ of such increase by the auditor.</p> <p>Justice to be done in every casein every case where the court could do justice without violating some provision of the law, it is its duty to do it.</p>

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

<p>Resignation of officer — Sow manifested—</p> <p>(1) . A mere intention to resign is of no effect whatever until it is. manifested in some way, and the way required to accomplish it is to convey the resignation to the person who is by law entitled to fill the office.</p> <p>Same — Resignation addressed to mayor elect not yet in office—</p> <p>(2) . Where a public officer addresses his written resignation to the-mayor elect, but not to the mayor of the city still in office, the latter, who by mere rumor or newspaper notices has become acquainted with that action on the part of such officer, has no authority to appoint a successor to fill such office.</p> <p>Term of office — When commences when statute fails to specify time--</p> <p>(3) . Where there is no time fixed by statute when an officer shall-: take his office and enter upon his duties, then his .term commences immediately if he sees fit to enter upon the duties of it,, and, if he does not, it is a mere waiver upon his part. The requirement of the oath, or of the bond, or any other thing that the statute may require, although the statute may be explicit, is merely directory language, and is not mandatory, and not a condition precedent to his entering the office.</p>

<p>Judgment — Correction of entry erroneously statina its date — Sec. 5354, E. S.—</p> <p>(1). Where it is claimed that the entry of a judgment as of a certain date is erroneous and a motion is made to correct such entry so as to show the true date at which such judgment was rendered, the overruling of such motion is a final order made in a special proceeding and affecting the substantial rights of the parties, and may be reviewed, and if erroneous, reversed on error.</p> <p> Same^Written notice to adverse party required-— </p> <p>(2;. The date of a judgment is a material part of it, and where it is claimed that the entry of such judgment gives an erroneous date of its rendition, and a correction of such entry is asked, the proceeding provided by see. 5354, R. S., must be followed, and notice in writing to the adverse party as required by see. 5354, R. S., is necessary.</p>

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

<p>ErroN to^ ibe ’ Court of Common Pleas of Cuyahoga county,</p>

<p>Railroad — Unnecessary assault on trespasser on train — Liability—■</p> <p>"Where the plaintiff is upon the defendant’s train with no criminal intention toward defendant’s servants or property, but in violation of law and as a trespasser, his presence there does not forfeit him the plain rights with which the law clothes him as a man and as a citizen. And while the servants of the defendant company may remove him from the train, and use the necessary force to do so, the law still shields him from violent, unnecessary and malicious assault at their hands in so removing him, and if injury result from this cause, he is entitled to recover.</p>

<p>Common Carrier — Stoppage in transitu — Delivery of goods to wrong party — Liability of carrier—</p> <p>(1) . H. of Cincinnati consigned to G. at Omaha, Nebraska, by common carrier two barrels of whiskey, purchased on credit, and after the consignment and before delivery of the goods, learning G. was insolvent, H. stopped the goods in transitu and ordered them delivered to O., his agent in Omaha. The carrier had notice, and agreed to deliver the goods to said agent, bat notwithstanding said notice and agreement, delivered the goods to a person other than the consignee or agent as directed, and the goods were lost to H.</p> <p>Held: In an action against the carrier to recover the value of’ the goods, that it was not necessary for 11. to show that the consignee was insolvent at the time of the consignment, became insolvent after the consignment was made, or that he had received such information as acting in good faith, led him to believe the consignee was insolvent at the time of consignment, or had afterwards become insolvent.</p> <p> Same- - </p> <p>(2) . After stoppage in transitu the carrier acts at his peril in delivering the goods either to the consignor or consignee, and to protect itself from liability,may by action bring the goods into court and require the claimants to determine the right of possession.</p>

<p>Restriction in deed as to manner of building—</p> <p>A restriction in a deed that there Bhall be “no building erected on the property herein conveyed costing less than $1,500”, applies not only to the first building erected on the land, but to any other building thereafter erected on the land. Hence, the erection and maintenance of one building costing $6,000 will not permit the owner to erect another building costing less than $1,500.</p> <p> Same— </p> <p>It is not necessary for the enforcement of such restriction that similar restrictions should be inserted in every deed of the allotment.</p> <p>Same — Who may enforce—</p> <p>Any adjoining- lot owner may enforce such restriction if he is a suosequsnt purchaser and it is for his benefit to enforce It.</p>

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

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

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

<p>Error to the Court of Common Pleas of Butler County,</p>

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

<p>Classification of counties inadmissible—</p> <p>(1) . The doctrine of classification does not extend to counties, so as to render an act conferring jurisdiction on courts uniform in its operation, which would otherwise be local.</p> <p>Court of insolvency of Hamilton County — Act of April 35, 1898r amending act of May 31, 1894, unconstitutional—</p> <p>(2) . The act of April 25, 1898, (93 O. L., 669) conferring jurisdiction on the court of insolvency in certain matters, and withdrawing such matters from the jurisdiction of the common pleas court, and conferring the right to appeal or prosecute error directly from the court of insolvency to the circuit court, and withdrawing the right to appeal or prosecute error to the common pleas, is unconstitutional for lack of uniform operation.</p>

<p>Adair Law — What constitutes an habitual drunkard—</p> <p>(1) . In an action by a wife against a liquor dealer for damages for selling liquor to her husband, under the Adair law, the charge of the court in defining what constitutes a habitual drunkard, to the effect that if the person had formed the habit of drinking intoxicating liquor to excess and of becoming intoxicated, whether that habit be to become intoxicated daily and continuously, or periodically, such a person would be an habitual drunkard, is not erroneous.</p> <p>Damages — Plaintiff entitled to compensatory and punitive damages.</p> <p>(2) . In such an action, plaintiff is entitled not only to compensatory damages for the injury sustained in her means of support etc., but to punitive damages also without any proof showing such damages. ■</p> <p>Exceptions to action of court in ruling out questions in its entirety—</p> <p>(3) . Where the court rules out a number of questions and answers in a deposition, and the adverse party preserves one exception only to . such aotion of the court in its entirety, the fact that a reviewing court will on error find'that some of the questions and answers ruled out were competent, will not constitute prejudicial error as to such party and entitle him to a reversal to the judgment below.</p> <p>Motion for new trial for excessiveness of verdict — What must state—</p> <p>,(4). A motion for new trial on the ground that the verdict is excessive will not be granted unless it states in the language ■of the statute, that the verdict appears to have been given under the influence of passion or prejudice.</p>

<p>Holder of chattel mortgage suing for debt as for money icithout regard to his mortgage — Waiver of rights under mortgage— Homestead—</p> <p>Wber6 a vendor reduces his claim for balance of purchase money to judgment and takes the goods upon execution, there is’ a waiver by him of ownership by virtue of a chattel mortgage, and the vendee is entitled to homestead exemption out of such property.</p>

The defendant in error sued the Fountain Square Theater Company, owners, and'M. O. Anderson, lessee, for $500 damages, claimed to have been forfeited to him under the civil rights act by reason of the refusal of the ticket seller at the Fountain Square Theater to sell to him tickets to the parquet of said theater, the reason given for said refusal being that all the seats in that part of the theater were sold, when, as a matter of fact, the seats were not all sold, and said…

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

<p>Resolution to improve — Omission of one item of improvement in ordinance — Effect—</p> <p>(1.) Where the resolution to improve correctly and fully describes the improvement found necessary, but the ordinance omits to state one item of such proposed improvement, which however was necessary and actually made, which appeared on the specifications on file in the office of the city engineer, and which resolution is directly referred to in the ordinance, such omission in the ordinance will not invalidate the assessment.</p> <p>Assessment on tract of its entirety — Parts of tract not considered by themselves as to value—</p> <p>(2.) Where the assessment for a street improvement is on the front feet of an entire tract of land which abuts thereon, the tract has to be considered as a whole in determining whether the assessment amounts to more than 25 per cent, of the value of the property after the improvement was made, and a part of such tract of land as to which the assessment would amount to more than 25 per cent, of ics value, can not be considered by itself without regard to the rest and the assessment as to it reduced to 25 per cent, of its value</p> <p>Decision in Baher v. Norwood — Bearing on assessments by front foot—</p> <p>(3.) The question of assessments by the front foot was not directly involved in the case of Baker v. Norwood, the question there being whether when the property of one person is condemned by a municipal corporation, the condemnation money, with all the costs and expenses of the condemnation, can legally be assessed upon the owner of the property from whom it was taken. No other question was before that court, and in view of the repeated decisions of our own courts as to the legality of assessments by the front foot, this court is Jnot disposed to hold them invalid.</p>

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

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

<p>Injury in other state — Right of action in this state depends on right in other state—</p> <p><1). An action against a railroad company operating a railroad partly in this state and extending into a neighboring state, for damages for the death of plaintiff’s intestate — an employe of such company — alleged to have been caused by the negligence of such railroad company in the other state, can not be maintained unless by the laws of the state where the accident occurred a cause of action is given in such ease. And the fact that the contract for employment was entered into in this state does not alter the case.</p> <p>Same — No right of action here where none in other state—</p> <p>(2). The laws of the state where the accident occurred determine ail questions involving the right of action in such case, and if the plaintiff had no right of action there, the action can not be maintained in the state of Ohio.</p> <p>When action for injury in other state maintainable in Ohio — See. 6134 B. S.</p> <p>(3) . Section 6134a, Rev. Stat., which gives the right to sue in the courts of this state for damages for injury sustained by negligence in another state, also limits that right by providing that such actions can only be brought here where by the laws of the state where the injury was sustained such actions are allowed in its courts for injuries sustained in Ohio. The test as to the right to recover in this state in such cases must be found in the laws of the state where the cause of action arose.</p> <p> Oonductor and brakeman fellow servants in Michigan— </p> <p>(4) . Under the laws of Michigan, the conductor and a brakeman on a train are fellow servants, and the railroad company is not liable in damages for injury caused to the brakeman by the negligence of the oonductor.</p> <p>Law of other state question for court—</p> <p>(5) . Where the law of another state is involved in some doubt, the decisions of the courts of the state not being uniform, it is not a question foe the jury, but for the court to determine what the law of the other state on the question is.</p> <p>Negligence of conductor in operating cars — Safe place to work defined—</p> <p>(6) . Where the act of the conductor charged as negligent consisted in having a car placed on a spur-track so close to the main-track that the train in passing that point struck the car thus placed whereby the braueman was injured, the railway company can not be charged to have thereby failed to furnish a safe place for the brakeman to work at. Such act is only negligence on the part of the conductor in the manner of doing his work. The term “place”, as used in the rules upon that subject, implies some degree of permanency in the situation and surroundings.</p>

<p>Mandamus to compel mayor to sign bonds — What petition must aver—</p> <p>The Mayor of a village can not be compelled by mandamus to sign bonds issued by the village for the purpose of extending the time of payment of an existing and binding obligation, unless the petition alleges that council has determined the particular indebtedness to'be valid which it is proposed tore-fund or extend, the aggregate amount of bonds to be issued, their denomination, rate of interest, date of maturity, place of payment, etc. in full conformity with the provisions of sec. 2701R. S.; and if the allegations are denied,there must be proof that council has substantially complied with the requirements of the statute.</p>

<p>Specific performance — Discretion of court—</p> <p>(1) . The granting of equitable relief by decreeing~speciñc performance of a contract for the sale of land is within the discretion of the court of equity, and is not demandable as an absolute right; but such discretion is not to be arbitrarily exercised, but is to be guided by the well settled principles of equity.</p> <p> Finding of court of equity same weight as verdict by jury— </p> <p>(2) . Where the findings and conclusions of a court of equity are attacked on error, they are entitled to the same weight and consideration as the verdict of a jury, and they will not be disturbed unless manifestly opposed to or unsupported by the evidence.</p> <p>Delay in bringing suit — What not laches—</p> <p>(3). Where an action for specific performance of a contract for the sale of land,made in 1893,is instituted after a lapse of four years, but it appears that during all this time the parties have been negotiating for a settlement and thar such delay was chiefly caused by the solicitations of defendant, plaintiff will not be considered guilty of laches.</p> <p>Parol evidence to add terms to written contract inadmissible—</p> <p>(41. Where is it claimed that the written contract sued on does not contain all the terms agreed upon, parol evidence to show additional terms will not be admitted unless such fraud or mistake is averred as would entitle the party to a reformation of the contract.</p> <p>Tender of deed, when not necessary — Vain thing—</p> <p>(5). Wnere, in a contract of sale of reality it is obvious from the actions of the proposed buyer that be will not accept a conveyance of the title, a tender of a deed by the vendor would be a useless ceremony, and such tender is not necessary to entitle the vendor to sue on the contract for specific performance.</p>

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

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

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

<p>Innocent purchaser— Title not affected by subsequent suit against grantor—</p> <p>(1) . A title acquired by an innocent purchaser for value can not be annulled in a suit against the grantor to which the purchaser or grantee is not a party. A decree against one who has parted with the title before suit is brought will”not"biñd those to whom the title has been conveyed.</p> <p>Plaintiff's suit for damages for tort — Not creditor of defendant before judgment—</p> <p>(2) . A claim for damages for alleged assault and battery is not a credit, and the plaintiff in such case is not a creditor within the meaning of the law upon the subject of conveyances in fraud of creditors, until his claim has been reduced to judgment.</p> <p>Judgments on suits after transfer of land — Not liens on property as against previous innocent purchasers—</p> <p>(3) . One dealing with titles to land is not bound to search the record to ascertain whether judgments or decrees have been entered against those who may have at one time owned the property in suits brought against them after they have parted with the title. Such persons are as much strangers to the title as persons who never had an interest in it, and there is no more reason for searching the records for judgments against one than the other. In neither case can the judgment become a lien upon or in any way affect the title.</p> <p>Fraudulent conveyance — Remedy of creditor—</p> <p>(I). A judgment creditor who is in a position to have a conveyance, made by his judgment debtor, set aside because fraudulent as to him as respects his judgment, may cause an execution to issue on his judgment and be levied on the land of his debtor, and may bring it to sale, and the purchaser may go into possession and defend his title thus acquired in ejectment brought by such fraudulent grantee,by showing the fraudulent character of the conveyance; or he may maintain an action to quiet title, or forcible detainer to recover possession from such fraudulent grantee; or, if necessary to obtain possession of the premises after purchasing at judicial sale made under the judgment, he may bring ejectment against the fraudulent grantee and obtain possession ; but whether he will recover or not in any of these cases, will depend upon whether he establishes and the court determines judicially that tho conveyance was as to him fraudulent.</p>

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

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

<p>Fire Insurance — Loss through negligenec of Railroad — Right of Ins. Go. to subrogation on payment of loss—</p> <p>(1). S., whose property to the value of 8125,000 had been destroyed by a fire caused by the negligence of a railroad company, and who was paid by the insurance companies the insurance which he had on said property amounting to about half the actual loss, entered into a written contract with these insurance companies by which he agreed to bring suit against the railroad company for damages for the destruction of his property', for the benefit of himself and such insurance companies, these companies to assist in and bear their part of the expense and cost of the litigation, and to be entitled to a certain proportion of the amount if any to be recovered. After suit was brought as agreed upon by S., naming himself and the insurance companies as plaintiffs,and after counsel provided by the insurance ■ companies had taken part in the preparation and prosecution of the case and it stood ready for trial, S,, without the consent or knowledge of the insurance companies, made an individual settlement with the railroad company and dismissed the case without paying or offering to pay to the insurance companies any proportion of the amount so by himself received. Held:</p> <p>(1) . Where a loss, covered by insurance, is occasioned by a wrong-doer, the underwriter, after reimbursing the owner in specie, or making compensation in money, is, in a proper case, entitled to be subrogated, quoad hoc, to the right of the assured against the wrong-doer.</p> <p>Same — Where insurance paid covers entire loss, Ins. Go. may sue in its own name—</p> <p>(2) . At common law such right must be asserted in the name of the assured. In a court of equity or of admiralty, or under the modern codes of practice, it may be asserted by the insurance company in its own name when it has paid the insured the full value of the property destroyed.</p> <p>Where insurance covers partial loss, owner and Ins. Co. must join— (3) . Where, however the value of property insured, and destroyed</p> <p>through the negligence of a third person, exceeds the amount of insurance paid, the insurer by making such payment, only acquires a joint interest with the owner to the extent of that payment in the cause of action against the wrong-doer to recover the whole loss; and in bringing such action, both the insurer and the owner must be joined as a co-plaintiffs.</p> <p>Agreement of owner with Ins. Co. to jointly prosecute suit — Consideration — Tmst relation—</p> <p>(4) . The agreement between S. and the insurance companies was based on an adequate consideration, and it was a valid and. binding agreement. Under this agreement, S. in this suit stood in the relation of a trustee to the insurance companies, and is chargeable with the duties as a trustee.</p> <p>Remedy of Insurance Co. on breach of agreement by owner — Direct suit against owner — •</p> <p>(5) . The insurance companies might have proceeded under sec. 5354, R. S., to have the entry of dismissal of the suit set aside on the ground of irregularity and fraud. But the remedy given by see. 5354, R. S., is cumulative, and the insurance company had a right also to proceed in an action against S. for having unlawfully dismissed the suit and given a judgment in favor of the railroad company to the injury of plaintiff, in violation of his agreement and of his obligations as trustee.</p>

<p>Proceedings in Contempt — Error will lie—</p> <p>(1) . Error lies to proceedings in contempt.</p> <p>Professional statement of counsel as evidence — Must be included in Bill of Exceptions—</p> <p>(2) . Where there is no evidence offered, but professional statements are made by counsel, these statements should be included In the bill of exceptions as evidence.</p> <p>Costs — Discretion of Court—</p> <p>(3) . The discretion conferred upon the court as to the awarding of costs is not an unlimited discretion, but it is a reasonable discretion and is reviewable on error.</p>

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

<p>E^ror to the Court of Common Pleas of Hamilton county.</p>

Quo Warranto. The petition in this case is tiled by the Attorney-General of the state, and its material averments are that each of the defendants is a corporation under the laws of Ohio, the first named having its principal place of business in the city of Dayton, in Montgomery county, and the second doing business in said county;]that eachAasAffendedAgainst the law3 of said state and the ordinancesAf said city,and grossly abused, misused and exceeded its ^corporate…

<p>¡f* Contract of administratrix with law firm, for share of judgment or sum of settlement, in suit for damages for death of R. R. employe —Settlement by R. R. Co. with administratrix without knowledge of attorneys — Suit against R. R. Co. and administratrix to recover share under contract—</p> <p>A^law firm brought suit for an administratrix against a R. R. Co., to recover damages for negligently causing the death o one of its employes, the intestate of the administratrix, after having made a contract with the administratrix that for their fees they should have a certain share of the judgment if any was recovered. They notified the R. R. Co. of their interest in and alleged lien on the result of the suit or any settlement thereof, but the R. R.Co., without their knowledge or consent, entered into negotiations for a settlement with the administratrix, and finally settled with her, payng her a certain amount of money, and agreeing to pay the fee of her lawyers, no amount thereof being agreed upon. The law firm thereupon brought suit for a certain portion of the amount paid in settlement of the claim, making the R. R. Co., the administratrix as such and individually, and the guardian of the minor children of the deceased as such and individually, parties defendant. On demurrer to the petition on the ground of misjoinder of parties, and generally for insufficiency of facts stated in the petition, held:</p> <p> No cause of action against administratrix as such— </p> <p>(1) . That there i3 no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.</p> <p>R. R. Co. and administratrix individually properly joined—</p> <p>(2) . That there is but one cause of action stated against the Railway Company and Rose Connell individually, and therefore there is no misjoinder of causes of action, and the two parties can properly be united in the case as defendants.</p> <p>Good cause of action against administratrix individually—</p> <p>(3) . The petition sets up a good cause of action against Rose Connell individually, arising out of her breach of contract with the plaintiffs’ law firm.</p> <p>Unessential averments in petition may be disregarded by court—</p> <p>(4) . Where the petition contains certain allegations unessential to the cause of action, the court may disregard these and render judgment in the case on-the strength of the essential allegations.</p> <p>Contract made with administratrix as such — Action for breach aqainst her individually—</p> <p>(5) . Although the contract was made by the defendant Rose Connell in her capacity as administratrix, yet the action can be maintained against her individually for breach of the contract. The contract having for-its subject-matter a claim i¿ which she was personally interested, and for its object the enforcement of that claim, absolute control of the proceedings or of the fund by her was immaterial.</p> <p>Order of dismissal of some defendants final order as to them — _</p> <p>(6) . An order of the court dismissing a petition as to some of the defendants, is a final order as to them, upon which error will lie, and a cross-petition in error against such dismissed defendants, filed more than six months after the date of sucfi order of dismissal, by the plaintiff below in error proceedings instituted by the other defendants, must be dismissed.</p> <p>Railroad not liable under facts of case—</p> <p><7). Under the facts of this case there was no cause of action against the Railroad Co., as it had a right to settle the case with these parties, and under the evidence it did not promise to pay any particular sum to counsel in the damage suit, nor did it agree to pay according to the terms of the contract between the law firm and the administratrix. Perhaps a lien might he obtained upon the funds that would arise immediately- upon a settlement being made, so that the railway company might be charged as trustee, or might be required, if proper notice had been served, or proper steps taken, to withhold some share of the fund for the protection of the right and interests of the attorneys. But the notice served upon the railway company in this case was^not to that effect.</p>

<p>Criminal Law — False Pretenses—</p> <p>(1) . W. procured the signature of S. to a promissory note for $200, by representing that he wanted to show the note to-one H., to show H. that W. had a good standing where he lived, had friends who had confidence in him, who would sign and endorse bankable paper for him; that he wanted the note for no'other purpose, promising that it would then-be left in the possession of W., and he would destroy it. Said representations and promises were false. Held, that there were no false pretenses, as S. was deceived not by any statement of facts on the part of W., but by reliance upon a promise not meant to be fulfilled, and a false statement as to intention.</p> <p>(2) . An indictment for false pretenses cannot be founded upon an assertion of an existing intention, although it did not in fact exist; there must be a false representation as to an ex- ■ isting fact.</p> <p>(3) . A false pretense, within the meaning of the statute, must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction is not-included.</p>

<p>Election Laws — Ballots failing to specify term—</p> <p>(1) . Where several members of a board are to be elected at one election, but for different terms of office, the ballots must state to which term the candidate is elected, otherwise the ballots will be declared void, although'the entire election may be invalidated thereby.</p> <p>Adjournment sine die not resignation—</p> <p>(2) . An adjournment of the board sine die does not amount to a resignation of the members participating in such action of adjournment and departing.</p>

<p>Appeal frcm the Court of Common Pleas of Erie^county.</p>

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

<p>Error proceedings — Transcript of journal entries must he filed within the six months—</p> <p>All the papers required to be filed in proceedings in error, must be filed within the period of six months within which time error proceedings may be instituted; and where it appears that a transcript of the journal entries, which under sec. 6716, R. S., must be filed with the petition in error, was not filed within the six months with the other papers in the case, such transcript cannot be filed afterwards, and the record not being complete, the error proceedings must be dismissed.</p>

<p>Heard on Motion by plaintiff to dismiss appeal.</p>

<p>Bail Boad — Ticket at reduced rate — Conditions not binding on *passenger unless actually known—</p> <p>(1) .' Where a party purchases a holiday ticket on a railroad at a reduced rate, such ticket having printed thereon special con ■ ditions, one of which is that the purchaser must sign the ticket in the presence of the ticket agent, at a certain blank space reserved therefor, at the time of purchasing the ticket ' and again at the place of destination before entering upon his return trip, for the purpose of identification, and where the agent who sold the ticket neglected to have the ticket signed by the passenger at the time of the purchase, and the purchaser is not aware of such stipulation on the ticket, and fails to sign the ticket in presence of the ticket agent before entering upon his return trip, and is in consequence of the fact that his ticket is not sighed expelled from the cars, the R. R. Co. is liable to him for damages for such expulsion as for a tort.</p> <p>Same—</p> <p>(2) . The purchaser of a railroad ticket, even at a reduced rate from the regular rate, does not by its mere acceptance acquiesce in and bind himself to all the terms and conditions' printed thereon in the absence of actual knowledge thereof..</p> <p>Same — Compensatory damages only proper under facts of case— (3) , Under the circumstances of this case, no vindictive or piunitive damages could be found, but only compensatory damages were proper; and a suggestion that unless a substantial verdict is returned against the railroad in cases of this kind, passengers would not be secure in their rights, and that their rights would be violated with impunity, can not be considered by tije jury where only compensatory damages are properly allowable.</p>

<p>Imbecile — Guardian—Opening up settlements of accounts—</p> <p>(1). After an account rendered by the guardian of an imbecile has been passed upon in due form by the probate court having jurisdiction exclusively over the matter — the court has no power, at a subsequent day, or in a subsequent year, upon the mere motion, suggestion, or request of the heirs of an imbecile, or of a ward, to open up the account, place the matter in statu quo, and impose upon the guardian the duty of going back and establishing by evidence every item of debt which is contained in his account. This can only be done where it is shown by the excepting parties that a mistake or fraud has entered into such settlements, and to that extent only can such settlements be reformed and corrected — Sec 6304, R. S., construed.</p>

<p>Bill of Exceptions — Extension of time — What endorsement not proper—</p> <p>(1) . Where a court in extending the time for filing a bill of exceptions for ten days, endorses the order for such extension upon the bill, accompanied with a statement that such bill was not presented to the court for examination within forty-five days after the overruling of the motion for new trial, such statement can not be considered by the reviewing oourt on motion to strike the bill from the files, as under sec. 5302 R. S., the judge is only authorized to endorse upon the bill the extension . of time allowed by him. Nor can an affidavit by the trial judge setting forth the same facts as so endorsed on the bill, be considered.</p> <p>Same — Remedy to correct entry of allowance—</p> <p>(2) . Where a bill of exceptions allowed by the court below was not in fact presented to the court for examination within the statutory time,, the remedy of the party objecting is by seeking au amendment of the record in the court where it was made.</p> <p>Same — Jurisdictional fact—</p> <p>(3). It is a jurisdictional iaet for the court that the bill of exceptions was presented and signed within the statutory time, and the record and journal of the court should show affirmatively the existence of such jurisdictional fact or facts, authorizing the court to act in the premises.</p>

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

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

<p>The statute, sec. 6816, R. S., makes it a crime to procure miscarriage. A verdict finding defendant “guilty of procuring abortion,” etc., does not define a crime known to the statutes, and is not responsive to the charge in the indictment.</p>

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

The defendant in error recovered a verdict of $8,500 on account of the loss of a part of his hand while employed by plaintiff in error in operating a circular saw.

The will of Adolph Joseph Esman provided in item 2 as ■follows: “I give, devise and bequeath to my beloved wife, Elizabeth Esman, in lieu of her dower, all my property, real as well as personal, during her natural life.

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

<p>Petition for Street Improvement — When binding—</p> <p>Petition for street improvement remaining in hands of board of administration at the time the ordinance to improve is passed, binds the signers thereof, although it was indorsed ‘‘Filed until signers agree to paying deficiency.”</p>

<p>On motion for Re-hearing.</p>

A stolen one hundred dollar bill was used by the thief in payment to the Pennslyvania Railway Company of a freight bill of four dollars, the remaining ninety-six dollars being handed back to the thief in change. The stolen bill was traced to the railway company and identified by its number; thereafter it was placed by the company temporarily in the hands of the police for the purpose of prosecuting the thief,and by the police was passed on to the Prosecuting Attorney.

<p>Notice to quit given by secretary of corporation—</p> <p>A notice to vacate premises was sufficient when signed “Edgar Stark, Assistant Secretary of the Union^Savings Bank & Trust Company,” the premises in question being in charge of this company as receiver.</p>

The plaintiff applied for a policy of insurance on the life of Sarah Putthoff at her request and as seourity for loans theretofore made to her when in need. A policy was delivered to her, made payable to the estate of Sarah Putthoff.

Wunker & Rehsteiner furnished six acres of sod, at an agreed price of $65 per acre, to A. Yaeger, a city contractor, for grading, etc., in Eden Park. The sum of $160 remaining due to them from Yaeger, the plaintiffs filed with the Board of Administration,an itemized statement of their account with Yaeger, with all credits thereon, and at the same time filed a sworn copy of said acoount, with the oounty recorder.

<p>Resolution to improve must be read on three different days— Section 1691, B. S., relating to powers conferred upon council,and requiring that an ordinance to improve must be read on three different days, etc., applies to resolutions to improve pending before the board of public works of Cincinnati and its successors, the board of administration and the board of city affairs.</p>

<p>Executors exempt from giving bond to stay execution of a judgment— Section 6721—</p> <p>Where a case is taken to the supreme court on error to a judgment of the circuit court, directing the sale or the delivery of possession of real property, and the circuit court allows a stay of execution of its judgment on the defendants’ giving bond in a certain sum, to the satisfaction of the clerk of the court, the requirement to give such bond only applies to such of the defendants as are not exempt from giving bond to work a stay of execution, and does not apply to an executrix who has given bond within this state acording to law, and who is under sec. 6721 exempt from the requirement of giving bond to stay execution.</p> <p>/Judgment of Circuit Court affirmed by Supreme Court by consent” of parties, at cost of plaintiffs in error, Oct. 4, 1898, 40 W. L. B., 252.)</p>

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

<p>Allowing filing of second amended petition proper—</p> <p>1). Under the provisions of section 5114, R. S., courts have a right to alJow a second amended petition to be filed.</p> <p>Same — Amendment by merely striking out one joint plaintiff not variance in cause of action—</p> <p>{2). Where the action proceeded to trial on an amended petition, but the plaintiff withdrew a juror, and the jury being thereupon discharged, he obtained leave to amend, the amendment made in the second amended petition consisting only in striking out one of the plaintiffs joined in the action as originally brought, as not having an interest in the action, but otherwise such second amended petition stating the same cause of action as the original petition, and the allegations constituting a good cause of action on which plaintiff was entitled to recover, Held: Such second amendment does not constitute such a variance as to constitute a failure of plaintiff’s right to recover, and the statute of limitations can not be plead as a bar to the cause of action as set out in such second amended petition, although it would otherwise have become operative.</p> <p>(The judgment of the circuit court in this case was affirmed by the supreme court, without report, Oct. 12, 1897, 38 Bull., 209.)</p>

<p>Boundary lines — Lots indefinitely described on plat — Shortage in land to be deducted pro rata from lots indefinitely described—</p> <p>Lands lying between the fixed lines of four streets were subdivided into lots, and lots thereof sold to different parties by numbers and reference to the recorded plat of subdivision. As to two lots sold to one party, the plat gave length of lines and area, the description of the other lots on the plat being left more or less indefinite except that each was to contaiu forty square rods. Subsequently, upon actual measurement of the ground,it was found that there was a shortage of land if each lot should De given forty square rods. Held, that the two lots described-with definiteness should be given the land as called for in the description on the plat, but that the shortage of land should-be divided and deducted as near as possible pro rata from the lots indefinitely described on the plat.</p>

<p>Hamlet — Ordinance against indecent actions—</p> <p>A hamlet has authority, unler sec. 1653 R. S.,to pass an ordinance making it unlawful to commit any indecent, immodest, lewd and filthy act, or utter any lewd, lascivious or filthy words, or use any scandalous, obscene, indecent or profane language in the presence of any other person or persons, or make any immodest, obscene or insulting motions or gestures to or about any other person publicly in the hamlet.</p> <p>Arrest without warrant — Liability—</p> <p>The marshal of a hamlet has authority to arrest any person he sees violating an ordinance of the hamlet,without a warrant, and if he brings the offender without delay-before the proper magistrate and he is there tried and convicted, he is fully protected against any liability for damages for the arrest of the offender without warrant.</p>

<p>Approval of guardian's account by probate court conclusive as to matters therein contained — •</p> <p>'Where a guardian’s account has been approved by the probate court, such adjudication is conclusive. And where it is aftewards claimed that a payment made by the guardian with which he credited himself in his account as approved by the probate court, was in fact wrongfully made, the ward or a subsequently appointed guardian for him cannot bring an action against the party who received payment for such claim, to recover the money so wrongfully paid to him.</p>

<p>Appropriation of land — Notice to lien holder not required—</p> <p>Under sec. 2235 R. S.,notice of a resolution pending in council for the appropriation .of land need not be given to the holders of liens on the land. Notice to holders of the legal title is sufficient.</p> <p>Actual notice to owner sufficient—</p> <p>- Actual notice to the property owner, though not in the precise form of the statute, is sufficient.</p>

<p>Negligence — General charge in pleading — What evidence not admissible—</p> <p>Under a general allegation of negligence on the part of Railroad Co. evidence showing or tending to show that the car on which plaintiff was injured was defective is not admissible.</p> <p>Erroneous admission of evidence — Withdrawal thereof by court— Effect—</p> <p>But where the court subsequently directs the jury to disregard all the evidence on that point thus erroneously admitted, the error is cured, and the judgment below will not be reversed on account thereof.</p>

<p>Railroad— Observance of rules by employes —Duty of foreman—</p> <p>(1) . . If the foreman in charge of a gang of employes of a railroad observes that the men are negligent in observing the rules of the company, it would be his duty to caution them in that respect — not to require them or compel them to use care in observing the rule, but to use ordinary care to secure that result; and if the men then persist in violating his instructions in that respect, the R. R. Co. is not liable for injury in consequence thereof.</p> <p>Concurrent negligence of principal and fellow-servant — Liability of principal—</p> <p>(2) . Where the negligence of the principal or its representative, and that of a fellow servant concurrently produce an injury to an employe who is himself without negligence, the injured employe may recover damages from the principal.</p> <p>Habitual violation of rules— Duty of employe—</p> <p>(3) . If an employe with knowledge of the habitual and continued negligence of his superior co-employe in some matter, acquiesces therein and continues in the service of the employer without objection or effort toward correction of such negligence, he thereby waives his right against the employer, and tabes the -risk upon himself.</p> <p>Employes on handcar — Violation of rules — Duty of all on car—</p> <p>(á). Where 1& or 20 railroad employes divided tnemselves. into three parties to mount three handcars to return home, and in violation of the rule of the company they ran the cars so closely together that by an accident to the first car the second car was thrown from the track and one of the employes on the same was injured : Held that the duty to observe the rules of the company devolved equally npon all the men on the car, and not only on the four who worked the propelling apparatus.</p>

<p>Surety — Bight to subrogation after payment of debt — Bight to subrogation must be actively asserted — ■</p> <p>A surety who has been compelled to pay the principal’s debt, is entitled to be subrogated to the rights of the creditor in all securities placed by the principal into the hands of the creditor, and where the security for the debt consisted of a mortgage on real estate, executed by the principal debtor to the creditor, the surety, after payment of the debt, is entitled to subrogation to the creditor’s rights under the mortgage. But this right must be asserted by action, before the surety’s legal remedies are barred by the statute of limitations.</p> <p>Same — Ten years’ limitation—</p> <p>The equitable right of the surety, after paying the debt, to enforce, by action, subrogation to the rights of the creditor,is barred by our statute in ten years from the payment of the debt.</p>

<p>Gas and Oil lease construed—</p> <p>A gas and oil lease provided that if gas was found having a pressure of 100 pounds to the square inch, the lessee should furnish gas to the lessor’s dwelling and furnish the pipe therefor, and if the pressure should exceed 200 pounds to the square inch, he should pay 8100 a year for each well as soon as marketed and utilized. A gas well being drilled which furnished gas at a pressure of nearly 100 pounds, the lessee thereupon piped the gas to lessor’s dwelling furnishing the pipe, but no gas at a pressure of 200 pounds was found. Held: the lessee will not be liable for the $100 per year for the gas well although the gas is marketed, there being no • provision for such payment where the gas found should not have a pressure exceeding 200 pounds.</p>

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

<p>Practice in Police Court — Jury trial — -Suffering gaming devises— Secs. 5 and 10 of art. I. of the constitution which guarantee public trial by jury, do not apply to proseoutions under ordinances which authorize a penalty by fine only upon a summary conviction under a police regulation, or of an ordinance for an immoral practice prohibited by law (in this case suffering a gaming device, to-wit:a slot machine) although imprisonment as a means of enforcing the payment of the flue is authorized.</p> <p>Same — Jurisdiction of Police Court of Cincinnati—</p> <p>The police court of Cincinnati has the power to hear and finally determine a charge of a misdemeanor committed within the city or within four miles thereof, without the intervention of a jury, when in the language of the statute, “the accused is not entitled to a jury;” and there is no provision by any statute that in a case where the penalty affixed to the offense is only a fine, the accused is in that court entitled to a trial by a jury.</p>

<p>Corner lot — Assessment for street improvement—</p> <p>(1). In assessing the cost of a street improvement on a corner lot regard must be had to what is its real front. This is a question of fact to be determined by the manner in which it was laid out or in which it has been built upon and is used and occupied.</p> <p>Same — Beal front of lot — Not determined by side entrance or out buildings—</p> <p>A corner lot may have two fronts within the meaning of the statute, but a side entrance into some rear part of the main buildings, or the erection of a stable or barn, or any other outbuilding will not determine the real front of a corner lot.</p>

<p>Marriage by insane person — Ratification—</p> <p>A person was adjudged insane in proper proceedings in the probate court, and married while in that condition, but was afterwards adjudged sane by the same court and then ratified the marriage, but-soon thereafter became hopelessly insane: Held, that it appearing that in fact he never recovered after being first adjudged insane, his attempted ratification of the marriage was a nullity.</p>

<p>Mechanics liens — Priority as to subsequent mortgage — Subrogation of mortgagee to vendor’s lien for tand-</p> <p>il). Although the larger part of the money loaned on a mortgage on real estate, was used to pay balance of purchase money therefor, yet the mortgagee will not be subrogated to the extent of such payment to the vendor’s lien, as against mechanics’ liens for work done and material furnished before the making of such mortgage for the building erected on such real estate, but such mechanics’ liens will have priority as against such mortgage. And this applies not only to work done and material furnished before the making of the mortgage, but to work and material furnished subsequently to the mortgage in completing the same contract.</p> <p> What proper subject of mechanics lien— </p> <p>(2). Belting, shafting, etc., placed in the building, are proper subjects of a mechanics’ lien.</p> <p>Assignee's suit to sell land and determine priority of liens — Appeal by lienholder — Costs against appellant—</p> <p><3). In a proceeding instituted in the probate court by an assignee for the benefit of creditors, to sell land and determine priority of liens, where one of the lienholders appeals the case to the common pleas,it is proper for that court to adjudge the costs arising from such appeal against such appellant, and not against the fund constituting the proceeds of the sale.</p>

<p>Accomodation note for third party signed in firm name by one partner — Liability of co-partner to holder with knowledge — Burden of proof—</p> <p>One partner in an ordinary commercial partnership can not bind his co-partners by a mere accommodation note made in the name of the firm for tbe benefit of another person, so as to enable the holder, with knowledge that the note was a mere accommodation note for such other person and not given for partnership purposes in the regular course of the business of the Arm, to recover upon it in a suit against the firm, without proof showing a subsequent assent, or a prior authority; and the burden of proof of such assent or authority is cm the holder of the note.</p>

<p>Death caused by collision of vehicle icith street car — Failure of deceased to look and listen — Contributory negligence—</p>

<p>Illegal purchase by school board and note therefor — Note discounted to bank — No recourse to assignor—</p> <p>(1) . Where a party sells books to a school board and receives a note signed by president and cierk of the board therefor, which he discounts at a bans, and it turns out that the school board had not the legal autnority to buy the books and to pay for them, the back has no recourse on such party to recover the money paid for the note.</p> <p>Same — Extent of warranty by assignor—</p> <p>(2) . While the authorities on the question are conflicting, yet the weight of authority is in favor of the proposition that the only warranty in such case is tnat the title of the holder to the note is good, and that the paper is genuine and not a, forgery.</p>

<p>Injury by negligence of Railroad— Failure to make proper rule— Evidence of former existence of such rule admissible—</p> <p>(1) . In an action against a Railroad Co. for damages for having by negligence caused tne death of one of its employes, it being averred in the petition among of the grounds of negligence that the R. R. Co. had failed to make a proper rule as to the stopping of trains at a certain point, evidence that such a rule had formerly exised but had been abolished, is admissible to show that the propriety of such a rule had been recognized by the R. R. Co., and that its attention had beer? called to the necessity of such a rule.</p> <p>Verdict for $10.000 — Not excessive under facts —</p> <p>(2) . A verdict of $10,000'damages not considered excessive under the facts of this case.</p>

<p>Action to have receipt fraudulently obtained set aside and for money — Action appealable—</p> <p>(1) . An action against an administratrix, graying that the court annul, set aside and cancel certain receipts alleged to have been fraudulently obtained, and that she may be directed to pay of the trust funds, in her hands, to plaintiff the amount alleged to be due plaintiff, is not an action for money only, and is appealable. v</p> <p>Same — Failure to allege balance found due—</p> <p>(2) . Where the petition in such action fails to aver any settlement of the estate by the administratrix and a balance found due the plaintiff, no money can be recovered in such action.</p> <p>Action quia timet — When proper—</p> <p>(3) . An action quia timet may be brought in equity, requiring the delivering up and cancellation of instruments which are voidable or which are in reality void, although apparently valid, on the ground that they might be vexatiously or injuriously used when the evidence to impeach them may be lost or diminished; out where the illegality of the instrument appears on its face, equity will not interfere.</p>

<p>Injury of railroad employe — Side track in dangerous condition during reconstruction — Failure of R. R. Co. to provide for safety of passengers and employes—</p> <p>(1/. Y/here in reconstructing side tracks, ihesame are placed in a temporary and dangerous condition, it is the duty of the Railroad Co. to give directions or take steps to guard the public and its employes from an accident v hieh might occur in-consequence of such dangerous condition of the side track, and the Railroad Co. is liable to an employe who is injured in consequence of the failure of the Railroad Co. to give proper directions and take proper steps to avoid accidents under the circumstances.</p> <p>Side track on incline plane — Want of rule to prevent cars getting on main track—</p> <p>(2) . Where a side track runs from the main track on an incline plane, there should be rules and regulations established by the company to secure and protect the cars placed upon such side track to prevent them from getting upon the main track if the brakes should not he sufficiently set.</p> <p>Verdict of $19,000— When not excessive—</p> <p>(3) . A verdict of §19,000 damages not considered excessive where the present worth of plaintiff's life according to the Carlisle tables would be $15,000, but it-also appears that he has suffered great pain for many months and is still a great sufferer from his injuries. ,</p>

<p>Railroad — Violation of city ordinance limiting speed of train— Injury on street crossing — Liability—</p> <p>(1) . Running its train at a greater speed within the city limits than permitted by the city ordinance, is an act of negligence on the part of the Railroad Co., but of itself is not conclusive to make the Railroad Co. liable for injury caused by its train, but is competent to be considered with all the other evidence in determining the liability of the Railroad Co.</p> <p>Same— Bight of person in crossing to assume that ordinance as to speed will be observed — Injury—Liability—</p> <p>(2) . Where there is a city ordinance limiting the speed at which trains can be run within city limits, and a person at a crossing within the city limits is aware of an approaching train and attempts to cross and is thereby injured, if he knows of the existence of the ordinance and has reason to believe it will be observed by the persons in tbe management of the train, and the injury would not have occurred but for its violation ; or, when the ordinance has induced him to do something or omit the doing of something which, without that knowledge, he would either have done or not have omitted to do,his act will not constitute such contributory negligence as will prevent a recovery. Same — Knowledge of ordinance—</p> <p>(3) . But, Quere, Where the injured party did not know of the existence of the ordinance,or where his excuse upon the question of contributory negligence is that he did not snow the train was approaching; that it gave no warning, and that he did not see it, is the action controlled by the ordinance?</p> <p>Injury to non resident — Presumption of ignorance of ordinance—</p> <p>(4) . The fact that the party injured is a non resident of the city, living outside of its limits, will not raise the presumption that he did not know of the existence of an ordinance limiting the speed of R. B.. trains within city limits.</p>

<p>Railroad taking possession of land under verbal agreement to pay therefor — Action for the compensation—</p> <p>(1). Where there is a wrongful entry upon the premises by a corporation without compensation and without agreement with the owner of the property, the plaintiff would have no right to recover the valúe of.the-property from that fact alone for the reason that by the wrongful entry of the corporation upon the land, the title is not taken from the real owner. It does not appropriate the title; but it leaves an election in the owner of the property to treat it as a sale of the property, and by tendering a conveyance and in making the election to recover compensation, it enables him to bring an action for that purpose and to recover the value of the land.</p> <p>Same — Character of aclion — Limitation—</p> <p>(2). Such-an action-to recover the value of the land taken is an action upon an implied contract to pay the value, and such action under our statute of limitations is limited to the period of six years.</p>

<p>Death of fireman on locomotive of freight train by collision — Crew falling asleep while waiting for passenger train — Liability of JR. JR, Co.—</p> <p>Where the rules of a Railroad Co. make it the duty of the fireman of a freight train on the locomotive as much as of the engineer and conductor, to look out for passing trains, and all three fall asleep while waiting on a'siding for the passage of a passenger train, the conductor awakening and supposing that the passenger train has passed,- orders his train to proceed, in consequence whereof a collision with the passenger train ocours in which such fireman of the freight train is</p> <p>- killed, Held, that the Railroad. Co. is not liaole for his death. The fireman had the same means of knowing whether the passenger train had passed and was under the same duty to look out for it as the conductor or engineer.</p>

<p>Action by guardian — Change in guardianship — Substitution of name of new guardian as plaintiff—</p> <p>(1) Where an action is brought by a guardian for his ward, and during the pendency of the action a change takes place in the guardianship, the court may order the name of the new guardian to be substituted for that of the original plaintiff, and order the action to proceed in that form.</p> <p>Action on an account — Boolc account not necessary—</p> <p>(2) . Where in a petition on an account in the short form, the matters set forth in the petition are such as may be properly put in an account, it is not necessary that there should have been any account book prior to making the statement of account on which the action is brought.</p> <p>Same — Proper items of account — Small loans of money—</p> <p>(3) . A charge for work and labor done is a proper subject of an account, but items of cash money lent, are not generally the proper subjects of a book account, but small sums loaned may be properly included in a book account.</p> <p>Defects in petition — How and when to be made available—</p> <p>(4) . If a party wishes to avail himself of defects in the petition, he should object at he time the evidence is being introduced. If he goes to trial, and allows evidence to be introduced upon the supposed issues of the ease, without objection, and the case goes to final judgment, he will not be allowed to allege, as matter of error, that the petition was defective, if the facts themseles show a good cause of action.</p>

<p>Contributory Negligence—</p> <p>■Where an employe, without having any business or need in the prosecution of hie work, but solely from his own notion or curiosity, walked upon the track where a derrick is traveling, and his foot is crushed by the machine,he is guilty of such contributory negligence as will prevent him from recovering damages.</p>

<p>Ac,Hon to set aside decree in other action — What grounds insufficient—</p> <p>Where in a action in foreclosure and reformation of the mortgage, the defendants' mortgagees were served, but remained in default, and decree was rendered as asked for in the petition, such de-, fendants’ mortgagees can not then institute an action to set aside the decree in the former action on the ground that the plaintiff in that action was not the real owner of the mortgage, and that his averment in that action that the description of the property in the mortgage was a mistake, was false. Such matters should have been set up by them in the foreclosure suit against them.</p>

<p>New parties — Discretion of court to admit — Gannot dismiss them without hearing—</p> <p>(1) . Even if it were a matter of discretion with the court in granting in the first instance the application of a party to become a party defendant in a case and file a cross-petition,he ought not to be sent out of the case by order at the court without a fair and sufficient reason, and he can not be dismissed upon the exercise of the mere discretion of the court.</p> <p>Replevin against assignee for benefit of creditors — Holders of mortgages on property proper parties—</p> <p>(2) . Where an assignee for the benefit of creditors, under an arrangement with the holders of chattel mortgages, has possession of the property covered by the mortgages, to sell it for the mortgagees, and to apply the surplus of the proceeds, after paying the mortgages, to the benefit of general creditors, and it is attempted by third parties to replevy such property from the assignee, the holders of such mortgages are proper and necessary parties in such replevin proceeding.</p>

<p>Motion to dissolve injunction heard at chambers — Bill of exceptions not admissible—</p> <p>(1) . Where a motion to dissolve an injunction is heard before a jndge of common pleas at chambers, the judge has no authority to allow or sign a bill of exceptions.</p> <p>Error proceedings and appeal of case — When error proceeding must fall—</p> <p>(2) . Where with the proceeding in error to reverse the order of the common pleas at chambers to dissolve the injunction, is also united a proceeding in error to reverse the order of the common pleas dismissing the amended and supplemental petition, and the case is also appealed, the petition in error must fall.</p>

<p>Plugging abandoned gas and oil wells required under act of 1893 r~What petition must show—</p> <p>(1) . In an action under the act of 1893, (90 O. L., 247) providing for</p> <p>the plugging of abandoned gas and oil wells, which may be brought in the name of the state upon complaint of a resident of the county.it must appear from the petition that the complainant is a resident of the county.</p> <p>Same — Demurrable defect of petition —</p> <p>(2) . Where the claimed defect in the petition is that the fact that</p> <p>complainant is a resident of the county does not appear on the petition, such defect can only be taken advantage of by special demurrer particularizing such defect.</p> <p>Same — Act penal — Strict construction required—</p> <p>(3) . The act of 1893, (90 O. L., 247) provides for a penalty and must be strictly construed.</p> <p>Act showing intention to abandon well must appear—</p> <p>(1). Under the provision of the statute, “when about to abandon the well”, some act of the defendant must be shown indicating his intention to abandon the well.</p> <p>Act not applicable as long as easing remains in well—</p> <p>(5). As long as the casing remains in the well and prevents water from penetrating to the oil-bearing rock, the penalty under the act is not incurred.</p>

The plaintiffs in this action are taxpayers of the city of Toledo, most of them residents in the city, but certain of them non-resident.

<p>Prosecuting attorney — Removal from office — What will amount to misconduct in office—</p> <p>1. It is not necessary that a complaint under section 1272 Revised Statutes, relating to neglect of duty or misconduct in office of Prosecuting Attorneys, should be verified by oath.</p> <p>2. In a proceeding to remove a person acting as Prosecuting Attorney, it being urged that there being no evidence adduced upon the trial that the complainants were taxpayers, the court was without jurisdiction to enter the judgment of removal, Held, that the matters to which evidence is to be addressed on the trial are the issues in the case. The issues of fact to be tried on the hearing arise from the assumed denials of the truth of the charges made, and the issues of law as to the sufficiency of the charges in form and substance, and not whether there is any complaint at all, by proper persons, unless that issue is actually raised by the Prosecuting Attorney or is presented by the record on its face. -</p> <p>3. To warrant removal under section 1272, Revised Statutes, there must be official misconduct; mere misconduct while in office is not sufficient.</p> <p>4. The prosecuting Attorney is the legal adviser of county officers and in voluntarily placir.g himself in a position either to be obliged to refuse to give such officials advice, or ¿ogive advice hampered' by a contract with a third person adverse to the interests of the county, is official misconduct.</p> <p>5. An agreement made with a taxpayer by a Prosecuting Attorney who is also acting, under contract with the county commissioners, as tax inquisitor, that he will not investigate such taxpayer as to his taxes prior to a certain date, where the time referred to in the agreement is within the time specified by the statute for investigation, constitutes official misconduct as Prosecuting Attorney.</p> <p>6. It is the duty of a Prosecuting Attorney who, being employed by the county commissioners, collects funds belonging to the county, to deposit the same in the county treasury at once. He is presumed to know the specific direction of the statute in this regard, and a failure to comply with it is official misconduct. The fact, that another attorney might have been employed to make the collection does not relieve the Prosecuting Attorney from official, responsibility.</p> <p>7. It is not necessary, in the removal of a Prosecuting Attorney for-official misconduct, that he should first, or at any time, be indicted, tried and convicted criminally of the offense or offenses, charged against him.</p>

<p>Appropriation proceedings — Injunction against, for reasons constituting defenses, improper—</p> <p>(1) . A defendant in an appropriation proceeding can not maintain a cross-petition to enjoin the parties plaintiffs in the court of common pleas from prosecuting another suit in the same court for any reasons which might have been set up as a defense in the appropriation proceedings.</p> <p>Appropriation for parh purposes — Burns law not applicable—</p> <p>(2) . In appropriation proceedings for park purposes, instituted by a municipality under sec. 2232, R. S., (91 O. L., 213) it is not necessary before such proceedings can be commenced that the clerk of the corporation should certify that the money to pay for the land was in the treasury to the credit of that purpose.</p>

<p>New trial — Application after the three days from entry of judgment and before close of term — Sec. 535í R. S.—</p> <p>There are two sections of the statutes in regard to new trials, sec. 5305, which provides for the filing of motions for new trial within in three days, unless for some good cause further time is granted, and sec. 5354 which provides that the court may vacate or modify its own judgments after the term, but there is no statutory provision for entertaining a motion for new trial between the time after the expiration of three days after judgment and the close of the term. Held therefore that where an application is made more than three days after judgment, sec. 5354 ought to be permitted to apply and govern, although the term had ' not yet expired.</p> <p>Control of court over its judgments during term—</p> <p>The decision of the Supreme Court that under some circumstances the courts have control of their judgments during the term, should not be construed as recognizing the power of the court of common pleas of its own motion to set aside during the term any judgment it may have rendered during the term.</p> <p>Motion to vacate judgment — Sufficiency of grounds first to be considered—</p> <p>In entertaining a motion to set aside a judgment under see. 6354, the court has to first decide whether the grounds adduced in support of the motion are sufficient.</p> <p>Corporation — Power of president to sign cognovit note for corporation —</p> <p>The president of a corporation has no power by virtue of his office to execute a bond and warrant of attorney for the entry of judgment by confession against the corporation. Such power is vested in the board of directors only. But the president’s authority may be enlarged beyond the powers inherent in his office by the consent and acquiescence of the directors in permitting him to take control of the business of the corporation. Where therefore it appears that neither the president nor the secretary had any authority to sign a cognovit note for the corporation, and that there was no ratification of such action by these officers by the directors or by a majority of the stockholders,a judgment against the corporation on such a cognovit note should be set aside.</p> <p>I Receiver — Authority in his own name to move for vacation of judgment against corporation—</p> <p>A receiver appointed for such corporation has authority under the control of the court, in his name as such receiver,to file amotion to set aside a judgment entered against the corporation.</p>

<p>Sec. 454d of the act for the organization of circuit courts, 81 O. L., 171, provides that cases pending on appeal in the district courts should be transferred to the new circuit courts on a new appeal bond being given within 30 days from February 9, 1885, .or on failure thereof, upon motion filed and notice given, the circuit court may proceed in such action as if no bond had ever been given. Held: not mandatory, but that the provision that motion should be made and notice given shows the intention of the legislature to confer on the courts a discretion to give further time to file a new bond.</p> <p>The words of a remedial 0statute are to be construed largely and beneficially so as to suppress the mischief and adance the remedy.</p>

<p>Ditch proceedings — Questions of fact not to be re-tried in court of equity—</p> <p>The amendment of 1891 of sec. 4560, R. S., was not intended to authorize courts of equity to hear anew questions which the law provides shall be submitted in the first instance to county commissioners and township trustees in ditch proceedings, upon the suggestion that such inferior tribunals have come to the wrong conclusions upon questions of fact.</p>

<p>Mortgage — Re-issue after payment, by mortgagor’s agent — Mortgagor liable—</p> <p>Where a party who is a maker of a mortgage leaves it in such a position that it can be issued, or he himself issues it as a valid mortgage, after it has been paid, then between the mortgagor and any person who becomes the purchaser of that mortgage, the purchaser will hold the mortgage free from any defense.</p>

<p>Assessments for street improvement made by county commissioners• under special statute — Installments once fixed by resolution of commissioners under statute, can not be altered by the auditor so as to meet maturing bonds—</p> <p>Where in assessing property to pay the cost and expense of a street improvement by the county commissioners under a special statute the commissioners have made the assessments payable in eight installments, and it appears that provision was not thereby made for meeting the payment of the whole of the bonds issued for making the improvement at the maturity thereof, the last of such bonds falling due before the last one of such eight installments becomes payable, yet the commissioners having exercised the power given them by the statute in fixing the installments of' the assessment to be paid, the auditor has no authority after-wards on discovering the mistake made, to alter the decision of the commissioners once made, even with their consent, and make several of such installments payable at one time and earlier than was originally fixed by the county commissioners.</p>

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

<p>Real estate agent — When entitled to his commission—</p> <p>A real estate agent is entitled to his commission when he produces a purchaser ready and willing to enter into a contract of sale, upon its actual conclusion,although he was not personally present and an active participator when the contract was concluded.</p>

<p>Agency — Power of agent to collect money without possession of note or mortgage—</p> <p>An agent, even if authorized to collect the interest on a mortgage or other debt owing to his principal,has no authority to collect the mortgage or debt itself,unless he has the usual indicia thereof in his possession. The proof of the agency or authority to collect money in the absence of the security representing it, is held within very strict limits.</p> <p>Undisclosed agency — Principle bound by rights and equities as between agent and other party to contract—</p> <p>Where an agent enters into'a contract without disclosing his principal or agency, the principal, if he takes advantage of the contract, must do so subject to all the rights and equities, of which the other contracting party, who had no knowledge of the agency, might avail himself as against the agent assuming the latter to be principal.</p> <p>Agency — Poiver to dissolve—</p> <p>Either the principal or the agent may in general dissolve the agency; the principal may discharge the agent,or the agent may repudiate the agency and refuse the exercise of its powers conferred.</p>

<p>Appeal Bond — Liability of surety—</p> <p>Sureties upon appeal bond in the old district court'can not be held to have undertaken that their principals would abide and perform the judgment of the circuit court, to which on the abolishment of the district courts and the organization of the new circuit courts these cases were transferred by statute.</p> <p>Transfer of eases from, District to Circuit Court — Failure to renew appeal bond—</p> <p>Where on such transfer of appeal cases from the district to the circuit courts no new appeal bond has been given within 30 days from February 9, 1885,as provided by sec. 454d R. S., the court has no discretion to extend the time for giving such bond, but the appeal must De dismissed.</p> <p>(Same case published in 13 W. L. B. 415.)</p>

<p> A charge ashed, which of itself is a correct proposition of law, hut under the evidence has no application to the facts of the ease, is properly refused. </p>

<p>Bes Judicata — What not—</p> <p>(1). A judgment in an action against the city to enjoin it from opening a street does not estop the same plaintiff to bring another action against the city and abutting property owners on the said street, jointly, as circumstances might exist which would estop the city from opening the street that do not estop such property owners.</p> <p>Plat of subdivision not signed by one joint owner — What will amount to his recognition of subdivision — Sale of lots designated as fronting on street binding on owner as to such street—</p> <p>-(2). One of the owners of a tract of land did not join in signing and acknowledging a plat of subdivision of such tract made by his joint . -owners, laying the same out into streets and lots, and in a subsequent partition proceeding of the land in bulk, there was aparted to him his share .of such tract in severalty. Aferwards he sold parcels of his land in lots, by numbers as designated on such map of subdivision, Held: this will amount to such recognition of -such subdivision as binds him to the purchasers of such lots and their successors in title, troth regard to the streets as laid out in such subdivision as public streets.</p> <p>Affirmed October 19, 1897, 38 B., 220.</p>

<p>Damages for personal injury by electric street car running into wagon — Verdict found sustained by the evidence—</p>

<p>Habeas corpus — Refusal of application in one court no bar to application to another court—</p> <p>Where an application for a habeas corpus has been refused by one court, another application to another court for such writ is admissible, notwithstanding under sec. 5751 R. S., such first decision might be reviewed on error.</p> <p>Costs in criminal prosecution — Only where fine imposed can defendant be held in custody for the costs—</p> <p>An execution for costs in a criminal prosecution may be levied on the body of the defendant only in cases where a fine is imposed as part of the penalty except in cases where a person may be sent to the workhouse in an adjoining county under sec. 6801b R. S. The imposition of the fine makes the costs a part of the sentence.</p>

The defendant in error, a stonemason in the employ of the plaintiffs in error, recovered a verdict below on account of injuries from being struck by the lever of a hoisting machine, which gave way with a load upon it causing the lever to fly back with great force.

<p>Mortgage to indemnify surety, and secure other creditors — Assignment in trust for all creditors, under sec. 6343, JR. S.—</p> <p>(1). Although it was formerly doubted whether a person, being-liable as security for another, could take a mortgage to indemnify himself, yet as the law stands now in Ohio, it may be done. But if he attempts to extend the lien beyond the necessity of his own indemnity and to secure the debt of any other creditor, the mortgage is in substance and in legal effect an assignment within the provisions of sec. 6343, R. S., and the mortgagee being a trustee for such other creditor becomes a trustee for all the creditors of the mortgagor.</p> <p> Invalid liens-~ </p> <p>(2) . Liens invalid as against creditors at the time-of the assignment remain invalid.</p> <p>Levies on property in possession of preferred mortgagee while suit pending to have mortgage declared a trust for benefit of creditors—</p> <p>(3) . An insolvent made a mortgage to secure a creditor, and then made a general assignment for the benefit of all creditors. The mortgagee took possession of the property mortgaged, and a suit was instituted to have such mortgage declared in trust for general creditors under sec. 6343, R. S. Certain creditors having reduced their claims to judgment had executions levied on the property in the possession of the mortgagee while such suit was pending. Held, where it was afterwards decided that such mortgage operated as a trust in favor of all creditors under sec. 6343, that these levies did not give such creditors a prior lien on the property.</p>

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

<p>Reformation of contract—</p> <p>Where a court of equity is asked to reform a contract, the evidence of the mistake on the one hand must be clear, satisfactory and convincing.</p>

<p>Dower interest of husband — Character of—</p> <p>(1) . The dower interest of the husband in the real property of his deceased wife is of the same quality and character as the dower interest of a wife in the lands of her husband.</p> <p>Release of Dower interest to defraud creditors to be set aside—</p> <p>(2) . Where the husband while indebted releases in dower, interest in the land of his deceased wife to his children, such release being- in fraud of his creditors will be set aside and the interest subjected to the satisfaction of his creditors.</p>

<p> Foreign execution docket —Names of all parties of the cases to be indexed. </p> <p>The language of sec. 1212, R. S., providing for foreign execution dockets to be kept by the sheriffs, that the sheriffs “shall make a direct and reverse index of each case so entered, ”, means that each index must be made of all parties to the suit, and where the name of a party on whose property an execution has been levied, does not appear in such index, and a mortgage on the property is afterwards executed by such party, the mortgagee having no actual knowledge of such lien, is also without constructive notice thereof and his mortgage will be the prior lien as against such levy.</p>

<p>Appeal— Personal judgment against property owner for sewer assessment—</p> <p>Under the statute, a personal judgment against the property , owner can he asked for a sewer assessment on his property. And a personal judgment being asked and obtained in this case in the court below, the case is not appealable.</p>

<p>Taxes on a one-sixteenth interest of vessel — If in arrea?', distraint Where one ownes a one-sixteenth interest in a vessel, and has failed to pay his taxes on such interest, the county treasurer cannot take possession of such vessel and sell it for such arrears of taxes, under the statute authorizing distraint for taxes.</p>

<p>Nuisance — Operation of Oohe Ovens--Injunction—</p> <p>Where by the operation of coke ovens the residence property of plaintiff, which was used as his homestead long before the ovens were put in operation, has been greatly depreciated in value, the health of plaintiff seriously affected and the comforts of himself and family greatly lessoned by the smoke and noxious gases constantly arising from the operation of the coke ovens, an injunction will be granted plaintiff against defendants enjoining them from the further use of such coke ovens unless defendant should alter the construction and operation of the coke ovens by a certain date so as to cease to cause the nuisance complained of.</p>

<p>Specific Performance of Contract — Indefiniteness of contract— Specific performance will not be decreed where the terms of the contract are not definite as to any material matter to be performed by either of the parties which does not appear therein, in this case where the time when note and mortgage for balance of purchase money shall be payable was not fixed.</p>

<p>. Street improvement — Damages to property — When owner's claim to be filed—</p> <p>An owner of property whioh he claims will be damaged by a certain improvement proposed by the municipality, must file his claim for the amount of such expected damages with the clerk of the corporation within two weeks after the completion of the publication of the notice given by the corporation of such proposed improvement, or his claim is to be considered waived. Such owner can also recover only damages to the amount claimed in his written notice, as filed within these two weeks with the corporation clerk. Any damages beyond such amount are considered waived.</p>

<p>Sewers — Local drainage — Indefiniteness of the law as to local drainage—</p>

<p>Condemnation of land for extension of street — Assessment by the front foot on owner's remaining land, of damages awarded with costs of condemnation—</p>

<p>Arrangement for forming partnership — Party through whose fault arrangement fails not entitled to compensation for work done for partnership—</p> <p>Two parties entered into a contract to form a partnership, each to pay $500 into the concern. The partnership went into operation immediately, although one of the parties failed to pay in the $500. After several .months, the other party still failing to pay the $500, the matter was dropped, where upon the party who by his failure to pay his $500 caused the partnership arrangement to fall through, sued the other party for compensation for work done by him under the partnership arrangement while it existed. Held, not entitled to compensation from the other part.</p>

<p>Justice of the peace — Judgment before appearance day void—</p> <p>In a cause pending before a J. P., the summons, unless accompanied with an order to arrest, must be served at least three days before the time of appearance, and where judgment is rendered before the expiration of such three days, it is absolutely void.</p>

<p>'Loss of freight — Undervaluation and reduced freight as defense— Failure of hill of lading to set out contract—</p> <p>Where in an action for damages for the loss of certain freight by negligence of the railorad, the railroad sets up as a defense that the gdods were shipped under an undervaluation at a reduced rate of freight, but the bill of lading contains no limitation on account of any reduction of freight charges, such defense can not be sustained.</p>

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

The plaintiff in this case sought to set aside the assessment against his property for the improvement of Beeckman street on the ground that he received no notice of the intention to improve, and he had”no knowledge of the aotual improvement.

<p>Appeal where the suit is for recovery of money only—</p>

<p>Failure to file petition in error within the statutory time—</p>

<p>Evidence—</p> <p>Where part of a conversation has been brought out in cross examination, the adverse party has a right to recall the witness to bring out the whole of it.</p>

<p>Malicious prosecution — Advice of Counsel—</p> <p>Having taken and acted on advice of counsel is only an excuse in an action for malicious prosecution where it appears that the party acquainted counsel with all the facts in the case.</p>

<p>A proceeding by an administrator to sell real estate alleged to have been owned by his intestate at the time of his death, to pay the debts of said estate, is properly brought in the common pleas, and being an action in which neither of the parties is entitled to a trial by jury, is appealable to the circuit court.</p> <p>On such appeal the administrator need not give appeal bond.</p>

<p>"Where a jury finds that there has been a substantial compliance with a contract for the sale of goods, and that the purchaser refused to permit the making corrections of such variations as were found to exist, but refused to accept the goods, error will not lie to a judgment for the purchase price.</p>

The suit was for recovery from the plaintiff in error of a balance of $270, claimed to be due on a policy on the life of the defendant in error’s son, the allegation being that the company sent by check to its agent, J. A. Strong, $590 in full payment of the policy, but the said Strong, or the defendant, or bomeoce or more of its agents, kept and refused to pay over the balance, for which this suit was brought.

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

The plaintiffs, in this case, sued to recover the value of shares in the defendant building association, which they claim were transferred to them by Eliza Lloyd, now deceased, The parties made defendant were the building association and Frank Bowles, administrator of Eliza Lloyd. The building association answered, admitting that it had in its possession money belonging to Eliza Lloyd, and asking the direction of the court as to whom it should be paid.

<p>Personal injury — Failure of evidence to show negligence—</p>

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

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

<p> Assessment on triangular corner lot— </p> <p>The assessable frontage on a triangular corner lot should not exceed the length of its base or rear line on its greatest breadthwise frontage.</p>

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

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

<p>A contract providing for the drilling of a well “in the vicinity” of plaintiff’s farm is not complied with by the drilling of a well two miles distance therefrom, with several farms intervening.</p>

<p>(The decision of the circuit court in this case is reported in full, 14 C. C., 104; State of Ohio ex rel. v. Fangbouer, auditor.)</p>

<p>Railroad — Injury to employe — Unblocked switch—</p> <p>Where the manifest weight of the evidence in an action against a Railroad for damages for wrongfully causing the death of one of its employes, showed that the injury occurred where there were switches or frogs, at a point where the decedent had no duties to perform, and by his thoughtlessly stepping one foot between the tracks immediately in front of a moving engine whose bell was ringing, no recovery can be had.</p>

<p>Horse — Warranty as “sound and safe property” — Evidence to• explain—</p> <p>Where a horse is sold with a warranty “sound and safe property”, the meaning of the word “sound”, is plain and not to be varied by oral testimony: but the (Arase “safe property”, is not so plain, and evidence is admissible to show that it was used in a technical sense.</p>

<p>Fireman's Pension Fund of Cincinnati — —Claim of tempory substitute—</p> <p>Under the statute, only substitutes of the Are department of Cincinnati, regularly appointed, .have any claim on the Aremen’s pension fund of the city.</p>

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

<p>Assessment on school property for street improvement—</p>

<p>Bill of Exceptions — Unless presented to the trial judge live days before expiration of the fifty days provided by the statute, the ■ court uses jurisdiction in the case.</p> <p>(For former decision of the Circuit Court in this case, see 15 C. C., 670.)</p>

<p>A contract of indemnity against losses arising from uncollectible debts is a contract of insurance, and ambiguities will be construed in favor of the insured.</p>

<p> Saturday half-holiday law unconstitutional— </p>

<p>Gounty Infirmary — Superintendent removable by directors at any time — See. 962, JR. S.—</p> <p>County infirmary directors under sec. 962, R. S., have authority to remove the superintendent of the infirmary at any time.</p>

<p>Scintilla rule — Not applicable to testimony in the case—</p>

<p>Motion to dismiss the appeal of the trustee from a judgment by the superior court.</p>