Volume 19 — Ohio Circuit Court Reports

<p>Street Improvement — Advertisements not to be confined to product of certain factory — Powers of City Council—</p> <p>(1). The advertisements for bids to construct a certain street improvement with bricks, which specify a particular manufacture of brick to be used, are illegal as excluding competition. The city council may resolve to improve a street with granite, or firebrick, or asphalt, etc., and may advertise for bids with specifications providing for all these different characters of material,and when the bids are in,council may determine which of the different materials shall be used, but the contract must be given to the lowest bidder on the kind of material determined upon.</p>

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

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

<p>Administrator and Executor accounts filed and approved at various times — Action to open up — When duly proper—</p> <p>(1). In an action by heirs to have the accounts of an executor or administrator, filed at various times and approved by the probate court, set aside on the ground that he falsely and fraudulently failed to charge himself with certain enumerated sums of money by him received, and that he procured the probate court to approve such accounts. Held: matters passed on by the probate court will not be opened up unless it is shown that the judgment of the probate court was procuredT>y fraud.</p> <p>Judgment of probate court only impeachable for fraud—</p> <p>(2) . The probate court, as to matters that come within its jurisdiction,is a court of record, and its judgments are of the same binding effeot as judgments of any other courts,and can only be impeached for fraud.</p> <p> Charging executor with true value of property sold below— </p> <p>(3) . An executor or administrator will not be charged with the true value of property which it is claimed he sold much below its value, where the sale took place twenty years ago and the claim as to its true value rests only on the statement in a letter, without any evidence as to its value since that time.</p> <p>Same — Executor buying in property of estate after resignation— When sale will not be set aside—</p> <p>(4) .- Where an executor on his petition obtained an order for the sale of property of the estate, and then resigned,and after his resignation bought in the property at the judicial sale, such sale will not be set aside where'it does not appear that he did anything to prevent competition, and where the court is satisfied that the price paid by him was the fair value of the property at the time.</p>

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

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

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

<p>Slander of manager of corporation — Action by a corporation—</p> <p>A corporation for profit may maintain an action for damages against a person who has injured the reputation and business of such corporation by a slander of its managing agent.</p>

<p>Appeal from the Court of Common Pleas]®of®®Ashland county.</p>

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

<p>Partnership — One sharing profits — Wood v. Vallette—</p> <p>Where E. P. B. & Co., who have a contract with a railway company to construct a railroad, enter into a contract with B.. by which it is agreed that B. shall furnish money to or endorse for said firm of E. P. B. & Co., for the purpose of assisting E. P. B. & Co. in the construction of said railroad, and that B. is to have a certain portion of [the net profits that E. P. B. & Co. may gain or make in the fexecution of their contract with said railroad company, but that said agreement shall not constitute'"B. a partner in the firnfof E. P. B. & Co., Held:</p> <p>(1) . That as to third persons, who having no knowledge of said contract, loaned money to E. P. B. & Co. upon their notes or endorsements, during the existence of said contract, B. was to be regarded as a partner in the firm of E.P. B. & Co. Wood v. Vallette,7 Ohio St., 172, followed and approved.</p> <p>(2) , The case of Wood v. Vallette is still law in Ohio. It has not been overruled or modified by the case of Harvey v. Childs, 28 Ohio St., 819.</p>

<p>Chattel mortgage — Sworn statement of creditor made before execution of mortgage by mortgagee— When valid lien.</p> <p>When, under the provisions of sec. 4154, R. S., there is made and indorsed on a chattel mortgage, before the same is filed with the proper officer, by the mortgagee, his agent or attorney, a statement under oath of the amount of the claim secured by it, and that the claim is just and unpaid, upon the filing of such mortgage, as provided in sec. 4151, R. £h, a lien is acquired, in favor of the mortgagee, upon the specific property included and described in the said instrument, and upon any fund arising from a sale thereof superior and prior to the lien of general creditors of the morV gagor; notwithstanding the said statement under oath, was made and indorsed before the final execution of the said ' mortgage by the mortgagor; if the indorsed sworn statement and subsequent execution of the instrument constituted, as between the mortgagor and mortgagee, a substantial good faith contract.</p> <p>(Affirmed by Supreme Court, 41 W. L. B., 362.)</p>

<p>Construction of will of Judge Ranney—</p> <p>The will of R. P. R. contained the following’ provision: “I give and. bequeath to each of my grandchildren now or hereafter born, the sum of fifteen thousand dollars, to be .paid to them respectively, together with any accumulations thereon, when they shall respectively arrive at the age of twenty-three years, ” etc. Held: That the bequests in this provision are limited to the grandchildren in being at the time of the death of the testator, and do not include those born after his death. i</p>

<p>Street Railroad — Extension of line — Notice under see. 2502, R. S , not required—</p> <p>On the allegations made in the petition of the plaintiff, Held. 1st. That notice of the application of the defendant company to jbhe board of control of the city of Hamilton for the extension of its tracks over other streets of said city, as provided by section 2502, Revised Statutes, was not required and was not essential to the validity of an ordinance granting such extension.</p> <p>Inter-urban street railroad — Authority to appropriate joint use of tracks of city R. R. — Computation of one-eighth of trackage —</p> <p>'2nd. That where a street railway company duly incorporated and authorized to construct a street railway, partly within and partly without the limits of a municipal corporation, obtains from the municipal authorities the right to construct its railway over certain streets within such municipal corporation, and also obtains frqm the county commis- > sioners or other authority the right to construct its railway on roads outside of such municipal corporation, and does so, and the authorities of such municipal corporation grant to said street railway company authority to extend its tracks therein, and to occupy the track of an existing street railway therein, under the provisions of sec. 3438, Bev. Stats., the part of said railway outside of such municipal corporation, actually constructed, operated and run over, as well as that part within the same, may be estimated to determine whether the parts so used are more than eight times the length of that part of the existing railway-track which it is authorized to use.</p> <p>Same — Bridge built by Co. Com’rs within city, under control of city—</p> <p>3rd. The fact that the existing railway runs over a bridge on a public highway in said municipal corporation, which bridge was erected by the county commissioners, does not prevent the municipal authorities from granting- to the defendant company the right to use the existing tracks over said bridge.</p> <p>Same — Right to appropriate joint use of track of city Str.^R. R.—</p> <p>4th. The acts of the legislature of May 17, 1894, 91 O. L., 285, and of May 21, 1894, 91 O. U., 379, which confer power on such a company to make traffic arrangements with another company owning- or operating a line within a municipal corporation, do not interfere with the right of one company when permission is properly given to appropriate the joint use of said track.</p> <p>Same — Consents of property owners not required—</p> <p>5th. Under the facts and circumstances set out in the petition, consents of property holders of lots abutting on the line of said existing- tracks, are not necessary.</p>

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

<p>Costs — Witness fees — Witnesses subpoenaed but not edited—</p> <p>(1). The successful party in an action is entitled to his costs, and among- these to the fees of witnesses subpoenaed in good faith, although it should turn out at the trial that their testimony was not needed, and they were in consequence, not examined. But if a court becomes satisfied that a party had subpoenaed persons to appear as witnesses without any intention of making use of them, but simply to swell his costs, it would be its duty to refuse to include in the judgment the fees of such persons.</p> <p>Suit by partnership — Death of one partner — Suit may be continued in same names—</p> <p>(2) . Where suit was begun in the name of a partnership composed of two persons, naming them, and during the pendency of the suit one of these partners died, it is not error in the court, such death being suggested, on motion, to order that the action should proceed to judgment without change of caption or title. Sec. 5146, R. S., is applicable to such case.</p> <p>Partnership — Death of one partner — Winding up — See. 3467 R. S. exclusive of common law rights—</p> <p>(3) . Sec. 3167, R. S., as amended and now in force, provides for the manner in which partnerships on the death of one of the partners shall be wound up, and 3s exclusive of any rights which the surviving partner may have had under the common law in such cases.</p> <p>Assignment of interest in action — Action may be eoutinued in name of original plaintiff-—</p> <p>(4) . Where during the pendency of the action, the plaintiffs have assigned all their interest therein to a third party, the action, under sec. 5012, R. S., may proceed in the name of the original plaintiffs, and where the original plaintiffs 'were partners,who, after the commencement of the action, had assigned all interest therein to a third party, and one of such partners dies, the action may be continued by the surviving partner without change of title, or substitution of the other parties in the action.</p> <p>Evidence — Testimony in conflict with writing— Admissibility of writing—</p> <p>(5) . Where a witness, on cross-examination, is shown a paper with his name signed thereto, which is at variance with his testimony in chief, but denies to have signed it, it is competent to introduce witnesses to testify that he did sign it, and such writing may be admitted in evidence.</p> <p>Same — Denial of part of written statement — Admissibility—</p> <p>(6) . Where on cross-examination a witness is shown a paper which he admits to have signed and sworn to, a part of which is in conflict with his testimony in chief, and as to another part, it is prejudicial to the party who called him, and he is asked no question as to such latter part, it is error to admit such part of the writing as to which no question was asked.</p> <p>Assignment of interest in cause of action before suit brought— Suit in name of assignor— When admissible—</p> <p>(7). Where before suit is commenced, a party enters into an agreement, by which be is to proceed and sue for the claim, but assigns all interest in the judgment to be recovered to a third party, and the language of the agreement shows that it was really a pledge and collateral security for the debt, while it is not perfectly clear that the right remained in the assignor to prosecute the action in his own name, yet no prejudice growing out of it to the debtor, the action of the court in'allowing the assignor to proceed with the suit was not reversible error.</p>

<p>Verdict — When only to be set aside.</p> <p>(1) . A verdict of the jury should not he set aside by the court on account of any mere difference of opinion between judge and jury as to the weight of the evidence, but only when the verdict is unsupported by or is against the decided weight of the evidence.</p> <p>Evidence — Actions of person harrassed by litigation, as proof of guilt.</p> <p>(2) . Motives that influence a person who for years has been harrassed by a large number of suits, involving not only a ' largo amount of money, but criminal charges, are difficult to understand by those not thus situated. It is impossible for one against whom such serious charges are made, not to m. nifest extremo apprehension, and the court cannot infer his guilt from acts which to a coldblooded man, might appear in explainable.</p> <p>One Insurance Co. subsequently adopting action of other companies —Evidence as to such action admissible against such company— Waiver.</p> <p>(3) . Where a large number of insurance companies are interested in a loss by fire, and the adjusters of several of such companies meet and appoint a committee of three of tüeir number to act for them all in the matter, a company which did not take part in the original arrangement, hut subsequently adopted the same, is after that bound by the acts of such committee, and evidence of what that original arrangement was is admissible in evidence against such company; and where the action of such committee amounted to a waiver of the right to demand an appraisement which right was reserved in the policy to the latter company, such company will he hound by such waiver.</p> <p> Right of company lo demand appraisement of loss— What action not sufficient. </p> <p>(4) . A written notice, by such company, to the insured, that without waiving any of its other defenses, -it will insist on its right to demand ;.n appraisement, but not offering to do anything farther, and where no refusal on the part of the insured to submit to such appraisement is shown, will not constitute a defense to the suit by the insured'to recover the insurance, on the ground that such appraisement should have been had before suit brought.</p> <p>Appraisement of actual loss inapplicable where loss total—</p> <p>(5) . The insurance company is not entitled to an appraisement of the actual loss where there is a total destruction of the goods insured.</p>

<p>lácense to privyvault cleaner — Special charges for permits for each case unlawful.</p> <p>(1.) Where a city, upon the payment of an annuaUfee~of ten dollars, has issued a license to a person authorizing^him to carry on the occupation of privy vault cleaner in"such city for the period of one year, and where sjich city requires of him to obtain a permit from the board of health before cleaning a privy vault, it is unreasonable and’unlawful for such board of health to exact of him the payment of a fee of twenty-five cents, or fifty cents, for the issuing of such permit. -</p> <p>Same — When Payment of such charges for permits to he considered involuntary.</p> <p>(2.) The payment of such fees is involuntary, and the'same may be recovered back, where the party objects and protests generally against such exaction and is threatened at different times by the president of the board ofihealth with arrest and revocation of his license unless j,he~;pays'f or the permits; and it is not necessary, to make such payments involuntary, that objection and protest be'made'before the payment of each fee.</p> <p>Same — Limitation of action to recover such special charges for permits paid.</p> <p>(3.) While the exaction of. such fees by the board of health is an exercise of power in the nature of taxation, the cause of action is not governed by section 5818, which is the statute of limitations relating to the recovery of illegal taxes and assessments; that statute relates to taxes and assessments levied by the [authorities in the ordinary way, and not to such an unlawful exaction of fees.</p>

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

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

<p> Trustee of hamlet eligible for school board of school district co-extensive with village. </p> <p>(1.) Under sec. 1717 R. S., a member of a village council is not eligible as member of the board of education of a school district which is located within the municipal boundaries. But hamlets having no council, but only trustees of the hamlet, see. 1717 R. S-, will not apply to make a trustee of a hamlet ineligible as a member of a school district although the boundaries thereof are co-extensive with those of the hamlet.</p> <p> When trustees of hamlet will be included in term “council" </p> <p>(2.) Trustees of .hamlets will of necessity be included in the term “council” as used in statutes where such statutes provide for certain improvements and must have meant to include trustees of hamlets or such improvements would be prohibited in hamlets entirely.</p>

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

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

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

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

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

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

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

<p>Sale on credit — False statements to Commercial Agency and Agent.</p> <p>In selling goods the seller has a right to rely on statements made by the purchaser as to his financial condition to the commercial agency, and to a person who makes the sale, although such person is not the regular agent of such seller; and when it appears that such statements made by the purchaser were false, the seller may recover the goods from the purchaser’s assignee for the benefit of creditors, on the ground of fraud.</p>

<p>President of Corporation — Power to sell the hands of the corporation—</p> <p>(1) . Where the stockholders of a corporation authorize the directors of the company to make and issue its bonds secured by mortgage on the property of the corporation, and the board of directors take steps to carry out such authority of the stockholders, the president of the comiDany has no authority in law, by reason of his office, to- sell the bonds, nor has he authority to employ another to sell them and make such contraet of employment binding upon the company. The only way in which to bind the company by such a contract is either to first have the directors authorize the president to make the same, or for the board of directors to ratify the act of the president in entering into the contract.</p> <p>Same —President acting as general manager—</p> <p>(2) . Where the president of a corporation is authorized to act as superintendent or general manager of the company in the conduct of its ordinary and routine business, his powers are not thereby so enlarged that he can legally, of his own motion, undertake the sale of the company’s bonds, no such authority or duty being contemplated when he was authorized to act as manager of the routine business of the company.*</p> <p>Knowledge of two directors as notice to the hoard—</p> <p>(3) . The fact that two of the directors of the company knew that such person employed by the president was a stockholder and was active in trying to procure purchasers for the bonds, and were present when some of the bonds were delivered to purchasers, would not bring notice to the board of directors of such contract; nor would it work a ratification by the board of directors of said contract of hiring.</p> <p> Power of directors to mortgage property of corporation — </p> <p>(4) . Sections 3526 and 3248 place upon the board of directors the duty of borrowing money and mortgaging the property of the company.</p> <p>Ambiguity in proceedings of directors — Construction—</p> <p>(5) . The proceedings of the board of directors at the same meeting, if ambiguous or uncertain in meaning and purpose, will be. so construed as to be consistent with all other proceedings of the board pertaining to the same subject matter.</p> <p>Pretended contracts to test market value, not intended as real contracts confer no power—</p> <p>(6) . When so-called contracts do not embody or represent any real agreement between the parties, but were executed ior the sole purpose of enabling one of the parties to the so-called contracts to ascertain at what price the bonds of a company could be sold, such so called contracts confer no authority upon the one with whom such contracts are made to sell the bonds of the other party, even though the papers purport to give such authority.</p> <p>Opinion Witnesses — Cross-Examination — Testing soundness of judgment—</p> <p>(7). Full latitude should be allowed in the cross-examination of opinion witnesses in order to ascertain the basis and test, the soundness of their opinions; and their answers in respect to matters of common knowledge may be of such character as to demonstrate the absurdity of their opinion, and the unsoundness of their judgment.</p>

<p>Will — Absolute discretion vested in executor not to be interfered with by court—</p> <p>(1) . Where a testator by his will vests absolute discretion in his executor, the courts will not interfere with or direct the exercise of such discretion.</p> <p>Construction — What income and what principal—</p> <p>(2) . Where a trustee under a will which distributes the income of property in one proportion and the principal in another, makes a lease for the mining of coal with a stipulation for a minimum royalty for each year, the minimum royalty is part of the principal of the estate, and not part of the income.</p> <p>Payment of legacy to compensate for advances to other child— Interest—</p> <p>(3.) Where a will directs the executor to pay over to the representatives of one of the testator’s children such a sum as will compensate them for an advancement made to another child during the testator’s life time, and directs that in the ascertainment of such amount no interest shall be computed, and directs that the amount so ascertained shall be paid over at such time as the executor may select before distribution, the amount so ascertained will not bear interest in favor of the persons entitled to it. .</p> <p>Questions not yet arisen—</p> <p>(A) The court will not answer requests for construction until a present necessity for such construction has arisen.</p> <p>Partial payments of legacy — Partial distribution or loan — Interest.</p> <p>(5). Honeys advanced to beneficiaries under a will in the exercise of a discretion ve’sted in the executor to make advancements will not be construed as payments ipade in partial distribution, where the tailing of a note for the same or any other evidence of indebtedness, or other circumstances indicate that the money is paid as a loan and not as a partial distribution; otherwise, money so advanced becomes the property of the one to whom it is given, and no interest can be charged against him on the makihg of final distribution.</p>

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

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

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

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

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

<p>Sewerage — Natural drainage — Exemption of lots—</p> <p>Lots and lands within the bounds of a municipal corporation which have sufficient natural drainage and are not specially benefited, are not subject under the statute to assessment for sewer purposes.</p> <p>( Affirmed by Supreme Court without report, 42 Bull. 251.)</p>

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

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

<p> Taxation of Incorporated Banks— </p> <p>(1). The capital of the bank, and the property in the shares of the hank, are distinct kinds of property, and are not the same property although they depend upon the same basis largely for their value. They may, or may not, be exact ■equivalents. The stock may have a greater or less market v.alue than the real value of the property of the bank, yet it has been the purpose of the legislature on account of the fact that these properties both spring from the same investments and from the same parent source, not to tax both, but to tax only one; and, if one is taxed, it has been the policy of the law to exempt the other.</p> <p>Taxation is on stock, not on bank—</p> <p><2). The tax is against the shareholder, and the provision for the banks paying it, is not a provision for the bank paying its own tax, but a mere method of collecting the tax from the stockholders, and the lien is upon no property of the bank, but entirely upon that of the stockholder.</p> <p>Dividends taxable after being declared—</p> <p>.(3). After dividends are declared by the bank, they become the property of the shareholder, and not until the time of declaring such dividend does the tax become a lien upon the same.</p> <p> Bank pays tax for the stockholders— </p> <p>(á). Requiring the hank to pay the treasurer, is but another method of requiring the stockholder to pay his tax.</p> <p>Principle of taxing incorporated and unincorporated banks same—</p> <p><5.) The provision of the statute for obtaining the value of the capital stock of a bank, and the provisions for obtaining the value of the capital of an unincorporated bank, are-merely different methods provided by law. which is permissible for arriving at the true valu'e in money of each kind of property.</p> <p>Same — Not inequality in taxation—</p> <p>(0). Under our statutes, it has long been the practice of our legislature to treat the capital stock of the company as the equivalent of the capital of the company, and they are so. nearly equal that the difference in their values would not constitute what is known as inequality in taxation.</p> <p>Shares taxable, though property of bank invested in U. 8. bonds—</p> <p>(7) . Shares of stock in incorporated banks, whether state or national, may under our statutes be taxed at their money value though all, or a portion of the capital of the bank, is invested in United States securities.</p> <p>Bank can not bring suit for its stockholders—</p> <p>(8) . There being no tax assessed against an incorporated banir,. such bank can not appear for its stockholders and institute proceedings to enjoin the collection of taxes assessed against the shares of stock in such bank held by its stockholders.</p>

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

<p>Village treasurer depositing funds in bank without consent of council — Interest belongs to village — -</p> <p>(1) . Under sec. 1772, R. S., the treasurer of a village may, with the consent of the council, deposit the funds of such village in a bank, under an arrangement made by the council with such bank, and any interest on the money so deposited with the bank, are the property of the village.</p> <p>(2) . The treasurer of a village has no authority in law to deposit the funds of the village with a bank without the consent of the council; but where he does so, all interest paid by the bank on money so deposited with it by such treasurer, belongs to the village, and not to such treasurer.</p>

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

<p>Dissolution of partnership — What Petition must contain before court can proceed.</p> <p>(1). A petition asking for the dissolution of a corporation under sec. 5652, R. S., must contain the amounts and inventories of all the estate of the corporation, and it is within the power of the court to give the petitioners aeoess to the books of the corporation to enable him to furnish the material required to be set out in his petition by the statute, but the court is not authorized before such accounts and inventories are filed, to proceed and order persons interested in the corporation to show cause why the same should not be dissolved, etc., under sec. 5654, R. S.</p>

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

<p>Mandamus.</p> <p>Appeal from the court of Common Pleas of Cuyahoga conuty.</p>

<p>Damages to property in vicinity of B. B. —Difference in hind from, public inconvenience required—</p> <p>Owners of property in the “immediate vicinity” of some one of certain streets sought to be vacated can not recover damages therefor unless it appears from the evidence that they have suffered an injury thereby different in kind, and not in degree only, from that suffered by the public. If the inconvenience that such property owners suffer thereby is one suffered also by the general public, it does not affect a legal right, but comes under the rule of damnum absque injuria.</p>

<p> Resolution for construction of sidewalk is one of permanent nature —Section 1694 applies — </p> <p>A resolution of a city council providing for and ordering the construction of a stone or artificial sidewalk along a street, is one of a permanent nature, and under the provisions of sec. 1694, R. S., must be read on three different days unless three-fourths of the members elected dispense with this rule. And where such a resolution was passed by counsel after one reading only, an assessment for its cost and expense on the abutting property is void, 17 C. C., 291, approved and followed.</p>

<p>Action to quiet title — Decree final—</p> <p>(1) . In an action to quiet title, all mattes affecting the title of the paties to the action may be litigated and determined, and the judgment therein is final and conclusive.</p> <p>Same — Decree a bar to all matters that might have been set up—</p> <p>(2) . The judgment or decree of a court of competent jurisdiction thereby determined, is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.</p> <p>Same — One not original party but subsequently made so on motion—</p> <p>(3) . A party is bound by a decree quieting title although the plaintiffs in that action did not make him a party, but where he was made a defendant in that action upon a motion of one of the original defendants, and has been served with summons.</p> <p>Claimant entitled to refunder of taxes paid—</p> <p>(4) . A party who pays taxes on property to which at the time he believes to have title’ is entitled to the repayment of the amount, with interest, from the party who is found by the court to be the true owner of the property.</p>

<p>“Newspapers of different political parties" defined — Sec. 917—</p> <p>(1). An independent newspaper is not a newspaper of a political party within the meaning of section 9W, R. S., although it may have supported a political party.</p>

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

<p>1The Cleveland Legal Record’' a newspaper within sec. 5050, Rev. Stat.—</p> <p>“The Cleveland Daily Record” although principally devoted to news of a legal character, is a “newspaper” within the meaning of sec. 5050, R. S., and the publication therein of legal notices, required by law to be published in a newspaper, is a compliance with the law.</p>

<p>Insolvent corporation — Proceedings against stockholders — Judgment and execution not necessary—</p> <p>(1) . Where a debtor corporation is substantially insolvent it is unnecessary that one desiring to proceed against the stockholders should first obtain judgment and issue an execution. Bequest of stock in insolvent corporation does not bind legatee unless accepted—</p> <p>(2) . One who receives a bequest of shares of stock, but said shares are not transferred to him on the books of the corporation, and there is no other evidence of his acceptance of the bequest, can not be held for an assessment upon such stock under statutory liability; the proceeding should be against the estate of the testator.</p> <p>Loan to individual for benefit of corporation — Corporation not liable—</p> <p>(3) . Where a loan upon real a estate mortgage is obtained by an individual for the benefit of a corporation, and the property upon sale in foreclosure proceedings fails to pay the loan in full, the corporation does not become personally liable for the deficit.</p> <p>Finding by referee of insolvency of stockholder — May be set aside.</p> <p>(4) . A finding by a referee that a stockholder is insolvent will not be upheld where the evidence shows that he still has outstanding interests, and has conveyed property without valid consideration.</p>

<p>Minors entering service of R. R. Co. under false representation as to age — Duty of R. R. Co.—</p> <p>(1). A minor entered into the employment of a Railroad Co., falsely representing that he was of age, the rules of the R. R. Co. providing that no person under age should be accepted into its employment; and remained in the employment of the R. R. Co., performing his duties and receiving his wages for nearly three years, when he was injured while engaged in such service; Held: He was not a trespasser or wrongdoer on the cars of the R. R. Co., and the R. R. Co. owed him the protection due to an employe. But if the R. R Co. suffered any damage by reason of his false statement, it would be entitled to set that up against him in an action for wages, or to bring a suit for damages.</p> <p>Brakeman injured by overhead bridge temporarily lowered — Insufficient notice — Liability of R. R. to.—</p> <p>(2) . Where an overhead bridge on a railroad is about to be repaired, a written notice, such as was given in this case, to brakemen on the trains of the B. B. Co., of the impending repairs, is not sufficient to relieve the B. B. Co. from liability for injury sustained by a brakeman in consequence of a temporary lowering of the bridge for the purpose of repair. Under the circumstances, the natural presumption that the brakeman injured did not know or had excusably forgotten the danger, is so strong, that elear evidence-should be required to rebut it.</p> <p>Minor — Right to repudiate contract—</p> <p>(3) . An infant can not repudiate an executed contract for services, if such contract was apparently fair and reasonable and the other party does not know of his infancy; but he can abandon the service when he pleases,or ask for new terms.</p>

<p>Cumulative voting of shares, in election of directors — Section 3245, Revised, Statutes—</p> <p>In the election of directors of a corporation the cumulative voting of shares is authorized by section 3245, Revised Statutes, as amended April 23, 1898 (93 O. L., 230), and one receiving a majority of the votes so cast is elected a director, though he does not receive the votes of the holders of a majority of the shares.</p> <p>(Affirmed by Supreme Court, 43 W. L. B., *113.)</p>

<p>Excessiveness of verdict as ground for new trial — When brought before appellate court—</p> <p>(1) . Where the excessiveness of a verdict is assigned in the motion for a new trial in the trial court, as one of the grounds for a new trial, and such motion having been overruled, the action of the trial court in overruling such motion for new trial, is assigned as error in the appellate court, the error so assigned brings before such appellate court the question of the excessiveness of the verdict below.</p> <p>Expert testimony — Nature of services — Knowledge of what usually paid therefor should be shown—</p> <p>(2) . A witness called to testify as to the value of services rendered, who had before stated that she was a near neighbor, a married woman and a housekeeper, was asked what services are reasonably worth by a girl from eighteen to twenty years of age as housekeeper, etc. Thereupon the witness answered:‘“I should think about five dollars a week, that’s my experience.” Held, that while it would have been the better way to have asked her first as to her knowledge of what was usually paid for such services, yet as no effort was made at the time to show her want of such knowledge, by the other side, and as she was familiar in the neighborhood and knew the character of the work, and answered from her experience, the error in admitting her evidence would not justify a reversal.</p>

<p>Inspector and Repairer of machinery fellow servant of operator—</p> <p>(1.) A person employed to repair and keep in repair machinery, is a fellow-servant of the employe whose duty it was to operate the machinery, where neither had control over the other, and this applies where one person is charged with both duties to inspect as well as to repair machinery.</p> <p>Competency of Inspector of machinery — Inability of employer—</p> <p>(2). Where the employer has exercised great care in the selection of the person to inspect and repair the machine rytand one in every respect competent to perform the duties required in such employment, and also had given to such employe positive instructions to be careful and vigilant in the performance of such duties, such-employer is not liable for damages for an injury caused by such person to a fellow employe by negligence in the performance his duties.</p>

<p>Mechanic’s lien law amendment of April, lSM, invalid, inclusive of repealing clause thereof—</p> <p>(1) . The amendment of April 18, 1894 (91 O. L., 135) of the Mechanic’s Lien law, having been declared unconstitutional by the supreme court, the repealing clause thereof became invalid also, and the Mechanics’ Lien law as it stood before such attempted amendment remains m force.</p> <p>Contract with owner must be averred in petition to enforce lien-—</p> <p>(2) . While under the attempted amendment of April 18, 1894, of the Mechanics’ Lien law, which was declared unconstitutional, it would not be necessary to aver in a petition to enforce a mechanic’s lion secured thereunder, that the materials furnished or labor performed were furnished for the owner, or under contract with the owner of the premises, such averment is essential In a petition to enforce a mechanic’s lien obtained under the Mechanics’ Lien law as it stood before such attempted amendment, and as it is now in force after such amendment was held to be invalid.</p>

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

<p>Receiver for corporation — Insufficient grounds for appointment of.</p> <p>(1) . Where no trouble is shown in the directorship of a cor-</p> <p>poration and the whole machinery is intact and working harmoniously, the fact that certain creditors are about to bring action to' enforce their claims is not a good ground for the appointment of a receiver. Same —Stockholder, Director or Treasurer can not be appointed—</p> <p>(2) . The appointment of one who at the time of his appointment as receiver was a stockholder, director and treasurer of the corporation, is within the direct prohibition of the statute.</p> <p>Consent of party procured to bring suit, when insufficient—</p> <p>(3) . Where the directors of a corporation, having decided that they would put its affairs in the hands of a receiver to prevent creditors taking action, secured the plaintiff to bring the action for the appointment fo a réceiver, guaranteeing him against any expense of counsel, etc., the consent of the parties to such action to the appointment of one of the directors as receiver under these circumstances, was not a consent that should set aside the plain provisions of the statute.</p> <p>Appointment of receiver for corporation inhere property located in other county—</p> <p>(4) . Where the suit for the appointment of a receiver of a corporation was commenced in one county, and all its property’was situated in another county, and an independent action must necessarily be brought in such other county to adjust the liens and sell the property, it is proper that the control of this property should be left with the court of the county where it is located; and if necessary to work out the rights of the parties that a receiver be appointed, that court can take charge of the whole matter.</p>

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

<p>Mortgage on oil lease — Must be recorded as Real Esta te mortgage—</p> <p>(1) . A mortgage of the interest of the lessee in possession under an instrument which grants to him, his heirs and assigns the right to enter upon certain lands “for the purpose and with the exclusive right in and .upon said premises to drill for and develop oil, gas and other valuable substances” such rights being granted in consideration of a share of the oil produced to be rendered to the landlord, and to “continue and be in force for five years, and so long as oil, gas and other valuable substances be found and developed upon . said premises in paying quantities” — must be executed, filed and recorded as provided by secs. 4106, 4133 and 4134, Revised Statutes, in order to make it a valid and effective incumbrance upon such interest as against third persons.</p> <p>Same — Recording as chattel mortgage with township cleric without possession not notice to third parties—</p> <p>(2) . Though such interest is a chattel real, i. e.: An estate for years, a chattel mortgage thereon filed with a township clerk, without change of possession, is not a valid and effective incumbrance upon such interest as against third persons; but such mortgage is valid as against the mortgagor, and is valid as to third persons after possession thereunder has been taken by the mortgagee.</p> <p>Mechanic’s lien on oil lease—</p> <p>(3) . A mechanic’s lien for labor and material furnished in the erection or repair of the necessary equipment of such leasehold attaches to such equipment and to the interest of the lessee in the premises.</p> <p> Derricks and appliances of oil lease proper subject of chattel mortgage— </p> <p>(4) . A chattel mortgage is the appropriate form of incumbrance upon the derricks, machinery and other appliances used in the operation of such lease.</p> <p>Same — Leasehold subject to levy as chattel—</p> <p>(6). Such leasehold interest is subject to levy and sale as a ■ chattel.</p> <p>Same — Levy without taking actual possession good—</p> <p>(6). To make a valid levy on such leasehold interest, the officer is not required to go into actual possession of the premises either by himself or by having another occupy the same as his representative.</p>

<p>Evidence — Affirmative testimony defined—</p> <p>(1.) The testimony of a witness who is near enough to hear and see, that he was paying attention, and that he looked and listened for a train; that ho saw no train, and that the bell was not rung nor whistle sounded, is not negative testimony, but is as much positive and affirmative testimony as that of a witness who swears that a signal was given.</p> <p>Weight of testimony not depending on number of witnesses — (2.) Although the witnesses called .for the defendant outnumber those called for the plaintiff, the weight of the testimony and the credibility of the witnesses is a question for the jury.</p> <p>" Action for damages against Railroad — R. R. employes, interested witnesses—</p> <p>(3.) Where the testimony on one side consists of that of the plaintiff and his wife, who of course are interested witnesses and the testimony on the other side consists of that of five employes of the defendant railroad, the latter are [also interested witnesses in proving_ that the proper signals were given by them, and the weight to be given the testimony on either side is a question for the jury.</p> <p>Failure of R. R. to blow whistle at crossing — When R. R. Go. liable for injury—</p> <p>(4.) The railroad company is not liable for injuries sustained by the plaintiff at a crossing, for failure to blow the whistle or ring the bell as the statute directs, unless such failure was proximately the cause of the injury.</p> <p>Failure of B. B. to have flagman at crossing outside of municipality — Question of negligencs for jury—</p> <p>(5.) While it is not, as a matter of law, negligence on the part of a railroad company, not to have a flagman ata crossing outside of a municipality,yet whether the circumstances óf a particular case and the situation at a certain crossing required a flagman in the exercise of ordinary care, or not, is a question for the jury.</p> <p>B. B. leaving cars standing close to crossing as one of several things in charge of negligence— i r. ■</p> <p>(Q.) A charge that the railroad company was not guilty of negligence by leaving cars standing close to a crossing would not be proper where the leaving the cars standing close to the crossing was only one of the several things complained of, all of which taken together are charged as negligence against the railroad company.</p>

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

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

<p>Fraudulent conveyance made by deceased — Action by creditor to set it aside—</p> <p>An action to set aside a fraudulent conveyance should be brought by the' administrator under sec. 6189 R. S., when the estate would without the property so fraudulently conveyed be insolvent. But such action is not exclusive. A creditor may also bring such an action, and a court of equity has jurisdiction to entertain such an action. But when these assets are reached, they should be placed into the hands of the administrator to be by him administered according to law.</p>

<p>Judgment note by corporation executed in contemplation of possible insolvency to operate as preference of creditor — Effect of judgment and levy—</p> <p>Wh.efe a cognovit note was executed by a corporation in embarrassed circumstances, for an antecedent debt, with the understanding that if the corporation should find itself compelled to make an assignment, the creditor would be N notified thereof in advance to be able to obtain judgment on the note and.levy of execution thereon before the assignment is executed by the corporation, which arrangement was carried out, in such case the judgment and levy being obtained after the corporation had ceased to prosecute the objects of its creation, constitutes such a preference of a creditor as under the authority of the Rouse case, 46 Ohio St., 493, is invalild.</p>

<p>Action against non-resident - Affidavit for service by publication may be filed with petition without first issuing summons—</p> <p>To begin an action properly, it is necessary to file petition and to have summons issued to bring thé defendants in if to be within the jurisdiction of the court. But if it is known when the petition is filed, the defendant is beyond the jurisdiction of the court, a summons need not be issued before serivce can be had upon such defendant by publication, and a party may file an affidavit with the petition it in the first instance to obtain service by publication.</p>

<p>Injury from falling on ice accumulated on sidewalk — Question of negligence of city for jury—</p> <p>(1) . In an action against a city for damages for injuries sustained by a fall on the sidewalk in consequence of the accumulation of snow and ice thereon, the question whether the city was negligent in not removing the snow and ice from the sidewalk is one of fact to be determined by the jury.</p> <p>Evidence — Testimony as to other persons having fallen there competent—</p> <p>(2) . In such action the testimony of witnesses who testify to having seen other persons fall at the place where plaintiff fell, within a reasonable time preceding the accident to the plaintiff, on account of the slipperyness of the ice at such place, is competent.</p>

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

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

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

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

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

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

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

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

<p>Husband acting as wife s.agent — Wife bound by husband's knowledge of facts surrounding transaction—</p> <p>(1) . Where the husband acts as the agent of his wife, but she is ignorant of the circumstances surrounding the transaction but authorized and ratified his acts, she is bound by the knowledge of the facts by the husband.</p> <p>Samé — Property sold by husband to defeat wife's alimony — Inadequate consideration — Trust—</p> <p>(2) . Where a husband conveys his property for a grossly inadequate consideration to a third party, for the purpose of defeating his wife’s claim for alimony,and the purchaser, before and at the time of the sale, knew of this purpose and encouraged it, he by so taking said conveyance becomes a party to the fraud against the wife,and in so far as the full consideration has not been paid, the property is held in trust subject to and chargeable with the decree for alimony; and the sum awarded as alimony will be made a lien upon such property.</p>

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

<p>An application for a writ of habeas corpus is not a civil action, and appeal will not lie.</p>

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

<p>Contract for sale of land — Assignee entitled to equitable rights of both, vendor and assignor—</p> <p>(1) Ihe assignee of a contract for the sale of real estate is entitled to the benefit of equitable rights existing in favor of the vendor, as well as those existing in favor of the assignor of the contract. Therefore, where the former holds a purchase money mortgage, executed by the vendee under a former sale, which was rescinded,as protection against a judgment lien, the assignee of the contract is entitled to the benefit of the same security, whether he had knowledge of the facts or not.</p> <p>Contract preventing merger of purchase money mortgage given iri rescinded sale—</p> <p>(2) By the agreement that the purchase money mortgage, given by the first grantee, should be held as protection against the judgment lien, a merger of the mortgage in the rescinded sale and reconveyance was prevented, and it remains alive for the purpose'apd with the effect designed.</p> <p>Entry of “settled” — Defined—</p> <p>(3) The term “settled’ does not necessarily import either that the issues were determined by the court, or that the claim sued upon was paid, released or in any manner discharged or satisfied, except in so far as was necessary to determine plaintiff’s then present right of action upon it.</p> <p>Same — Effect—Not res judicata or estoppel—</p> <p>(4) An entry, in a foreclosure suit, that “this day came the parties by their attorneys and in open court declared this cause- settled” does not amount to a satisfaction of the mortgage, or of a vendor’s lien theretofore existing in favor of the plaintiff, nor is it such a judgment as will, either as res judicata or estoppel, preclude a reassertion to the vendor’s lien or of the mortgage.</p> <p>Decree concludes ordy matters determined.—</p> <p>(5) A decree, as between the parties,-is not conclusive except as to that which is actually determined by the issues. Therefore the rights not secured or preserved by the entry “settled” must be determined by the agreement which is the basis of the termination of the suit.</p> <p> Judgment applies only between parties. </p> <p>(6) One not a party to the entry or judgment of settlement or dismissal derives no interest thereunder and acquires no right to insist upon its conclusiveness.</p> <p> Judgment lien only on real interest of debtor— </p> <p>(7) The lien of a judgment or levy attaches only to the real interest of the debtor, without respect to what his apparent interest may be and is subject to all equities, though secret or latent.</p>

<p>Contract to do or not do within certain time — Computation of time —Day of date of contract to he included—</p> <p>(1) . Thare is a Wide difference between a contract or law providing a period within whick a thing must be done, and a contract or law providing a period beyond which a thing may be done, and while in the fret case, there is a great conflict of authorities as to whether the fir*t day shall be included, yet such seems to be the holding of our supreme court.</p> <p>Same—</p> <p>(2) . Where parties entered into a stipulation, by which judgment was to be entered in an action, no execution thereon to be issued and levy made for ten months from the date of such judgment, in computing the time when execution may issue on such judgment, the day on which the judgment was entered may be included.</p>

<p> Will construed— </p> <p>Testator devised all the rest and residue oí his property, after payment of his debts, to his daughter during her natural life, and if his said daughter should die without living issue, then all the property devised to revert to his brothers and sisters or their heirs equally, Held:</p> <p>(1) . The gift over to the brothers and sisters of the testator was on a definite failure of issue, in the event that this daughter would die without living issue, and therefore she did not take an estate tail by implication, or any other estate by the terms of the will itself other than the life estate expressly given to her.</p> <p>(2) . The interest in the estate so given to the daughter for life, was devisea by said will and passed on the death of the testator to the daughter, so that by the will and by descent she became the owner of the absolute estate therein on the death of her father, the testator, subject to be divested if she died leaving no issue.</p>

The plaintiff in error was indicted jointly with Frank 'Thompson and Ralph Little for burglary and larceny. He was tried separately, and convicted, and sentenced to one year in the penitentiary. A motion for a new trial was made and overruled, and a bill of exceptions taken containing all of the evidence.

<p>Application for an alternative writ of Mandamus.</p>

<p>Will — Bequest of wife for life without disposing of remainder— Descent—</p> <p>Where a testator in his will gave his wife all and singular his property, real as well as personal, that he owns or that he may hereafter acquire and die possessed of, to have and to hold unto her own use and behalf,for and during her natural life,without making any further disposition as to his prop- . erty Held:tbe remainder therein passed to his two daughters as his heirs under the statute of descent as a vested estate, and not as a mere expectancy, or contingent on their qutliving their mother; and on the death of either, intestate, her interest therein, viz.: the one equal undivided half thereof, subject to the life estate of her mother therein, would pass by virtue of sec. 4158, R. S.</p>

<p>Vacation of street by R. R. Co. owning all lots on both sides— Damages to property owners in vicinity—</p> <p>(1) . A Bailroad Co. petitioning for the vacation of partR of certain streets,property owners intervened under sec. 2656, B. S., to have damages assessed to them on account of such vacation. It appearing that the Bailroad Co. was the owner of ■ all the lots abutting on each side of the streets sought to be vacated, and that no one of the cross-petitioners owned any property thereon, but owned property in “the immediate vicinity’ ’ of some one of the streets so sought to be vacated; Held, that no such property owner can recover damages therefor, unless it appeared that he had suffered an injury thereby, different in kind and not in degree only from that suffered by the public. He oould not recover damages by merely showing that he was in the habit of using such street often in his business or otherwise, and more frequently perhaps than the public generally, and that the closing of such street would be an inconvenience to him, by requiring him to travel farther than he did before to reach a given point.</p> <p>Special damages — When allowable— .</p> <p>(2) , There may be a special injury to property in the vicinity of a street sought to be vacated, by the vacation thereof, for which the owner might recover damages, as by the shutting off of property, or egress from it, or possibly in some other way. But such special injury or damages must be averred and proved.</p> <p>Damages for proposed use of vacated street—</p> <p>(3). No damages can be recovered from possible injury to property in the vicinity of the street sought to be vacated by the Railroad Co., on the ground that such property will be damaged by the uses which the Railroad Co. proposes to make of the street after the vacation thereof. If it bB conceded that such will be the case, and that the legal rights of any claimant will be infringed upon,damages may thereafter be recovered from the company, or any injurious uhb of the premises may be restrained.</p>

<p>Error can not be brought by one not party to suit—</p> <p>(1). While sec. 5220, R. S., allows an appeal to be taken in an appealable case, by a party or other person directly affected from a judgment or final order, there is no such provision as to error cases,and the rule 1« that error oan ordinarily be prosecuted only by parties to the original action or their privies; but in such case, the petition in error must by proper counts show the facts under which the plaintiff in error claims to be privy to the judgment, and it must be duly verified.</p> <p>Stockholder not party to suit can not prosecute error to judgment against corporation—</p> <p>(2). A stockholder in a corporation, who is notanaotual party to an action against such corporation, can not prosecute error to a judgment against the corpoiation in such action. He is reprensented by the company, and unless before judgment he obtains leave on proper showing to be made a party, he can not do so afterwards.</p>

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

<p>Error to the Court of Common Pleas of Hamilton county0</p>

<p>Error to the Court of Common Pleas of Hamilton county.</p> <p>The judgment to which error was prosecuted is in favor of the defendant in error for $800 and costs.</p>

The petitioner holds a judgment for $765 77 against the defendant named, and prays for a decree setting aside a conveyance of a lot on Margaret and Forbus street, Forbusville, as made in fraud of creditors.

<p>Error to the Court of Common Pleas of Hamilton county.</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>Endorsement in blank — Parol evidence inadmissible to vary legal effect—</p> <p>(1). The endorsément in blank, being unrestricted and unambiguous, its legal import could not be varied by parol evidence.</p> <p>Attorney of trustee-Extent of authority — Can not waive rights of trustee or estate—</p> <p>(2). An attorney of a trustee cannot contract to waive the rights of an estate which his clients only hold as trustee. Except in the management of that particular action and the mode and manner of conducting that litigation, the attorney has no authority or power to prejudice the substantial rights of the estate, of the' trustees, or of the cestui que trust.</p>

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

<p>Referee — Order to have testimony signed by witnesses — Effect—</p> <p>(1) . Where the court in ordering the reference orders the referee to have each witness sign his testimony, and to report-. that testimony back into the court of common pleas; the effect of such order is not to make such testimony a part of the record in the case; and the only way for bringing such testimony before an appellate courtis by embodying it in the bill of exceptions.</p> <p>Error proceedings strietly statutory, not remedial—</p> <p>(2) . . Proceedings in error are statutory proceedings purely. Every step is pointed out by statute, and, to prosecute error in a case, it is necessary that every step of the statutes should be complied with. They are not looked on as remedial statutes, but they are statutes that grant certain rights and, in order to secure these rights, they must be strictly complied with.</p>

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

<p>Where one enters into a contract with an attorney to procure a reduction for the assessment against certain lots for a fee amounting to one-third of the amount of reduction secured, he is liable for the fee without reference to the question whether or not he is nimself the owner of the lots.</p>

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

<p>Guaranty of payment to be construed, strictly — Applies only to Mnd of goods particularly designated—</p> <p>(1) . A guaranty of payment for a third narty for goods to be furnished on credit under a contract, is to be strictly construed as applying only to the kind of goods to be furnished under that contract. And where in a suit on such guaranty it does not appear that the indebtedness was for the kind of goods to be furnished under such contract, no recovery can be had.</p> <p>Guaranty where obligation already existed — Consideration—</p> <p>(2) . The majority of the court is of the opinion that where a guaranty is to a party who is already bound to furnish the goods,neither the promise to do so, or the actual delivery of the goods will be a good consideration for the guaranty. But the judge delivering the opinion inclines to the rule that where a party is already bound to do a thing, his promise to a third party to do the same thing at the latter’s request constitutes a good consideration to support the promise on the part of such third party.</p> <p>(See in connection with this case, Smith v. The Butler & Ward Co., 17 C. C. 68.)</p>

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

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

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

<p>Boundaries —Fv idence—</p> <p>(1) . In a controversy about boundaries, notes of the original survey which are merely tentative,show no place of beginning and are imperfect, are not competent evidence. Monuments control—</p> <p>(2) . Where in such case,the recorded distances and angles do, not agree with the monuments, the latter will control.</p>

<p>Purchase by insolvent — When not fraudulent—</p> <p>Where an article is purchased by one who is in fact insolvent at the time, but who makes no representations as to his financial condition, and who intends to pay for it. and has reasonable expectations to be able to pay it, the title to such article passes to him, and the vendor can not recover it on the ground that the purchase was fraudulent.</p>

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

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

<p>Counsel engaged, in other branch of court — Rule established that no default judgment should be taken — Effect—</p> <p>(1) . Where in a county where there are several branches of the court of common pleas sitting at the same time, the rule is established that where counsel in a case called for trial in one branch is engaged in another branch of the court, the case shajl not be taken up for hearing or any default taken therein until counsel is disengaged from the other branch of the court, counsel present should apprise the court that the counsel for the other party is engaged in the trial of a case in another room if he knows the fact to be so, and if he fails to do so, and judgment by default is entered by the court in the case in consequence of absence of counsel of the other party such judgment entry should be set aside by the court on being made acquainted with these facts.</p> <p>Replevin — Averment of ownership and right to possession — Default for answer — Absence of plaintiff's counsel'when case called, —Judgment by default dismissing case and for costs erroneous—</p> <p>(2) . Where in a replevin case plaintiff’s petition avers ownership and right of possession of the goods and there is no answer filed denying these averments, but when the case is called for trial plaintiff’s counsel is absent, it is error to enter judgment by default for costs against plaintiff and dismiss the action. In such case plaintiff was entitled to judgment in his favor as to ownership and right of possession and such judgment would have carried costs in his favor.</p>

<p>(1) . The promise to give a chattel mortgage on a machine purchased creates a condition precedent to the passing of title, and the obtaining of possession by the purchaser does not deprive the seller of title.</p> <p>(2) . A chattel mortgage which is not filed “forthwith” is void only against creditors of the mortgagor who assert their rights against the property before the mortgage is placed on file.</p>

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

<p>Mayor — Without authority to allow bill of exceptions after final judgment and overruling motion for new trial.</p>

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

<p>The court having decided the case and remanded it to the common pleas, on the ground of errors appearing in the bill of exceptions, a motion for a rehearing’of the case, on the ground that there was in fact no valid bill of exceptions brought up to the circuit court, overruled.</p>

<p>Where an alleged settlement and payment are contested, an issue is made that can not be properly tried upon affidavits. An issue should be made by proper pleadings and trial upon evidence had as in other issues.</p>

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

<p>In the absence of exceptions, no error appearing affirmatively on record, affirmance of judgment follows.</p>

<p>Set-off — Judgment for services and, judgment for damages to to property — Irregularity in form of verdict, if not prejudicial, not sufficient for reversal.</p>

<p>Order of J. P, dissolving attachment — Appeal — Jurisdiction of Common Pleas—</p> <p>When on appeal from an order of a J. P. dissolving an attachment, to the common pleas, under sec. 6494, R. S., that court has determined the motion and transmitted the order and papers back to the J. P., it has no further jurisdiction in the case.</p>

<p>(1.) No error will lie to the gjanting of a motion for anew trial.</p> <p>(2.) The record of a case is proof only as to what the law requires it to contain. A statement of grounds for its decision by the court below embodied in the bill of exceptions, is not thereby made part of the record.</p>

<p>Double track railroad — Train running on wrong track — Failure of notice to watchman at R. R. junction — Proximate cause of his being killed—</p> <p>A double track railroad used one of its tracks for trains run-in a westerly direction and the other for trains running in an easterly direction, in cases of emergency however, either track was used by trains running in either direction. A short distance from the station, where another railroad joined the tracks of this railroad, there was a tower erected, and it was the duty of the watchman placed there to signal trains approaching from either of the two railroads by means of a semaphore that the track was clear for its use. To avoid accidents at this point, the rule had been established to notify the watchman at the tower when it was necessary to use either of the two tracks of the road for running trains in the wrong direction not intended for that track. There was no other means provided for notifying the watchman at this junction but by telephone from the station. At the time in question in the case it had become necessary to run a train on the wrong track, and the telephone being out of order, the watchman had not been notified of that fact, and while going on the track to throw a switch for a train approaching on the other railroad, he was struck by the 'train coming at full speed on the wrong track, and killed. Held:</p> <p>(1) . Under the circumstances of the case, the failure to notify the watchman that a train was coming on the wrong track was the proximate cause of the accident.</p> <p>Right of watchman to rely on rules of Co. being observed—</p> <p>(2) . Although the rule of notifying the watchman was adopted primarily for the safety of the trains, the persons controlling and riding upon them, the property of the company and of that being carried by the company, ect., and that it was not for the protection of the trackmen switchmen and employes, yet the rule or custom having been adopted and followed for a long time without interruption or deviation, one in the position of the decedent, having knowledge of the facts, might properly rely upon the rule being observed.</p> <p> Walking on track as negligence— </p> <p>(3) . Under the circumstances of the case — the icy condition of the ground the impending danger of one walking elsewhere between the semaphore and the switch-stand, and the fact that the watchman had no reason to anticipate a train coming upon that track, it can not be said as a matter of law, that the decedent was guilty of negligence in walking on the track. Such question should go to the jury.</p> <p>Request stating law correctly to be given as written—</p> <p>(4) . Where requests asked to be given to the jury embody the law correctly, a party has a right to have them given precisely as written by him.</p> <p>Excessiveness of verdict — Carlisle Tables not controlling—</p> <p>(5) . A verdict should not be set aside as excessive because by the Carlisle tables it would appear that a smaller sum would have procured an annuity which would give the decedent as great an income as his earnings amounted to for the probable continuance of his life, provided the verdict is not so large as to be shocking to the sound judgment and sense of fairness of the court. As the statute stands, the court has no right in passing upon a verdict to apply to it any rule from the tables of probability, and the statute does not intend that the jury should necessarily place their verdict upon fixed mathematical tables.</p>

<p>Assignee in bankruptcy entitled to Bankrupt’s estate in possession of assignee under state assignment law — Preference to laborers under state law to be adjudicated in court of bankruptcy—</p>

<p> Heard on motion to require appellant to give additional bond, tke present bond on appeal being $100. </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>Error to the Court of Common Pleas of Hamilton county.</p>

<p>Heard on application for a writ of habeas corpus.</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> Subscription for procuring the building of a street railway— </p> <p>It is not necessary to notify a party of the acceptance of his subscription.</p>

<p>On error to reverse a verdict for $1,500 damages for the defendant in error.</p>

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

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

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

<p>False representation by purchaser — Intention to pay— General exception to charge — Notes taken in settlement—</p>

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

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

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

<p>The words “permanent employment”, has a well defined meaning, and can not be construed as employment for at least a year, unless there is a well understood local custom that “permanent” has such meaning.</p>

<p>City entitled to be reimbursed from county for expenses in taking care of insane persons.</p>

<p>Injury by defective elevator — Facts under which plaintiff not entitled to recover—</p> <p>One employed as manager of the retail business of a manufacturing company, but without power to order changes or repairs about the premises, without first obtaining instructions from the company, can not recover for injuries sustained from a defective elevator, where it appears, that on notifying the company of the defective condition of the same he was instructed to have it repaired, which he neglected to do; that in using the elevator he failed to resort to an appliance which he knew controlled the movements of the elevator and was in perfect condition, and would have avoided the accident; and that he might as well have avoided the use of the elevator knowing it to be dangerous, by ascending the stairs.</p>

<p>Employer & Employe — Liability for Injury — Working machine outside of scope of employment, by order of employer—</p> <p><1). An instruction as follows: “If you find that plaintiff was employed in the capacity of carpenter and joiner, and ■ did not engage to do work oh the jointer, and that working on such machine was outside the scope of his ordinary ■duties as a carpenter, and was dangerous, and subjected the plaintiff to risks which he had no reason to expect or consider as being within his employment, and that defend•ant ordered him to do work thereon, in performing which work he was, without fault cn his part, injured, then .plaintiff is entitled to recover, even though he may have been to some extent aware of the dangers incurred in obeying the order; provided you find from the evidence that the danger which actually caused plaintiff’s injury was a danger not understood by him at the time, ” is erroneous, because by it, the defendant is made liable, although without fault on its part, if the injury resulting was caused by the use of the machine, provided the defendant requested the plaintiff to work it, no matter that the machine was perfect and in good repair. It fails to suggest that the • question of the liability of the defendant depends not upon any defect in the machine, but simply upon the fact that it was dangerous.</p> <p>Mere fact that operation of machine dangerous — No liability of <employer for injury—</p> <p>(2). The mere naked proposition that an employe who has gone to work upon a machine perfect in its construction and operation, but dangerous only in its operation, has been injured, ipso facto renders the master liable, is not supported by the authorities.</p> <p>Ordering inexperienced employe, ignorant of its dangers, to opei ate machine — Liability for injury—</p> <p><3). An instruction, that “If the jury find from the evidence that in the use of this planer or jointer there were, because of knots or irregularities in the grain of the material, or from the swaying back and forth of a long narrow strip, or from any other cause, dangers, to which a person having little or no experience in the use of such machines might be exposed, unknown to himself, or which an ordinary man under like circumstances would not be expected to know, and you find that plaintiff was inexperienced in the use of such machines, and that defendant failed to inform plaintiff of such dangers, then defendant was guilty of negligence as to this plaintiff,” is erroneous, because an accident occurring whereby the safe and proper working of the machine was interfered with, and this without the fault of defendant and entirely unknown to it, would, under this instruction, redder the defendant liable.</p> <p>Duty to furnish reasonably safe machinery—</p> <p>(4) . An employer is required to exercise ordinary care and to procure machines such as are in ordinary and common use, and reasonably safe; but the law does not require him to go out and find a machine as safe as can be provided.</p> <p>Doubt whether operating machinery within scope of employment— Liability from mere request to'operate same—</p> <p>(5) . An instruction, that “If there is doubt whether the act which the servant is ordered to perform is within the scope of his employment, the servant is not obliged to refuse obedience and run the risk of being' discharged. He may obey the command in such case, and does not thereby assume the risk of injury in such manner as will relieve the master from liability, ” is misleading. While the first clause seems to be correct as a proposition of law; yet the concluding clause is wrong. The master does not become liable per se from the mere fact that the servant is injured while working on dangerous machinery at the request of the master, without any fault on the part of the master other than in requesting him to do the work at which he was injured.</p> <p>Proof that negligence of employer ‘probable” cause of injury not sufficient—</p> <p>(6) . A charge that “If defendant was negligent in any ohe or more of the various ways alleged in the petition, and such negligence was the probable cause of plaintiff’s injury, then plaintiff, if he exercised ordinary care about his work, is entitled to recover in this action,” is erroneous. While the probabilities arising on the evidence might have warranted the jury in finding that the alleged negligence caused the injury; yet to find that it“probably” caused the injury would not have been sufficient.</p>

The claims sued on in the series of cases to which the above belongs aggregate about $27,000, and represent balances remaining unpaid on contracts for building the St. Nicholas Hotel annex.

<p>Plea of nul tiel record — Variance in title of case—</p> <p>(1) . There are some very technical rules in some jurisdictions, and were at common law, respecting the variance between the allegations and the proof, especially upon the plea of nul tiel record; but these rules in their strictness do not apply under the civil code. Sec’s. 5294, 5295, R. S.</p> <p>Same—</p> <p>(2) . Where in a suit in an Ohio court, to recover on a judgment obtained in an action brought in another state, it appears from the record produced of such suit, that the title of such action as brought in the other state differed from the title of the action in which the judgment was obtained, but it also appeared from such record that the latter was a consolidated action of a number of suits of which the former was one, and that the complaint in the former action after such consolidation amounted in fact to a cross complaint .in the consolidated action, such variance in the title of the case is immaterial.</p> <p>Same — Averment of personal service immaterial where judgment by agreement appears—</p> <p>(3) . Where the record produced, of the action in the foreign court, fails to show that a summons was issued, but the petition in the suit brought in Ohio avers' that such foreign oourt obtained jurisdiction over the defendant by personal service, but also avers that the parties appeared and that judgment was entered upon their agreement, which fact does appear from the record produced, the allegation as to personal service becomes immaterial.</p> <p>Averment that there were other parties to suit immaterial—</p> <p>(4) . Where the judgment sued on in Ohio was against deféndant, but also against other parties, the failure of the petition in the Ohio case to say so, or to aver that there were several defendants in the foreign suit, is not material where in the petition in the Ohio case, it is not expressly averred that the judgment was obtained against the defendant alone, or that he was the sole defendant in that suit.</p> <p>' Want of complete record immaterial where judgment was by agreement—</p> <p>(5) . Where it appears from the transcript of the record as produced, that no complete and final record was ever made in the foreign action, it containing no copy of the pleadings and other matter, but the agreement to enter the judgment in the foreign action appears from such record, this is sufficient.</p> <p>Suit by corporation — Averment of corporate character men description of person — General denial goes' to cause of action, not to capacity to sue— ,</p> <p>(6) . It is not necessary that the petition of a plaintiff corporation should aver iñ issuable form that it is a corporation, whether domestic or foreign. It is sufficient if this fact is recited; it is a matter of description of the person, and a general denial only goes to the matters constituting the cause of action of plaintiff. Tf it is desired to take advantage of a want of capacity to sue in the plaintiff, whether a corporation or a natural person, that must be done by a special plea in the nature of a plea in statement.</p> <p>Suit by foreign corporation — Averment of compliance with Ohio laws—</p> <p>(7) . It is not necessary for a foreign corporation bringing a suit in this state, that it aver iri its petition that it has complied with our laws which provide certain things to be done by foreign corporation! in order that they may lawfully do business in Ohio and prosecute acfiions here. If such allegation is made, it will not put such plaintiff corporation upon proof of the fact. If not true, the defendant must set forth specifically wherein the foreign corporation has failed to eomply with the laws so that it can not prosecute its action in an Ohio court.</p> <p>Statute of other state — Oral proof by expert admissible—</p> <p>(8) . Notwithstanding the provisions of sec. 5244, R. S. of Ohio, which provide the method by which the statutes of other states may be proved in Ohio, they may also be ¿proved by oral testimony of persons learned in the law who testify as experts with respect thereto.</p>

<p>Partition — Tenant in common paying towards improvements— Character of such payments — Bights of party—</p> <p>Upon a partition of property, a court of equity has jurisdiction to allow to a party whatever he put in for the benefit of the property, out of the proceeds of its sale. But such claim does not stand in the position of a lien to be paid in full with interest: it stands rather in the nature of an investment in the property, out of which such party was entitled to have from-time to time a share of the rents and profits and an allowance with reference to the amount which he had put in; but the deterioration of the property during the time it was used would fall upon the estate, and he would have to submit to suffer his share of the loss.</p>

<p>Personal Injury — Damages—Expenses for medical treatment— Amount must be proven—</p> <p>To recover for medical attendance and medicines in actions for personal injuries, the value thereof must be established by prcof; and where no value is-shown, an instruction in-; eluding reasonable compensation therefor, is erroneous.</p> <p>Brakeman having arm crushed between deadwoods — Proper charge—</p> <p>In an aotion by a brakeman for damages for having his arm crushed between the deadwoods of freight cars while uncoupling them, a charge as follows: “Even if the train was stopped temporarily, if the plaintiff as a reasonably careful man ought to have known that to put his arm between the deadwoods was dangerous, and he did put them there, he assumed all the risks of so doing. If the plaintiff, by exercise of ordinary care, could have prevented his arm from getting between the deadwoods, he cannot recover”, is correct.</p>

<p>Bill of Exceptions — Documentary evidence — Failure to contain all the evidence—</p> <p>(1). Although a bill of exceptions recites that it contains all of the evidence offered upon a trial, yet if on examination it shows that material evidence or documents were offered in evidence, and were admitted, ard are not contained in the bill of exceptions, the court will not reverse the judgment upon the ground that the verdict is against the evidence.</p> <p>City ordinances— City courts will take judicial notice of, but not state courts—</p> <p>(2) . While city courts and mayors of villages take judicial notice of the ordinances of their respective municipal corporations,yet the state courts do not take judicial notice of ordinances, and there is no statute in Ohio requiring them to-do so. But under sec. 1699 R. S., the ordinances themselves — the ordinances as recorded in. the ordinance book, or certified copies of ordinances — may be received in evidence.</p> <p>Abandonment of contract by city — Contractor’s right to damages —Measure of damages—</p> <p>(3) . In an action by a contractor against a city for damages for having prevented such contractor from performing or completing his contract, the plaintiff would be entitled to recover the difference between the contract price and what it would have actually cost to have completed the contract, —in other words, the profit which he would have made. Where therefore the contractor has taken t,he contract at less than it was worth to do the labor, it would be error in the court to permit him to offer evidence to prove what it was reasonably worth to do the work. If the contractor took the contract at a price at which there was no profit in it, he lost nothing by the action of the city abandoning the contract, and he can recover nothing; but if his .contract price was m excess of what it would be worth to complete the work, that would be the measure of damages.</p>

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

<p>Personal injury of employe by defective appliance — Want of inspection — Foreman's duty—</p> <p>(1) . In an action by an employe against his employer for damages for peisonal injury caused by a defective appliance, it is no defense that the plaintiff, being the foreman of the crew, had equal if not better opportunities than the defendant of knowing of the defect; where it does appear that no one was instructed by the defendant to inspect the appliance, and the plaintiff himself testified that he was not so instructed, and that even had he been so directed, his other duties were such that he would not have had or could he have taken time to do it.</p> <p>Employe not required to judge nicely—</p> <p>(2) . While the plaintiff had knowledge of the overloading of the core-bar by the overflow of iroh accumulating - therein during the process of moulding — still he was not required to judge nicely of its relative weight and the strength of the lug supporting it — especially where it was shown to be a common and to some extent an unavoidable occurrence.</p>

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

<p>Width of public road established before statute requiring a width, of 60 feet —</p> <p>A public road, established at a width of forty feet at a tim® previous to the passage of the statute requiring public roads to have a width of sixty feet, and always up to the present time kept fenced in at such width of forty feet, must remain at such width until the county commissioners by proper proceedings extend its width-. A mere order by the commissioners,after the passage of the statute, requiring a resurvey of the road and establishing it as a public road without notice to any one, will not have the effect of establishing its width at sixty feet.</p>

<p>Mortgage — Description of property• — Reference to other deed—</p> <p>(1) . Where the description of a mortgage contains the name of the incorporated village and county where the land is situated, and for more particular description refers to a deed between the same parties under the same date, such description will put á purchaser fairly upon inquiry," and gives him such notice that an examination of the deed would have fully disclosed the complete description of the premises.</p> <p>• Judgment of inferior court of other state — How proven in Ohio courts—</p> <p>(2) . Where the allegation of jurisdiction and a judgment of a court of another state are controverted,the facts conferring jurisdiction must be established at the trial.</p> <p> Attestation of record of foreign judgment— </p> <p>(3) . The attestation of the record of a judgment or order of a court of another state relied on must contain a certificate that said attestation is in due form, in order to be admittéd in the courts of this state.</p>

<p>No recovery for injury from fright, unless accompanied by physical injury — Definition—</p> <p>No recovery can be had for injuries resulting from fright, merely, caused by the negligence of another, where no personal injury is received; but if there was a wrongful act on the part of the defendant causing physical injury as well as fright, then the fright and its consequences and mental suffering may be considered in the assessment of damages, and where the tortious act is such as to create a cause of action in favor of the injured person, independent of the fright and shock resultig therefrom, the case falls within the latter rule.</p>

<p>Preference of laborer for his wages—</p> <p>(1) . While sec. 8206a provides for a lien which a laborer or employe may obtain on the real estate of his employer for the total amount, unlimited as to length of time, due him for mánual labor, which shall be superior to certain other liens, upon filing an itemized account of such labor, with affidavit, with the county recorder witnin thirty days from the expiration of three months from the performance of such labor, the same section also provides that whenever a receiver or trustee or assignee for the employer is appointed, notwithstanding a laborer may have acquired a lien upon the real estate for his wages under the foregoing provision without limitation as to time, he shall be paid out of any fund in the hands of this trustee, irrespective of whether it may ar,se from real or personal property, the wages earned within three months prior to the appointment of the trustee, etc., and such claim is superior to all other claims against this fund, excepting taxes and costs of the trust.</p> <p> Same— </p> <p>(2) . A laborer is entitled to such preference of his wages for labor performed within three months before the appointment of a receiver, trustee or assignee, without filing an itemized account with the recorder.</p> <p>Same — Statute constitutional—</p> <p>(3) . The legislature has as much power to make such claims for labor a superior claim to all other liens, as to give such superiority to taxes, and such law is therefore constitutional.</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> Verdict not in accordance with special findings by the jury~ </p> <p>Liability of city for injury sustained by defective sidewalk— Verdict not in accordance with special findings by jury to be set aside. .</p>

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

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

<p>Mandamus to aompel board to aet — Averment of pressure of other business as a defense—</p> <p>Where a petition was filed with the township trustees asking for the incorporation of certain territory as a village, under sec. 1561a, R. S., and the trustees failed at the same session of their body to act on it, and seven days thereafter an action is instituted in court, asking for a writ of mandamus ordering the trustees to act on such petition, to which the trustees answer averring that one of the reasons why they did not act on the petition at that session was that they had so much other business before them that such petition was not reached at that session, but that it would be taken up at the next regular session, such answer states a sufficient defense as against a demurrer thereto.</p>

<p>Substantial Right — Error proceeding to allowance to special master inadmissible — •</p> <p>An allowance of compensation to a special master is not an order affecting a substantial right made in a special proceeding, which may be vacated, modified or reversed as provided in title IV. of the Revised Statutes.</p>

<p>Appropriation — Boundaries of land determined can not be relitigated—</p> <p>(1.) The determination of the extent of the boundary lines of property taken in condemnation proceedings is final between the municipality and the property owners, and can not be relitigated where the boundary of said property is again called in question in an action between said parties.</p> <p> Testimony to explain explicit and self-explanatory record inadmissible— </p> <p>(2.) In proving a former adjudication which is pleaded as a judicial estoppel, if the record is explicit and self-explanatory, it is error to permit oral testimony to be introduced to explain that which ne ds no explanation. Held: that the introduction of such oral testimony here, though erroneus, was not prejudicial.</p> <p> Deposit by city of condemnation money after lapse of six months Acceptance by property owner waiver— </p> <p>(3.) Where the money assessed as compensation for land appropriated by a city was deposited with the clerk of the court more than six months after the date of the judgment, the property owners were not bound to accept the same, as under the statute sec. 2260, R. S., the proceedings have been rendered of no force and effect, except as to costs, by reason of such delay. Where however, they did accept the money, such acceptance constitutes a waiver of a strict compliance by the city with that provision of the statute.</p> <p>Same — Owners not entitled to interest after such acceptance—</p> <p>(4.) In such case the property owners can not demand interest on such fund deposited for their use and benefit by the city in good faith within a few days after the expiration of the six months and under an order of the court, nor after they themselves have permitted the fund to remain idle for two years before electing to receive it.</p>

<p>Assessment for street improvement on land afterwards subdivided —Liability of each parcel—</p> <p>(1.) Where a city lot is assessed for a street improvement,and is afterwards subdivided into several- parcels, each of such parcels is liable for a proportionate part of the assessment.</p> <p> Covenant against incumbrances in conveyance of lots first sold— Conveyance of lot sold last subject to unpaid balance of assessment </p> <p>(2.) When a lot assessed for a street improvement is after-wards subdivided Into several lots, and the lots first sold are sold with a warranty against all incumbrances, while the lot sold last is sold subject to the unpaid portion of such assessment, the last lot is first liable for the entire assessment.</p> <p>Encumbered land afterwards subdivided — Lien enforceable in inverse order of sales — ■</p> <p>' (3.) Independently of such an agreement, where land encumbered by liens is sold in separte parcels, to’different purchasers and at different times, each paying full value, the separate parcejs are liable for the liens in the inverse order of the alienation.</p>

<p>Contract not signed by all parties named therein — Effect—</p> <p>Where a contract of sale states that it is entered into between plaintiff on one side and fourteen other parties named in the body of the contract, on the other side,but two of such parties of the second part named in the contract failed to sign the same, but it does not appear that those who signed the contract, did so with any understanding that all the others named therein were to sign the contract to make-the same binding on them, such an understanding will not be implied from the mere fact that the names of others appeared in the body of the contract.</p>