Volume 2 — Ohio Circuit Decisions

<p>CRIMINAL LAW.</p> <p>1. Jurisdiction of Police Court.</p> <p>Under Sec. 6795 Rev. Stat. by the latter clause, an act punishable in the county jail or penitentiary is not made a misdemeanor, but is a felony, and the police court has no jurisdiction to convict of such an offense.</p> <p>2. Defective Mittimus.</p> <p>The fact that the offense was not properly described, nor that it was wilfully committed, in the mittimus, does not make the imprisonment illegal.</p>

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

<p>Ekb-OR to the Court of Common Pleas of Clinton county.</p>

<p>LIQUOR LAWS.</p> <p>Furnishing Liquor by a Club to its Members.</p> <p>A bona fide social club, incorporated under the laws of the state, “for the promotion of higher education, and of social and friendly relations between its members,” and not for profit, leased a building in which were reading, dining, sitting and other rooms, and a library, which was open to the members of said club at all reasonable hours; and with'the funds of such corporation it purchased food, wines, liquors, and cigars, which during the years 1886 and 1887 were furnished at such club house, to such members as desired the same, and which were there used and paid for by the persons receiving the same, at a price fixed by the management, so as simply to pay the cost of procuring and serving them. No dividends or profits can be received by any member, nor does any officer receive a salary, and the club is, not engaged in any business with a view to profit. During such period by the rules and regulations of the club, a member was authorized to introduce strangers having certain qualifications, who thereupon, for a limited period, became entitled to the privileges of such club house, and to be furnished with food, wines, liquors, etc., at the price so fixed as aforesaid, — -the member introducing such guest, being liable for all supplies furnished him, if not paid for by such guest. During these years this privilege was occasionally exercised by the members of the club, and persons so introduced were furnished by the club with wines, liquors and other supplies, which were paid for by them or the persons introducing them.</p> <p>Held: That the furnishing of such wines and liquors so purchased by said club to its members in this manner was a “trafficking in intoxicating liquors,” within the meaning of sec. 8, of “An act providing against the evils resulting from the traffic in intoxicating liquors,” passed May 14, 1886 (82 O. L., 157), the same being a sale by said club to its-members, and rendered it liable to assessment under the terms of said statute, as did also the furnishing of such' liquors to the guests of such club in the manner stated.</p>

The action below was brought to recover damages for the destruction of fences, corn, meadow and a sheep-house by fire, alleged to have resulted by reason of the negligence of the railroad company, in failing to have a proper and sufficient spark-arrester and proper appliances to prevent the emission, of sparks from its locomotive, by reason of which, on the 22d day of July, 1884, the said property of the plaintiff below was destroyed by fire, tó his damage $825.

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

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

The plaintiff filed his petition in the court of common pleas of Defiance county, on March 1, 1884, to foreclose a mortgage executed to him by said defendants, Marion A. Webb and May H. Webb, on the 21st day of July, 1882, at Ft. Wayne, Ind., on' certain lands in Defiance county, Ohio, to secure three promissory notes, of $700.00 each, executed by the defendant, Edward L. Beaver, to the plaintiff, on the 26th day of May, 1882, at the city of Ft.

<p>GRAND JURY.</p> <p>1. Service 'of Grand Juror as Talesman within Twelve Months.</p> <p>It is not a good plea in abatement to an indictment that one of the grand jurors had served as a talesman juror within twelve months next preceding the term at which such indictment was found.</p> <p>2. Service as Regular Juror — Objection by Plea in Abatement.</p> <p>But where a person had served as a regular juror in a court of record in the county, within two years next preceding the term at which the indictment is found, such, person'is disqualified as a grand juror under sec. 5164, as amended in 82 Ohio L., 166, and objection to the indictment can be taken by the plea in abatement.</p>

Sarah E. Hayes, being a tenant for life of certain real estate, in January, 1885, rented the same to one Moses D. Hayes, for the sum of $300, to raise thereon a crop of corn. After the corn was planted and cultivated, in July, 1885, Mrs. Hayes died. When the crop matured, Moses D. Hayes gathered it, and paid the amount of the rent to Mrs. Hayes’ executor.

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

<p>TAXATION.</p> <p>1. Taxation of Leasehold Property of a Municipality.</p> <p>Lands held under lease for any term exceeding fourteen years, and not subject to revaluation, belonging to a municipal corporation, are made subject to taxation by sec. 2733, Rev. Stat., as passed February 17, 1881, although they are exempt under the provisions of sec. 2732.</p> <p>2. Judicial Notice of Matters of Common History.</p> <p>Courts will take judicial notice that lands leased years ago were leased at much less than their present value.</p>

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

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

<p>CONTRACT TO DEVISE.</p> <p>Verbal Agreement Cannot be Enforced After Ancestor’s Death.</p> <p>A verbal agreement, made by one person to his three brothers, in consideration of a conveyance by them to him of a parcel of land and the transfer of certain personal property, that he would execute a valid will and leave the same at his death, by which he would devise and bequeath the entire estate of which he should die seized, to his wife for her life, if she should survive him, then to his said three brothers for their lives, with remainder in fee absolutely to their children, can not be enforced by said brothers or their heirs after the death of the ancestor, against the Widow of said promisor as holding it in trust for them, where he has failed to comply with said agreement, and has devised the whole of his property absolutely to his wife, including that so conveyed to him, and where such devisee interposes the plea of the statute of frauds, that said agreement was not in writing.</p>

<p>ALIMONY PENDENTE LITE.</p> <p>1. Husband’s Liability Limited to Alimony Pendente Lite.</p> <p>An attorney-at-law, employed by a wife to defend her against charges made by the husband, in an action for divorce, cannot recover from the husband an additional sum for such services, when the proceedings were, dismissed by the court, by the consent of husband and wife, and they again lived together, and in which action alimony pendente lite was allowed and paid. 5</p> <p>Quere: Whether under the laws of Ohio, by virtue of the married women act, the husband is liable in any case.</p> <p>2. Everybody Must Take Notice of This Limit.</p> <p>The amount for which the husband.is liable for necessaries furnished the wife is fixed and determined by the order granting alimony pendente lite. Everybody dealing with her is bound, at his peril to take notice of this limit, and are chargeable with knowledge of its allotment and payment.</p> <p>3. Decree Cannot be Collaterally Attacked.</p> <p>The adequacy of the alimony decreed cannot be drawn in question, collaterally, especially by a stranger to the suit.</p>

<p>BENEFICIARY SOCIETIES.</p> <p>1. Beneficiaries of Suspended Member Cannot Recover.</p> <p>Where in pursuance of the constitution of a benevolent association, composed of a supreme council duly incorporated, and with subordinate branches, a certificate was issued to a member of one of the branches, setting out that under the provisions of the laws governing the order, the sum of $1,000 would be paid by the supreme council, upon due notice of the death of such member, to such person or persons as he might designate, provided he is in good standing in such branch when he dies; if such person had before his death been suspended from membership therein, and had not been re-instated as a member, the persons designated by him to receive such benefit, cannot recover the same.</p> <p>3. Death Before Reinstatement is Complete.</p> <p>The constitution of this order provided that if a meltlber of a branch became, and continued in arrears for three months or more, he was not entitled to vote or to benefits, and when six months in arrears he must be suspended. And that if such suspended member should within ninety days thereafter apply to be re-instated, and should make certain payments, and furnish a certificate from a medical examiner, as was required of a person on an original application for membership, and it be favorable, a ballot should be taken, and if a majority of the ballots cast was favorable, he should be reinstated. A suspended member offered to make the necessary payments, which was refused, because a certificate was not furnished as required. A certificate was then furnished, which showed the person to be of the same age as shown by that furnished by him more than a year before. On objection being made to this, by consent of the branch and the applicant, no further action was had until inquiry could be made as to his age, and he died before any ballot was taken by the branch: PIeld, that such person, at the time of his death, was not a member of such branch in good standing and entitled to such benefit.</p> <p>3. Subordinate Lodge Cannot Bind Supreme Council by an Admission.</p> <p>The said branch was not such an agent of the supreme council as to make a paper prepared and approved by such branch after the death of such member, giving a statement of the facts in the case, competent evidence against the supreme council as an admission made by its agent.</p>

<p>Error to the Court of Common Pleas of Putnam county.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>PRACTICE IN FORECLOSURE.</p> <p>1. When Foreclosure Decree Cannot be Modified.</p> <p>The original decree was.rendered at the September term, 1885, of the common pleas court. At the September term, 1886, this decree was modified, and then vacated at the same term, and after it was vacated the original decree was again modified. Held, that the court had no power to modify the decree after the term, except in accordance with the provisions of secs. 5354 et seq., Rev. Stat., which provide how and on what grounds an order can- be vacated after the term.</p> <p>8. Personal Judgment Upon Cross Petition, Without Summons.</p> <p>A personal judgment can not be rendered upon a cross-petition without a summons issuing thereon when the defendant is in default for answer to the original petition.</p> <p>3. Sale Should Not be Ordered Subject to an Undetermined Lien.</p> <p>In a suit to foreclose a mortgage and to marshall liens, an order to sell can not be made subject to a certain undetermined indebtedness set forth in the answer and cross-petition of a defendant lien-holder.</p> <p>4. Appraisement Subject to Undetermined Indebtedness Not Authorized.</p> <p>Under the statute the appraisers are sworn to appraise the property at its cash value.</p> <p>A court is. not authorized in such a suit, to order an appraisement of the property “subject to a certain undetermined indebtedness,” and an appraisement in accordance with such an order is irregular.</p> <p>5. Defendant Lienholder Not to be Dismissed.</p> <p>In such an action the court should see to it that all lienholders and'parties interested ■ should be made parties, and it is error in the court to dismiss, without prejudice, a defendant lienholder, and order a sale of the property subject to his undetermined lien.</p> <p>6. Taxation of Costs.</p> <p>Costs, on reversal, may be charged against one defendant in error.</p>

<p>CONSTRUCTION OF A DEVISE.</p> <p>1. Declarations to Scrivener of a. Will Not Admissible.</p> <p>Patent ambiguities in a will must be solved by construction, not by evidence. Hence the declarations by a testator to the scrivener of the will, with proof of the provisions of a will of the testator from which the will in question was copied, are not admissible to explain conflicting provisions of the will itself.</p> <p>2. Absolute Title Granted with Power of Disposition.</p> <p>The will of James F. Clark contained the following provisions:</p> <p>Item 4. “I further give and bequeath to my wife Eliza Ann Clark, two hundred and fifty thousand dollars in United States Government Bonds, and if there shall not be sufficient of said bonds, then the deficiency to be made up of other bonds or securities of my estate, to be selected by her. And also, during her natural life, the rents and income of my store, No. 92 Superior street, in the city-of Cleveland.” Item 32. “The residue of my estate I give to my wife Eliza Ann Clark, to be expended for her support during her lifetime, and to be disposed of by her in any way she may think proper.” Item 33. “I further devise and bequeath that portion of my estate,' real and personal, of which the use and income is given to my, wife, Eliza Ann Clark, and to. my daughter, Marion C. Tyler, and so much of any residue given to my ydfe for support and disposition, as shall not have been expended, and any remainder of my estate not herein disposed of, to be distributed at the death of my wife as to the estate so devised for her life, and' on the death of my daughter as to the estate in which she has a life use, as following.” Held, that under this will the wife took under item 32 the absolute title to the residue of the property with a power of disposition.</p>

<p>INHERITANCES.</p> <p>1. Es-íate Descending to Heirs of Wife Relict.</p> <p>W. M. died intestate, without issue, leaving E. I. M., his widow. W. M. never had a brother or sister. He, however, left other blood relatives surviving him — uncles and cousins. Subsequently, E. T- M. died intestate, without issue, leaving brothers and sisters, and the descendants of deceased brothers and sisters, surviving her. Held: That the whole of the estate, which upon the death of W. M. passed tó E. T- M., under sec. 4159, Rev. Stat., upon the death of the latter descended to and vested in her brothers and sisters and the legal representatives of her deceased brothers and sisters, to the exclusion of the uncles and cousins of W. M. Sec. 4162, Rev. Stat. not applying.</p> <p>S. “Personal Representatives” Construed.</p> <p>The last words, “or their personal representatives,” in sec. 4159, Rev. Stat., refer to brothers and sisters, and not to husband and wife.-</p> <p>3. Change o-f Íorm of Property Inherited.</p> <p>A widow converting personalty inherited from her .husband into real estate is seized of the latter as by purchase.</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>MUNICIPAL LAW.</p> <p>1. Action in Name of Taxpayer on Behalf of Corporation .</p> <p>When under sec. 1778, Rev. Stat., a taxpayer brings an action to restrain a misapplication of funds of the corporation, or the abuse of corporate powers, etc., the action should be in his name as a taxpayer on behalf of the corporation, and not simply as a taxpayer. This ruling is warranted by construing secs. 1777 and 1778 together, as ■ required in The Cincinnati Railroad Co. v. Richard Smith et al., 29 O. S., 291, and the amendment of 1777 in 1884 (81 O. L., 188), requiring the city solicitor to bring such action “in the name of the corporation.”</p> <p>t. Acts Done Before Ordinance Takes Effect.</p> <p>When an ordinance provides that “it shall take effect and be in force from and after ten days after its publicstion,” any act done under it until that time has elapsed, after its first- publication, is void.</p> <p>&. Premature Election.</p> <p>A popular vote to be taken on a question after thirty days’ notice of election, under an ordinance to take effect in ten days from its first publication, cannot be had in less than thirty days after the ten days.</p> <p>4. Council May Fix the Time its Acts Take Effect.</p> <p>Whether the ordinance be one of a general nature, or providing for improvements, as provided for in the Revised Statutes, sec. 1695, or not, it is competent for a city council to fix the time at which any resolution or ordinance shall take effect.</p>

<p>PRACTICE IN ERROR-ATTACHMENT.</p> <p>1. Answer May be Filed to a Petition in Error</p> <p>In a proceeding to reverse a judgment or order, it is proper for the defendant to answer to the petition in error, alleging such facts subsequent to the judgment or order, as are claimed to have the effect to waive the error complained of.</p> <p>a. Effect of. Giving a Discharge Bond after Petition in Error. ,</p> <p>The giving.of a discharge bond by the defendant in an attachment -proceeding,, after 'he has filed a petition in error seeking the reversal of an order overruling his njotiqn to discharge the attachment, will not defeat his right to further prosecute his petition in error.</p>

<p>RAILROADS — CEMETERY.</p> <p>1. Cemetery Belonging to an Association, Not a Public Cemetery.</p> <p>A cemetery situate in a city of the second class, belonging tp a private asspciation, organized under the act of February 24. 1848, S. Stat., 169, is not a public cemetery of such city, within the meaning of sec. 3284, Rev. Stat.</p> <p>2. Right of Railroad to Cross a Street.</p> <p>The provision of said sec. 3284, which declares “A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its.location or bed,” does not authorize a railroad company to construct and maintain its road across a street of a city without consent of the city authorities, or without appropriating the right to do so; but such right of occupancy of the street can be obtained only by agreement with the city authorities, or by appropriation, as provided in sec. 3283, Rev. Stat.</p>

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

In the court of common pleas Loudenback filed a petition against Kitchen in the short form authorized by the code, founding his action upon a promissory note to one E. S Clark for $420.00, of which a copy is set out, alleging the endorsement of the note to 'him by Clark at a date designated, which was prior to the maturity of the note, and that the note remained wholly unpaid.

<p>CONVEYANCE OE REAL ESTATE — PLATS.</p> <p>Statement of the Case.</p> <p>S., the owner of a tract of land adjoining a village, executed a plat of a part thereof, as an addition to such village, designating it as “Sedam’s Second Subdivision of Sedamsville,” but the same was never recorded. He sold and conveyed several of the lots, described thereon to P., who fully paid for the same, but the deed therefor was not left for record for several years. Before it was left for record S., without the knowledge of P., executed a plat of another part of his land, as an addition to the village, giving to it the same title as he had given to the other, and this was recorded. S. died, and soon thereafter P. left his deed with the recorder of the county, who duly recorded and indexed it in the volume in which it was recorded, but by mistake he also indexed the same in the general sectional or topical index of the office, as conveying land situate in “Sedam’s Second Subdivision of Sedamsville,” which had been recorded.</p> <p>After the death of S. (and after the record of P.’s deed), his heirs and personal representatives made a subdivision of that part of his land covered by the original second subdivision which -had not been recorded, as another addition to the said village— but it was altogether different from the original one. Several of the lots described thereon, and being part of the ground previously conveyed by S. to P. were sold by the heirs or legal representatives of S. to some of the defendants, who purchased without actual notice of P.’s right or deed, and the residue of the land which had been conveyed to P. was partitioned among the heirs of S., and these purchasers, and the heirs of S. were in possession of their respective parcels thereof at the commencement of this action, P. never having had actual possession thereof. Without parol evidence as to the location of a stone called for in P.’s deed, the land therein described could not be certainly identified. On suit brought by P. against said purchasers, and the heirs and personal representatives of Sedam, to establish his title to said real estate, and to. fix and establish the boundaries of his tract which it was claimed had become confused by such conduct of S. and his legal representatives, and which thereby had been rendered uncertain. Held,</p> <p>1. Deed Improperly Indexed as Constructive Notice.</p> <p>That the deed of S. to P. from the time the same was recorded, though it was improperly indexed in one of the books, kept in the recorder’s office, 'was constructive notice thereof to all subsequent purchasers.</p> <p>t. Neither Heirs nor Those to Whom they Convey are Bona Fide Purchasers.</p> <p>Partitioners of the estate of their ancestors stand in his shoes, and are not bona fide purchasers as against an unrecorded deed by their ancestor, conveying certain of the lots to another person. Nor is a person a bona fide buyer to whom the heirs had agreed to convey an undivided third of the property, in consideration of services, when his third was not divided by metes and bounds until after the record of such prior conveyance.</p> <p>t. Plat not Recorded. Parol Evidence to Identify Lands.</p> <p>That the deed and record constitute such notice and bind the subsequent purchasers, although in the absence of the record of the plat of the original subdivision, the-exact location of the land described in the deed could not be determined from the deed alone, or without resort to parol or other outside evidence.</p> <p>i. Plaintiff not in Possession Entitled to Relief in Equity.</p> <p>Although the plaintiff was not in possession of any part of the._land described in the deed at the time of the commencement of the action, such a state of fact was disclosed in the pleadings and evidence, of conduct on the part of S. with reference to the boundaries of the tract, and his failure to record the plat of the subdivision as he was bound by law to do, and the execution and record by him of another plat of subdivision with the same title, as brought the case within the recognized doctrine of courts of equity, as to the confusion of boundaries, by persons upon whom rests the duty of preserving them, — and on the foregoing facts being found by the court, that the plaintiff was entitled to his decree as prayed for.</p>

<p>Error to the Court of Common Pleas of Clark county.</p> <p>The plaintiff in error, George Whitcomb, was arrested upon a charge of violating an ordinance, entitled “An Ordinance to Prevent the Sounding of Octave or Toboggan Whistles,” passed March 20, 1888, which reads as follows: “Section 1. Be it ordained by the council of the city of Springfield, Ohio, that any person sounding, or causing to be’ sounded, any whistle known as the Octave or Toboggan whistle, within the limits of this city, or being the owner or owners, or person or persons in the possession of a factory, shop or other premises, in this city, having such whistle thereon, permitting such whistle to be. sounded, shall, on conviction thereof, be fined in any sum, not exceeding fifty dollars and costs, for each offense.”</p> <p>To this charge Whitcomb pleaded “Not guilty,” and thereupon filed a motion to dismiss the prosecution, because:</p> <p>1. The affidavit did not state an offense.</p> <p>2. The ordinance was invalid.</p> <p>3. The ordinance was unreasonable, and council had no authority to pass the same.</p> <p>• The overruling of this motion was assigned for error in the court of com-' mon pleas.</p> <p>The defendant below having been convicted, the police court assessed a fine, and ordered that he should stand committed until the same was paid; and this was assigned for error.</p> <p>Thereupon Whitcomb moved for a new trial, upon the grounds:</p> <p>1. That the judgment was contrary to law.</p> <p>2. That the same was contrary to the evidence; and,</p> <p>3. That the ordinance was invalid.</p> <p>This was overruled, and error assigned thereon in the common pleas.</p> <p>The court below affirmed the judgment of the police court; and to reverse both these judgments this proceeding is prosecuted.</p> <p>The bill of exceptions taken in the police court embodies all the evidence, and is part of the record. This shows that the Standard Manufacturing Company, of which the plaintiff in error was the engineer, had, upon its factory in Springfield, a whistle, called a toboggan or octave whistle, which it was accustomed to sound in the morning, at noon, and at night, in order to notify its workmen of the time of beginning and ceasing labor. That said whistle differs from all other whistles in use in Springfield, in that instead of evolving a continuous sound of substantially even volume, it emits a sound gradually, beginning with a low note, gradually ascending to the highest note, then, in a descending scale, ending with the note with which it began. Its range of sound is no higher than that of some other whistles used in the city. The only person complaining of it is an invalid residing more than a mile from the factory, who is peculiarly nervous, and was especially annoyed by the three highest notes. But it does not appear that her health-was affected by the sound. It merely annoyed her.</p> <p>The evidence is important only upon the question whether the sounding of the whistle constituted a nuisance which could be taken cognizance of by the corporation.</p>

<p>REGULATING PRICE OF GAS.</p> <p>1. Power of Council to Regulate Price of Gas.</p> <p>The city, council of the city of Cleveland has the right under the statute to regulate the I price at which gas shall be furnished by the Cleveland Gas Light and Coke Company] to the citizens of Cleveland.</p> <p>3. Municipal Legislation Not a Contract as to Maximum Price.</p> <p>' The charter of The Cleveland Gas Light & Coke Company, the ordinance allowing thel company to lay its pipes in the streets, and the acceptance of the ordinance by thel company, do not constitute a contract which limits the power of the city council to| regulate the price of gas. ’</p>

A reversal of the judgment of the court of common pleas is sought upon the ground that that court erred in rendering final judgment against Smith upon a general demurrer to his petition. The substance of the petition is as follows: .On the 20th day of April, 1877, Smith was sheriff of Fayette county, holding an execution for $1,730.00, issued at the instance of one John Leaverton, upon a judgment which he had recovered against one William Snyder.

<p>HABEAS CORPUS. — CONTEMPTS.</p> <p>1. Petition and Return Constitute Pleadings.</p> <p>In an action of habeas corpus, the petition and return, if they raise a material issue of fact, are such pleadings that that issue may be determined in that action.</p> <p>8. Return Denying Allegations of Petition Raises an Issue.</p> <p>A return by respondent in such an action by the petitioner, as guardian for the body of his ward, that she has not had the custody or control of the body sought, thereby denying the allegations of the petition, raises such an issue.</p> <p>S.Person Restrained Need Not be in Court.</p> <p>Nor is the hearing in such a case defeated by the fact that the person whose body is. sought to be obtained is not found by the sheriff.</p> <p>4. Privilege of Witness to Refuse to Answer Question is Personal.</p> <p>The privilege of a witness to refuse to answer a question on the ground that it will tend to criminate the witness, cannot be interposed solely by counsel, especially where the witness swears that to answer will not tend to criminate her.</p> <p>5. Does not Extend to Answers which Disgrace Without Criminating.</p> <p>A witness may not refuse to answer a question pertinent to the issue on the ground that-the answer will tend to disgrace her, when it will not tend to criminate, and. the wit-, ness so testifies. , . .</p> <p>6. Written Charges for Contempt not Required.</p> <p>Under, sec. 5252, Rev. Stat., no specifications in writing are required against a witness who is punished for contempt in refusing to answer questions put to her on the stand as a witness. i ■ •</p> <p>7. Trial by Jury not Required.</p> <p>In a proceeding for contempt in refusing to answer as a witness, the witness is not entitled to a trial by jury.</p> <p>8. Fine May be Remitted Although Imprisonment has Commenced.</p> <p>Where the court has imposed a fine upon a witness refusing to answer, and ordered her to be imprisoned until she answers and pays the fine — it is within the power of the court during the same term of court, and while the action in which she refused to answer is still pending, and after her imprisonment has commenced, to remit the fine and that part of the sentence of imprisonment relating to it</p> <p>9. Want of Form in the Process of Commitment.</p> <p>The order of commitment for refusal to answer a question under sac. 5256 Rev. Stat., which requires the questions to be stated in the order, means *be process that issues to carry out the judgment.</p>

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

<p>PARTIES TO ERROR PROCEEDINGS.</p> <p>1. Parties to a Joint Judgment Must be Parties to Petition in Error.</p> <p>In a suit in the comrpon pleas, against three joint defendants, formerly members of a firm of co-partnership, on a promissory note executed by such firm, a joint-judgment against all three defendants was recovered. Two of such defendants filed, each for himself, a petition in error in the circuit court against the plaintiff below, each without making his co-defendants below parties in such error proceedings. After two years — ■ the period of limitation for instituting such error proceedings — a motion was filed by the defendant in error in the circuit court to dismiss the error proceedings of each of the plaintiffs in error, on the ground that the other parties to the joint judgment not being parties to the error proceedings, it would be beyond the power of the circuit court to reverse the joint judgment, and the period of limitation having elapsed, the right of the plaintiffs in error to ask a reversal was barred by the statute of limitations.</p> <p>Held, That the rule laid down by the supreme court of Ohio in Smetters v. Rainey, 14 O. S., 287, that all the defendants to a joint judgment are necessary parties to a petition filed by one of them to reverse it, though repeatedly criticized by judges of the supreme court individually in later cases, has not been reversed.</p> <p>3. Cannot be Added After Limitation has Expired.</p> <p>That in accordance with the rule laid down by the supreme court in Smetters v. Rainey, the parties cannot be added after the two years limitation has passed, and the petitions in error must be dismissed.</p> <p>See note at the end of this case, page 174.</p> <p>Note. — Since' the foregoing opinion was pronounced, the sheets of volume 45, O. S., containing the cases of Burke v. Taylor, 45 O. S., 444, have appeared, in which the supreme court approve and follow the cases of Smetters v. Rainey, 14 O. S., 287 and Jones v. Smith, 30 O. S., 20.</p>

This was an action by Emma Fuhrman against Reed M. Duvall, in which the plaintiff alleged that on or about the 6th day .of September, 1878, at the county of Crawford, Ohio, the defendant promised to marry her and she to marry him. That in October of that year he seduced her, and afterwards she had a child by him, and that he subsequently absconded.

In Equity. Error to the Court of Common Pleas of Lucas county. This case was brought by plaintiffs as private owners of real estate abutting c. • Sixteenth street in the city of Toledo, Ohio, to restrain defendant from main-t .ng a nuisance in said street (causing special injury to plaintiffs’ property), consisting of houses and fences that he had erected therein, under a claim of title to the part of the street thus occupied.

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

<p>BOHEMIAN OAT CONTRACTS.</p> <p>1. Bohemian Oats Contracts Cannot be Enforced.</p> <p>What are known as Bohemian Oats contracts are fraudulent, immoral, and against public policy. The law will aid neither party to enforce them whilst they remain executory, either in whole or in part, nor, when executed, will it aid either party to place himself in statu quo, by a rescission, but will, in'both cases, leave the parties where it finds them.</p> <p>8. Ignorance of Fraudulent Character will not Avail.</p> <p>An averment by a party to such a contract seeking rescission and cancellation or recovery of the money paid on it, that he did not know of its fraudulent character, will not avail. Its nature affects him with knowledge.</p>

<p>On motion to suspend order dissolving injunction.</p>

<p>ALIMONY.</p> <p>Í. Commitment for Refusal to Pay Alimony Pendente Lite.</p> <p>An order to pay alimony pendente lite is_ not within the clause of the constitution forbidding imprisonment for debt except in case of fraud. Article 1, sec. 15.</p> <p>2. Resisting Order, to Pay When Could Comply.</p> <p>Where it appears that the defendant ordered to pay alimony pendente lite had, since the order was made, been in good health, and earning money, so that he might easily Have complied with the order of the court, and when summoned before the court on motion to commit, still resisted the order to pay, it was not error to order him to pay at once, or be committed to jail for five days.</p>

<p>MUTUAL BENEFIT ASSOCIATIONS.</p> <p>Where Laws of Order Provide for a Lodge Trial of Disputes, Member Must Submit.</p> <p>A member of a beneficial lodge of Odd Fellows claimed that he was entitled to weekly-benefits, under their constitution and by-laws, on account of inability to labor in consequence of paralysis; he presented his claim according to the rules of the lodge; it was examined and rejected. He appealed to each of the superior lodges until it reached the Sovereign Grand Lodge of the United States, who. remanded the case to the lodge where it was first heard, with instructions to investigate the claim of the said member for benefits. Thereupon this member brought an action at law for his benefits against said lodge. The defendants pleaded the foregoing facts, and further stated that they were willing to investigate the plaintiff's claim, but that he refused to appear, or furnish evidence, or submit to an examination.</p> <p>Held- — That this answer constituted a defense to the action. This case recognizes the rule that where a person goes ijjto a voluntary association, whose laws provide for the trial'of his disputes or claims, he must submit them to his own forum, and he is concluded by its decision.</p>

<p>STREET RAILWAYS.</p> <p>Removal of Poles in Sidewalk.</p> <p>Where the city council of the city of Cincinnati has duly and legally authorized the plaintiff, the owner of a street railroad for many years operated on certain of the streets of said city, and the cars of which are now drawn by horses, to construct and operate, ■ on said line, an electric system of motive power, the work of construction to be done under the supervision of the city authorities; and in pursuance of such authority, and under such supervision, the plaintiff has constructed such a system, practicable in its character, and in addition to the rails now in said streets upon which the horse cars have heretofore run, and on which the electric cars are to run, has without the consent of the defendants, and as an essential part of such system, erected near the outer margin of the .sidewalk on one of the streets along which said street railroad passes, a pole eleven inches in diameter at the bottom, and twenty-seven feet high, in front of the premises of the defendants, on which is situated a three-story building — on the> top of which pole, and others one hundred feet apart, is suspended a wire running with the street, and two other wires running to the top of a similar pole on the opposite side of the street, and which said new and additional structures are not dangerous to person or property, and do not, and will not work any substantial injury to the said premises of the defendants, or materially impair their rights therein, or operate'as a substantial impediment to the access to said premises,</p> <p>Held: That said defendants have not the legal right to remove such pole or wires without the consent of the plaintiff; or on their cross-petition, praying therefor, to have a mandatory injunction requiring the plaintiff to remove the same; but that the plaintiff, on the facts found, has a right to an injunction against the defendants enjoining them from the threatened removal thereof.</p>

<p>ABSTRACTS OF DECISIONS.</p> <p>FINAL JUDGMENT.</p> <p>Overruling Demurrer not a Final Order.</p> <p>An order overruling a demurrer and a judgment for the costs of the demurrer !s mot a final order subject to review in error. . , ,</p>

<p>HUSBAND AND WIFE.</p> <p>Competent Witness for or Against the Other, Though Third Person is Dead — Presentation of Claims to Administrator. — Rejection.</p>

<p>ATTACHMENT.</p> <p>1. Defenses not a Counterclaim or Set-off.</p> <p>In an- attachment suit the defenses cannot be made that the attachment wa* a malicious prosecution, or that it was' wrongful.</p> <p>8. Undischarged Attachment.</p> <p>A defense should show that the attachment has been terminated.</p>

<p>MISCONDUCT OF JURY.</p> <p>Evidence of Jurors Incompetent to Show.</p> <p>Affidavits of jurors will not be received to prove their own misconduct in adopting-an improper way of arriving at a verdict.</p>

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

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

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

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

<p>INJUNCTION — EMINENT DOMAIN-KAILKOADS,</p> <p>1. Dissolving a Temporary Injunction is a Final Order.</p> <p>An order of the court of common pleas, 'dissolving a temporary injunction, is revie.vr* able on error before the final disposition of the case in said court.</p> <p>2. Same — Petition and Answer the only Evidence — Burden of Proof</p> <p>Where the essential statements of the petition on which the temporary injunction ivas obtained, are denied by the answer, and a motion is made to dissolve such injunc- • tion, and at the hearing, the only evidence offered by the defendant was its answer, read as an affidavit, and the only evidence offered by the plaintiff was its petition read as an affidavit, the burden of proof to maintain such injunction was on the plaintiff:- — and where the court dissolved it on the evidence, the reviewing court will not reverse such judgment unless it clearly appears that the decision was against the.weight of the evidence, which does not appear in this case.</p> <p>3. Contract as to Extension of Streets Across Railroad Tracks — Estoppel.</p> <p>Where a -municipal corporation has by ordinance granted to a railroad company, the right to cross certain of the streets and alleys of the city with its railroad tracks, on., the express condition that whenever it becomes necessary to open, extend or widen any street or alley which when so opened, extended or widened will cross ’ the. tracks, side-tracks or switches of the said company, it shall grant the right-of-way over and across its roads and tracks free of damage and expense to said city, and without the city having to resort to condemnation proceedings to obtain said right-of-way over and across said road, which grant was accepted and agreed to by said, company and its road built accordingly, when it is necessary to extend a street erf the city across the track of said company, and proceedings are commenced to ■ appropriate land thereof at the side of its track, such company or its grantee with «rotice thereof, will be estopped from claiming that such extension can not be made.</p>

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

A statement of the fact, upon which the opinion of the court is based, will be found in the brief of the defendant in error, from which… Held: and when he sold and transferred to Cassard fifty shares, Cassard acquired an interest measured by •his stock, and a sale and transfer, by Cassard, of his fifty shares of stock, on November 12, 1882, would have vested in his vendee the right to receive the 50-1000 parts of all property distributed while such vendee was the owner of…

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>Harrod, one of the legal representatives of Catharine Carder, deceased, brought an action in' the court of common pleas to recover of the defendant, Mc-Elwaine, as surviving administrator of said decedent, his distributive share of the estate.</p> <p>The answer, or cross-petition, alleges that Harrod, in the life-time of the intestate, became indebted to the latter upon two promissory notes; the first dated January 1,1865, due in one year; the second dated June 20,1865, and due in thirty days after date; both given for money loaned and advanced by said decedent to. said Harrod, and still unpaid; and that the defendant had “applied said distributive-share on the payment of said promissory notes.”</p> <p>The prayer is that “said promissory notes may be held and adjudged to be set-, off as against said distributive share, and that said sum be applied as a payment of so much of said notes, and that the same be decreed to be a good and valid set-off to all distributee’s share of said estate, to the full amount of said notes and interest as aforesaid, and for all proper relief.” - •</p> <p>Á demurrer upon the ground^ that the facts stated in the answer did not constitute a. defense, and that the right of action upon said notes was barred by the statute of limitations, was interposed and overruled.</p> <p>A reply was then filed, setting forth, in substance, that the right of action upon said notes was barred by the statute of limitations, before the death of Mrs. Carder, which, it was alleged, occurred on the thirteenth day of January, 1883.</p> <p>A general demurrer to this reply was sustained; and the plaintiff not desiring, to amend, or plead further, judgment was rendered in favor of the defendant.</p> <p>■To reverse the judgment of the court in overruling the first and sustaining the second demurrer, and in giving judgment for the defendant, this proceeding is prosecuted.</p> <p>Statute of Limitations, secs. 4980, 4986, 4978, 4974, 4992; Scott v. Hicks, 7 O. S., 88; Walker’s Am. Law, 651; McEwing v. James, 36 O. S., 152; Wallace v. Finnegan, 14 Mich., 170; Railroad Co. v. Railroad Co., 1 Ohio Circ. Dec., 60 (S. C., 1 C. C. R., 100); Horton v. Horner, 14 Ü., 437; Angelí on Limitations, 183; Little v. Willson, 10 O., 24, 27; Yearly.v. Long, 40 O. S., 27; 12 Peters, 56; 6 Peters, 61; 7 Johns, Ch., 90; 9 Pick., 242; 10 Wheat., 152; 9 N. J. Eq., 425; 28 111., 44; 2 Pearson (Pa.), 473; Drysdale’s case, 14 Pa. St., 531; Milne’s Appeal, 99 Pa. St., 483; Rose v. Gould, 11 E. L. & E., 10.</p> <p>Williams on Executors, 1304, and notes.</p>

In this case, upon the filing of a petition by the administrator of Isaac Wolverton, to sell the real estate of his intestate to pay debts, on June 28, 1888, Elizabeth Wolverton, the widow of Isaac Wolverton, filed an answer asking the allowance of her dower in money, and also representing herself to be the mother of two minor children, under fourteen years of age, residing with her; not the owner of a homestead; that the real estate sought to be sold was all the real estate…

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

<p>NEW TRIAL.</p> <p>Evidence not to be Cumulative.</p> <p>Newly discovered evidence as a ground for a new trial must not be cumulative.</p>

<p>PRIVATE CORPORATIONS.</p> <p>Dividends May be Deducted From Unpaid Assessment on Stocks.</p> <p>A stockholder in a joint stock insurance company, who has, failed to pay an assessment on his stock, made to bring the assets of the company up to the amount of capital stock required by law, is not entitled to payment oí dividends afterwards declared by such company until he has paid such assessment. It is proper for the company to credit the amount of the dividend against the unpaid assessment standing charged against his stock on its books.</p>

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

<p>WITNESSES.</p> <p>l. Incompetency Where Adverse Party is an Administrator.</p> <p>In ait action brought to recover a money judgment against the administrator of an estate, the widow of the intestate, or his heirs-at-law, are not necessary or proper parties thereto. And if on the application of the widow she is made a party defendant, and files an answer, setting up defenses to a judgment against the estate, and on behalf of fhé administrator testifies to transactions occurring before the death of the intestate, she is not a party to the action in such sense as would entitle the plaintiff to testify to the same transaction, under the third clause of sec. 5142, Rev. Stat.</p> <p>I. If Witness is an Interested Party and Testifies, Plaintiff may to Same Transactions.</p> <p>To entitle a plaintiff in such case to testify to facts which occurred before the death of such intestate, it must first appear to the court that he comes within some one of the exceptions to the general rule established by said section. And in this case it should have appeared, before the plaintiff was allowed to testify in regard to transactions occurring before the death of the defendants intestate, that his widow had a direct interest in the ’ controversy. And this did sufficiently appear. The widow being by law en- ' titled to a share of the personal estate of her husband, after the payment of his debts, •in'the absence of evidence showing the insolvency of the estate, the law will presume , that it is solvent, and that she thus has a direct interest therein, and in the action.</p>

■Error to the Court of Common Pleas of Ross county. Held: and that said board had hired plaintiff to teach said school at fifty dollars per month for six months from said September 15, 1884.” An objection was sustained, and said evidence rejected, to which ruling of the court there was an exception.

<p>FALSE IMPRISONMENT,</p> <p>Arresting One as Deserter from U. S. Army Who is not, Makes Officer Liable.</p> <p>A police officer under the provisions of sec. 1849 or 7129, Rev. Stat., or as a private individual under sec. 7130, is not authorized, on mere suspicion, and without a warrant therefor, to arrest and confine a person on the charge of being a deserter from the United States Army — especially is this the case when the person so arrested is not guilty of the charge. The person making such arrest is liable to an action therefor, by the person arrested, and $100 damage is not excessive.</p>

<p>BUILDING ASSOCIATIONS.</p> <p>1. Are Corporations Formed for Profit.</p> <p>Building, associations are corporations formed for profit, having a capital stock and the respective powers and duties of the corporation, and its members are to be decided according to the statutes of Ohio relating to such corporations.</p> <p>2. Payment of Dues is Same as Payments on Capital Stock of Other Corporations.</p> <p>In this case the constitution adopted by the corporation provided for the payment of dues which were to continue until the full amount of the capital was paid in full; these payments upon stock subscription are analogous to such payments in other stock corporations upon capital stock.</p> <p>8. Payments of Dues Having Stopped, Borrower Who Ceases Paying is not in Default.</p> <p>The corporation having been mistaken in its basis of business (similar case in 25 O. S., 208), by common consent all stopped paying dues, although the stock was not paid in full. Held, that the stoppage being by universal consent, and by all, there was no default thereby.</p> <p>4. Obligation to Pay Dues Ceases When Association Goes into Liquidation.</p> <p>That the corporation having gone into liquidation under the statutes of Ohio relating to the dissolution of corporations, there would be no more dues except as assessments should be ordered by the court for the purpose of paying the debts of the corporation and equalizing the stockholders among themselves.</p> <p>5. Officers Cannot Assign Mortgage When Dissolution Proceedings are Pending.</p> <p>In these actions, in which the receiver of said corporation seeks to recover upon mortgages given by the members to the corporation, and which were also claimed to be. owned by persons claiming by assignment. Held, that after the proceedings for dissolution-were pending under the act in 64 O. L,, 153, as amended 72 O. L., 138 (now Rev. Stat. 5651, 5688), an attempted assignment of a mortgage by the officers of the corporation was void as against the receiver (Rev. Stat. 5661, 64 O. L., 153, sec. 13.)</p> <p>O. Monthly Interest may be Recovered Although Dues Stop.</p> <p>In these cases the obligation of the mortgages were to secure the contract, which was a note with interest at six per cent., payable monthly, followed by stipulations therein recited. Held, although dues had stopped by general consent, and the corporation was in the hands of the receiver, that without any special assessment by an order by the court, the mortgage continued to draw interest payable monthly, and there being no defense showing that without this interest there were assets sufficient to equalize the stockholders, the receiver is entitled to recover the accrued interest, for which decree was rendered without prejudice to future action.</p>

<p>LETTING PUBLIC CONTRACTS.</p> <p>1. Lowest Bid may be Rejected at Discretion of Board.</p> <p>The board of public affairs of Cincinnati, advertised for sealed proposals in a certain form, for the improvement in a specified manner of one of the streets of the city, reserving the right to reject any and all bids. The several bids which were presented contained this express stipulation, “hereby agreeing that your board has the right to reject any and all bids.” That of the relator, which was in due form, was the lowest bid; but the board, acting under the advice of the city solicitor, rejected the bids,— repealed the ordinance for the improvement of the street, and passed a new ordinance for its improvement, thereby correcting an error in the first ordinance.</p> <p>Held, 1st. That mandamus will not lie to compel the board to award the contract to the relator at his said bid. That even if the act of the board in rejecting the same was arbitrary or for no good reason (which was not the case), or the advice of the solicitor, on which it acted, was given und-r a mistake as to the facts in the case, still it had the right to reject the same.</p> <p>S. Old Bid not to be Considered Where New Ordinance has Been Passed.</p> <p>The ordinance to improve che street, which was the foundation of the proceeding, having been repealed after the rejection of the bids, and a new one for the same purpose having been passed, the board has not now the right, even if it desired to do so, to award the contract to the relator on his old bid.</p>

<p>Error to the Court of Common Pleas of Van Wert 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>MANDAMUS — NEW TRIAL.</p> <p>1. May be Resorted to, to Compel Clerk to Issue Execution.</p> <p>A party entitled to an execution on a judgment may by mandamus compel the clerk of' the court to issue the writ, if he refuses to do so after a legal demand therefor.</p> <p>2. Motion for New Trial Must be Fiied at Same Term, Though it Ends Before Three Days.</p> <p>That the judgment was rendered near the close of the term, does not, under sec. 5307, Rev. Stat., give to the losing party the right to file a motion for a new trial after the term has ended, although it was filed within three days after the rendition of the judgment, and before it was actually entered on the journal. The motion must be filed not only within the three days, but also before the term has ended.</p> <p>3. Execution May Issue In Spite of Motion.</p> <p>If the losing party files the motion after the term has closed, it will not justify the clerk in refusing to issue an execution on the judgment upon a proper demand therefor.</p>

<p>GRADE OF STREET.</p> <p>Reasonableness of Grade a Jury Question.</p> <p>What is a reasonable grade established by a city for a street is a question for the jury to determine from all the evidence in the case; and while the fact that it was established by proper authority and competent officers is to be considered, yet it is not conclusive as to the character of the grade.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>INTEREST ON WATERWORKS LOAN.</p> <p>Lands Non-Abutting Water-Pipe not Subject to Assessment to Pay Interest on Construction Bonds.</p> <p>After water-works have been completed and put in 'operation, real estate situate within a municipal corporation but not “adjoining, abutting cr bounding upon any street, lane, alley, public road, square, block or premises, through which water-pipe has been laid,-’ is not subject to assessment by the council, for the purpose of paying interest on any loan made for the erection, or extension of water-works.</p>

<p>BILLS AND NOTES.-PREFERENCES TO CREDITORS.</p> <p>1. A Right to Discount is not a Right to Usury.</p> <p>Where a loan is made by a partnership, engaged in the business of banking, and interest is reserved at the rate of eight .per cent, per annum; and from time to time renewal notes are given for the amount remaining unpaid, and interest thereon is paid in advance at the same rate, the original transaction and the subsequent renewals are usurious in character; and in an action founded on the last one of such renewal notes, the lender can only recover the amount originally advanced, with interest thereon at the rate of six per cent.per annum, after crediting all payments made thereon by the borrower, as of the date at which they were made.</p> <p>I. Accommodation Note Pledged as Collateral Security.</p> <p>Where a person for his own accommodation, and without other consideration, executed a note and a mortgage securing the samé, to another person, who indorsed and returned the same to the maker, who then deposited them with a banker as collateral security for a loan, less than the amount of such mortgage note — on payment of such loan, the mortgage and the note secured thereby are also satisfied; and an attempt by the maker before'the payment thereof, to transfer the same to one of his creditors for a pre-existing debt, subject to the rights of the person so holding it as collateral, does not give to such assignee a valid claim against the real estate under such mortgage.</p> <p>. Conveyance not Operating as an Assignment.</p> <p>A paper executed by a person then hopelessly insolvent, purporting to transfer to three others the rights of the assignor to certain choses in action therein described (then held as collateral by other persons), in consideration of large amounts due from him to such persons severally, and first assigning the same to one of such persons, and providing that after her debt is satisfied, another of the said assignees shall have the same, or the proceeds thereof to pay his debt, and after the first two are paid in full, he transfers to the third of such persons any and all articles or proceeds left, until her indebtedness is paid, this, under the provisions of sec. 6343, does not operate'as an assignment to trustee for the benefit of all the creditors of such assignor.</p> <p>. Conveyance Void for Want of'Delivery.</p> <p>K. being about to take his own life, drew up and signed an instrument purporting to convey to three persons named therein, (as security for debts by him owing to them severally,) certain notes and choses in action, or his interest therein, which were then held by another person as collateral security for a debt of his; which instrument was not executed in pursuance of any arrangement with such assignees, and was without their knowledge. This instrument was enclosed in an envelope addressed to one of said persons (who was a relative of his and then a member of his family), and in another envelope addressed to her was a letter of farewell, and the two envelopes were surrounded by a rubber band. K. had several opportunities for-delivering tnese papers to such person, but did not do so, or mention the same. After he had taken the poison and while he was almost unconscious, and was unable to speak, (and he so continued until his death,) his said relative when she first entered his room, found the papers mentioned by his side on the bed, and took the same into her possession while he still lived, but it was done without the knowledge or consent of K.., and he never knew of it, or consented thereto. Held,5 that such paper was never, either actually or constructively, delivered by K. 'to the assignees named therein, or to either of them, and that he did not intend to deliver it during his life — that he did not part with the dominion thereof while he was conscious, and that the assignee took no title to such choses in action by virtue of such instrument.</p>

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

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

<p>COUNTY DITCHES.</p> <p>1. Right to Locate County Ditch Over Existing Township Ditch.</p> <p>■ An injunction will not be granted to restrain the board of county commissioners from constructing a county ditch — for the reason that a part of the line is over and along the line of an established township ditch.</p> <p>2. Determination of Question of Benefits to Lands.</p> <p>A court of equity will not determine the question of benefits accruing to the lands lying along the line of a proposed ditch, in the absence of allegations of collusion or fraud on the part of the board of county commissioners.</p> <p>3. Right of Appeal not Cut Off by False Record.</p> <p>An injunction will be allowed to restrain the board of county commissioners from further proceeding to construct a county ditch — when it appears that it has by its act- — not of record — deprived a land-owner of an appeal to the probate court, upon his demand for compensation for land actually appropriated for the construction of such ditch, but the injunction will not reach prior acts.</p>

<p>PLEADING GUARANTY — NEW TRIAL.</p> <p>1. Demurrer to Matter not Destructive of Cause of Action.</p> <p>Upon the note on which suit was brought defendant’s name was signed below that of the principal maker, and it was alleged that this was done under an oral contract of guaranty. A demurrer raising the question of the statute of frauds was overruled. Held, this was proper for if the averments complained of, in the petition, were stricken therefrom, and a cause of action left intact, a demurrer to the petition cannot be sustained. There is a cause of action on the signature of the note without the averment of an oral guaranty.</p> <p>8. Refusal of Leave to File Amended Answer is Reviewable Only on Bill of Exceptions.</p> <p>A pleading that can only be filed upon leave granted by the court, upon the refusal of leave, to preserve the question for a reviewing court, it must be incorporated in a bill of exceptions, otherwise it is no part of the record in the case. It is not made of the record by having the clerk’s file marks, when the court refused leave to file.</p> <p>3. Whether a Stranger Who Signs a Note After Delivery Becomes a Guarantor or Surety.</p> <p>Quere: What relation does a party (a stranger to the original note) sustain to a promissory note, when after the execution and delivery of the note for a valuable consideration — he sign the note upon its face underneath the signature of the original maker. Is he a maker, surety or guarantor of payment?</p> <p>4. Mistakes of Counsel as a Ground for New Trial for Surprise.</p> <p>That counsel supposed the reason for overruling a demurrer to be different than it was. and hence expected certain testimony to be admitted which was excluded, where the supposed reason would have been an untenable one, is not a ground for new trial by surprise.</p>

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

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

<p>PERSONAL INJURIES.</p> <p>1. Repairing a Defective Fence Soon After an Accident as an Admission of Duty to Maintain it.</p> <p>In an action against a municipal corporation, to recover for injuries sustained by the plaintiff by reason of his horse shying, and precipitating the buggy in which he was riding down a steep hill at the side of a street, at a point where part of a fence erected by the defendant was down; and wherein the issues involved the dangerous character df the place for want of a suitable barrier, the duty of the defendant to erect and maintain such barrier, the condition of such fence, and the knowledge thereof by the defendant, evidence that the defendant repaired such fence, at the point in question, soon after the accident to the plaintiff, is competent as tending to prove an admission by the defendant that it was its duty to keep and maintain a barrier at that place.</p> <p>S. Evidence of Prior Accidents to Show Notice of Defects.</p> <p>Testimony that other vehicles and persons had been precipitated down the hill, at the-point in question, at other and prior times, and when the fence was in the same condi- ' tion substantially as when the accident to the plaintiff occurred, is, in such case, admissible to prove the dangerous character of the place for want of such barrier, and knowledge thereof by the defendant; but not to prove negligence on part of the defendant, nor care and prudence on part of the plaintiff.</p> <p>t. Not Inadmissible Because of Other Evidence to Prove Same Fact.</p> <p>Such testimony of prior accidents is not rendered inadmissible as proof of notice to the defendant of the defect in the fence, because other evidence in the case would prove the same fact, if not rebutted by the defendant.</p>

<p>LIFE INSURANCE.</p> <p>1. A Single Debauch Which Impairs Health Avoids Policy.</p> <p>A policy of insurance on the life of A. contained this, among other provisions, “or if he” (the insured) “shall become so far intemperate as to impair his health, or induce delirium tremens, * * * * then in each and every one of the foregoing cases this policy shall become and be null and void.” In an action brought by the administrator of the estate of the person insured, to recover 'the amount of the policy, the insurance company alleged that A., after the date thereof, had become so far intemperate as to impair his health, and to induce delirium tremens. On the trial of the case the court charged the jury in effect, that if the insured injured his health, or induced delirium tremens, by the intemperate use of liquor “on any single occasional debauch,” that this would not be a violation of this stipulation; that t'o be a breach thereof the impaired health or delirium tremens must be the result of a habit of the insured to use intoxicating liquor to excess: Held, (1) That such charge was erroneous.</p> <p>3. Company Need Not Show That the Impaired Health Caused Death.</p> <p>It was not necessary to defeat such action that the defendant company should show that the impaired health, or the attack of delirium tremens, if shown to have existed, caused ■the' death of the insured, and a refusal of the court to so charge, when properly requested, was also erroneous.</p>

<p>CURTESY.</p> <p>Is Subject to Payment of His Wife’s Debts.</p> <p>The husband takes his curtesy subject to the payment of his wife’s debts.</p>

<p>CONDITIONAL SALES OF PERSONAL PROPERTY.</p> <p>Retaking Property Sold Without Refunding Purchase Money.</p> <p>The act of May 4, 1885 (82 O. L., 238) is not in contravention of any of the provisions of the constitution, and that part of the second section thereof which makes it unlawful for the vendor of personal property, sold in the'manner described in said act, to retake the possession of the same, without tendering or refunding to the purchaser the amount paid therefor, less a reasonable compensation for the use thereof, is not so indefinite or uncertain as to the amount to be so retained, as to render the section invalid.</p>

<p>PREFERENCES TO CREDITORS.</p> <p>1. Preferential Mortgages Inuring to All Creditors.</p> <p>Where it appears that the execution of the deed of assignment and of the preferential chattel mortgages was made at one time, and in furtherance of a general purpose to make a general assignment for the benefit of creditors under the statute: Held, that the preferential mortgages and the deed of assignment are parts of the same transaction, and under sec. 6343, Rev. Slat., all inure to the equal benefit of all the creditors.</p> <p>2. On Separate Pieces of Paper.</p> <p>The fact that the chattel mortgages were written upon a separate piece of paper from the deed of assignment, can give them no force.</p>

<p>SHERIFF’S CLAIM FOR EXTRA SERVICES.</p> <p>1. Services for Which no Compensation is Fixed are Gratuitous.</p> <p>Where services required by law are performed by the sheriff, and no compensation is provided therefor, such services must be regarded as gratuitous.</p> <p>2. Compensation of Sheriff for Keeping Prisoners.</p> <p>The compensation provided for sheriffs for “keeping and providing for prisoners in jail,” sec. 1235 Rev. Stat., is for services required by sec. 7379 Rev. Stat., and no other or further compensation for such services is provided for or contemplated by the latter.</p> <p>3. No Compensation for Other Services.</p> <p>The only compensation provided for services required under sec. 7379, is that which is allowed under sec. 1235 “for keeping and providing for prisoners in jail.” For other services, if any such there be, required to be performed under sec. 7379, no compensation is provided by statute or otherwise, and none can be recovered.</p>

Plaintiff in error, as administrator of the estate of John M. Pomeroy, deceased, on the 24th day of February, 1888, as such commenced a “civil action” in the probate court of Lorain county, by which he was appointed, praying for the sale of eighty acres of landdn Henry township, Wood county,-Ohio, to pay debts and legacies of estate. The petition was in the ordinary form, setting forth the facts required by the statute.

Defendant in error brought suit in the court below to recover of the plaintiff in error, an imbecile, the sum of $1,235, for services performed by her for him, as his hired servant, at his special instance and request.

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

<p>CONSTRUCTION OF A DEVISE.</p> <p>Statement of the Case.</p> <p>M. had two sons, G. and S. S. was the father of eight children. M. had made provision for his son G., and being desirous of providing for S. and his children, he advanced to the two children of S. then of age, about $3,500.00 each., He then conveyed to G. as trustee, real estate of the value of about $20,000. He was 'to take immediaté possession thereof, collect the rents, pay the taxes and expenses thereof, and pay from the proceeds to S. $1,000 per year, and the residue to the grantor during his life. The deed then provided that G. was to convey to each of the said six children of S. as they respectively arrived at full age, the one equal sixth part of said real estate in fee-simple., “but should any of them die before arriving at full age, or before receiving a deed as aforesaid, without issue surviving them, the share tract that he or she would be entitled to, shall vest equally in the other heirs of S. surviving, and be conveyed by my said trustee in the manner heretofore designated; but it is understood that no conveyance shall be made by my said trustee or his successors, until the period of thirty days after, my death.” After the, execution of this deed four other children were born to S. A., - one of the six children named in the deed, died" in 1887, under age and without issue. M., the grantor, died'in 1888. On a petition filed by the trustee to obtain a construetion of the deed, and the direction of the court as to whom he should convey the land, Held:</p> <p>1. Heirs Construed to Mean Children</p> <p>That the word "heirs” in the sentence "shall vest equally'in the other heirs óf S. surviving4” is to be construed as meaning other children oí S., and hence the one-sixth of the share of the deceased child should be conveyed to the other children, including the last four. „</p> <p>'2. Children of any Deceased-Child to Take its Parent’s Share.</p> <p>That on the death of A. under age, and without issue, during the life of the grantor, his 'share vested in all the surviving children.of S., and if that, if any one of them was dead, leaving issue, such issue took the share its parent would have taken. -■</p> <p>3. Deed Construed as a Will.</p> <p>The trust deed being in the nature of a testamentary disposition, is to be construed according to the intention, as if it were a will.</p>

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

<p>DESCENTS.</p> <p>Descent of Purchase Money From Sale of a Perpetual Lease.</p> <p>A lessee of a perpetual lease, with the privilege of purchasing at any time, sought to exercise the option after the death of the lessor. The heirs and also the administrator of the lessor and of her husband, claimed the fund. The lessee filed a bill of inter-pleader making all of them parties. Held, that in such a case the heirs are "entitled to the purchase-money, unless it be alleged and proved, that it is necessary to pay-debts or legacies of the deceased lessor.</p>

<p>SCHOOL LAW,</p> <p>School District not Divided by Annexation of Contiguous Territory to a Village.</p> <p>Certain territory lying contiguous to the Village of Westwood, Hamilton cqunty, and which was a part of Special School District No. 1, of Greene township, under the statutes authorizing the annexation of contiguous territory to a village, on the application of the corporation, - was by the action of the county commissioners dtfly annexed to, and became a part of, the Village of Westwood, which constituted another school district, known as ‘‘The Westwood Village School District.” The board of education of Special District No. 1, never in any manner consented to the transfer of such territory to The Westwood Village School District, under sec. 3893, Rev. Stat., or otherwise: Held, that such territory, so annexed to the village, did not become a part of The Westwood Village School District, but remained a part of Special School District No. 1.</p>

<p>BIDS FOR PUBLIC CONTRACTS,</p> <p>1. Statement ow Facts.</p> <p>The board of public affairs of Cincinnati advertised for proposals to furnish for the water works "screened lump coal for steaming purposes, according to specifications on file in their office,” and “reserved the right of rejecting any or all bids.” The specifications on file in the office provided that the bidders will name the kind of coal, and, if possible, give comparative value of the coal to the second (2d) Pool Youghiogheny coal, and “that the engineer of the water works shall cause rigid examination to be made of the coal as it is received, and shall have power to refuse any coal which does not conform to the stipulations of the contract. Relator proposed to furnish “Winifrede coal” at a certain price per ton, but did not give the “comparative value of that coal to second Pool Youghiogheny coal.” The bids were referred to the engineer of the water works, who reported certain crucial tests of that and other coals by an expert, tending to show that the other coals proposed to be furnished, were when quality was one of the tests, really the cheaper, and recommended a contract to be made with such other bidders, which was done; Held:</p> <p>S. Bids not in Conformity to Advertisement.</p> <p>That the proposals of relator did not conform to the advertisement since he did not give the comparative value called for, nor show that it was not possible.</p> <p>S. Engineer the Final Arbiter of Qualities.</p> <p>That as the specifications made the engineer of the water works the final arbiter as to the quality of the coal to be furnished, it was proper for the board to refer proposals to him, and act on his report.</p> <p>4. Action of Board not to be Interfered With.</p> <p>Such action of the board will not be interfered with by mandamus, in the absence, of fraud, or gross carelessness amounting to fraud:</p> <p>6. Quality May be Compared With Price.</p> <p>In determining which bid was the lowest, the board was authorized to take into consideration the quality of the coal as one of the factors', and not merely the lowest amount of money per ton.</p>

<p>Application for mandamus by Thomas J. Corcoran, prosecuting attorney of the police court, against J. D. Ermston, police judge.</p>

<p>DEPOSITIONS.</p> <p>Depositions Most be Sent to Jury if Demanded.</p> <p>’'Vhere depositions to which there are no objections or exceptions on the ground that they or any part of them are irrelevant, or incompetent are offered in evidence and read to the jury on the trial of the case, unless there is some special reason why it should not be done, it is the right of the party offering them, under the decisions of the state, to have them sent to the jury in their retirement. And in such case, a refusal pf the trial court to allow this to be done, when properly applied for, and an exception is duly taken to such ruling, is error, for*which the judgment should be reversed.</p>

<p>LETTING TO LOWEST BIDDER.</p> <p>Statement of Case.</p> <p>The county commissioners of Pickaway county, under a special act, authorizing them to remodel the court-house and build an addition or additions thereto, proceeded to advertise for sealed proposals, for furnishing all the furniture and fixtures (including vault furniture) for the court-house in said county then being remodeled and added to. The specifications called for special proposals for the vault furniture in metal. Two bids were received for furnishing metallic vault furniture, each of which was lower than the estimate. The commissioners accepted the bid which was higher in price, and which was defective, in that it included materials not required by the specifications; and thereupon entered into a contract with the bidder, after correcting the defective bid. Upon an application for a mandamus by the lower bidder, whose bid conformed, in every substantial particular, to the plans, specifications and schedules, and who had done nothing to waive his right, and had used reasonable diligence in asserting it: Held;</p> <p>1. General and Special Statute — Quality not Considered.</p> <p>A special authorizing remodeling and additions to a court-house (84 O. L., 321) is controlled by the general act (sec. 799, Rev. Stat., 85 O. L., 217), which requires the contract to be let to the lowest bidder, and an award to the highest bidder on the ground that his articles are best in quality, and most suitable in design, is unauthorized.</p> <p>2. Readiness and Willingness to Give Bond.</p> <p>Where specifications simply require a bond to be given upon awarding the contract, the lowest bidder, who ought to have received the contract, is in proper tune with his bond, if he alleges that he was and is ready and willing to give a good bond.</p> <p>3. Defective Bid Not to be Corrected.</p> <p>A bid in a lump sum, defective in containing more items of one kind than the specifications call for, and less of another kind, and not showing quantity and price, as data, cannot lawfully be corrected by the commissioners and accepted.</p> <p>4. Amendments to Make Pleadings Conform to Proofs.</p> <p>Where defendant’s answer alleges that his bid was in due form, when in fact it was defective, and the reply admits its truth, the court will permit améndment according to the proof.</p>

<p>MANDAMUS.</p> <p>To Control Discretion of Board of Education.</p> <p>Where it appears that a board of education of a city, in response to a writ of mandamus requiring it to fix the compensation to be paid to a member of the board of school examiners, under sec. 4082, Rev. Stat., has failed substantially to comply with such order, and eiffie’r wilfully and in bad faith, or (as in this case) from mistake and misapprehension of the real facts has fixed a mere nominal and wholly insufficient amount, the court issuing such writ may properly call upon such board to review its action in the light of the facts as found; and while it will not control or interfere with judicial>discretion, if exercised in good faith, it will see and require that a fair and legitimate attempt be made by it, to compfy with the order of the court.</p>

<p>MANDAMUS.</p> <p>Writ Will be Refused Where Relator’s Claim is Barred at Law.</p> <p>There has been such conduct on the part of the relator as amounted to a waiver on his part of compensation for a part of the time he acted as school examiner; and in analogy to the statute of limitations, the court should now refuse a writ of mandamus requiring the board of education of the city of Cincinnati to fix th« compensation of the relator for any period prior to six years before the commencement of this proceeding.</p>

At the January term, 1889, of the court of common pleas of Preble county, the plaintiff in error was tried upon an indictment for murder in the first degree, in' killing his mother, Carolina Sharkey. The jury found him guilty of murder in the first degree as charged.

<p>BILLS OF EXCEPTIONS — VERDICT.</p> <p>1. Error in Charge not Considered When Bill not Taken at the Term.</p> <p>Where on a trial, a verdict is rendered by the jury in favor of the plaintiff, and a motion was duly filed for a new trial upon the ground that the charge given to the jury, and excepted to at the time, was erroneous, and the motion for a new trial was not decided until the following term, when it was overruled, and a bill of exceptions taken, containing the charge excepted to, with so much of the evidence only as showed its relevancy, the reviewing court can not on such bill of exceptions properly consider the question whether there was error in such charge; one reason therefor being that the bill was not taken at the term at which the charge so excepted to was given to the jury, and does not set out all of the evidence given on the trial of the case. It is only when the bill has all the evidence, and the question is on the weight of evidence that the charge will be looked to when no bill was taken at the term.</p> <p>3. Whether Bill of Exceptions Taken After Term Can be Considered.</p> <p>Quere: Under secs. 5298 and 5101, Rev. Stat., as amended March 11, 1887 (84 O. L., 69-70), and further modified in some respects April 11, 1888 (85 O. L., 181), 'is a bill of exceptions of any avail, even to raise a question of error occurring at the trial of a case, or in the overruling of a motion for a new trial on the ground that the verdict of the jury, or the finding of the court is against the law or the evidence, unless such bill is presented to the trial court within thirty days from the end of the term “at which the verdict was rendered or the finding of the court is made,” (on the facts and law of the case,) and signed as in said sec. 5301 provided? If, however, it is the duty of judges to pass on motions for a new trial, at the trial term, and not continue them, perhaps it would be ground for reversal that they failed in this.</p> <p>3. Counter Claim — General Verdict Sufficient.</p> <p>Where a plaintiff by his petition claims a judgment against the defendant for the breach of a contract, and the defendant by his answer and cross-petition denies the contract sued on, and sets up a different contract as to the subject matter, and claims damages of plaintiff for its breach, and for an amount due upon an account, which new matter is denied by the reply, and the issues thus raised are tried to a jury, which returns a verdict as follows: “We, the jury on the issue joined find for the plaintiff, and assess his damages at $2,289.57,” and the reception of this verdict was excepted to, as not responsive to all of the issues made, and such exception noted on the journal of the court: Held, that these facts all appearing of record, a bill of exceptions is not necessary to raise the question of the sufficiency of the verdict; but that it was a substantial' answer to the issues submitted, and the court did not err in receiving the same and rendering a judgment thereon. Had the word “issue” been “issued” there could have been no question.</p>

<p>MUNICIPAL LAW — SEWERS.</p> <p>1. Abolishing Board by Repeal of Ordinance Creating.</p> <p>Where the common council of a municipal corporation has, by ordinance, created a board of improvements, the council may, by repealing such ordinance, abolish the board so created; and thereafter, the powers conferred by law upon the board of improvements, will be vested in the council.</p> <p>S. Assessments Without a Board of Improvements.</p> <p>Where a municipal corporation is without a board of improvements, or a board of commissioners of sewers, the common council of such corporation is authorized and required, by law, to exercise the powers and perform the duties which would devolve upon such boards respectively, were they in existence. They are mere agencies to assist council, and their existence is not a condition precedent to adopting a system and making sewers.</p> <p>I. Premature Ordinance Curable.</p> <p>An ordinance providing for the construction of a sewer within a sewer district theretofore created, is not rendered invalid by reason of the fact that it was passed within two weeks after the last publication of notice of the preliminary resolution, and-before the expiration of the time allowed for filing claims for damages under such resolution; especially is this so where no claim for damages has been presented, or allowed. A premature ordinance after actual publication of the preliminary resolution falls within the curative sections of'the code.</p> <p>4. Amount of Assessment.</p> <p>In making special assessments to provide for the cost of constructing sewers within a municipal corporation, the power of the council is limited, as to the amount to be assessed, by the provisions of secs. 2380 and 2384, Rev. Stat. By sec. 2380, “the assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to-drain, or sewer, such lots or lands.” By sec. 2384, the further limitation is imposed that “in no case shall the assessment exceed the sum of two dollars per foot front on the property assessed.” These provisions are applicable, whether the corporation has been divided into sewer districts, or itself constitutes a sewer district; whether the sewer constructed i • is a main sewer, intended to furnish drainage for the whole territory lying within the district, or is a local sewer, properly so-called; and whether the assessment is made by the feet front, or according to benefits, or upon the duplicate valuation. The excess is to be collected by general levy upon all the property subject to taxation, embraced in the sewer district. Rev. Stat., secs. 2380, 2384, 2682 and 2683, paragraph 20.</p> <p>5. Already Provided With Drainage.</p> <p>Lots or lands not needing local drainage, or which are already provided therewith, are, by the statute, exempt from special assessment for the cost of constructing sewers (Rev. Stat., sec. 2380). And the court may determine, upon the evidence submitted, whether any lots or lands assessed do, in fact, need local drainage, or whether they are. already provided therewith.</p> <p>8. Levy oy Tax by Districts is Proper.</p> <p>An act of the legislature authorizing the levy by the common council, of a general tax upon all taxable property situate in a sewer district duly created within the municipality, to defray the cost of constructing sewers” therein, is not a general tax on a portion of the property in the corporation is constitutional. The political subdivisions of the state need not be regarded in taxing.</p> <p>7. Failure to Provide Plans and Specifications not Defense.</p> <p>A failure on the part of the common council to provide plans and specifications relating to a sewer system, and to cause estimates to be made and submitted, of the probable expense thereof, as directed by the statute (secs. 2366-2378), can not be interposed as a defense by the owners of property abutting upon, and specially benefited by the construction of, a sewer, under proceedings in other respects regular, against the collection of a special assessment, not exceeding the amount authorized by the statute, levied upon such property for the purpose of paying the cost of such sewer. Where the assessment is in excess of the sum authorized, it may be reduced by the court.</p>

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

<p>Motion to dismiss appeal.</p>

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

<p>BOARDS OF EQUALIZATION.</p> <p>Questions of Doubt Which Should be Settled by the Supreme Court.</p> <p>The boards of equalization for the city of Cincinnati for the years 1884, ’5, ’6 and 7’, increased the valuation of many tracts of land on the duplicates as submitted to them, and also largely increased the1 valuation of new entries and new structures, over the value of those destroyed, as returned by the several city_assessors for the current years; and reduced the valuation of other tracts on the duplicate which appeared to be appraised too high, and grossly unequal as compared with the .valuation of the other real estate on the duplicate — the deductions so made from tracts of real estate being greater in amount than the additions made by said several boards to other tracts of .¡. real estate other than those made on account of new entries and new structures, but much less than the aggregate amount of additions made to the real estate valuation, including that made on account of new entries and new structures, over the amounts thereof returned by the assessors. Such action of the boards of equalization was acquiesced in and acted upon, and taxes levied and paid on such valuation as returned by the several boards until 1889,- when the auditor of state directed the auditor of Hamilton County, to correct on the duplicate for such years and for the years 1887 and 1888, the valuation of the property from which such deductions were made, and to charge against such property the taxes for such past years. And no further or more explicit or specific directions were given by the auditor of state. The county auditor having declined to carry out those instructions, this proceeding in mandamus is prosecuted to require him to do so.</p> <p>Held: That in view of the doubt entertained, whether under the statute the auditor of state has, on the facts set out, the right to require the auditor of the county to follow such directions, and whether the boards of equalization had not the right to act as they did, and of the propriety of having these questions settled by the supreme court, before entering upon the investigation of the many questions of fact which will arise if such questions are settled in favor of the relator, the writ will now be refused.</p>

Petition for Mandamus. The relators constitute the board of trustees of the water works in and of the city of Norwalk, in the state of Ohio, which is a city of the fourth grade of the second class, and embraces the county seat of Huron county. The defendant, Orrin S. Griffin, is the duly elected and qualified treasurer of said county of Huron and as such is the duly acting treasurer of said city of Norwalk.

<p>WILLS — FORGERY—WITNESSES—ERROR.</p> <p>1. Truth or Falsity of Recitals May be Shown.</p> <p>In a criminal action for forging a will, the will claimed to be forged containing recitals of facts, the truth or falsity of these facts may be shown as bearing upon the question of the genuineness of the will, for their falsity makes it improbable that they were made by the testatrix.</p> <p>2. Acts Inconsistent With Recitals May be Shown.</p> <p>Where these recitals are of the feelings of the claimed testate, her acts and declaration may be introduced to show, that her feelings were not those recited in the alleged will.</p> <p>3. Declarations Need not be Exactly Contrary to Those in Will.</p> <p>It is not necessary that she should have said directly that her feelings were not those recited in the alleged will. Declarations which are the natural expressions of feelings, inconsistent with such a state of feeling as is recited in the will, are admissible to disprove the recital. For instance — the recital in the alleged will being that Mary E. Breck was her “only true friend on earth,” it is admissible to show that she said she considered said Mrs. Breck “a scheming and dangerous woman.”</p> <p>4. Declarations Before and After Date of Will Admissible.</p> <p>For this purpose declarations apparently the natural expression of feeling, made ■ a reasonable time before the date of the alleged will, may be admitted, and where they are introduced, evidence of similar declarations made shortly after the date of the alleged will, are admissible as tending to show a continuance of such feeling.</p> <p>5. Question Improper, But Superfluous.</p> <p>An expert in this case on direct examination, after he had testified that the signature to the alleged will was forged, was asked if he would pay a check so signed. He answered he would not. Held: the question was improper, but the answer under his previous testimony was immaterial, and not substantial injury.</p> <p>6. Court Should not Charge as to What Evidence is Best.</p> <p>Where experts gave their opinion as to the genuineness of a signature, some pointing out the facts on which they were based, and some not, it is not error to refuse to charge that the facts have greater weight than the opinions, for this would be telling the jury what evidence was the best, and to what they should give most force.</p> <p>7. Evidence as to Why Witness Remembers Former Testimony.</p> <p>A witness cannot state, as the reason why former testimony was impressed upon his memory, his conjectural conclusion therefrom as to the intention of the prosecuting attorney in conducting the examination.</p> <p>8. Each Circumstance Need not be Proved BeyoNd a Reasonable Doubt.</p> <p>Where reliance for conviction is upon circumstantial evidence, it is not necessary that a circumstance should be proved beyond a reasonable doubt, unless it is a necessary link in a chain of circumstances, which chain of circumstances is necessary to a conviction. A person may be properly convicted by a large number of circumstances, no one of which alone is established beyond a reasonable doubt.</p> <p>9. Reviewing Court Must Have Evidence Jury Had.</p> <p>Where a reviewing court is asked to review on the weight of evidence a question of forgery, the alleged forged paper and the genuine signatures introduced should, in some manner, be made a part of the bill of exceptions.</p> <p>10. Reviewing Court Will Consider Materiality of Testimony.</p> <p>In a long trial, it rarely happens that, in every respect, one judge would rule on evidence as another does, hence the reviewing court, before reversing, will consider the materiality of testimony, and whether it was likely to do any injury; otherwise a long case would scarcely ever be confirmed.</p>

<p>RAILWAYS IN STREETS.</p> <p>1. Rights of Abutting Owner.</p> <p>If a railroad, after laying tracks by permission of council, fails to assess compensation to abutting owners, an owner may file a petition.</p> <p>3. “Land” Includes Owner’s Interest in Street.</p> <p>In section 6448, Rev. Stat., the word “land” includes the interest of an owner of a lot in the street upon which such lot is situated, and he is not confined to sec. 3283. or tL» limitation thereunder.</p>

<p>Error to the Court of Common Pleas of Logan county.</p> <p>cited 2 Daniels, secs. 1405 to 1408, inclusive.</p>

<p>OIL LEASES.</p> <p>1. Nature of an Oil Lease.</p> <p>An oil license is not a lease, but a right in the nature of an incorporeal hereditament’ or contract, with a license to enter.</p> <p>3. Right of Land Owner to Grant Rights of Way to a Railroad Company.</p> <p>Where the land owner grants, for a limited term, the exclusive right to bore for oil and gas, and a right of way for access, the rent being a proportion of the product, and the owner reserving the right to farm the land, such a lease grants no interest in the land, hence, if the owner of the land grants a right to operate a railrodd across the land, the company is not obliged to condemn the lessee’s right, for, by condemnation proceedings, it would have to admit that the lessee had an interest in the land. But the lessee is entitled to protection, but as the railroad will protect pipes already laid across the proposed track, and also those that may be laid, an injunction will be refused. The danger from fires will not be a ground for injunction, where it appears that the danger will arise only in case of negligent operation of the railroad, the presumption being that the operation will be careful.</p> <p>3. Action to Enjoin Trespass on Several Tracts of Land.</p> <p>A person holding several distinct tracts of land, some by deeds and some by leases, may, in a single action, seek to enjoin a trespass upon all the lands.</p>

In 1888, a proceeding was pending in the probate court of Miami county to compel the administrator of the estate of Robert Correy to pay to Matilda Correy, his widow, her distributive share of the estate. That proceeding was, on motion of the administrator, reserved and sent for trial and judgment to the common pleas court.

This is an action brought by Adaline ITigbee to recover six semi-annual dividends, declared by the defendant bank in April and October of the years 1884-5-6, on its capital stock, to which Joseph B. Pligbee and Jay A. Higbee, it is claimed, are entitled on the shares held by them during that time in the capital stock of the bank, to-wit, 100 shares owned by Joseph B. Higbee and 40 shares owned by Jay A. Higbee, of the par value of $100 each, and which dividends plaintiff…

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

<p>MECHANICS’ LIENS.</p> <p>Statement of Facts.</p> <p>C., a resident of Stark county, was served with a 'summons in that county in an action brought by B. in Fairfield county upon a lien for material furnished, under sec. 3184, as amended, 84 O. L., 6, for the erection of a derrick to be used in boring for gas upon the premises of the Amanda Gas Co. The petition contained two causes of action, (1) upon an account for material furnished, and (2), for the foreclosure of a lien. A judgment was rendered upon the first cause of action only, and an execution issued thereon, and levied upon the real estate of C. in Stark county. The second cause of action in the petition did not aver that the material was furnished under a contract with the owner of the premises: Held,</p> <p>1. Jurisdiction Not Acquired by Summons to Another County.</p> <p>That said second cause of action was insufficient; that the facts alleged did not create a lien upon the premises of the Amanda Gas Co. in favor of B. for such material.</p> <p>2. Omission to State Contract was with Owner is Fatal.</p> <p>That the petition failing to state a cause of action for the foreclosure of a lien and sal< of real estate, under sec. 5022, the court did not acquire jurisdiction of the subject mat. ter of the action, nor of the person of C. by service of summons upon him in Star! county, and that the judgment rendered on the first cause of action was void.</p>

Mandamus. The relator presented his petition to two of the judges of this court at cham-¡ bers, praying for a writ of mandamus to compel the defendant, a justice of thel peace, to sign a bill of exceptions.

<p>POWER OF TRUSTEE.</p> <p>Lender Need Not Look to Application of Purchase Money.</p> <p>When a deed of trust gives to the trustee unlimited power “to sell, lease, mortgage or otherwise convey the property without obtaining the consent of the cestui que trust, whenever in the opinion of the trustee it is for her interest,” a peison loaning to the trustee money taking a mortgage on the property to secure it in good faith, and under ¡ such circumstances as to fairly induce him to believe that'it was for “the interest of the cestui que trust,” may recover on his mortgage without being required to look to the application of the money so loaned.</p>

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

<p>PRIVATE CORPORATIONS.</p> <p>¡CORPORATION CREATED UNDER FORMER CONSTITUTION.</p> <p>In the act creating a corporation under the former constitution of the state, a definite time and term was fixed for the election of directors and other officers.</p> <p>After the adoption of the present constitution, the corporation repeatedly, by amendment to its constitution, changed the time and terms of election of the directors, and directors were from time to time elected by the body, after public notice given to the members.</p> <p>Certain directors who were elected at one of these periods fixed by their constitution, were excluded from office by the old directors, who had also been elected at a different time than that fixed by the charter, on the claim that the election was illegal. Held,</p> <p>¡¡Changes in Time of Electing Directors Were Legal.</p> <p>That by these acts the corporation should be regarded as a corporation under the present constitution and the laws, passed in pursuance thereof, and that under sec. 3234 the election was legal, and the newly elected directors are entitled to be inducted into office.</p>

<p>MORTGAGE NOTES.</p> <p>Statement of Facts.</p> <p>K., having money of B. and C., for investment for them severally, and R. being indebted to K. on two notes, one dated February 14, 1877, for $2,975.50, due two years after date, and the other dated July 2, 1877, for $3,200, payable two years after its date, and both payable to K. or order, on the 26th day of July, 1887, R. executed to K. a mortgage on certain real estate to secure said notes — the mortgage reciting that the notes were for the purchase-money of said real estate on that day conveyed by K. to R. On July 26, 1877, K. wrote to C. that he had invested $3,200 of her money as of July 2, 1887, in the R. note for that amount secured by mortfage, and long afterwards he indorsed and delivered the same to her. On December 4, 1877, K. sent the other note (for $2,975.50) to B., the same being indorsed to her without recourse, with an account showing that the amount named in the note was the bajance due to her at the date of the note, February 14, 1877, and stating that it had been taken to his order for convenience. The mortgage property having been sold on foreclosure proceedings, and the proceeds of sale not being sufficient to pay both notes, Held:</p> <p>No Priority Between. Two Notes Secured by Same Mortgage.</p> <p>That it should be divided between the parties pro rata. That K. being a trustee for them severally, and the presumption from the evidence being that the money in the hands of K. was invested for them respectively at the date of the notes .afterwards turned over to them, they were in equity the owners thereof severally at the time of the execution of the mortgage given to secure them. And that under such circumstances the general rule, that where two notes, held by the same person, are.secured by the same mortgage, the one first maturing shall be first paid, does not apply.</p>

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

<p>MALICIOUS PROSECUTION.</p> <p>11. Evidence of Good Reputation.</p> <p>In an action for malicious prosecution evidence of the plaintiff’s good reputation, and the defendant’s knowledge of such reputation, may be given for the purpose of showing want of probable cause. To show defendant’s knowledge thereof, evidence may be given that he was a member of the same church as defendant, and superintendent of the Sunday School, provided this is strictly limited to the purpose of showing notice.</p> <p>2. Malice Not to be Inferred from Dismissal of ^Prosecution.</p> <p>It is error to instruct the jury on the trial of an action for malicious prosecution, that they may infer malice from the voluntary dismissal of a prosecution, when the testimony clearly proves a satisfactory explanation of such dismissal, such as dismissal on being e 'vised of a defect in the affidavit, in order to institute another prosecution.</p>

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

The common council of the city of Cincinnati, on March 31, 1884, passed a resolution declaring it necessary to improve Hart street between certain termini by grading, etc., “the expense of said improvement” 'to be assessed upon the abutting property. Attached to said resolution was “an approximate estimate of the cost of improvement,” showing the estimated cost to be $8.96 per foot.

<p>CONSTRUCTION OE A DEVISE.</p> <p>41Heirs” Mean “Children” — Widow and Children to Share Alike.</p> <p>Romeo Lewis by his will, executed January 8, 1842, having no child then living, devised certain real estate and personal property as follows: “I further give and devise to my beloved wife, Jane N. .Lewis, and to the heirs pf her body, my houses and lots in the town of Oxford, Butler county, Ohio, and all the residue of my lands in the states of Indiana and Illinois, and all the rest, residue and remainder of my personal goods and chattels of every kind and description whatsoever, to be equally divided between them, share and share alike.” The only child of Mrs. Lewis was born April 15, 1843, and died five days thereafter, and the testator died June 24, 1843, leaving his said wife surviving him. The will was duly admitted to probate, and the widow elected to take under the same. She died January 11, 1888, having devised these lands to the plaintiffs in error. In an action brought against them by the heirs-at-law of the testator Romeo Lewis, to recover the said real estate in Ohio,</p> <p>Held: That the words, “heirs of her body,” as used in said will, have the meaning of the word “children.” And that the intent and purpose of said testator in this devise, as shown by the language thereof directing that such estate should go to his wife and to the heirs of her body (children), “to be equally divided between them, share and share alike,” was not that the wife should take eith_er a fee-tail, or an estate for her life with remainder to the heirs of her body, but that she and her children (if any) should take as a class, in fee-simple, as tenants in common, and share equally therein. And there being no other of the class so provided for except said widow, that she took the . whole thereof in fee-simple.</p>

<p>ACCOUNT — PAYMENT.</p> <p>Statement of Facts.</p> <p>In an action brought by C. against B., as administrator of the estate of S., on an account for boarding, etc., furnished to S. for a part of the time during the ten years before his death, at a certain price per week, on the trial the_ plaintiff, without objection, testified that a book then produced by him containing his account with S., was his book of original entries; that the entries therein were made by him, and at the time they purported to have been made, and the book was then offered in evidence. It showed entries of credit to S. of cash and groceries entered during each year from the commencement of the account in 1877, under th_e heading of the months, but not giving the day of the month in any case, and after the expiration of each year, without any date thereto, were charges for boarding for the number of weeks for the preceding year— some for less than 52 weeks, and some of them for the whole period, at $3 per week, and a balance would then be struck, showing the amount claimed to be due for such year, hut this balance was not carried forward to the next year. The book was admitted in evidence over the objection and exception of defendant. Held,</p> <p>1. Account Book as Evidence where Charges are Made but Once a Year.</p> <p>It appearing from said book that the charges therein against S. were not made until the expiration of each year, and did not purport to have been made as of any date, or as the same accrued, and were not so contemporaneous with the transactions purporting to be recorded, as to make such account-book competent evidence, it should not have been allowed to go to the jury, under the provisions of paragraph 6, of sec. 5242, Rev. Stat. But other evidence having been subsequently offered by plaintiff, which made such book competent, no prejudice resulted to the defendant from such ruling of the court.</p> <p>2. Part Payment does not Stop Running of Statute, if Debtor did not Know the Charges Against Him.</p> <p>Where a book of account introduced in evidence contains a credit for cash paid within the six years next preceding the commencement of the action on such account, but many of the items therein sued for, accrued more than six years before suit, brought, and the statute of limitations has been pleaded thereto, and there was evidence tending to show that at various times during the running of such account, S. had the opportunity of seeing such book of account, and did on some occasions look at it, and knew that credits of groceries were made to him therein, but there was no evidence that he 1 ever saw or knew of the charges therein made against him or of the cash credits, or I that at the time of the payment credited to him, he had been informed or knew of the said charges, or that he made such payment as a part payment on said account, this entry of payment did not have the effect of preventing the statute of limitations from running against those items of the account which accrued more than six years before suit brought. To have such effect it must be made to appear that the payment was made by S. on account of a greater sum due from him on such account to C., and as a part payment thereof.</p>

<p>FORECLOSURE OF MORTGAGE.</p> <p>1. New Party Made at Any Time Before Distribution.</p> <p>After real estate has been sold on foreclosure of a mortgage, and the funds are in court for distribution, the court may permit the city to be made a party, and set up a claim of lien for an assessment on the property for improvement of the street on which it abuts.</p> <p>2. Street Assessment Prior Lien to a Mortgage.</p> <p>Such assessment, though not certified upon the tax duplicate, is a lien under sec. 2285, from the date of the assessment, and is prior to any mortgage given by or judgment rendered against the owner on an ordinary debt.</p> <p>S. Allowance for Assessments Payable in Installments.</p> <p>When the terms of the ordinance of assessment provide that if the assessment be not paid within twenty days, it shall then be payable in ten equal annual installments with interest, the amount to be decreed to the city is the present value of such obligation, or the court may decree that amount to the owner of the land, charging the lien for all the payments on the land and to be paid by him as they mature.</p> <p>4. Release of Dower does not Inure to Other Creditors.</p> <p>When a wife has united with her husband in a mortgage of his property releasing her right of dower therein, on sale of the property on foreclosure her contingent right of dower is to be ascertained in the entire proceeds of the sale, from tables of mortality, aided by evidence respecting the state of health and constitutional vigor of husband and wife respectively, and his interest therein shall be exhausted before resorting to the interest of the wife. The release of the wife’s dower in the mortgage does no inure to the benefit of subsequent judgment creditors, as held in Mandel v. McClave 46 O. S., 407.</p> <p>5. Effect of Appeal from Distribution.</p> <p>A distributee’s general appeal from a distribution carries up the whole decree.</p>

<p>SALES,</p> <p>Statement of Fasts.</p> <p>The Pullman Palace Car Co. contracted to sell to Joseph Bros, certain articles at a stipulated price per 100 pounds, but nothing was said as to the time of payment therefor. On May 25 the articles were delivered to the purchasers to be weighed, and on ascertaining the quantity, demand was made on them for payment, and it was diligently urged, but postponed by the purchasers, who without the knowledge or consent of the company, on May 28, contracted to sell the articles to the defendant in error, and delivered the same to it, and on May 31st, refused to pay the company therefor. On the 1st of June, the Car Company hearing of the sale and delivery to the Globe Rolling Mill Company, between 9 and 10 o’clock A. M. notified it of their claim to the property, and demanded possession thereof, which was refused, and the Car Company replevied the goods the same day. Sometime during the day, the exact time not being shown, the defendant in error gave to Joseph Bros, a check on the Fourth National Bank, of Cincinnati for the agreed price of such articles, which was deposited in the Ohio Valley Bank before 1 P. M. of said day, and payment of which might have been stopped by defendants notifying the First National Bank before 4 P. M. _On the trial these facts being shown, no evidence was offered by the defendant tending to show that the check had been given to Joseph Bros, before the notice of plaintiff’s claim was received. Held,</p> <p>1. Delivery of Articles to Purchaser to be Weighed, not a Waiver of Cash Payment.</p> <p>That no time for the payment for the articles having been fixed by the contract between the plaintiff and Joseph Bros., it was a sale for cash, and the delivery of the articles and the payment therefor were to be simultaneous and concurrent acts, and no title vested in Joseph Bros, until payment therefor unless this was waived by the Car Company. And the fact that the articles were delivered to Joseph Bros, to be weighed, would not of itself, operate as such waiver, and nothing was in fact done by said company which had this effect, and as between the company and Joseph Bros., on their failure, or refusal to make the payment, the company could legally reclaim such property.</p> <p>3. Buyer from Possessor for Weighing, with Notice of Seller’s Claim, not a Bona-fide Purchaser — Payment by Check.</p> <p>If, after such delivery to Joseph Bros., for the purpose of ascertaining the weight, they had sold the property to a bona fide purchaser for value, who had paid for the same, or incurred liability on account thereof, such purchaser would have taken a good title thereto. But if it were shown that notice was received by the purchaser, of the claim of the Car Company before it paid therefor, it was not a bona fide purchaser, and occupied no better position than did Joseph Bros. And when it was shown that such notice was received before 10 o’clock A. M., and the check in payment for the articles was executed the same day the burden of showing that it was given before the notice was re.ceived, was on the defendant.</p> <p>'3. Charge to Jury — Weight of Evidence.</p> <p>On this state of fact the charge of the court to the jury “that their verdict must be for the defendant, unless it appeared from the evidence that notice of plaintiff’s rights and claims was given to the defendant, not only before defendant paid the Josephs for the axles, but also before the contract of purchase for the axles entered into between the defendant and Joseph Bros, had been completed by the delivery of the axles to defendant,” was erroneous and prejudicial to the plaintiff. The court also erred in refusing to grant the motion for a new trial, based on the ground that the verdict was against the weight of the evidence.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Passage of Resolution May be Shown by Parol.</p> <p>When a resolution was passed by a village council to appoint a superintendent for the erection of a public building, but by accident it was omitted from the minutes, it is competent for the superintendent in a suit for his salary to prove by oral testimony that the resolution had been passed, but omitted from the minutes.</p> <p>9. No Liability for Services, Unless Certificate of Money in Treasury.</p> <p>Such superintendent cannot recover for services unless a certificate be issued by the village clerk previous to the alleged contract, that the required money is in the village treasury.</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>

Defendant in error brought her suit in the court of common pleas, for slander. The words charged in the petition to have been spoken of plaintiff were to plaintiff herself and to others. The words spoken to plaintiff were: “I saw the ring you took from me in your room.” The words spoken to another by plaintiff as charged in the petition were: “Your Cousin Faschnacht took my ring; she had better bring it back, the ring she took of me, or I will send some one for it.

<p>SALE OE LAND.</p> <p>Title to Buyer’s Satisfaction — Buyer the Sole Judge.</p> <p>When a contract is entered into for the purchase of land, “if on examination it prove to be as represented by the seller;” and after examining it, the purchaser expressed his satisfaction with the character of the land, and added that he would take it, provided “a satisfactory title and abstract be furnished,” to which the seller agreed; held, that' this became part of the original contract, and was upheld by the same consideration, and that the purchaser will not be compelled to take the property unless “the title and abstract are satisfactory” to him. By the terms of the contract the parties have made him the sole judge as to that matter.</p>

<p>WILLS.</p> <p>Nuncupative Will Construed as a Specific Legacy to Exonerate Personal Property from Debts.</p> <p>A., during his last sickness made a nuncupative will, which on his death was admitted to probate and record. He was then the owner of real estate worth $3,000, and personal estate of the value of $550; and his debts and the costs of administering his es- § tate amounted to about $1,500. B. was the only heir-at-law of A. By such will he attempted to give the whole of his estate to C. The personal estate having been collected, and the real estate sold by the administrator of the estate with the will annexed, in this case, he asks the judgment of the court whether any part of the personal estate should be applied by him to the payment of the debts.</p> <p>Held: That it being the clear intention of the testator that C. should take something under' the provisions made for her, and as she will receive nothing if the personal estate is applied to the payment of the debts and costs of administration, that the bequest to her of the personal estate, was a virtual exoneration thereof from the payment of the same, and that they should be paid from the proceeds of the sale of the real „ estate.</p>

fl In this case the common council of Cincinnati passed an ordinance fixing the fl grade of the north curb of Atkinson street extending east and west between Clifton H avenue and Moerlein avenue, at 1.64 in 100 feet, and provided in said ordinance 9 that the grade of the south curb should be “as near like that of the north 'curb as practicable.” The intersecting streets, Clifton avenue and Moprlein avenue, ascend a hillside at a steep grade.

Quo Warranto. The relator files his petition, claiming that Mrs. R. S. Rust, Mrs. A. H. Bode, Mrs. Milo G. Dodd, Mrs. Charles F. McLean and Mrs. Harry Rosenbaum, for the space of five weeks now last past, and more, have assumed to have, .hold and exercise without any warrant or right whatever, and without possessing the qualifications of electors of the state of Ohio, the liberties, authorities, privileges, franchises and public offices, to-wit, the direction, management,…

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

<p>SALE OE LOTS.</p> <p>1, Scheme to Sell Lots to Erect a Factory is a Lottery.</p> <p>. Where a corporation undertook to raise money by agreeing to convey to the several persons who would subscribe for one or more of 400 lots at $200 each, to be paid for in the manner pointed out in said contract — the lot or lots so tp be conveyed to the several subscribers to be determined by a drawing — this was a scheme of chance in contravention of the provisions of sec. 6930-31, Rev. Stat., and therefore void. And no action can be maintained to recover the price agreed to be paid for such lots.</p> <p>8. Contract Void for Uncertainty.</p> <p>The contract so sued on in this case is void also for uncertainty as to the-subject-matter thereof. There was no sufficient, or any description of'the lot to be conveyed, or of any of the 400 lots referred to, either in the contract itself, or by reference to any other paper, and for this reason could not be enforced by either party thereto.</p>

<p>BILLS OF EXCEPTIONS.</p> <p>Successor of Trial Judge Cannot Sign.</p> <p>An action was tried before a judge and jury, and a motion for new trial made before, and overruled, and judgment on the verdict entered by the same judge on the loth of November, 1888; his term expired on the 3rd of December thereafter, and another judge took his place, who had not officiated as judge in any stage of the case. Held: That the latter judge was not authorized to sign a bill of exceptions embodying the testimony in the case, and exceptions to rulings, etc., of the former judge.</p>

On Appeal to the Court of Common Pleas of Hamilton county. The question decided in this case arose on a demurrer to the answer and cross-petition of three of the heirs, claiming that the provisions, of the will of Frederick Arleth were not a proper execution of the powers conferred upon him by the will of his wife. The facts appear in the opinion of the court.

<p>STREET RAILWAYS.</p> <p>1. Driving Street Cars Does Not Mean Running Them.</p> <p>An information filed in the police court of Cincinnati, charging that the defendant “did unlawfully and knowingly drive a street-car through the streets of said city, without having a conductor thereon,” was not a sufficient charge under an ordinance of the city which provides, “that no cars shall be run without both a driver and conductcr" and makes it an offense punishable by a fine.</p> <p>2. Council no Power to Make Penal the Running of Street Cars Without Both a Driver and Conductor.</p> <p>Neither paragraph 1, 3 or 10 of sec. 1692, Rev. Stat., authorizes the council of a municipal corporation to pass an ordinance making such action an offense punishable by fine or imprisonment.</p> <p>3. Cannot Enforce Contract to Run by Penal Ordinance.</p> <p>Nor does sec. 2501, Rev. Stat., give such authority. And where under its provisions the city has granted to a street railroad company, the right to construct and operate its road within the city, and has prescribed tile terms and conditions upon, and uie manner in which the road shall be constructed and operated, one of which terms and conditions was that the street railroad company should obey and observe the requirements of the ordinances of said city, as to the running of cars thereon, one of which was that “no cars should be run without both a driver and conductor,” which terms were assented to by the street railroad company, while this made a valid contract between the city and the company, which may be enforced by the methods and remedies known to the law, it did not make valid such ordinance of the city passed without authority of law.</p>

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

<p>NEGLIGENCE IN RUNNING STREET CARS.</p> <p>Defective Equipment to be Proven — Crowded Car.</p> <p>Where a person is thrown off the rear platform of a crowded street car, without producing evidence to that effect, he cannot claim that the want of pendant straps and gates for the platform is defective equipment. Nor that it is negligent to allow too many passengers on the platform, if none got on after the plaintiff.</p>

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

<p>APPEALS.</p> <p>The Unfavorable Part of a Decree not to be Appealed From.</p> <p>Where the court of common pleas in a case pending before it, has for distribution a fund claimed by two parties, and by its decree divides the same, giving a certain amount thereof to each of them, and one gives notice of her intention to appeal to the circuit court from so much of said cause, (decree), as affects her rights in the sum awarded to her adversary, an appeal taken 'in pursuance of such notice should be dismissed on motion. Our statute contemplates and provides for an appeal from the whole of a decree, unless the interest of one of several parties is separate and distinct from that of the other party or parties, in which case, if he desires to appeal the part of the case in which he is interested it may be done. But in no case when the decree is entire, can he appeal from one part of a decree against him, leaving that part favorable to him to stand unaffected.</p>

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

The following facts appear from the bill of exceptions: The defendant in error sued the plaintiff in error to recover Sixty-six dollars and fifty cents ($66.50), alleging in her petition that the same was due for board, washing, work and labor, and money loaned to and for Thomas Cos-grove, plaintiff’s decedent, at his request. To the petition a general denial was filed.

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

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

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

<p>INTOXICATING LIQUORS.</p> <p>1. Keeping a Roov-</p> <p>A charge in an affidavit that a person kept a room wherein intoxicating liquors arc sold, contrary to and in violation of, the provisions of an ordinance, is not the statement of. a legal conclusion, but the statement of a fact. It is not necessary to aver a series of sales or other facts constituting the keeping of such a room.</p> <p>2. Local Option Clause not Impliedly Repealed.</p> <p>Section 1692, Rev. Stat., as amended March 27, 1889, does not repeal by implication the local option clause of the Dow law.</p> <p>3. Dow Liquor Taxv Held to be Invalid.</p> <p>Section 11 of the statute, known as the Dow law, is invalid and void, for the following reasons:</p> <p>1. State policy permits a party to engage in and conduct an ale, beer, or porter house.</p> <p>2. This right or policy can be defeated by the passage of a prohibitory ordinance, and the return of a proportionate share of the tax paid.</p> <p>3. The legislature has failed to provide from what source the tax to be returned shall be paid, or by whom it shall be paid.</p>

<p>CRIMINAL LAW.</p> <p>1. Retrial After Reversal on Error is on Charges in the Indictment.</p> <p>Where, on the trial of a defendant, on an indictment charging him with murder in the first degree, the jury returned a verdict, finding him not guilty of murder in the first or second degree, but guilty of manslaughter only, and a judgment was entered upon such verdict, which was afterwards, on proceedings in error, instituted by the defendant, reversed for errors occurring at the trial, and the case was remanded to the trial court for further proceedings therein, it was not error, for such court to try the defendant on the charge made in the indictment, and if the evidence warranted it, the defendant might properly be convicted of murder in the first or second degree, of which by the former finding of the jury he had been acquitted.</p> <p>9. Nolle of,Part of an Indictment.</p> <p>Where, after the jury was sworn on said second trial, a nolle proseqvA was entered by the prosecuting attorney as to so much of said indictment as charged that the homicide was committed “with deliberate and premeditated malice,” this did not operate to discharge the defendant from further prosecution for any other crime properly charged therein, as of murder in the' second degree or manslaughter.</p> <p>3. No Error in Sending Special Charges Into Jury Room.</p> <p>At the conclusion of the evidence in the case, the court immediately charged the jury —neither of the parties having requested that the charge be reduced to writing, and so far as the record shows, it was not done. At the conclusion of this general charge, the court at the request of the counsel for the defendant, gave to the jury certain written charges, which, at the instance of defendant’s counsel, and over the objection of the prosecuting attorney, were allowed to be taken by the jury in their retirement, but soon thereafter were, by the order of the court, returned to the judge by the bailiff. But at the renewed request of the counsel for the defendant, and by the consent of the prosecuting attorney, they were again delivered to the jury. Held: That on this state of facts the court was not bound to send such written requests, so given, to the jury — but having done so, the subsequent action in regard thereto, was not erroneous or prejudicial to the defendant.</p> <p>4. Form of Verdict for a Particular Crime may be Furnished to Jury.</p> <p>A verdict, objectionable in form, need not be received by the court, and the jury may properly be requested to further consider the case, and instructed as to the form o£ the verdict, if they desire to find the defendant guilty of a particular crime charged in the indictment, and such form may be furnished to them, to be used if approved by them.</p>

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

<p>CRIMINAL LAW.</p> <p>1. Defendant may Waive Right to go with Jury to View Premises.</p> <p>On the trial of a defendant, charged with murder in the first degree, the court, on application of the prosecuting attorney, and under the provisions of sec. 7283, Rev. Stat., deeming it proper that the jury should view the place where it was claimed the homicide had been committed, ordered them to be conducted thereto, under the charge of the sheriff, and further ordered that the defendant be allowed’to accompany the jury, if he desired to do so. This the defendant refused to do, and excepted to the order of the court, allowing the view to be made. Such view was had, the defendant not being present. Held: That while the defendant was entitled to be present at such view, and if prevented, that the action of the court in allowing it would have been erroneous, it was a right which he could and did waive, and he can not complain that it was had when he was not present.</p> <p>2. Jury may Look at Subsequent Acts in Determining Degree.</p> <p>The trial court did not err in refusing to charge, as requested by the counsel for defendant, that “no matter how heartless or atrocious the conduct and language of the defendant may have been after the killing, the jury are bound to look only to what occurred before or at the time of the killing, in deciding as to the guilt or the degree of guilt of the defendant.”</p> <p>3. Verdict not Against Weight of Evidence.</p> <p>On the state of facts fully set forth in the opinion, this court is unable to say, that the verdict of the jury finding that the defendant had killed the person named in the indictment, purposely and maliciously and while he was attempting to rob him, was so manifestly against the weight of the evidence that the trial court erred in refusing, on that ground, to set it aside on the application of the defendant.</p>

Before the decision of the court on the main features of this case, Judge Haynes stated that in two cases, viz.: John D. Shannon v. The Columbus, Hocking Valley & Toledo Ry. Co., and the case of Ellen Shannon,v. The same defendant, there had been two motions made to the court, viz.: one motion to dismiss the petition in error, and another motion to strike the bill of exceptions from the files.

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

<p>NEGLIGENCE IN HEATING FIXTURES.</p> <p>1. Liability Limited to Contracting Persons.</p> <p>The defendant, under a contract with S. Bros., put in fixtures for using natural gas for heating a steam boiler connected with the engine in the electric plant of S. Bros. The plaintiff was at the time the engineer of S. Bros., in charge of said boiler and engine. The first time the natural gas was used to heat the boiler, and while plaintiff was so in charge of and operating said boiler and engine, the fire, owing, it is claimed, to the negligent manner in which the fixtures were put under the boiler by the defendant, so super-heated one part of the boiler as to cause it to explode, whereby the plaintiff was seriously injured. Held:</p> <p>If a person does work or puts up an article for another, not in itself dangerous, and an injury arising is not from its nature, but from his negligent work, he is liable only to the person with whom he contracted, and as the contract relations of the defendant were with S. Bros, alone, his liability is to them only.</p> <p>2. Not Liable to Employees.</p> <p>That the defendant owed no duty to the plaintiff that rendered it liable to him for the alleged negligence of defendant, the gas not being pel' se dangerous.</p>

<p>TAXATION — MANDAMUS.</p> <p>1. Peremptory Must be in Same Form as Alternative Writ.</p> <p>In mandamus the peremptory writ cannot be awarded in any other form than that fixed by the alternative writ. If the latter orders taxes for five years past to be put on the duplicate, the former cannot order this for four years.</p> <p>8. Right to Demur where a Judge Allows the Writ.</p> <p>The'proper construction of sec. 6748, Rev. Stat., is, that if the writ has been allowed by the court, the defendant cannot demur, but must answer, because the sufficiency of the petition has been passed upon, but may demur otherwise, though the writ has been granted by more than one judge, for signing the order granting the writ does not make it the act of the court.</p> <p>8. Unconstitutional if Retrospective.</p> <p>If sec. 2781, Rev. Stat., as amended in 1886, be given a retrospective operation so as to run back and include a correction of tax returns for five years from 1889, it is unconstitutional.</p>

In this case S. brought suit against G., Z., M. and D. to recover damages for false imprisonment. D. filed his answer, which was a general denial followed by a specific denial for himself. G. and Z.-, hy other counsel, filed a separate answer making the same defense.

The plaintiff brought her action below to marshall liens upon real estate of James Kennedy, she being a judgment creditor of James Kennedy, and the other defendants being various judgment creditors and mortgagees, and one W. N. Leeper, who claimed a vendor’s lien. In the .common pleas Leeper filed a cross-petition with which issue was joined by other lienholders, a trial, was had, judgment went against Leeper, and he appealed his branch of the case.

Boyd and Freede filed their petition in the court of common pleas of this county against Isom Lamb or his unknown heirs, in which they allege that they, as partners, are the owners in fee-simple and in possession of one hundred acres of land situate in this county (describing it), in which the said defendants claim to have an estate or interest adverse to the plaintiffs.

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

<p>ENTAILS.</p> <p>®bscrifhve Statement.</p> <p>R. D. died testate, devising to his widow D. N. D., as follows: “I give and devise to my beloved wife Delila N. Dukes (here follows a pertinent description of the property) during her natural life — also all my household goods and furniture, money, notes, and evidence of debts, which I may own and possess at the time of my death, she, my said wife, to use and enjoy during her natural life. At the death of my said wife the said real estate above described and the personal property remaining unconsumed, I give and devise to my children share and share alike.” The widow elected to take under the will. Held:</p> <p>1. Widow takes a Life Estate in Lands.</p> <p>That the plaintiff does not hold as dowress, but has a life estate in the lands described in the will, and the defendants, the other devisees named in the will, take a fee in remainder.</p> <p>S. Widow may Maintain Suit for Sale Under Disentailing Act.</p> <p>That the plaintiff has the right to apply to the court of common pleas and have the relief granted her, as provided by sec. 5803, Rev. Stat. Such right exists, notwithstanding the fact that the real estate devised was all that the testator was seized of, at the time of his death.</p>

Sarah O’Brien, as administratrix of the estate of Patrick O’Brien, deceased, sued the railroad company for damages for negligently causing the death of said Patrick O’Brien. The case was reviewed in the name of Alonzo Emerine, administrator de bonis non. The railroad company denied all negligence on its part, and claimed that O’Brien was guilty of contributory negligence.

of Common Pleas of Guernsey county. Plaintiff below, plaintiff in error here, alleged in his third amended petition that he was the duly qualified administrator of the estate of Annie Laurie Burns, late of said county, who died August 25, 1888, leaving certain named next of kin surviving her; that defendant was a municipal corporation having the control of, and being under duty to keep in reasonable repair, its streets and alleys; that on said day it maintained within its…

At the May term, 1889, of the court of common pleas of Van Wert county, Henry Lowther was indicted of the crime of incest, and upon such indictment was afterward convicted and sentenced to the penitentiary. The court overruled a demurrer to the indictment, as also a motion in arrest of judgment and for new trial. Exceptions were taken. The petition in error raises the questions as to the sufficiency of the indictment and errors of law occurring on the trial.

// Defendants were indicted, tried in the common pleas, and convicted. The sentence was an imposition of a fine and a commitment. They prosecuted error, at once, to the circuit court.

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

At the January term of the court of common pleas of Lucas county, Robert L. Sherman was convicted of robbing one David Cowan, a street-car driver in the city of Toledo, of property consisting of street car tickets and money-amounting in value to twenty dollars. The manner of the taking was described by the prosecuting witness in his testimony, to-wit: Direct examination: “I w^ent out, and he went outside with me.

1 The obligation executed by the village is valid, and must all be construed jpgether. If the transaction is contrary to public policy, Kline was in pari delicio and Mohn is without remedy. Hooker v. De Palos, 28 O. S., 251; Stoffer v. State, 16 O. S., 54; Kahn v. Walton, 46 O. S., 195, 207; Bd. of Education v. Thompson, 43 O. S., 321; 2 Pomeroy’s Eq. Jur., secs. 938, 940. The transaction was not a wager, as there wras no mutuality of risk. Stewart T. Simpson, 2 Ohio Circ.

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

<p>BLACKMAIL-CONSPIRACY.</p> <p>1. Indictment for Should Contain Words of Statute or Their Equivalent.</p> <p>The words, “tends to degrade and disgrace such person,” as used in sec. 6830, Rev. Stat. of Ohio, is a part of the description of the offense, and should be pleaded, or words that are equivalent.</p> <p>S. Acts of Accomplice not Competent unless Conspiracy Proven.</p> <p>To convict a person charged with crime by the act and declaration of another person jointly indicted with such person, a conspiracy must be proven beyond a reasonable doubt.</p>

<p>NEGLIGENCE.</p> <p>1. Liability of Railroad for Injuries to Delayed Passengers Placed on Hand Car to Reach Train.</p> <p>The conductor of a delayed passenger train may provide other and different means to transport the passengers upon the train- under his charge to the place of destination, but he is not authorized to receive, transport and discharge other persons than those upon the delayed train, and if he does so and they are injured, the railroad company will not be liable.</p> <p>2. Passenger on Hand Car Guilty of Contributory Negligence</p> <p>A person who voluntarily places herself in a dangerous position upon a hand-car to be carried as a passenger, assumes the risk incident to such mode of conveyance, and if injured can not recover from the railroad company.</p>

It appears from the record that- David D. Smith commenced in the court of eommpn pleas of Portage county an action in replevin against James Northcott to recover possession of four head of horses.

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

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