Volume 20 — Ohio Circuit Court Reports

<p>' Motion to quash service of summons, heard on the evidence — How ruling of court questioned—</p> <p>(1). When a motion to quash the service of summons is heard and determined upon the evidence, the finding of the court on the facts, can only be called in question by motion for new trial, challenging the finding upon sufficiency of the evidence.</p> <p> Attorney exempt from service of summons while attending professional duties— </p> <p>(2). A summons cannot be legally served upon an attorney at law to answer to an action against him, in a foreign jurisdiction, when called therein discharge of his duties a such attorney in the suit of a client there pending. And such service is open to a motion to quash.</p> <p>Same — Service stands until impeached — •</p> <p>(3). Service of summons thus had,though bad upon amotion to quash, does, until it is attacked and its legality is impeached in the court from which it issued, import legal service,and if not objected to by the defendant upon whom it is served, will support a judgment against him.</p> <p>Same — Seeond service vthile first in force, invalid—</p> <p>(4). Until such service is set aside, another writ in the same action and against the same party, cannot be legally issued and served upon him.</p>

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

The plaintiffs in error, Richard Allen and Dalton Allen, brought suit as endorsees against the defendants in error, Cary W. Johnson and Davis Gill, as makers, and Samuel H. Cochran, as endorser, on a promissory note of which and of the endorsements thereon the following is a copy: “$300.00 Westerville, Ohio, September 10th, 1895. “November 1st, 1897, after date, we or either, promise to pay to the order of Samuel H. Cochran three hundred dollars.

<p>Lands or improvements thereon omitted by assessors for taxation —Duty of county auditor — Definition of "year" as meant by statute—</p> <p>(1). The purpose of sec. 2803, R. S., which requires county auditors to place on the tax duplicate taxes for lands or improvements thereon which have been omitted by the assessors, by adding such taxes without penalty to the taxes of the current year on the duplicate then in the hands of the treasurer, is to put upon the duplicate such property at any time while the duplicate is in the hands of the treasurer for the collection of the taxes of that year, without reference as to whether by “current year” is meant the year from April to April, or whether it is for the year according to the ordinary computation of time.</p> <p>Purchaser takes land subject to additional taxes for improvements omitted during year—</p> <p>(2). A purchaser of property in any particular year takes upon himself the liabilty to have the property assessed for the taxes of that year and to have amendments made in the same manner for that current year if omissions or errors . are found to exist.</p> <p>See. 4838a, (Stone JRoad Law for Lucas county) constitutional—</p> <p>(3). Sec. 4838a, R. S., the so-called “Stone Road Law”, applicable to Lucas county only, having been held constitutional by this court in a former case, and the judgment in that case affirmed at that time by the supreme court without report, the court, on the strength of its former decision, holds that law constitutional, although the court, in view of later decisions of the supreme eourt as to similar laws, expresses doubt whether that law would be at present held constitutional by the supreme court if the question were again brought before that court.</p> <p>Limitation of taxation for county purposes — Classification of counties of doubtful constitutionally—</p> <p>(4). Sec. 2823, R. S., which fixes the limit of taxation to M»*. be levied by the county commissioners for county purposes, classifies counties according to population, and provides increasing rates of taxation for the different classes of counties according to population, the court holds to be of doubtful constitutionality, as classification of counties in regard to general matters of legislation is not admissible, but the court declines to decide the law unconstitutional.</p>

<p>Section 8461 of the Revised Statutes held constitutional, for that the function therein conferred on the probate court is judicial in its character.</p>

<p>Common Carrier — Bill of Lading controls—</p> <p>(1). As a rule, the terms and obligations of the contract between a shipper and a common carrier of goods are to be found in and determined from the bill of lading.</p> <p> Verbal contract different from, bill of lading -Rules of Evidence— </p> <p>(2). The bill of lading is subject to the general rules applicable to the variation of written contracts by parol evidence.</p> <p>' Transportation of goods beyond railroad’s own line — Responsibility for freight beyond its own line — Acceptance of total charges for whole distance — Express terms of bill of lading—</p> <p>(3). In the absence of specific stipulations on the subject, the acceptance of the goods by the carrier for shipment to their ultimate destination over its own and connecting lines, and receipt by the initial carrier of the charges for the whole distance, may involve an undertaking on the part of such carrier to transport them the whole distance and deliver them to the consignee, and so make it responsible for the default of connecting lines. But when the bill of lading contains explicit provisions on the subject, these must be regarded and given effect, in the absence of averments ana evidence that would authorize a court to ignore or set aside such contract of shipment.</p> <p> Stipulation limiting liability permissible— </p> <p>(J:). Stipulations limiting the liability of the initial carrier to its own lines, not being inconsistent with the common law liability, are valid and will be given effect.</p> <p>Acceptance of total charges as against express limitation to its own lines—</p> <p>(5). Where the shipper is aware at the time of shipment that the bill of lading contains provisions limiting the liability of the initial carrier to his own lines, and that the destination of the goods is beyond the lines of such initial carrier, the mere acceptance by such initial carrier of the freight charges for the whole distance to the point of destination, is not enough to warrant a disregard of such limiting provisions.</p> <p>Failure of shipper to notice express terms of bill of lading—</p> <p>(6). And a mere failure on the part of the shipper to notice such limiting terms in the bill of lading is not enough to warrant a disregard of such terms.</p> <p>R. R. Co. v. La Fourefcte, 2 C. C. R., 279, approved and followed.</p>

<p>In Chambers.</p> <p>On writ of habeas corpus, issued by the Circuit Court of Hancock county.</p>

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

<p>The estate of a deceased person not liable for the torts of the executor—</p> <p>Where a person is injured by the negligence of the operator while riding in a passenger elevator m an office building the property of an estate managed and controlled by an executor, such injured person can not recover damages for such injury in an action against the executor in his representative capacity.</p>

<p> Allowance to Infirmary Director for services as clerk of board illegal— </p> <p>(1.) No allowance to an infirmary director, clerk of the board, other than his per diem for attendance at its meetings, legally can be made for keeping a record of the proceedings and tranactions of such meetings.</p> <p>Same — Action to recover allowance thus paid — Pleading—</p> <p>(2.) As against a general demurrer, a petition which alleges that at a special time an infirmary director, named, unlawfully received on an account duly presented and allowed by the commissioners of his county, for alleged services rendered to the county as such director in keeping up the journal of the board of infirmary directors ofthat county, the sum of $15, which sum was paid to said director out of -the county funds as compensation for such services, sufficiently shows a cause of action for the illegal receipt of public money.</p>

<p>Jurisdiction ofinferior court — Jurisdictional facts must appear—</p> <p>(1). In favor of courts of inferior and limited jurisdiction there is no presumption of the existence of facts, the existence of which is required to authorize the exercise of jurisdiction. Such facts must be made to appear affirmatively, and especially is this so where an attempt is made to obtain service upon a corporation through an inferior officer or agent.</p> <p>Service of summons on Railroad Co. in suit before J. P. — What must appear—</p> <p>(2). In an action against a railroad company before a justice of the peace, to show good service of summons by delivery of a copy to a ticket agent of the company under sec. 6478, R. S., it must appear affirmatively by the return upon such summons not only that the president of the company is not a resident of the eounty in which the suit is brought, and lias no place of business therein, hut also that such agent is a person having charge of a ticket office or of a freight depot owned by or under the control of such company, and that such ticket office or freight depot is situated within the county where such suit is brought.</p>

<p>Injury of conductor of one freight train through negligence of another freight train — Evidence of customary practice admissible—</p> <p>(1). In an action by the conductor of a freight train against the Railroad Co. for damages for injury by being run over while arranging his train at a station, by the fault of another freight train following his own, the question being whether the approaching train was using proper care, evidence need not be confined to the rules of the company which should govern the action of such approaching train, but evidence is admissible of the custom, where an ap- ■ proaching train sees the train standing on the track with the red light displayed, and hears the torpedoes, to $top before proceeding.</p> <p>Same — Right to rely on other train observing customary practice—</p> <p>(2). The plaintilf had a right to rely that the approaching train would observe the customary practice under such circumstances in the ordinary course of their business and in the exercise of ordinary prudence.</p> <p>Train standing on track — Rule to send man back to warn trains approaching not applicable at stations—</p> <p>(3). The rule of railroad companies that the conductor of a train standing on the track should send a man baok to warn approaching trains, has no application to trains standing at a station.</p> <p> Power of court to demand remittitur as condition for refusing new trial., </p> <p>(4). Where the damages assessed by a jury are excessive, but not to a degree to necessarily imply the influence of passion or prejudice in their finding, the court in the exercise of sound discretion, may make the remittitur of the excess the condition for refusing a new trial.</p>

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

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

<p>Marshalling liens — Mortgage given between talcing of two mechanics’s liens — Mechanics’ liens to pro rate—</p> <p>Where the owner of the property let a contract for the construction of a building, and one party made hjs contract and commenced his work on the building, and furnished material under his contract. Then the owner placed a mortgage on the property, and thereafter another party who had taken the contract for another portion of the work on the building, commenced to furnish materials and to do work thereon under his contract, in determining the priority of the liens, Held: That the amount of the first mechanic’s lien should be taken out of the proceeds of the sale of the property; then out of what remains, the mortgage should be paid; add what remains to what was taken out on account of the first mechanic’s lien, and pro, rate that amount between the two mechanics’ lien holders share and share alike.</p>

<p>Silence when duty to speak — Report of street car conductor as to accident silent as to material tacts which he testifies to in the damage suit — Admissible as impeaching evidence—</p> <p>(1). Whenever, on a former occasion, it was the duty of a witness to speak, his silence, or his failure to state the whole truth, concerning a material matter, may be shown for the purpose of impeaching his testimony on the witness stand. Thus, where a witness for the plaintiff in an action for injuries claimed to have been the result of suddenly increasing the speed of a horse car, testifies that lie, as conductor of the car, at the time of the accident, was stooping to make a fire in the stove and was thrown backwards by a sudden jerk, and that, upon looking toward the front of the ear, be saw the driver with his arm raised as if he had struck or was about to strike the horses, a written statement made by such witness, as conductor, to the street railway company on the day of the accident imputing plaintiff’s injuries to his own negligence in attempting to board the car at the ' front end while it was moving rapidly, and omitting any reference to the incidents above stated, tends to impeach such testimony and is admissible for that purpose.</p> <p> Same— </p> <p>(2). The mere fact that a witness on the witness stand admits making statements out of court contrary to statements made in court, or having previously made a written statement which is silent as to certain material facts, which it was the duty of the witness to state, and concerning which he testifies, does not relieve such statement of its character as impeaching testimony.</p> <p> Whether such evidence is impeaching, question for jury— </p> <p>(3). It is not the duty of the trial judge to determine, as a matter of fact, whether under all the circumstances a written statement, by its silence as to material facts, made by a witness out of court,tends to impeach or does impeach his testimony on the witness stand. That question may properly be determined by the jury.</p> <p>Same — Explanation admissible—</p> <p>(4). A written statement made out of court which tends to impeach the testimony of a witness on the witness stand, may be admitted as part of his cross-examination or as evidence in behalf of the defendant, and such witness may properly be asked or permitted to explain the omission to state the facts relative to which the report is silent.</p>

<p>Mortgage executed by minor — Liability—</p> <p>(1). Where a minor executes a mortgage on her property to secure a debt for which she is in no way liable, such mortgage is voidable, and she may repudiate it at becoming of ages, in some way sanctioned by the law.</p> <p>Same — Conveyance amounts to repudiation of mortgage—</p> <p>(2). Where a minor signed a mortgage for" a debt for which she is in no way liable, and after coming of age, without any other act either affirming or repudiating the mortgage, she conveys the property so mortgaged to a party who has full knowledge of all the facts, the consideration being equal to the full value of the property free from such mortgage, such conveyance will amount to a repudiation of the mortgage, although the deed of conveyance was only a quit-claim deed without any covenants against inoumbrances.</p>

<p>Contract for building schoolhouse— Change of bid after opening of bids unlawful—</p> <p>(1). A contract between the board of education and the lowest bidder for an excavation for a school house, based upon a bid which the contractor was allowed to amend and increase, on account of an alleged mistake which did not appear on the face of the original bid, is void under sec. 988 Rev. Stat., providing the manner in which such contracts shall be awarded, although tbe bid as amended was still the lowest bid received.</p> <p>Same — Contract void — No recovery for work done—</p> <p>(2). Such contract being void, there can be no recovery thereon, or for the value of the work and labor performed, thereunder.</p>

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

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

<p>Charge to be taken as a whole—</p> <p>(1.) Where a charge to a jury, in an action for injuries resulting from a defective sidewalk, taken as a whole, upon the subject of the city’s knowledge, actual or constructive, of the defect, fairly submits the question to the jury, the fact that one particular part of the charge, given at the request of the defendant, does not state the whole law or omits the rule as to constructive notice, does not contitute prejudicial error.</p> <p>Special requests of one party already covered by general charge and emphasizing special feature prejudicial to adverse party, misleading—</p> <p>(2). Where, in such an action, every proposition covered by a series of special requests has been fully covered by the general charge, the giving of such special requests, worded in language selected by the defendant, and bringing prominently before the jury the question of contributory negligence on the part of the plaintiff, without qualification or explanation by the court, is liable, even if such requests are correct legal propositions, to mislead the jury, and are, therefore improper.</p> <p>Duty of city toward negligent person on street—</p> <p>(3). A charge that “a city owes no duty to a negligent person” does not correctly state the law and is misleading. However negligent or careless a person may be in his habits and nature of conduct, a city still owes the duty to exercise ordinary care toward him in its conduct over streets and sidewalks, although such person, if guilty of negligence which contributes directly to his injury, is not entitled to recover therefor.</p> <p>Defective sidewalls — Right of person to use—</p> <p>(4). It is not negligence, as a matter of law, for a person to attempt to pass over a sidewalk which he knows to be out of repair to the extent of having a board out of it. Such person is at liberty to use the walk,but must exere'ise such care as the nature of the walk requires.</p> <p>Same — Erroneous charge as to negligence—</p> <p>(5). TTnder the foregoing rule, where one board only was out of á sidewalk, a charge that “if the jury should find from the evidence that the plaintiff contributed to his injury by his own want of care and prudence, either in attempting to pass over the walk when he ought not to have done bo, or in passing over the walk in an improper or negligent manner, then he cannot recover,” given as one of a series of special requests and following a complete general charge, is one from which the jury might have inferred that it was negligence, as a matter of lav, for plaintiff to pass over a walk which he knew to be so out of repair, and is, therefore, objectionable.</p> <p>Same — Knowledge of defect—</p> <p>(6). Where there was no evidence that plaintiff had ever been over the walk in question before, or had any knowledge before the accident of its defective condition, and plaintiff, on the contrary, testified that he had not, the charge referred to is objectionable for the further reason that it was inappropriate under the evidence.</p> <p>Special charges should be complete in themselves and correct in law—</p> <p>(7). Special charges, requested by counsel, should be complete and state the law correctly and clearly within themselves. Thus, a cfiarge that it is “a question of fact for the jury to determine whether the city- had either actual or constructive notice of the defect and if the jury find that the city did not have such notice-the plaintiff” could not recover, without defining constructive notice, and following a general charge, which contained no definition of constructive notice,might have misled the jury and should-not have been given, although, standing alone, it does not. constitute reversible error.</p> <p>Presumption that sidewalk in good condition—</p> <p>(8). A person walking along a sidewalk in the day time or in-the night time is bound to exeroise reasonable and ordinary care, but such person has a right to assume, having no-knowledge to the contrary, that the sidewalk is in reasonable and ordinary repair and is not required, as a matter of law, to be on the lookout for defects therein.</p> <p>Same — Question of negligence for fury—</p> <p>(9). The question as to what is ordinary care in such cases, under the circumstances of each particular case, is one for the jury. Therefore a charge, that “the law imposed upon plaintiff the duty to be on the lookout while walking upon the sidewalk and to use ordinary and reasonable care for his own safety, and if by the exercise of such care he might-have avoided the injury, and he failed to use such care, then, in this action he cannot recover against the city,” was improper. The question whether the -circumstances were such as required the plaintiff, in the exercise of ordinary care, to be “on the lookout”, is a question which should have been submitted to the jury.</p> <p>Value of physician’s services admissible although gratuitous—</p> <p>(10). In an action for personal injuries a physician may testify • as to what his services, rendered the plaintiff, were reasonably worth, and plaintiff may recover therefor, although it appears that the physician intends to make no charge for the same on account of plaintiff being a brother physician.</p>

<p>Conveyance of land excepting interest in unassigned dower — Exception covers fee in part of land afterwards assigned for dower—</p> <p>(1.) S. M., tenant in common with R. M., conveyed to said R. M. by deed of release or quit-claim certain tracts of land described in the deed, which were subject to an unassigned dower. S. M. and his wife, in the deed remised, released and forever quit-ciaimed unto the said R. M., his héirs and assigns forever, all their title, interest and estate, legal and equitable, except their right and title in the widow’s dower in the premises decribed. Afterwards the widow’s dower was assigned in one hundred and twenty acres, a part of the lands described in the deed. Heid, that S. M.’s grant to R. M. excepted the fee in that part or portion of the premises described in the deed, to-wit: in the one hundred and twenty acres, in which said dower was assigned, and R. M. did not get title thereto under his quit-claim deed.</p> <p>Same — Such exception not void for uncertainty—</p> <p>(2). The exception in said deed was not void for uncertainty. The quantity or boundaries of the land excepted could be shown by evidence and the assignment of the dower.</p> <p>Ignorance of grantor of condition of land — TJntrue representations of conditions, by purchaser, amount to fraud—</p> <p>(3). The buyer of real estate, who assumes to have special knowledge oí the value and condition oí the property, in regard to which the seller is ignorant, ior the purpose of misleading him and inducing him to sell the same at less than its value, told him oí iaets and conditions calculated to depreciate the value of the premises, but omitted to disclose other facts within his knowledge which would have given correct information of their value, and by such means succeeded in buying the same at much less than their value. Such conduct on the part of the buyer is fraudulent, entitling the seller to set aside the conveyance for fraud.</p>

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

<p>Municipal corporation — Sidewalks—Bicycle—Injury to pedestrian • — Non-liabilitity for—</p> <p>(1), A municipal corporation is not liable to a person for injuries resulting from being struck by a bicycle ridden on the sidewalk thereof; or for the failure to pass an ordir nance prohibiting such use of its sidewalks.</p> <p>Same — To prohibit bicycle riding on sidewalks is legislative and . discretionary, and failure to exercise the same creates no liability, when—</p> <p>(2). There is no obligation upon the authorities of a municipal corporation towards any one of its citizens to exercise the legislative discretion with which they are invested to enact ordinances prohibiting any specific act concerning the streets and sidewalks of the city or village. Such matters are discretionary, and a right of action against a city or village does not accrue to one who was injured by a person riding a bicycle on the sidewalk, because the authorities had failed to prohiibt such riding.</p> <p>Same— When agent of the state — As such not liable—</p> <p>(3). In relation to the exercise of legislative powers and privileges, which are to be exercised by a municipal corporation for the care and control of its streets and sidewalks, such corporation is, in-the absence of statutory provision to the contrary, the agent of the state, and is not liable for a failure to perform or negligence in performing duties in that particular imposed by statute.</p> <p>Same — Biding bicycle on sidewalk not nuisance under section 2640, Bev. Stat.—</p> <p>(4). Such corporation is not liable for an injury to a pedestrian by being struck by a bicycle ridden on the sidewalk, although the statute, section 2640, provides, that the council shall have the care, etc., of the streets, “and shall cause the same to be kept open and in repair, and free from nuisance,” and it will make no difference that the authorities of such corporation, with knowledge of such use of the sidewalks, took no steps to prevent the same; the word “nuisance” in this connection does not include a running ■ bicycl«, but refers to something which is, in a sense, fixed or permanent, as a defect in the street or sidewalk.</p> <p>Same — Construction of pleading—</p> <p>(5). In an action against a municipal corporation to recover damages for injuries sustained from being struck by a bicycle, ridden on the sidewalk of a public street by a bicyclist, an allegation in the petition that the city, its officers and agents had unlawfully, carelessly and negligently and in disregard of their duty caused and permitted bioyles to be operated and run upon the sidewalks, may.be construed in view of the whole pleading, as an allegation that the authorities took no steps to prevent such riding.</p>

<p>Error to the Court of Common PJeas of Cuyagoba county.</p>

; Smith, P. J., and Swing, J., concur, On the 11th day of June, 1872, Caroline Lushey made her last will and testament, by which she gave all her estate, real and personal, to her husband, George Lushey. At the time they had one son, George Gabriel, living, and after-wards another son, Harry W. Lushey, was born. In June, 1878, the testatrix died, leaving the husband and two sons surviving her.

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

<p>Statute of frauds — Part performance—</p> <p>(1). While under the provisions of the statute of frauds and perjuries, Sec.4198,R.S.,a parol contract for land oran interest in land is invalid and cannot be enfored at law. yet where there has been part performance of the agreement, in the respect that the agreed price has been paid, possession has been yielded, taken and maintained for a number of years, with a large expenditure of money in fitting the land for the agreed use and in repairs, so that it would be unequitable not to enforce it; such part performance relieves the contract from the operation ef the statute, and it is enforceable in equity.</p> <p> Subsequent purchaser with knowledge of parol contract and part-performance— </p> <p>(2). A subsequent purchase of the land for value, with notice of the parol contract and the extent of the performance, takes it subject to the burden imposed by such contract and performance.</p> <p>Same — Enforcement of parol contract against subsequent purchaser with knowledge—</p> <p>(3). In such circumstances, in an action pending between the possessor of the land and the purchaser, for injunction and for relief touching the premises, the contract in parol will be specifically enforced.</p>

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

<p>Interest — Contract made in different state — Different rate of interest—</p> <p>(1). Citizens of different states may contract with reference to the interest laws of each state, and the contract when .made will be governed in that respect, by the law of the state selected by the contracting parties. But if the parties made no selection "in express terms, it is the duty of the court in which a contention is, to ascertain and determine from the evidence and oircumstances surrounding and attending the contract, which code of laws was selected and intended by the parties to control.</p> <p>Building association — Liability of members for losses'—</p> <p>(2). Under the statute of Minnesota a member of a mutual building and loan association, whether investor or borrower, must share pro rata with the other members the losses of the concern.</p> <p>Same — Promise to mature stock in six years — Effect—</p> <p>(3). A promise of a mutual building and loan association to a member thereof contained in a certificate of stock duly issued to such member, to mature said stock in six and one-half years, cannot be specifically enforced in an action on such promise, where the failure to so mature the stock is not chargeable to the laches of such company but to general panic, financial and business depression and disaster; and where the promisee had full knowledge that the only source of revenue of the company was its collections of dues, interest and premium, and its only means of maturing the stock was from the earnings and profits of its business as such association.</p>

<p>Application for receiver in action pending in circuit court •of Richland county.</p>

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

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

<p>Injury at JR. It. crossing — Liability of railroad—</p> <p>(1). A railway corporation, as owner merely of abutting lots and lands in a municipal corporation, is not liable for an injury to person or property resulting from a defective sidewalk maintained on the street crossing its right of way.</p> <p>Same — ‘ 'Grossing” as meant in sec. 3321 R. S. defined—</p> <p>(2). Under the provisions of sac. 3324, R. S., such corporation is liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of a crossing over its railway track or tracks. The word “crossing” in said section is used in a limited or restricted sense, and includes only that part of the structure immediately over and across the railway tracks, and sufficient space on either side thereof to make a sufficient and safe way over such tracks.</p> <p>Pleading — Insufficiency of petition—</p> <p><3). Where the petition does not state a cause of action against the defendant, it is not error for the court to refuse to receive evidence offered by the plaintiff on the trial or to give judgment for the defendant on the pleadings.</p>

<p>Administrator — Sale of personalty on credit — Power to reject notes - properly secured—</p> <p>(1). Where credit is offered to prospective purchasers at a sale of personalty belonging to an intestate, the administrator cannot arbitrarily and at his pleasure reject notes tendered.' to him upon which are the names of sureties who have all the qualifications required by the statutes; but if his decision as to the qualifications of the sureties is made in good', faith and with due caution, it should stand.</p> <p>Same — Proof of sufficiency of surety competent—</p> <p>(2). In a suit by the purchaser for the possession of property thus offered for sale, it is error for the trial court to refuse, to permit the offering of testimony tending to show that: the sureties had all the qualifications required by the statutes.</p> <p>Same — Question for jury—</p> <p>(3). Where it is in dispute whether the property was actually struck off to the intended purchaser, 'that question should" be given to the jury for determination, and not decided by the trial judge in an instructed charge for the administrator.</p>

<p>Request of Instructions before argument — What record must show—</p> <p>(1). While it is the right of a party to have correct written instructions given by the court to the jury before the argument of the case to the jury commences, when properly asked, to constitute error as to this, it must aíñrmativelv appear from the record that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.</p> <p>Same — Instructions need not be in language ashed by counsel—</p> <p>(2). The trial court in such case is not bound to give the charge in the language used by counsel of the respective party, but may give it substantially in other language, and if the evidence justifies it, go further and state to the jury the rule which becomes applicable under the facts disclosed by the evidence.</p> <p>Collision of Vf Mole with Street Car — Liability of party notwithstanding contributory negligence of other party — Improper charges—</p> <p>(3). In an action for damages for injuries received by the collision of plaintiff’s vehicle with a street car,it appeared that plaintiff was driving on the east side of the street between the curb and the railroad tracks until he came to a point where the east side of the street was obstructed, and where he was compelled to drive on the R. R track to get around such obstruction, which.he did immediately in front of and so close to a car approaching at a lawful speed that the same could not be checked in time to avoid a ollision. It appeared that there was nothing to prevent plaintiff from seeing the approaching car, but that the curtains of his carriage being down, he failed to look, and failed also, after passing the obstruction, to return to the part of the street between the curb and the track, but continued to drive on the track. Held:</p> <p>A request to charge that “it the jury find that the plaintiff and defendant Were both negligent, and that the negligence of both contributed directly to cause the injury complained of in this case, then your verdict should be for the defendant”, was properly refused, because it leaves out of consideration the rule that a party is liable for injury, notwithstanding the fact that the other exposed himself to the risk of injury, when such first p'arty after he became aware or ought to have become aware of the other’s danger, either wilfully injured him, or failed to use ordinary care to avoid the injury.</p> <p>But a charge given, as follows: “But there is another rule of law which applies even in cases where both parties are to blame when the conduct of both has contributed to the accident, and that is this: If the circumstances are such that, notwithstanding the negligence of the plaintiff, the defendant could, by the exercise of ordinary care, have avoided the accident, then notwithstanding the negligence of plaintiff, plaintiff can recover”, states the rule too strongly against the defendant, and under the evidence of the case is misleading.</p> <p>(Held by Swing, J., that under the facts of the case there was no negligence on the part of the Street R. R. Co. at all,and the plaintiff alone being guilty of negligence, is hot entitled to recover.)</p>

<p>Levy for municipal purposes — See. 2836 R. S. independent of limitation fixed by sec. 2689a R S.—</p> <p>Sec. 2689a, R. S., limits the levy to be made for the ordinary purposes and ti e general needs of corporations, such as the council are authorized to levy without any authority by a vote of 'he electors of the corporation,while sec. 2836, R. S,, authorizes an additional levy to pay for improvements which can only go forward when sanctioned by a two-thirds vote of the electors, voting at a general election held for that purpose. Such additional levy under sec.1 2836 is independent of the limitation fixed by sec.2689a,R. S.</p>

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

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

<p>Appropriation by city — Failure to pay within six months — Allowance of motion to retax costs under sec. 2260, R. 3., can not be vacated at subsequent term on mere motion—</p> <p>(1). The allowance of a motion to retax costs in an appropriation proceeding, so as to include compensation to the land owner for attorney’s fees and other reasonable and proper expenses, in a case where the municipality fails within six months to take possession of and pay for the land, under sec. 2260 R. S., is a judgment or order made by the court, and can not be vacated at a subsequent term on a mere motion to again retax the costs so as to exclude attorneys fees and expenses allowed on such first motion to retax costs.</p> <p>Judgment rendered before case stands regularly for trial not ground for vacation—</p> <p>(2). The ground that the judgment was rendered before the action regularly stood for trial, is not one within the meaning of sec. 5357, R. S.</p> <p>City may waive right to six months time to take land—</p> <p>(3). While a land owner may waive his right under sec. 2260, R. S., to have the proceeding to appropriate his land declared void where the municipality fails to take possession of the same and to pay the compensation awarded, there is nothing in the statute preventing the municipality from waiving its right to six months time to take the land by notifying the owner'of its refusal within the six months.</p> <p>Same — Retaxing costs — Compensation for attorney and expenses—</p> <p>(4). Where a municipal corporation brings an action for the condemnation of property for street purposes, and a trial is had and judgment rendered, fixing the compensation to be paid to the property owners, and the corporation fails to take the property within six months, the claim of the defendants to be allowed, under sec. 2260, R. S., for attorney’s fees and expenses incurred by them, can not be defeated on the ground that the appropriating ordinance was invalid.</p>

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

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

<p>Liability for freight charges for goods sold — Evidence of local usage, when incompetent— ,</p> <p>(1). • In an action on a contract made by a vendor in Dayton, with a vendee at Cincinnati,' evidence of a local usage at the1 trade in Cincinnati can not bejreceived to change the general rule of law that, in the absence of any special .agreement in relation to the place of delivery or a usage of tfie trade or the course of previous dealings "between the parties, ‘the vendee is not required to pay freight charges for carrying the goods to the vendor; an.d the fact that the Dayton firm had an agent at Cincinnati, and that "one of their members made weekly trips to Cincinnati to sell good; there, is not sufficient to charge Such firm-with knowledge of a usage of the trade prevailing in Cincinnati.</p> <p>Stubs in note-booh —Incompetent as booh account—</p> <p>(2). Stubs on a party’s note book are not competent as a book account or otherwise to prove the purpose and effect of the notes given.</p>

<p>Construction of main sewer- — Assessment as to benefits on property in sewer district, proper—</p> <p>(1). Under sec. 2380, R. S., as applicable to cities of the third grade of the first class (Toledo), all property in a sewer district may be assessed according to benefits for the construc/tion of a main sewer therein, although the same is nor intended to be used for local drainage, and in fact can not. be used for that purpuse.</p> <p>Same — Finding of assessing committee of council conclusive on court—</p> <p>(2). The finding made by the assessing committee, of council as to the amount of benefits accruing to property respective- . . ly in such sewer district, under the statute, is conclusive upon the court unless fraud or oppression is shown.</p>

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

<p>Error to the Court of Common Pleas of Hancock</p>

<p> Additional charges must be requested to constitute failure to give them error— </p> <p>(1). Where what was said by the court to the jury in toe charge was clearly the law, if the plaintiff desired the court to charge further on toe subject in question, a request for such further charges should have been made, and none having been made,the court did not err in failing to give any other proposition on the subject, whether such other proposition would have been warranted or not.</p> <p>Acts done in violation of statute as negligence per se—</p> <p>(2). The supreme court of Ohio has never yet gone so far as to say that an act done in violation of a statute or an ordinance is negligence per se. Nor has that court gone so far as to say that the violation of such statute or ordinance raises a presumption of negligence, although there are many authorities outside of Ohio in support of each of these propositions.</p> <p>Injury from dangerous machine — Evidence that for years no accident happened, competent—</p> <p>(3). Under the rule which makes the happening of former accidents competent to prove knowledge of the dangerous character of a certain machine, it is also competent to show by a witness familiar with the machine that during its operation for many years no accident occurred thereon.</p> <p>Evidence as to employment of children on same hind of machine in other factories competent—</p> <p>(4). In an action for damages for injury sustained by a child in operating a certain machine, evidence is competent to the effect that at other factories young children, not older than the plaintiff, were employed in feeding such machines, as tending to show that the defendants exercised such care and prudence as was ordinarily exercised by others under similar circumstances.</p>

<p>Trust Funds — Application by agent to own bene jit —</p> <p>*1). Where aD agent sells the goods of his principal on commission under a contract that he will keep the entire proceeds of sales for the principal as a special deposit until fully settled for, but in violation of the contract, the agent uses the money in purchase of goods for his own store and in paying its operating and running expenses, a court of equity may declare a trust in such stock of goods for the sum so converted and used, and order the same paid as a preferred claim out of the proceeds of sale of said stock, and for this purpose, the court of common pleas has jurisdiction.</p> <p>Preferred claim against agent's estate—</p> <p><2). And in such case, if the agent dies insolveni leaving the amount due his principal unpaid, said stock of goods into which the trust funds oan be traced, passes to the administrator of his estate impressed with the trust, and the court may order the administrator to allow and pay as a preferred claim, the debt so due the principal, from the proceeds of the sale of said stock. This is true upon the principle, among others, that the agent, by the wrongful use and investment ot the trust funds, increased his own estate to that extent.</p>

<p>Grade of street established by long user — Compensation to property owner for change—</p> <p>Where the traveled portion of a street has been used for such a length of time as to constitute a grade by user, the grade of such traveled portion determines the grade for the whole width of the street; damages to abutting property for a subsequent change of grade are to be determined by reference to the change made from the traveled roadway, and no damages can be recovered for a change necessary in order to make the grade of the entire width of the street correspond with the grade of the traveled portion.</p>

<p>Mandamus on appeal from the Court of Common Pleas of Hamilton county.</p>

<p>Member of council — Eligible as member of board of education —Statutes how construed — Amended ■ section — Revised Statutes</p> <p>(1). An elector residing within the limits of an incorporated village which with other territory composes a special sohool district, may, during the term for which he was elected and while acting as a member of the village council, be elected to and exeroise the office of a member of the school board for such special school district.</p> <p>(2). Section 1717, Bevised Statutes of Ohio construed.</p>

<p>Trust for benefit of creditors not a continuing and subsisting trust exempt from statute of limitations—</p> <p>(1). A trust created for the benefit of creditors is not one of those technical and continuing trusts as to which the statute of limitations does not run.</p> <p>Ignorance as to real principal not fraud within meaning of sec, 4982 R. S.</p> <p>(2). Ignorance as to who is the real principal in a transaction does not give to the claimant four years to bring an action from the time of discovering the real principal.</p> <p> Dismissal of action by plaintiff not failure otherwise than upon merits within sec. 4991 R. S. </p> <p>(3). The dismissal of an action on motion of the plaintiff without trial does not bring it within the provisions of section 4991, permitting of the bringing of a new action within one year from that date.</p> <p>Dismissing action after judgment in Common Pleas and appeal to Circuit Court — Judg’ment not in force—</p> <p>(4). The dismissal of an action without prejudice which has been appealed to tbe circuit court does not leave the judgment of the court of common pleas existing and in full force.</p> <p>Failure to present claim within six months or sue within thirty days after rejection no bar—</p> <p>(5). Failure to sue within thirty days from the rejection of claim by a trustee, or to present the claim for allowance within six months from publication of notice of the appointment of tbe trustee, does not bar the creditor from contesting his claim and having it allowed after these periods have elapsed.</p>

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

<p>Parent and child — Mistreatment by stepmother — Right of father to custody—</p> <p>A father can not be deprived of the custody of his child on the ground of mistreatment of it by the stepmother, unless he countenanced or encouraged such mistreatment by the stepmother.</p>

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

<p>Right of partnership to sue in firm name — Requirements of act of 1894 an exception—</p> <p>(1). The right conferred upon a partnership formed for the purpose of carrying on a trade or business in this state, by section 6011, Revised Statutes, to “sue” in the “usual or ordinary name which it has assumed, or by whioh it is known,” is not affected by the act of May 19, 1894 (91 O.L., 357),requiring partnerships to file certificates giving names of members, unless it be shown that the persons constituting such firm have been “doing business as partners contrary to the provisions” of said act.</p> <p>Compliance with act of 1894 need not be averred in petition — Matter of defense—</p> <p>(2). When an action is brought by such a partnership in the firm name, under said section 5011, to show a prima facie right or capacity to maintain it, averments of compliance with the act of 1894 are wholly unnecessary. The limitations of section 6 of said act are in the nature of exceptions to'the authority given by section 5011, and the facts, there fore, showing their application in bar, constitute and are matters of defense.</p> <p>Same — Failure to prove compliance with act of 1894 — Effect—</p> <p>(3). When a partnership sues in the firm name, and by proper averment brings itself within sec. 5011, R.S.,but also alleges compliance with the act of 1894,which is denied; mere failure of proof on that issue will not prevent recovery upon the cause of action set out, if that be duly established. Hence, where, as in this case, what purported to be a certificate such as is provided for by section 7 cf said act, was the only evidence on the question, whether it was rightly or wrongly admitted is unimportant,as in the latter event the error, if such there be, is not prejudicial.</p> <p>Withdrawal of juror, discharge of jury and dismissal of suit without prejudice, as against motion to take case from jury—</p> <p>(4). Where at the close of the plaintiff’s evidence the defendant moved to take the case from the jury,and the court found the motion to be well taken, but before arresting the case, allowed the plaintiff leave to withdraw a juror, and discharged the jury; and thereupon also permitted the plaintiff to dismiss his action without prejudice,at his costs,afterward entering judgment “that said action be dismissed without prejudice to a new action,” and for defendant’s costs, this is no bar to a later suit between the same parties on the same cause of action.</p>

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

<p>Employment of teacher — Record,—</p> <p>(1). In order to constitute a legal employment of a teacher for a school within a township, by the board of education, its record must show that a majority of all the members of the board voted “aye” on that proposition.</p> <p>Confirmation by T'p. Board of Education of employment of teacher by subdirectors—</p> <p>(2). The same rule applies to the “confirmation” of a teacher elected by a board of subdirectors. Henoe, where a town-: ship board consisted of its clerk and five directors, a motion to confirm the election of a teacher, which had the 1 votes of but two directors and the clerk, does not have the number necessary to carry it, and such election is not confirmed.</p> <p> Same— </p> <p>(3). In that case, the person' to whom such action relates, has not thereby been employed as a teacher for any school of the township, and consequently cannot maintain an action against the board for debarring her of alleged rights as such.</p>

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

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

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

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

<p>Action for possession of street — Injunction not proper remedy—</p> <p>(1). The remedy of a municipality against the obstruction of certain streets by wharves and landings, is not by injunction, but in an action lor the recovery of possession of real estate and for damages.</p> <p>Grant by city — Failure to exercise privileges not required no ground of forfeiture—</p> <p>(2). Where rights in certain streets are granted by a municipality, the grant does not become extinguished through the failure of those claiming under it to exercise privileges which they are not required by the terms of the grant to exercise.</p> <p>Executed License, when not revocable—</p> <p>(3). If the contract whereby such a grant is conveyed contains the elements of a valuable consideration, equity can not be invoked to amend it without an offer to restore the rights parted with when the contract was executed, and the grant is irrevocable whether it conveyed a easement or a mere license.</p> <p>Estoppel of party by long acquiescence—</p> <p>(4). A municipality can not be heard to complain after acquiescing for a long period in the construction and effect of the grant as it was understood by both parties at the time it was made.</p> <p>Adverse Possession, what will amount to—</p> <p>(5). Possession by the defendants is sufficient, if it be as exclusive and adverse as the nature of the right will admit.</p>

<p>Claim of estate against executor transmuted into money in his hands—</p> <p>(1). A demand existing in the lifetime of the testator against one who becomes the executor of his last will, if undischarged, is transmuted into jmoney in the hands of such executor by force of section 6069 of the Revised Statutes. And no act of the executor, or of the debtor, oan turn it again into the character of a mere demand or obligation.</p> <p>Same — Not uncollectible claim,—</p> <p>(2). Being transmuted into money in the executor’s hand, it cannot be classed as an uncollectible or desperate claim, by reason of the insolvency of the executor.</p> <p>Same — Order of Probate Court for sale of such claim as incoUectible unauthorized—</p> <p>(3). Section 6077 of the Revised Statutes, confers no jurisdiction on the probate court to order the sale of an asset of this character, as a desperate claim. And a sale thus ordered and made, carries to the purchaser no liability that subsisted between the estate and the executor and the sureties on the executor’s bonds.</p> <p>Same — Purchaser of claim under such order of Probate Court can not enforce it by suit—</p> <p>(4). Predicated upon the title passing to the purchaser by a sale so made, no action will lie against such executor and the sureties in his bond.</p>

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

<p>Will — Devise over after . death of first devisee without issue, to others — Construction—</p> <p>(1). The doctrine that, where real estate is devised in terms denoting an intention that the primary devisee shall take a fee simple on the death of the testator, followed by a devise over in case of his death without issue,that then the latter words refer to a death in the life time of the testator, is not the law of this state; but under the decisions of our supreme court such words, or words of similar import, are to be in • terpreted according to their popular and natural meaning, and as referring to the time of the death of the first taker unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purpose.</p> <p>Devise of land in fee subject to payments to executors — Construction as to estate given—</p> <p>(2). Where a will by one provision gives to testator’s children land in fee simóle, but by other provisions the burden is imposed upon them of making large payments of money to his executors, to be used in the payment of pecuniary legacies to other children, and for the payment of the debts of the testator, this will not be considered as indicating an intention of the testator to give a fee simple title to the land devised subject only to the charges imposed. This rule only applies to cases where the devise is so indefinite that the intention of the testator can not easily be ascertained, but not where the estate is by appropriate language devised in fee simple.</p> <p>“Heirs” construed to mean “children” — Rule of construction—</p> <p>(3). Where in a will the word “children” is used in all the devises and bequests, and it is then provided that if any of them “die without issue or leave no surviving issue” then that such bequest to him shall “pass to my other surviving heirs,” the word “heirs” must be construed to mean “children” also, and therefore,.on the death of one of the children without issue, the land devised to him goes to the children then living, exclusive of the issue of children who have died before.</p>

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

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

<p>Action in Ohio court for wrongfully causing death in other state— Laws of other state control as to cause of action—</p> <p>(1). In an action under sec. 6134a, Rev. Stat., permitting an action in Ohio for a death wrongfully caused and occurring in another state, the court must look to the laws of the state where the wrongful act resulting in death occurred to determine all questions pertaining to the cause of action. Ott v. Railway Co., 18 Cir. Ot., Rep. 395. followed.</p> <p>Wrongfully causing death in Indiana — Laws of Indiana permit enforcement of Ohio laws in that regard, in their courts— Indiana Employers' Liability Act only applies to injuries, not to wrongfully causing death of employe—</p> <p>(2). In view of the provision in sec. 6134a, Rev. Stat, that the laws of other states may be enforced in Ohio in “all cases where suoh other state, territory or foreign country allows the enforcement in its courts of the statutes of this state of like character,” an Indiana statute which would defeat the enforcement of Ohio laws in that state, would operate to defeat the application of Indiana laws in Ohio. It cannot be assumed, however, that the Indiana act, known as the Employers’ Liability Act, preventing pleading or proof in Indiana courts of the laws of other states in certain personal injury cases against railroads operating lines in Indiana and other states, and which does not specifically interfere with actions for wrongful death, but which, on the contrary, is restricted to actions for injuries, would defeat the enforcement of Ohio laws,relating to actions for wrongful death, in Indiana. The statute in question does not, therefore, defeat the rule stated in the preceding paragraph.</p> <p>Ringing bell of locomotive in R. R. yard — Whether insufficient manner question for jury—</p> <p>(3). Where a locomotive is being moved about in railroad yards where men are at work, and where their duty calls them and where they may be expected to be upon the tracks, the question, in an action for injuries or wrongful death, whether or not it was negligence for an engineer to omit ringing his bell, and loud enough to give reasonable warning, and constantly, is one for the jury to determine.</p> <p>.Excessive Verdict and Remittitur — Reasons of trial court for or dering remittitur not matter for consideration of appellate court—</p> <p>4). A reviewing court, in determining, upon error, whether a verdict was excessive, has nothing to do with the opinion of the trial judge, expressed in ruling upon a motion for a new trial. Thus, where the trial judge, in passing upon a motion for a new trial, mtoe an entry that “the damages awarded by the jury in excess of * * * are excessive, appearing to have been given under the influence of passion or prejudice “and ordered a remittitur, or, if refused,a new trial, the reviewing court is authorized to look into the record and determine for itself whether the verdict was excessive, and if so, whether the excess was produced by passion or prejudice; and, having so determined that the verdict was not excessive, the judgment of the trial court thereon may be affirmed, irrespective of the fact that it may have been the duty of the trial judge, in view of his finding as to passion and prejudice, to have set aside the verdict instead of ordering a remittitur.</p>

<p>Appropriation for street to extend of certain grade thereof fixed in appropriation ordinance—</p> <p>(1). Where land is being appropriated for a street, and there has been no declaration as to what the grade is to be, the condemnation will carry with it the righi to make a reasonable grade; but where the grade is fixed, the rights acquired by the municipality are limited thereto.</p> <p>Same — City bound by grade as fixed in ordinance — •</p> <p>(2). If the condemnation ordinance does not fix the depth to which a proposed cut is to be made, the. court has the right in the condemnation proceeding to require the municipality to declare its intention in that regard, and this having been done, and an ordinance subsequently passed adopting the grade as thus fixed, the property owner will be protected against any future claim by the municipality of a right to go deeper.</p>

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

<p>Statute of limitations specially pleaded— Verdict thereon special—</p> <p>Where the statute of limitations is specially pleaded as a defense, and the jury, being instructed thereon, returns a verdict which includes a finding of that fact in favor of the defendant, such verdict should be treated as a special verdict and judgment rendered thereon.</p>

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

<p>Transcript of judgment recovered before J. P. filed in Common Pleas — Destruction of records of common pleas by fire — Sec. 907b not applicable—</p> <p>Section. 907b, Revised Statutes, which provides that no judgment the record whereof has been destroyed by fire, etc., shall be held binding and in force against the judgment debtor, or be executed, “unless the action or proceeding to establish the existence of such judgment prior to the destruction of the record thereof, shall begin within five years from the passage of this act,” does not apply to a case where a judgment was recovered before a J. P., and a transcript filed with the clerk of the court of common pleas for execution against real estate of . the debtor, and part of the judgment made by the sale of such real estate under the execution issued from the court of common pleas, the records of which court were after-wards destroyed by fire; as in such case the judgment was not recovered in the court of common pleas, but before a J. P.</p>

<p>On motion to vacate judgment entry.</p>

<p>Negligence — Railroad crossing — Duty to look and listen — Facts raising presumption of failure to do so notwithstanding testimony—</p> <p>It is negligence as a matter of law to approach and cross a known railroad crossipg without both looking and listening for approaching trains, and although a party testifies that he looked and listened, if the circumstances are such that by looking and listening in the exercise of ordinary care he must have seen an approaching train, he will be held guilty as a matter of law. notwithstanding his testimony that he looked and listened.</p>

<p>Wife taking all property of deceased, husband and assuming hit contracts —Sufficient consideration—</p> <p>(1). Where a wUe, there being no children, on the death of her husband takes all of his property, which is liable for his contractual obligations, and agrees to assume and carry out such contracts, her agreements to that effect are based on a good consideration, and she is liable thereon.</p> <p>Debts not deductible from, money in bank for taxation—</p> <p>( ). Debts cannot be deducted from money in bank subject to be checked out, although the liabilities of the owner are largely in excess of his deposit in the bank.</p> <p>(3.) Facts under which the failure to return for taxation all personal property subject thereto and owned at the time, will not be considered a false return subject to the statutory penalty as such.</p>

<p>Mechanic's lien — Sub contractor’s Lien — What necessary to obtain</p> <p>The owner oE the building sustains no contractual relations, to the sub-contractor. His property can be subjected to a lien in favor of a sub-contractor, only as provided by the statute; and, before such lien can be perfected, the claim must be filed with the owner of the building, notice given to his contractor by the owner of the building that he may have an opportunity to contest the claim, either to arbitrate or consent to it in some way, and an opportunity given to the contractor to pay his debt when adjusted, and, if not paid by the contractor within five days after the adjustment, then it becomes the duty of the owner of the building to pay pro rata to the holders of the various sub-contractors’ liens.</p>

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

<p>Signature of Treasurer of corporation as “Treas.'n — Personal liability—</p> <p>(1.) Where the treasurer of a corporation accepts a bill of exchange drawn by such corporation,as “H. P. Eells, Treas.’\ such signature will be considered merely as a description of the person, and he is liable individually on the draft as the acceptor thereof; and in a suit against him on such draft, evidence that he did not intend to bind himself; that the plaintiff knew that fact, and that when he accepted this instrument from the person who endorsed it over,he knew it was not the endorsement of the treasurer personally, but the endorsement of the company, is not admissible.</p> <p>Same — Election to sue either—</p> <p>(2.) In such case the holder of such draft may elect to proceed against either the corporation, or such treasurer individually, and if in a suit against either he fails to collect the total amount of his claim, he may proceed against the other to collect the balance.</p> <p>Settlement of suit — Bar to further litigation as between parties, but not as to third parties—</p> <p>’ (3.) In such case the holder of the draft sued the corporation as the maker thereof, who set up counter-claims, whereupon a settlement was effected between these parties, and an entry was made in the suit, that the case was dismissed at the costs of the defendant corporation, without any judgment against defendant being entered except for such costs. Held: that such entry is a bar to any further litigation between the parties on the same cause of action. ¿But where such defendant corporation became insolvent and failed to pay the total .amount agreed upon in the settlement, such entry will not be a bar to a suit against a third party who is also liable on such'cause of action, but was not a party to that suit, to recover the unpaid balance agreed upon in the' settlement of the other suit.</p>

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

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

<p>Action of foreclosure without personal judgment — Default for answer — Personal judgment on cross-petition filed by co-defendant after answer day without service of summons void—</p> <p>Where in an action for the foreclosure of a chattel mortgage, without asking for a personal judgment, the defendant fails to answer within the time fi ed in the summons served on him, he is in court only up to the answer day so fixed as to the parties who brought him in, and only to the matters pertaining to such foreclosure. And where a co-defendant, after the answer day so fixed in such summons, files a cross-petition against such defendant asking for a personal judgment on his claim, but fails to have a summons on his cross-petition served on such defendant, who does not appear, a judgment taken against defendant on suoh cross-petition is void, and suoh defendant may attaok its validity without being required to set up any defenses if any be has against suoh co-defendant’s claim.</p>

<p>Corrupt Practices Act — Requirement for member of congress to file statement of election expenses or fine of $1000, constitutional—</p> <p>Sec. 3022-1 et seq., R. S. O., known as the Corrupt Practices Act, limits the amount candidates for member of the U. S. Congress as well as other elective public officers may expend in the election at a certain rate according to the number of voters, and requires them to file within ten days after the election, with the county clerk, a statement of their expenses, and provides for the failure to file such statement within that time a fine of not more than $1,000 and costs of prosecution, and that they shall not be entitled to enter into the office to which they have been elected until they have filed such statement. Held: So far as members of congress are concerned, the provision that they shall not enter into their office until such statement of their election expenses is filed with the county clerk,adds a qualification for members of congress to those provided by the U. S. contitution, and such provision is therefore void. _</p> <p>(2). The provision of the statute that a member of congress shall be fined not more than $1,000.00 for his failure to file a statement of his election expenses with the county clerk, is notan additional qualification for a member of congress, and is constitutional. And as it does not appear unreasonable or improbable to assume that the legislature would have passed this provision without the other found unconstitutional, this provision of the statute is valid.</p>

<p>Damages for injury by collision with locomotive— Opinion evidence by experts as to future consequences of injury admissible—</p> <p>(1). Where in an action for damages for injuries sustained by the plaintiff in a collision of his wagon with a looomotive, plaintiff at the time of the trial has not yet fully recovered, the question of the future consequences of the injuries is one of probabilities, and the opinion of his physician and other witnesses as to the future consequences of the injury, based upon their knowledge, is admissible, as there can be but one recovery of damages for such injury.</p> <p>Verdict for $5.000.00 — Facts under which not excessive—</p> <p>(2). Facts under which a verdict and judgment for $5,000.00 damages will not be set aside.</p> <p>Witnesses of good character contradicting each other — Verdict of jury giving weight of evidence to one not to be set aside—</p> <p>(3). When witnesses,who are both fair and anxious to tell the truth, contradict each other materially, and the jury who saw the witnesses before them, gives the weight of the testimony to one of them and renders a verdict accordingly, such verdict will not be set aside on error by an appellate court. v</p>

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

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

<p>Outside party to suit — No right to interfere with judgment by mandamus—</p> <p>(1). One who has no interest in an action will not be permitted to interfere by a proceeding in mandamus with an order or judgment therein.</p> <p>Surety on appeal bond — Allegation of residence in state without proof—</p> <p>(2). In a proceeding in mandamus to compel the acceptance of a surety, the qualification of the proposed surety as to residence is not shown by a mere allegation without proof that he was a resident of the state at the time the petition in mandamus was filed.</p> <p>Acceptance of appeal Bond, — Discretion of court — Not to be interfered with-</p> <p>in). The judicial discretion as to whether an appeal bond or the surety offered thereon are sufficient can not be interfered with by mandamus.</p> <p>Appeal bond to be offered to cleric with proof of sufficiency—</p> <p>(4). The proper practice is that an appeal bond be tendered to the clerk of oourt and proof made before him as to its sufficiency.</p>

<p>Municipal property — Power of council to sell gas plant—</p> <p>(1). Under sec. 1692, subd. 34, R. S., which provides that cities and villages shall have the power “to acquire by purchase or otherwise and to hold real estate or any interest therein, and other property for the use of the corporation, and to sail or lease the same,” the city of Toledo has the power to sell its natural gas plant.</p> <p> Concurrence of Gas Trustees not necessary to sale— </p> <p>(2). By sec. 1692, R. S., authority is conferred upon the city council to exercise the power conferred on cities to sell its real estate or other property, by means of an ordinance or resolution. This authority is not limited by any provision requiring the concurrence of any other body in the action of council in selling a gas plant, and therefore the concurrence of the Gas Trustees of Toledo to a sale of the natural gas plant of the city is not required.</p> <p>Council's power to sell can not be delegated—</p> <p>(3). The power to sell municipal property is by sec. 1692, R. 8., vested in the city council alone, and cannot be delegated, but must be exercised by the council through che medium or instrumentality of ordinances or resolutions.</p> <p>“Real Estate" as meant in municipal code — Character of gas and oil leases—</p> <p>(4). The power of council to sell municipal property conferred by sec. 1692, subd. 34, R. S., is,.so far as real estate is concerned, limited by sec. 2673a, R. 8.; but what is “real es- ' tate” within the meaning of the municipal code is defined by sec. 1636, R. S. Under that definition “real estate” covers rather more than it would under the general definition of the law. While this court has held that gas and oil leases, for certain purposes and in certain aspects, including the right of the sheriff to sell upon execution, are to be treated as personalty, it is very doubtful whether, within the purview of this section, such leases could bo regarded as personal property, since they involve rights and easements of an incorporeal nature.</p> <p> Sale of real estate requires three fifths vote of council— </p> <p>(5). Under sec. 2673a, R. S., which limits the power of council to sell muncipial property so far as real estate is concerned, a three-fifths vote of the members of council, and an advertisement for two weeks are required in order to sell real estate of the city or village.</p> <p>Sale effected only by ordinance or resolution — Order to clerk to advertise for bids — Character of such order—</p> <p>(6). While under sec. 1692, R. 8., the sale of munoipal property by council can only be effected by ordinance or resolution, which can only be passed after reading on three different days unless this rule is suspended by a two-thirds vote of council, a resolution of council directing the clerk to advertise for bids, is not required to be read on three different days. (Judge Hull dissenting.)</p> <p>Power to sell — Statutory requirements to be strictly observed—</p> <p>(7). Where the sale of property is to be made by a municipality, certain formalities required by statute must be strictly and carefully observed in order to insure the validity of the transaction; but it is not the province of a court to undertake a prescribe any new or additional formalities than those required by the statutes, even though the court may be of the opinion that other requirements and other step» would be advisable.</p> <p>■, JRequipment that resolution must be read three times only applicable to resolutions necessary under statute-</p> <p>18). A resolution, although of a general or permanent, nature, ' to come wiLhin the purview of sec. '694. R. 8., must be a •• necessary resolution a resolution required by siatute. If • the same thing can be accomplished by a mere motion, and the council, without necessity therefor, adopts the form of a resolution — an unnecessary formality- it does rot follow that the council thereby commits itself to a course which :■ would require of it still farther formalities appropriate to a resolution, but not required in the case of motion.</p> <p>Same—</p> <p>49). A resolution to come within the purview of sec. 1694, R-. 8., must not only be or provide for a necessary step toward . the accomplishment of the ultimate object, but it must be . a step that cannot be taken otherwise than by resolution.</p> <p>.Order of council to clerk to advertise for bids — Not of character of legislation—</p> <p>(10). An order merely directing tbe clerk to advertise for bidB for the sale of municipal property is not of the character of legislation.</p> <p>No precedent ordinance required—</p> <p>(11). A precedent ordinance is not required by sec. 1692-34, R. 8., in order to make a valid sale of municipal property by council.</p> <p>tctinn of council in form of resolution amounting to ordinance—</p> <p>(12). To accomplish a sale in pursuance of secs. 1693 34 and 2673a, R. 8 , an ordinance must be passed and published. Held, by a majority of the court, that legislation by council. although denominated a “resolution”,accepting the bid and directing that the price shall be received and that the proper conveyances shall be made, etc., amounts to an ordinance, and is sufficient for the purpose.</p> <p> Distinction between resolution and ordinance Form not essential— </p> <p>(13). There is no law in Ohio prescribing the form of resolutions or ordinances passed by council, and the form adopted in municipal legislation is therefore a matter of no consequent! e: but if a legislative act should be and in substance is an ordinance, and all the rules prescribed for the adopr tion or passage and publication of ordinances in order to have them take effect have been observed and complied with, it takes effect as an ordinance, and vice versa as to a resolution.</p> <p>. Bid with condition not contained in advertisement void—</p> <p>(14). A bid containing conditions not embraced in the advertisement for bids, can not be considered.</p> <p>Bid construed—</p> <p>415). Where in the sale by a city of a natural gas plant located partly within and partly outside of the city, a bidder offers !' ■ a price for the part outside of the city, and further a ptice for the part within the city, and then a price for the emire plant within and outside of the city combined, concluding with a condition that satisfactory legislation should be passed by council for the continuation by the bidder of. furnishing gas to consumers in the city, there are three distinct bids, and the concluding condition only refers to the last offer for the plant within and outside of the city, combined.</p> <p>Same—</p> <p>(16). in such case, while the third bid with the condition, annexed would be void, the other two bids, for the part out-, side and within the city respectively, being independent of' the third bid, would not be affected by the invalidity of the. third.</p> <p>Contract by council must go into o erntion during life of council — -</p> <p>(17). fn view of sec. 1 >91, R. S., providing that a city council “shall not enter into any contract which is not to go into full operation during the term for which all members of such counc.il are elected,’’ a condition contained in an accepted bid for the purchase of a natural gas plant, that the, bidder shall have the right to operate the plant and to fix a satisfactory price of gas, cannot be waived by the bidder,, so as to validate a sale, after the expiration of the terms of. office of some of the members of the council which accepted the bid. ,</p> <p>Abuse of corporate power— What must appear—</p> <p>(18). There must be a clear abuse of corporate power upon the part of a legislative body to authorize a court to interfere. The administration of the affairs of the city is by the law entrusted to the council and officers of the city, and the council in matters of this kind is invested with a wide discretion. and so long as it keeps within its powers, its authority is supreme and not subject to the supervision or, interference of the courts. To authorize a court to interfere upon the mere ground that the price is not sufficient, the. price should be so much less than would probably be obtained bv again offering the property, that it might be said by all men of fair judgment that the acceptance of the bid was a reckless and improvident act.</p> <p>(For decision in same case in common pleas, by Pugslev, J., see 8 N. P., 62.)</p>

<p>Life Insurance Policy — Failure to pay premium, on account of ab- ■ sence of agent—</p> <p>In an action upon a life insurance policy, the defense being that the same was forfeited by non-payment of the quarterly premium due July 1,1896, it appeared that plaintiff went to the office of the association during business hours on several occasions, including July 1, prepared to pay the premium, but was prevented from so doing by the absence of any one authorized to receive it, the only person there present informing her on July 1, that he had delivered her message of June 16 to the oashier of the association to the effect that plaintiff wanted to pay the premium, and would be there the following day. Held: That no amount of diligence on the part of the plaintiff would excuse non-payment of the premium unless some act of the defendant, either of omission or commission, intervened to prevent, such payment.</p>

<p>{Mandate from, Supreme Court.)</p>

<p>Error to the Court of Common Pleas of Clark county.</p> <p>Section 1, Bill of Bights; sec. 2, part 4, Con. U. S.; seo. 1, 14 Amend. Con. 17. S.; Biohie v. People, 40 N. E., 465; Coal Co. v. Bosser, 53 Ohio St. 12; Palmer & Crawford v. Tingle, 65 Ohio St., 442; Wh. Br. & T. By. Co. v. Gilmore, 8 C. O. Bep., 658; Young v. Lion Hdw. Co., 55 Ohio St., 423; Flatau v. Mansfield, 14 0. C. Bep.,592; Sipe v. Murphy, 49 Ohio St., 537; re.Grice, 79 Fed. Bep., 628; Hoefiing v. San Antonio, 20 S. W., 85; State v. Florer, 31 N. E., 395; Gulf Co. v. Ellis, 165 TJ. S., 154; Middletown v. Middletown, 35 Alt., 1065; Cooley Consti. Lim. (5th Ed.), 391; Low v. Printing Co., 69 N. W., 346-362; Plymouth v. Schulthers, 35 N. E., 14; Ex parte Kudaok, 85 Cal., 274, 24 Pac., 737; United States v. Morris, 39 U. S. (14 Pet), 464; Lup v. By. Co., 25 S. W., 75; Millett v. People, 7 N. E.,635; re Yot Sang, 75 Fed. Bep., 985; Tacoma v. Kreecb, 46 Pac. Bep.,985,256; Ho Ah Know, 12 Fed., Cases, 256; State v. Loomis, 115 Mo., 327, 22 S. W., 350; Stickney on State Control of Trade & Commerce, 152, and Equal Bights of Buyer and Seller, 144-145.</p> <p>3 Am. & Ency. Law, 689 695, 697; State v. Nelson, 62 Ohio St., 97; 20 Iowa, 338; 36 Nev., 432; 36 Cal., 198; 16 Wis., 398; 29 Am. & Eng. Ency. Law, 60-56; Bex v. Arnold, 5 T. B., 353; Eaton v. Kegan, 113 Mass., 434; Wheeler v. Bussel, 7 Mass., 253; Peel Splint Coal Co. v. W. Va., 17 L. B. A., 386; Weller v. State, 53 Ohio St., 90; Sees. 7067, 7071, 7069-5, 4442, Bevised Statutes.</p> <p>The plaintiff in error was indicted in the oourt below for the use of a measure other than the standard half-bushel, for the purpose of ascertaining the weight of wheat and the value thereof. Upon this indictment, a jury was waived, and an agreed statement of the facts prepared and submitted to the court, upon which the defendant was found guilty and fined the sum of $25.00 and oosts. A demurrer had been filed to the indictment, which was overruled, and judgment was entered upon the finding of the court. Error is proseouted to reverse the judgment below, for overruling the demurrer to the indictment, on the ground that the statute under which the defendant was indicted and convicted is unconstitutional.</p> <p>The law under which .the defendant was indicted, and the seotion of the law defining the crime, was enacted on March 1, 1894, 91 O. L., 47, (now section 4439-1, Bevised Statutes). The first section is as follows:</p> <p>“Be it enacted by the general assembly of the state of Ohio, that it shall be unlawful for any person, commission merchant, miller, dealer, grain inspector, corporation, company, firm, or association, either by himself, itself, officer, agent, or employe when purchasing or receiving in barter or exchange for flour or otherwise, from the original producer, his agent or employe, to use for the purpose of testing or determining the weight, grade, milling or market value of wheat, any measure other than the standard half-bushel furnished this state by the United States; and the use of any fractional part of said standard half-bushel measure for such purpose will be a violation of this section.”</p> <p>It was claimed that the law was invalid for indefiniteness in its terms; and not capable of application, because the subject of the purchase is not expressed in the act. The court held that while the syntax is not the best, the law was sufficiently clear that wheat is meant, the purchasing of which, and the testing the value of which, by any other measure than the half-bushel, is prohibited. It was further contended that the law was unconstitutional and that it was class legislation; that it invades the liberty of the citizens, and deprives the citizens of property rights without due process of law, and of the equal protection of law.</p>

<p>Delinquent Tax Sale — Transfer of property on tax duplicate to purchaser—</p> <p>(1). It is the duty ot the county auditor immediately after the sale for delinquent taxes is made to transfer the property on the tax duplicate to the purchaser at such sale, and a purchaser of the property from the owner directly or through the sheriff at a sale in a foreclosure suit, can not compel the county auditor by mandamus, to transfer the property from the purchaser at tax sale to the purchaser at sheriffs sale under the foreclosure suit, before the rights of such purchaser at tax sale are extinguished.</p> <p>Rule of lis pendens not applicable to tax sales—</p> <p>(2). The rule and effects of lis pendens do not apply to delinquent tax sales, where at the time of such tax sale a suit to foreclose a mortgage on th® property in question was pending.</p> <p> Rule of Caveat Emptor applies in favor of claims under tax sales— </p> <p>(3). The rule of caveat emptor applies in favor of the purchaser at tax sale of the property for delinquent taxes, against a purchaser of the property at sheriff’s sale in a foreclosure suit, although the former was not a party to such suit.</p>

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

<p>Plaintiff's negligence not directly contributing to injury, no defense to recovery—</p> <p>Unless a plaintiff’s negligence contributes directly to the injury, he is not precluded thereby from recovery; and hence a charge to the jury which states that “if you find that the subsequent injury to plaintiff’s property was the result of negligence partly of the city and partly of the plaintiff, your verdict must be for the defendant, however slightly such negligence of the plaintiff may have contributed to said injnry, ” constitutes reversible error.</p>

<p>The union levee improvement act pronounced unconstitutional—</p> <p>The question for determination inthisoase was the constitutionality of the act found in 94 O. L., p. 726, authorizing the commissioners in a county containing a city of the first grade of the first class to issue bonds not to exceed $10,000, and to levy a tax to pay the interest and to provide for the payment of the principal of said bonds within a period of ten years, for the purpose of paying the cost and expense of the improvement and repair of any levee or bridge approaoh used as a highway in any such county.</p>

<p>Appeal prosecuted for delay — Penalty adjudged—</p>

Hudson, having been indicted for an offense against the gambling statutes, went to the state of West Virginia. A requisition was obtained from Governor McKinley, and he was brought back and put upon trial at the October term of the common pleas court.

<p>The lynching of a negroE°at Urbana in 1898 resulted in a suit under the anti-lynch law of Ohio, by the administrator of the victim, against the Champaign county commissioners to recover $5,000 for the next of kin. The court of common pleas held the law unconstitutional, and the case was carried to the circuit court, which rendered a contra decision.</p>

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

<p>Assignee may sue where suit in interest of estate — Fidieiary character must appear in petition—</p>

<p>Notice of appeal by Adm'r. — Written notice required ■— Fidiciary character must appear to avoid requirement of appeal bond—</p> <p>It is not sufficient to cause the notice of appeal by an administrator to be incorporated in the journal entry, but the administrator must file a written notice, the object of that provision of the statute being to fix with certainty the liability of the administrator upon his bond in that behalf. But fidiciary character must appear in the petition entitling him to appeal without bona.</p>

<p>To constitute an account there must be a debit against some person—</p>

In this case plaintiff brought a suit in foreclosure, and simple, making no claim' for a money judgment, in the common pleas court. The administrator demurred on the ground th.at the common pleas court had no jurisdiction, and contended that as in case of assignments, the rights of the mortgagee must be worked out through the administrator in the probate court.

Morton is a local ticket broker, and purchased a mileage book from the defendant company. A third party attempted to use it, and a conductor of the railroad company took it up and collected fare. Morton brought the suit to recover for the value of the book. He won in the justice court, but lost in the common pleas. The circuit court reversed the latter’s decision, and awarded Morton judgment for the amount of his claim, together with interest and costs.

<p>Livery beeper's claim for beeping horse superior to that of mortgage on horse—</p>

Hayman, a notary public, was tried upon charges of misconduct and unfaithfulness in the discharge of his duties, andi was found guilty, and an order entered removing him from the. office of notary public of Hamilton county, Ohio, assessing the costs against him, and directing that the clerk transmit to hie excellency the governor of the state a copy of charges and specifications, together with a copy of the entry, certified under the seal of the court, as provided by section…

<p>iLocomotive engineer — Superior officer of Ms fireman—</p> <p>i(l). A locomotive was sent out by a superior officer of a Railroad Co. under the sole charge and direction of the engineer, without a conductor and brakemen, to do switching. The fireman of the engine was directed by the engine man to . couple some cars to the engine, and in attempting to do so, being without experience in this line of duty, and it being outside of the duties of his employment, he was injured: Held: Taking the relations of engine man and fireman to each' other, the true and general rule of law is, that the engineer is the superior officer of the fireman, and that the fireman as a general rule is bound to obey tiie orders of the engineer. (R. R. Co. v. Ranney, 37 O. S., G65 considered.)</p> <p>Locomotive ordered out without conductor to do switching in charge of engineer — Latter occupies position of conductor — Injury ito fireman through engineer's negligence—</p> <p>,(2). Where a locomotive is ordered out under the sole charge of the engineer to do switching, without a conductor and brakeman, the engineer,so far as the movements of the train are concerned,occupies the position of a representative of the company the same as a conductor would have ■done; and where the engine man in such case orders his fireman to couple some cars, who is injured in attempting ito do so in consequence of the negligence of the engineer in moving his engine, the company is liable.</p> <p>Question of negligence of R. R. Co. in such case for jury—</p> <p>'(3). It was proper in such case to submit the question whether the Railroad Co. was guilty of negligence to the jury.</p>

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

<p>Pleading — It is sufficient if parties fully described in caption—</p> <p>(1). Under the practice in Ohio ever since the adoption of the code, it is sufficient if the names of all the parties to the suit, with the proper qualifications if any there are, we stated in tho caption of the petition, and subsequently are in the body of the petition, the parties can be classed simply as plaintiffs and defendants, without naming them.</p> <p>Proof not in conformity with allegations of pleading — Amendment—</p> <p>(2). Where testimony that is not in accordance with the terms of the pleadings, has been offered without objection by the other party, the court is authorized to allow the pleadings to be amended to conform to the proofs. Where objection to such evidence is made by the other party at the time it is offered, the amendment may bo permitted, but t'me should be given to the other party to amend his pleading and prepare for trial on showing that he has been taken by surprise or is prejudiced.</p> <p>Promise to pay subject to condition — Burden of proof of such condition— /</p> <p>(3). Where a promise to pay is dependent on a certain condition or exception, the fact as to which are exclusively within the knowledge of the promisor, if the promisor in an action on such promise pleads such condition or exception, the burden of proving the same is on him.</p> <p>Insurable interest existing at time of issuing■ policy sufficient to maintain interest in policy—</p> <p>(4). In life insurance it is sufficient that at the time the policy was issued there was a relation existing entitling the party to be a beneficiary, and nothing occurring afterwards (in this case divorce and subsequent re-marriage) will terminate her interest in the policy.</p> <p>Mutual Benefit Association — Disappearance of member — After seven years certificate payable—</p> <p>(5). A member of a mutual benefit association had paid all the assessments made on him by the association up to the time when he disappeared. Tlie association thereupon declined to accept payment of the assessment coming due subsequently to his disappearance, tendered by the beneficiary named in the certificate,on-account of such disappearance, and did no longer make any assessments on him. Held:' In an action brought on such certificate after Seven' years from the disappearance of such member had elapsed, that the presumption being that he was dead, the beneficiary was entitled to recover on the certificate.</p> <p>Same — Refusal offender by wife, of assessment — Burden of proof of death on association — ■</p> <p>(6). The burden of proving that the member was dead at the time the payment of the assessment was - tendered'* by his wife to keep the certificate alive, was on the company.</p> <p>Disappearance for seven years — Presumption of death—</p> <p><7). Where a party disappears and is not heard from for seven years, the presumption arises that he is dead. But no presumption of his death arises before the lapse of seven years, and where the abandoned wife secures a divorce during the seven years on the ground of such absenoe, this is not an admission as against her that her husband was then alive.</p> <p>Same — P.e-marriage of wife before seven years, without divorce— Bigamy—</p> <p>(8). Where a husband has disappeared, his wife would be at liberty to marry again after seven years from the date of his disappearance have elapsed. But if she marries again before the expiration of the" seven years, without having obtained a divorce, she would be guilty of bigamy if it should turn out that her husband was alive.</p>

<p>Operative—</p> <p>A director of a corporation performing services for the corporation under a contract with it, is an operative, and his claim for wages is preferred where the validity of his claim has been established by finding of court.</p>

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

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

<p>Heard on error to an order allowing the defendant in error ten dollars a week alimony.</p>

<p> Will construed— </p> <p>Where a will gives to children real estate in equal shares subject to widow’s dower, each takes the fee, and in case of death of one, leaving no children, the husband takes her share for life, remainder to her brother and sister, subject to testator’s widow’s life estate, she still surviving.</p>

<p>Notice of intention to appeal—</p> <p>(1). Notice of intention to appeal must be entered on record' within three days from judgment. An entry on the judge’s docket on verbal notice is not sufficient.</p> <p>(2). Omission to enter notice of intention to appeal on record can not be cured by nunc pro tunc entj:y at subsequent term.</p>

<p>Child nursing parent — Presumption of compensation—</p> <p>While it is not to be presumed that services of a child in taking care of and nursing a parent are to be compensated unless an understanding to that, effect exists, yet compensation will be allowed for such services in the absence of an express understanding to that effect,where the circumstances are such that the child was justified in assuming that she would be compensated for such services.</p>

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

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

The law in question requires intinerant vendors who come-into the state with bankrupt goods, etc., to deposit with the secretary of state $500 as a guarantee of good faith. Weil &■ Guggenhoim,a foreign firm,came to Columbus and did business there for a short time. They failed. Burgunder Bros., of Columbus, who were creditors, attached the $500 in the hands of the secretary of state, but they discovered that Weil & Guggenheim had assigned that money to a Cincinnati firm.

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

<p>An attachment would lie against a non-resident on his liability under the statute as a stockholder in an Ohio corporation</p>

<p>Want of Reply —Trial of case without objection — Objection comes too late in reviewing court—</p>

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

<p> Change of venue under sec. 503.3, R. S.— </p> <p>In an application for a change of venue where corporation having fifty stockholders in county is party, under sec. 5033 R. S., the only issuable facts are: first, whether the party isa corporation; second, whether the corporation has more than fifty stockholders, and whether it keeps its principal officer or transacts its principal business in the county in which the action is pendingthird, the credibility and residence of the several persons signing the sustaining affidavits.</p>

<p>Lighting Railroad Track — Notice of passing of ordinance requiring a railroad company to light its crossings must be made to owner of the railroad; notice to company’s agent notjeffectual.</p>

<p>Mandamus — Subject to statute of limitations — Plea of mistake not available where eight years delay in bringing suit—</p>

<p>Partnership — Pirmname — A firmname showing the surname of the partners only is not a fictitious name within meaning of the act of February 13, 1896 (92 O.L., 25).</p>

<p>Judgment of court in trial of case without jury equivalent to verdict of jury—</p>

<p>Railroad Fare — In computing fraction of mile under sec. 3374 R. S.,the R.R, Co. is only permitted to charge the miiltipleof five nearest reached by multiplying the rate by the distance.</p>