Volume 21 — Ohio Circuit Court Reports

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

<p>Taxation of property newly annexed to village —- Mandamus against county auditor on relation of village, proper—</p> <p>í 1). An incorporated villageis a proper party on whose relation an action for a writ of mandamus may be maintained to compel the county auditor to place the municipal tax upon property newly annexed to the village.</p> <p>Annexation of territory to village — When completé-</p> <p>is). On the passage and legal publication of the municipal ordinance accepting an application for the annexation of certain territory, such territory becomes a part of the village, although the transcript, map and other papers were not filed for record until a later date.</p> <p> Municipal tax to be levied on property annexed before first Monday in June— </p> <p>(3). When the boundaries of a municipal corporation are extended prior to the first Monday of June, no special provision is necessary to authorize the levy of the municipal tax upon the annexed property; and the county auditor may be compelled by mandamus by such municipal corporation to levy on such newly annexed property the municipal instead cf the township tax.</p>

<p>Dedication of land for park purpose — Reversion to dedicatoi—</p> <p>(1) . Where land is dedicated to a municipality for public use, while the fee in the property dedicated may again reach the original proprietor by abandonment of the property, for the period of twenty-one years, or by diversion of the use of the property dedicated; the violation of a condition which the dedication itself raises, would only afford to the original proprietor, the right to enforce the execution of the trust itself.</p> <p>Same — Conditions not arising from effect of dedication—</p> <p>(2) . When land is dedicated to a village for a park, a condition not arising from the effect of the dedication itself, may not be engrafted so as to bind'the village.</p>

<p>Lloyds Policy — Liability of underwriters several —</p> <p>(1) . Under a Lloyd’s policy, under-written by fourteen parties, acting by their agent, each for a stipulated sum, the liability of the under-writers is several, and not joint.</p> <p>Price at sale of ship competent-in ascertaining value, but not price ashed—</p> <p>(2) . In ascertaining the value of a vessel destroyed by fire, to determine the am Hint of insurance to be paid foi its loss,the price at which the vessel was sold prior to its loss is admissible in evidence, but the price asked at the commencement of the negotiations for its sale is not competent.</p> <p>Original proofs not produced at trial on due notice — Secondary ■evidence of contents admissible—</p> <p>(3.) Where in accordance with the terms of the policy, proofs of loss were furnished the underwriters, and at the trial it is shown that notice had been served on them to produce the original proofs of loss so furnished them, but the same are not produced, secondary evidence of their contents, may be admitted.</p> <p>Suit to be brought on managing agent only — Valid provision—</p> <p>(4.) A Lloyds policy of insurance contained the provision that “No action shall be brought to enforce the provisions of this policy except against the general manager as attorney in fact and representing all the under-writers, and each of the under-writers hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility thereunder”, Held, where in such a policy the attorney in fact is also an under-writer, named as such in the policy, such provision is not against public policy, and is valid and binding on all the under-writers.</p> <p>Suit against underwriters severally — When authorized—</p> <p><5). But where it is shown that in fact the company had ceased its business; that it had no assets of any kind ; that the person who was the attorney in fact at the inception of the policy, had resigned or' had absconded, and his place of residence was unknown, so that service of summons could not be bad upon him, then an action can be maintained by the assured against any one of the underwriters.</p>

<p>Embezzlement — Indictment—Criminal intent not necessary—</p> <p>(1) . Under sec. 6842, Rev. Stat., an indictment charging, that the defendant did unlawfully and fraudulently embezzle and convert to his own use certain personal property of value, without the consent of the owner, is sufficient without alleging that the same was done with intent to embezzle.</p> <p>Sa!me — Indictment—Criminal intent under section,not an element of the crime of embezzlement—</p> <p>(2) . Sec. 6842, does not in terms make criminal intent an element of the crime of embezzlement. It provides punishment for an agent, who embezzles or converts to his own use, or fraudulently takes or makes away with, or secretes with intent to embezzle. It is not necessary, in an indictment for embezzlement under this section, to allege the act was done with intent to embezzle and fraudulently convert. The intent therein referred to has reference only to the taking ana secreting of the property, and it is necessary to allege such intent only where the indictment is for such fraudulent taking and secreting.</p> <p>Same — Indictment sufficient — when—</p> <p>(3) . An indictment charging that defendant, being an agent and employe, did unlawfully and fraudulently embezzle and convert to his own use, etc., charges but a single offense, as agent and employe are terms not inconsistent with one another, and it is not bad for duplicity.</p> <p>Same — Indictment—An accomplice competent witness for the state—</p> <p>(4) . Where separate trials are awarded to parties jointly indicted, each is a competent witness for the State upon the trial of the other; and the fact'of being charged as an accomplice only goes to his credibility as a witness, and does not necessarily render his testimony incredible. ■</p> <p>Same — Indictment—Court omitting to charge not error — When—</p> <p>(5) . It is not error for the court to omit to instruot the jury on a question of law arising in the case, unless instructions are asked by counsel.</p>

<p>On Motion to modify decree of disbarment,</p>

<p>Wrongfully causing death — Proximate cause—</p> <p>(1) . In a suit to reoover damages for causing death from wrongful act, the act assigned as the .cause must be the proximate cause, with no intervening act of decedent standing next and nearest to' his death. When the act gof the decedent intervenes and breaks the causal connection between the act of defendant and the death, then the .act of defendant cannot be said to be the proximate cause..</p> <p> Druggist selling poison to intoxicated person without labeling same, who administered it to to himself — Liability for death— </p> <p>(2) . Plaintiff in error, a druggist, sold to an intoxicated man strychnine, and he also unlawfully neglected to put upon the package the label which thp statute requires, as a notice and warning of the contents of the package. The purchaser, while still intoxicated,administered to himself the strychnine, from the effects of which he died. Held, that selling the poison to the intoxicated man, and failure to place the proper label on the'package, neither the one nor the other nor both together can be taken as the proximate cause of death.</p> <p>Proximate cause—</p> <p>(3.) The act which stood next and nearest to the death and which intervenes as the proximate cause was the act of decedent in administering to himself the poison.</p>

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

<p> False representations by president of company as to its liabilities —Damages for feelings, disappointment and disgrace— </p> <p>(1). Plaintiff before purchasing stock in a Mining Co., applied to defendant, who was .the president of the company, and inquired in regard to the title of the mine, and as to its indebtedness, and was informed by the president that the title was good and that there was no indebtedness on the mine, and that none would be allowed to accumulate. It developed subsequently that the company had taken a title bond to certain claims in Arizona for which they were to pay $60,000; that it had in fact paid $15,000, and the balance remained unpaid; that a payment was falling due in July which was never met, and the title of the company to the mining claim failed and was forfeited. Thereupon plaintiff brought suit ¿gainst the defendant, for damages, claiming fraud in falsely representing the condition of the company to him, and punitive damages, attorneys fees and damages to the plaintiff’s feelings, and for his disgrace in the community for having been concerned in the buying of stock of this kind which proved to be-worthless. Held: A party can not recover damages in a. case of this kind, for his feelings, disappointment or disgrace in being induced to purchase stock of this kind.</p> <p>Evidence — Knowledge—What not competent—</p> <p>(2). Evidence that the condition of the company was known and talked about on the Exchange, in the oil market and generally in offices of the city, is incompetent to show knowledge of plaintiff or his agent, unless it be shown that, the matter was mentioned in their bearing.</p> <p>Evidence — Organization of Mining Co's — Custom to show Icnowledge—</p> <p>(3/. Evidence ip regard to the custom of putting this kind of mining stock on the market, that it was known throughout the country that such mining claims were obtained by options upon them, and that they were then stocked up, and that the stock was put upon the market to obtain money to open the mine, is incompetent as irrelevant to the issues in the case.</p> <p>Silence on receiving information — Statement of reason for silence-competent—</p> <p>(4) . Where it is shown that plaintiff was present at a meeting of the directors, and then told that the company owed for the mines perhaps $46,000, and that a payment would be due in July; that the debt was outstanding and was serious, and had to be provided for; that at that time be did not express his surprise, but kept quiet, it is competent for plaintiff, in rebuttal, to state the reasons why he did not-make a statement at that time.</p> <p>False statement by president as to condition of company — Liability—</p> <p>(5) . Where the president of a company, being inquired of by a person who wanted to make an investment in the company in regard to its standing, recklessly and carelessly makes misstatements which misled the other, he is liable to the latter in damages.</p> <p>Punitive Damages — Fraud— When recoverable—</p> <p>(6) . Punitive damages for fraud can only be recovered where there is a gross or malicious fraud,or something showing a very corrupt condition of affairs, but not for a bare case of fraud.</p>

<p>Judgment — Collateral attack — Silence of record — Presumption of jurisdictional facts found—</p> <p>(1). In a collateral attack upon the judgment of a court of general jurisdiction, where there is no proof of what the court did actually do other than appears by the record, the silence of the record will not import that the court did not find the facts necessary to give it jurisdiction to proceed to judgment in the manner it did. but it will be presumed that such proof has been made, and the existence of these facts can not be denied.</p> <p>Suit for debt against non-resident — Garnishment and seizure of debt — Personal judgment for whole amount claimed proper —</p> <p>.(2). In an action against a non-resident, with attachment, and garnishment of a resident creditor of defendant, whereby property of defendant is reached, a court has jurisdiction to render personal judgment against the non-resident defendant for the full amount of plaintiff’s claim although the debt garnisheed amounts to less; but such judgment will only be valid to the extent of the property attached.</p> <p>"Same—</p> <p>(3). In such ease the affidavit for attachment, and the proceedings under it, form no part of the pleadings, and when the court renders a judgment, that judgment is rendered on the pleadings,and such judgment as these authorize,and the proceedings present simply a. claim for personal judgment. The other facts of the case make that personal judgment good only for the amount of property attached.</p> <p>Garnishment — Denial of debt — Proper proceeding—</p> <p>(1). Where, in an action against a non-resident defendant with attachment proceedings and garnishment of a resident debtor of such defendant, the garnishee denies the indebtedness, it would be in harmony with the statutes provided for such case for the court to stay further action in the case until the plaintiff therein had brought suit against the garnishee and, after the fact that the garnishee was indebted to the defendant is made to appear by judgment, to so find and place such finding upon its record, and then proceed to judgment in the. original action; but whether this is the only mode that the court may pursue may well be doubted. The statute is not so specific as to the mode of procedure, as include the one and to exclude all others.</p> <p>Suit with garnishment — Record failing to state indebtedness found</p> <p>—Error merely—</p> <p>(5) . Where it appears from the record that a writ of attachment was duly issued, and that property of the attachment debtor was seized under the writ, that would amount to showing that the court had issued process in a case in which it had jurisdiction and had seized property, and had then proceeded to judgment; and the only fact - wanting in the record would be, that the court did not spread upon its record a finding that the garnishee was indebted to the attachment debtor. But the want of such finding would not make the judgment a nullity, but would be an error merely, -for which the judgment could not be collaterally attacked.</p> <p>Silence of record — Presumption of finding of necessary facts — •</p> <p>(6) . The silence of the record on the subject as to whether the garnishee was ordered to pay money into court would im- , ply that the court had found that it reached property of the defendant ami had entered that upon record, and it will be presumed that the court made such finding.</p> <p>Proceeding on unsatisfactory ansiver of garnishee not part of record—</p> <p>(7) . In an attachment case it would be entirely proper, if the plaintiff is dissatisfied with the answer of the garnishee, to obtain an order for him to answer over, or to make further disclosure, and, if this has been done, it is not a matter to be shown by the record.-</p> <p>Jurisdiction over non-residents on constructive notice—</p> <p>(8) . When a superior court renders a judgment or decree for foreclosure and lien, or for the sale of property of a nonresident, on service by publication, without attachment, the judgment or decree is void unless the record shows the jurisdictional facts; but if the proceeding is by attachment, or in ram, it is not void unless the record affirmatively shows a want of jurisdiction.</p> <p>Garnishment — Finding of indebtedness necessary before judgment—</p> <p>(9). Under the decision of the supreme ccurt in 29 Ohio, 120,. Myers v. Smith, the fact that property of the defendant subject to garnishment, is in the bands of the garnishee,, must be found before a suit in attachment can proceed to final judgment; but it does not hold that such finding must be spread on the record; nor does it hold that if no such finding is made, it would be a matter which would subject the judgment to collateral attack.</p>

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

<p>Public way may be obtained by prescription—</p> <p>(1) . A way which is not part of a public highway or a street by statutory dedication, may become a public way by long use and prescription.</p> <p>Obstruction of public way — Rights of abutting property owner — ■</p> <p>(2) Where a street, either by vacation, or by obstruction by steam railroads, or closing of the street in any other way, is cut off near enough to property abutting on such street to materially affect its value, then the property owner has a right to be compensated before the street is so obstructed or closed, and he can prevent such closing or obstruction by injunction.</p> <p>Same— (3) . Abutting property owners have a property right in the</p> <p>street, no difference whether the fee to that street be in the municipality in trust for public uses, or whether the fee be in the abutting property owner, which cannot be taken for public purposes unless compensation be first made; and a court of equity will protect the property owner in this right by injunction.</p> <p>Rights of abutting property owner extend over full width of street — ■</p> <p>(4) . This right of the abutting property owner in a street is not simply to the center line of the street, but goes clear across the street.</p> <p>Prescriptive right of way — Temporary obstruction—</p> <p>(5) . Where a prescriptive right has once been acquired, its interruption afterwards for less than the statutory time of twenty-one years will not destroy it.</p>

In the court of common pleas the Geo. D. Cross Lumber Company brought suit against the Columbus Central Railway Company as maker and John I). Evans as indorser upon two promissory notes each payable at the Deshler National Bank, one dated Columbus, Ohio, June 24, 1896, and due three months after date, and the other dated Columbus, Ohio, August 8, 1896, and due September 5th next after date.

<p>Preliminary organization for purpose of incorporation — Does not continue as independent organization after incorporation—</p> <p>(1.) Every corporation is effected after preliminary meetings have beeD held for the consideration of the subject in the interests of which it is desired to organize a corporation; and it can not be held that after such preliminary meetings had been held, articles of incorporation prepared and forwarded to the secretary of state, and after such articles have been returned,' properly certified, and adopted by the organization,that the preliminary organization continues as a separate and distinct organization from the corporation.</p> <p>Treasurer of preliminary organization again elected for corporation — Liability to account to corporation—</p> <p>(2). Where, at the preliminary meeting to effect the incorporation of an association not for profit, a party is elected treasurer, and after the incorporation is effected, is again elected as treasurer, and ail the monies in her hands came to her practically after auoh new election, if she was then elected treasurer of the corporation, then the corporation is entitled to an accounting for such monies.</p>

.On the 22nd day of April, 1899, Paul Jqnes was appointed and duly qualified, by the probate, court of Franklin county, as administrator with the will annexed' of the estate of Lucinda Jenkins, 'deceased.

<p>Parol license,executed, is revocable—</p> <p>(1) . J and S owned lands which are divided by Bokes Creek, and the tract of each extends to the center of the stream. In 1884, J desired to lay out and make a pleasure resort on his lands, and for that purpose, built a. dam across the creek, one-half of which would rest on the lands of S.</p> <p>(2) . Parol permission was given by S for the construction of the dam, on the condition that if his lands, were not damaged thereby at the end of one year, it might remain. No complaint of damage was made at the end of the year. No consideration was paid for the license, and nothing further said about it.</p> <p>(3) . J, at large expense, prepared the resort on his lands for whioh the same was used and operated until 1896, when he failed, and the defendant purchased the property at judicial sale at a price equaling the value of the lands before the structures and improvements for the resort were made.</p> <p>(4) . S died in 1888, and after his death, J abandoned the dam put in under the license, and constructed another fifty feet further down the creek, without any new arrangement with the heirs of S. In 1897, the plaintiff, while the dam was partly out, and without any knowledge of the license given by S,purchased the land inherited by the heirs of S, and refuses to permit further mantenance of the dam on his lands.</p> <p>Held: That the parol license is no longer of legal effect, and plaintiff may remove the obstruction from his premises.</p>

<p>Appeal from the Court of Common Pleasj] of Wayne county.</p>

<p>Oil and Gas lease — Consideration of $1.00, sufficient — Beginning operations implies acceptance of conditions of lease— •</p> <p>(1). One dollar is a sufficient money consideration to seoure to the lessee of an oil and gas lease the exclusive privilege granted of drilling during the specified term; and if the lessee takes possession and begins operations, the law will infer a promise on his part, and impose on him the obligation to perform the conditions of such lease,although there is no express promise in the lease upon his part to do or perform any of such conditions, and such lease is not' void for want of mutuality.</p> <p>Provision for unlimited delay in beginning operations valid—</p> <p>{2). A provision' in such lease for unlimited delay in the completion of a well beyond the specified term by the payment of a yearly rental, is not void as being inconsistent with the habendum clause, or as being against public policy; and the lessee, by the payment or tender of such rental yearly, can extend.the right to the privileges granted, as against the lessor, for at least a reasonable time after the expiration of the specified term.</p> <p>Extension of time for beginning operations, new contract—</p> <p>{3). To acquire such extension, however, substantially a new contract must be entered into, and to make such new contract of any force or effect as against third persons, it must be recorded, or such lessee must be in actual and open possession of the lands, as provided in sec. 4112a, R. S. Whether an entry on the record of leases of such payment or tender, would be a substantial compliance with the requirements of the statute, is not considered.</p>

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

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

<p>Authority of decisions of Supreme Court binding on inferior tribunals — Extent of such authority — Decision in conflict with usual and universal doctrine—</p> <p>(1) . Inferior tribunals of this state must follow the decision» of the supreme court. If however, by geneial application, the principle declared in the precedent case, would be a departure from usual and common and universal doctrine, the decision may not be considered instruction for inferior tribunals, except upon same or similar state of facts. The doctrine and its application in the precedent case, is no broader than the facts of the precedent case to wbich it is applied.</p> <p> Crossing street at place other than at street crossing Zas act of negligence per se— </p> <p>(2) . The act of attempting to cross a street at a place other than a street crossing provided by a municipality, is not of itsolf, without other fault or circumstance, an act of negligence, which alone precludes recovery for injury sustained by reason of negligence of the municipal authorities..</p> <p>Extent of duty of municipality to keep streets in safe condition—</p> <p>(3) . While a municipality does not insure its streets to be free from danger, the law does require that they be kept in suoh state of repair, that a person using ordinary care in passing over a street at a place other than a crossing, may be reasonably safe from injury arising from its defective condition, of which the authorities had notice.</p> <p>Crossing street at place other than at street crossing — Extent of risk assumed—</p> <p>(4) . In passing over a street, at a point where no street crossing is provided, the pedestrian assumes the hazzard of danger ordinarily present in a street kept in ordinarily safe condition.</p> <p> Same— </p> <p>(5) . He does not assume the risk of injury, without his fault, from unnecessary defects, or from obstructions and nuisance» that are suffered to remain in the street, through the negligence of the municipal authorities.</p> <p>Same — Dayton v. Taylor’s Ad’r., considered—</p> <p>(6) . These propositions are not in conflict with the doctrine laid down by the supreme court in the case of the City of Dayton v. Taylor’s Adm’r, 62 Ohio St., 11. (43 W. L. B., 209.)</p> <p>Previous knowledge of defect in street — Right to presume repairs made by municipality—</p> <p>(7) . D had knowledge, a long time before injury, that an excavation which caused the injury existed in a village street. These in authoiity, and whose duty it was to repair the.street, had, in the meantime, notice of the defect for ample period before the accident to have made the street safe, and negligently failed to make repair. Held, that whether she was or was not chargeable with remembering the existence of the defect, or whether she had or had not the right to presume, that the village with its ample knowledge and opportunity, had made the place safe, were .questions measured by time, circumstances and conditions, and should have been submitted to the jury, under proper instructions of the court.</p>

<p>Priority of liens — Creditor's Bill — Filing gives priority of claim— Assignment of part of claim in litigation to secure attorneys valid lien—</p> <p>The commencement of an action in the nature of a creditor’s bill gives to'the plaintiff priority over creditors of the defendant not holding specific liens upon his interest in the property in suit; and an assignment by the defendant of his interest to his attorneys in payment of fee, if occurring after the securing of such priority, is made subsequent in order of payment.</p>

<p>Action to enforce stockholders' liability must be for all parties interested—</p> <p>(1) . A creditor of a corporation can not institute an aotion to enforce the stockholders’ liability on behalf of himself alone. Such an action must take the form of an.action on behalf of all the creditors interested, on behalf of plaintiff and alii others of like interests, because the statute provides that the fund shall be brought' into court to be distributed among the creditors pro rata.</p> <p>Creditor need not come in until settlement of claims—</p> <p>(2) . Where an action is instituted by one creditor of a corporation to enforce the stockholders’ liability, .the other creditors not only are to receive the benefit of that suit, but may receive such benefit without going into the case at all except to prove their claims at the proper time and file them before the proper officer appointed by the court. One suit should serve the purpose for which, a suit is brought for the benefit of all, and no other party ought to be'allowed to make costs an expenses by commencing and prosecuting a separate suit.</p> <p> Suit can not be dismissed to the prejudice of other creditors— </p> <p>(B). A suit by one creditor of a corporation for himself and all other creditors, to enforce.the stockholders’ liability, can not afterward, before final judgment, be dismissed, on the motion of the plaintiff and such other parties interested as have come in and filed cross-petitions, to the prejudice of other parties interested who have not yet become parties to the suit; and if this was done, any creditor may come in and on proper showing have the cause reinstated and prosecuted to final judgment.</p>

<p>Injunction,' not proper remedy to determine title to office—</p> <p>(1) . An injunction will hot be granted to restrain the county-auditor from issuing his warrant for the payment of the-salaries or compensation of certain public officers, on the ground that such officers hold their office under an unconstitutional statute.</p> <p> Quo warranto proper— </p> <p>(2) . Questions involving the title to office can only be determined by proceedings in quo warranto.</p>

<p>Board of deputy state supervisors of elections — Power to employ necessary assistant—</p> <p>(1) . Under sec. 2966-4, R. S., the compensation for a necessary assistant to the board of deputy supervisors of elections, may be allowed and jiaid as necessary expenses.</p> <p> Compensation must first be allowed by Co. Commissioners— </p> <p>(2) . But the county auditor can not issue his warrant on the-treasurer to pay for such services unless the amount has-first been allowed by the Co. Commissioners.</p>

<p>Bights of mortgagee to sue for possession after debt barred—</p> <p>(1.) A mortgagee may maintain a suit to recover possession of the mortgaged premises after the note secured by the mortgage is barred by the statute of limitations.</p> <p>Title does not revest in mortgagor after debt barred--(2.) When a debt secured by mortgage on land is barred by the statute of limitations, the title to the mortgaged premises does not revest in the mortgagor,the condition of the mortgage being for the payment and not the bar of the debt.</p> <p>Action upon mortgage survives after debt barred—</p> <p>(3.) Although a mortgage is a mere security for the payment of a debt, an action upon the mortgage survives after one upon the debt is barred, unless the limitation in each case is the same.</p> <p> When action for possession under mortgage may be brought— </p> <p>(4.) The legal title to mortgaged premises remains in the mortgagee, even after the debt has been transferred, and entitles him to bring an action for possession thereof at any time before the debt is paid, and within twenty-one years from the time the right of action accrued.</p> <p>Same — When mortgage competent evidence of right of possession—</p> <p>(5.) In an action by the mortgagee to recover possession of the mortgaged premises,after the condition of the mortgage is broken and after the debt secured thereby is barred, the mortgage is competent evidence of the rigtifc of plaintiffs possession at the time such suit was commenced, if such aotion was commenced within twenty-one years from the time the right of action accrued.</p>

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

<p>Cross-petition filed by outside, party in pending action — New summons—</p> <p>Where a third party intervenes in a suit inter alios, to have a debt, owing by the defendant to the plaintiff, paid to him, - . a decree for such relief, without summons issued on such eross-bill to the defendant, and without his knowledge, is irregular, and upon motion will be set aside, the defendant stating a good defense to the cross-petition.</p>

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

<p>Contempt of Court — Interference with property held by legal process — Ignorance of fact—</p> <p>One can not be punished as for a contempt in the violation of an order issued in a case to which he is a stranger and of which he has no knowledge; and particularly where be has replevined property previously seized by the sheriff, and there is no showing that the seizure was legal.</p>

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

<p>Fire Insurvnce Policy — Assignment to creditor as collateral security — Fact may be proved by parol—</p> <p>(1.) An assignment of a policy of insurance against loss by fire may be proved by parol evidence to have been given and accepted as collateral security for a debt due from the assignor to the assignee, though the faot that the assignment was intended as collateral security was not communicated to the insurer.</p> <p>Same — Consent to assignment by Company without disclosing purpose—</p> <p>.) The consent of the insurer that a policy of insurance may be assigned to a designated person does not require that suoh assignment be absolute. An assignment absolute in form, but intended as collateral seourity for a debt due from the assignor to the assignee, is valid, and does not avoid the policy, where such an assignment is not prohibited therein nor by the by-laws of the insurance corporation, and no misrepresentation of faots was made to the insurer, its assent being given without inquiry on its part.</p> <p>Action on policy after assignment by parties jointly — Liability of company—</p> <p>(3.) Where a policy of insurance is issued upon property covered by a mortgage, with a clause in such policy making the loss if any payable to the mortgagee in case of fire, and the assured, afterward, without observing such loss olause in the policy and solely for the purpose of indemnifying the mortgagee against loss in case of fire, transfers suoh policy, with the assent of the insurer, to the mortgagee,</p> <p>Held: 1. That the assured (joined with the mortgagee) may maintain an aotion against the Insurer'upon such policy.</p> <p>2. That the purpose of suoh transfer, although absolute upon its face, may be proven by parol evidenoe, although the fact that the transfer was intended as indemnity, was not communicated to the insurer.</p>

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

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

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

<p>Injury to employe — Non-observance of rule — Evidence of habitual violation of rule with employer's knowledge competent—</p> <p>(1.) Wheie in an action by an employe against his employer for damages for injury sustained through the alleged negligence of the foreman, the defense is set up that plaintiff was guilty of contributory negligence by not observing the rule established by the employer known to him, it is error for the court to refuse the admission of evidence on behalf of the plaintiff to show that such rule was habitually violated by the employes to the knowledge of the employer or his foreman.</p> <p>Action for damages for injury — Failure to reply to answer averring good defenses — Remaining Issue—</p> <p>(2.) An employe was injured by falling down an elevator shaft under the following state of facts: In taking things, intended for the second and in part for the third floor,up on a freight elevator which was a mere platform, he stopped the elevator on the second floor to remove those intended for that floor, and while storing them away, the foreman, without any notice to him, moved the elevator to the third floor with the balance of the goods. After having stored away the goods intended for the second floor, plaintiff returned to the elevator shaft to take the other goods to the third floor,and not knowing that the elevator had been removed, and the shaft being dark, he stepped into it and fell to the ground floor,and was injured. The petition charges that the negligence of the defendant consisted in not providing the elevator with appliances to shut off access to the elevator shaft when the elevator had left the second floor; and in not providing the elevator or the hail-way leading to it with a light,and in not providing said elevator with any appliance to be used to indicate that the elevator was being moved, and in not adopting a rule requiring the person operating the elevator to give a signal of warning thereof; and in moving said elevator from the second to the third floor without notifying or warning the plaintiff that said elevator had been or was being moved from where he had left it at rest. The answer averred that so far as the darkness of the elevator shaft and hall-way was concerned, the failure to provide any appliance to keep people from going into the elevator shaft when there was no platform there, and the want of any rule as to the operation of the elevator, and the want of signals to indicate when the elevator was removed, were all well known to plaintiff who had been in the employ of defendant for several years. ISTo reply to that. Held, that under this state of the pleadings, the only charge of negligence in issue was the moving of the elevator from the seoond floor to the third floor by the superior employe without notifying or warning the plaintiff that the elevator had been or was moving from where the plaintiff had left it at rest.</p> <p>Liability notwithstanding plaintiff’’s negligence — Erroneous charge.</p> <p>'(3). A request to charge that “If the jury find that plaintiff was guilty of contributory negligence, I charge you that suoh contributory negligence will not defeat his aotion, if the evidence in the case is such as to lead you to believe that the defendant by the exercise of reasonable care and prudence might have avoided the consequences of the injured party’s negligence,” is erroneous.</p> <p>Same—</p> <p>(4). The farthest our courts have gone is to hold that if after the defendant knew or by the exercise of reasonable oare would have known of the dangerous position in which the plaintiff had placed himself, and could by the exercise of proper care, after having ascertained the dangerous position in which the plaintiff has put himself, have prevented the injury, the plaintiff might still recover. (L, S. & M. S. R. R. Co. v. Schade, 15 Ohio C. C., 215.)</p>

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

<p>Service of process on corporation — Service on agent — Insufficient return—</p> <p>(1.) In order to render service of summons, under section 5044, Revised Statutes, upon the agent of a corporation effective, it must be made to appear that no chief officer of the corporation could be found in the county, and that tne service was upon the managing agent-of the corporation. A return to the effect that the writ was served upon G, “agent of ■ said company, no chief officer being found,” is not sufficient.</p> <p>Managing agent — Proof of fact—</p> <p>(2.) A letter from a corporation to its counsel designating a certain person as “our Cincinnati agent,” without evidence showing that such person had control or supervision over the affairs of the corporation or .any portion thereof, is not sufficient to bring such person within the term of, “managing agent”, as used in section 5044, Revised Statutes.</p>

<p>“ Annuity" Defined—</p> <p>(1) . An annuity must be a personal obligation,and not payable out of any specific fund; and, prima facie, it is held to be such unless the instrument creating it plainly indicate a different intent.</p> <p>Same—</p> <p>(2) . Under a will bequeathing to testator’s wife“in lieu of all dower, the sum of $8,000 annually for and during the term of her natural life,’' with directions to pay the legacy in quarterly installments, with the further provision “for the payment of my wife’s legacy I desire that a sufficient amount of my personal estate, either of stocks, bonds or money, shall be used to purchase government bonds, or equally good bonds, of such amount that the interest thereon shall be sufficient to pay the quarterly installments of $2,000,” if accepted by the widow, creates a pure annuity.</p> <p>Construction of Statutes — Revision—</p> <p>(3) . Statutes should be construed together so far as they are material to each other. If other provisions of a law cover the question, the leaving out of a portion of a sentence or the transposition of words in the revision of a law, does not necessarily call for a different interpretation. It must plainly appear that the legislature intended a change; otherwise the same construction must be given to the statute as revised as that which had obtained previous to the revision.</p> <p>Same—</p> <p>(4) . Under the foregoing rules, where the legislature in the revision of the statutes, omitted annuities from the definition of the word “credits,” it cannot be held that it was there-' by intended to exempt that class of property from taxation if they are referred to as subjects of taxation in other sections of the statute.</p> <p>Annuities taxable — Debts can not be deducted—</p> <p>(5) . The purpose of the legislature in omitting annuities from the definition of the word “credits” in sec. 2730, Revised Statutes was evidently to prevent that class of property from being made subject to the offset of legal claims or debts, as such property should not be subject to such deductions.</p> <p>Annuity provided in will in lieu of dower — Election to talce — Effect—</p> <p>(6) . Where a widow surrenders her dower interest in, and distributive share of, her husband’s estate in consideration of an annuity, she thereby becomes an “investor” in such annuity within the meaning of the statute relating to the taxation of that class of property. She is a purchaser, and the annuity is in no sense a gift by way of a legacy.</p> <p>Taxation of annuity not double taxation—</p> <p>(7) . The taxation of such annuity does not require the annuitant to pay a tax upon the property which she gave to produce the annuity, and is not double taxation.</p> <p>Annuity, based on U. S. bonds, taxable—</p> <p>(8) . Taxation of such an annuity, based upon government bonds, does not involve the question of taxation of that class of property. Annuitant is not, under the will in question, an owner of the bonds.</p>

<p>Dedication of land to public use — What required — ■</p> <p>(1) . In order to constitute a oomplete and valid dedication of land to the public, it must appear that the owner of the land clearly and unequivocally indicated by his words or acts, to dedicate the same, and there must also be an acceptance thereof by the public.</p> <p>Dedication — What not sufficient—</p> <p>(2) . The recording of a plat showitag a triangular lot at the intersection of streets and coloring it the same as the streets, and which is without a lot number, but which is not within the dimensions of the streets as shown by said plat; and the faet that no taxes were paid for such triangular piec6 of land by the owners after the recording of said plat, is not sufficient to indicate conclusively and unequivocally an intention to dedicate.</p> <p>Acoeptance of dedication — What not sufficient—</p> <p>(3) . The fact that no taxes or assessments for the improvement of some of the streets on which such triangular piece of land abutted, was levied thereon for many years after the plat was recorded, such omissions being inadvertantly made, will not amount to an acceptance by the city; while the fact that the city in improving the streets ana sidewalks on which the lot abutted, located them in such a way as indicated an intention to exclude such piece of land, and assessed the same for the improvement of one of the streets on which it abutted after the authorities had become aware of the circumstances, was an unequivocal declaration on the part of the city not to accept the dedication of the tract.</p> <p>Same—</p> <p>(4) . The fact that persons may have driven outside of the lines of the street onto the piece of land does not amount to ■ such conduct on the part of the public with the knowledge and approval of the authorities as would bind the city Jto an acceptance of the dedication as a common law dedication, or to constitute such adverse use and occupation a* will defeat the title of the owners if continued for more than twenty-one years.</p> <p>Same — What will not amount to estoppel—</p> <p>(5). Failure to pay taxes and assessments on the piece of land does not estop the owner from claiming the land, where they were not asked to pay them. Property owners are not required, to escape the effect of estoppel, to hunt up the city authorities and tender payment of assessments or taxes which they are not asked to pay, although they may be justly due to the city.</p>

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

<p>Contract by board of education — Power to award contract to bidder, although not the lowest—</p> <p>(1.) Where bids were received by a board of education in response to an advertisement calling for bids for three systems for the fire-proofing of a school building, and it appears that anybody could bid on the work, It is not unlawful for the board to se.ect a certain system though the bid for that system was not the lowest bid received.</p> <p>Same — Patented system — What necessary to invalidate contract—</p> <p>(2.) The fact that the systems were patented and owned by a single company, to render the transaction unlawful, must be proved.</p>

<p>Partnership property other than dealt in in the ordinary business of the partnership — Sale by one partner without co-partner’s consent—</p> <p>(1) . One partner has no right to sell, without the consent of his co-partner, firm property not held for sale in the ordinary business of the firm (in this case a lease).</p> <p>Same — Liability—</p> <p>(2) . Where the business of a partnership was carried on in the name of “the Taylor Coal Co.,” that name puts a would-be purchaser from the firm upon inquiry as to who compose the Taylor Coal Co.; and if he purchases from Taylor, whose name appears in such firm name, without the knowledge or consent of the other partner, property of the firm other than that in which the.firm is dealing, he does so at his peril.</p>

<p>Act for pensioning teachers in city school districts of the second grade, first class, unconstitutional—</p> <p>The act of April 10, 1900, (94 O. L., 639) to create a pension fund to provide for the pensioning of teachers in city districts of the second grade of the first class, and by which it is made the duty of the treasurer of the board of education in cities of the second grade of the first class to reserve at each payment of teachers salaries a certain per cent, thereof for the • purpose of crea'ting a fund to be used in pensioning teaohers who shall have pursued their professional employment a certain length of tipre,is an act of general nature which can not have a uniform operation throughout the state, and is unconstitutional as in violation of section 26, article 2, of the constitution of Ohio.</p>

<p>Be-Trial of ease on reversal from Supreme Court — Stronger evidence than before—</p> <p>(1). While in this oase the former judgment of this court sustaining the judgment on the verdict for plaintiff below. (14 C. C., 564) was reversed by the supreme court, (58 Ohio St., 426,) upon the ground that there was an absence of direct evidence of negligence in support of the verdict, and the case remanded for new trial, the majority of the court holds that on the re-trial of the case, the evidence upon certain points appears more clear and more favorable to the plaintiff below, than it was at the former trial, and that while it is not widely different, it is materially supplemented, and the majority of the court therefore affirm the judgment below on the verdict in favor of the plaintiff.</p> <p>Special interrogatories to be submitted to jury — When properly refused—</p> <p>• (2). The trial court is justified in declining to submit to the jury interrogatories asked by a party to be submitted to the jury, where the answers to such questions, even if as favorable, as possible to the party, could not have required . a different general verdict and would therefore not have controlled the same.</p>

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

<p> Devise of the whole estate not to he construed as residuary devise. </p> <p>(1) . A devise of the whole of an estate can not be held to be a residuary devise, for the reason, that a residuary devise is-a devise of the balance of the whole from which a previous devise or devises had taken a part, although a residuary devise might very well be nearly the whole estate.</p> <p>“Residuary estate”, as used in sec. 5971, construed—</p> <p>(2) . The legislature in sec. 5971, B. S., used the term “residuary estate” in a technical sense, and the term should receive its technical construction, especially as there is nothing in the statute indicating that the words are used in any other sense.</p> <p>Failure to provide for payment of debts' — Effect—</p> <p>(3) . The fact that the testator in his will made no provision-for the payment of his debts will not make a devise oí the-whole estate a residuary devise. The payment of the debts= is provided for by law, and whether a devise in a will is a residuary devise or not depends on whether it is made such- or not by the testator.</p> <p>Devise to individuals forming also a class—</p> <p>(4) . When the devise is made to persons designated by name, it is an individual devise, and is a gift to them as individuals and not as a class,even though the persons designated may constitute a class.</p> <p>Construction of will — Rules—</p> <p>(5) A will must be construed with reference to the words of the whole will taken in connection with the surrounding circumstances at the time of the making of the will, and not with reference to the surrounding circumstacnes at the time of the death of the testator, except in so far as the latter are connected with the former.</p>

<p>Oil and Gas Lease — Unproductive land — May remove fixtures—</p> <p>A tenant under an oil or gas lease, who has drilled a well which produces neither oil or gas in paying quantities, and has abandoned it on that account, has the right to draw and remove the tubing, casing and drive-pipe from such well at any time prior to the expiration of the lease. They are trade fixtures and are not governed by the law pertaining to leases for agricultural pursuits.</p>

Error ot the Court of Common Pleas of Franklin county. The plaintiff, Alice Anderson, in her second amended petition, avers in substance that in November, 1896, she was a passenger on a passenger train of the defendant, the Cleveland, Akron and Columbus Railway Company; that it was dark when the train reached her destination; that the station platform was distant about eight or ten inches from the steps of her car, and that in attempting to step from the steps of the car to…

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

The plaintiff below, Joseph E, Boyson, sued to recover for personal injuries inflicted by dogs belonging to the defendant. Daniel Thomas.

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

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

<p>Injunction — Violation by one not party to suit but with knowledge ■ thereof — Contempt of court—</p> <p>(1). To render a person amenable to an injunction,it is neithor necessary that he should have been a party to the suit in,-. which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have actual notice.</p> <p>Contempt of court for violating injunction — Sea. 5581 penal—</p> <p>>(2>. A proceeding for contempt of court for violating an injunction under sec. 5581, R. S., in providing that the party may be fined in any sum not exceeding $200.00 “for the use of the county”, is penal in its nature, and must be strictly construed.</p> <p>Contempt of court under sea. 5581, R. S. —Imprisonment for costs, . not error—</p> <p>- (3). Under sec. 5581, R. S., a party may be fined in a sum not to exceed $200.00 and imprisonment until such fine is paid. But the statute does not provide that a party can be imprisoned until the costs also are paid; and a judgment in such a proceeding that the party be imprisoned until fine and costs are paid, is erroneous so far as the costs are concerned, and will be modified to that extent.</p>

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

<p>Speed of Railroad train — Opinions of non-experts admissible—</p> <p><1). The opinion as to the speed of a train simply involves the ordinary ideas of time and space, and motion, and it is a common occurrence for witnesses to testify as to the rate at which a man is moving, or at which a horse is moving, and a moving train is simply one of another class of moving objects, and is a matter within the common observation and experience of men; and while the evidence of a .man with large experience in riding on or running trains,and who has had daily opportunities to observe the speed ■of trains, might be of greater weight than that of the ordinary witness, yet that goes only to the weight of the testimony, and not to its competency.</p> <p>Evidence of former negligence at crossing by injured party not ■admissible to show habitual negligence—</p> <p>(2). In an action for damages for injuries received while •crossing a railroad with a team, the question to a witness whether she had seen the plaintiff cross there with his team before,- is competent only to show plaintiff’s familiarity with the orossing; but such evidence is incompetent if offered to show that, on some other occasion, the plaintiff had a narrow escape before the same train, and that he was habitually negligent,or that at other'times and at that place he had been guilty of negligence.</p> <p>Requirement of stopping, looking and listening not absolute in Ohio—</p> <p>(3) . The supreme court of Ohio has not yet adopted the absolute rule that a party must show that he has stopped, looked and listened, in order to free himself from the charge of contributory negligence at a railway crossing in case of injury.</p> <p>Partial deafness — Degree of eare required — Consciousness of infirmity must be shown—</p> <p>(4) . Where it is attempted to show that plaintiff was partially deaf, to hold him to the degree of care which prudent persons, partially deaf, should observe, it must also appear that plaintiff was conscious of his infirmity.</p> <p>Observance by railroad of law and ordinance, may be presumed—</p> <p>(5) . A party approaching a railroad crossing, has a right to rely on the presumption that the Railroad Co. would manage its trains according to the law and the ordinance of the city, and manage the trains carefully, and not negligently.</p>

<p>Corporation for profit — Rights of stockholder—</p> <p>(1.) The real object and purpose of a corporation for profit is to make a profit and to make dividends for the stockholders, and a person who holds the stook of such a company has a right to have the company conducted, as far as practicable at least, so that it will make profits, and pay dividends.</p> <p>Right of party to examine'books, etc., of adverse], party — Sec. 5290 R. A —</p> <p>(2.) Under sec. 5290, R. S., the court may order the adverse party to give to the other or his attorney an inspection and copy, or permission to take a copy of such books, papers and documents as it is made to appear contain the evidence which will enable him to establish his case, and this notwithstanding the fact that petitioners are rivals in business of the adverse party.</p> <p>Discretion of court in limiting such order—</p> <p>(3.) Where the demand for such an order is too general in its ty.-&.'nature, it is within the discretion of the court to make the order in such a manner or form as will be compatible with the purpose for which the evidence is to be produced — and the demand should be granted according to the exigencies of tne ease.</p> <p> Right of parties to necessary evidence before trial— </p> <p>(4.) It is no objection to such an order that the party can obtain the production of the books by a subpoena duces tecum. Under the statute parties have the right to obtain all necessary evidence relevant to the issues, even to examining the books of the adverse party, for evidence before the trial of the case.</p> <p>Sec. 5290 R. S., not limited, to jury cases—</p> <p>(5.) The right of a party to apply for and of the court to make such an order under sec, 5290, R.S., is not limited to cases triable to jury, but applies to other cases also, and the statement in the latter part of the statute as to what order the court may make in a jury case, does not limit the general right of the court to make the order.</p>

<p>Suit for injunction by stockholders — Equity jurisdiction—</p> <p><1.) A court of equity will entertain an action by a stockholder of a corporation to enjoin the corporation from refusing to transfer to plaintiffs upon the books of said company shares of stook owned by plaintiffs.</p> <p>Same — Injunction from conducting business at a loss—</p> <p>>(2.) An action by a stockholder against the corporation will be entertained in a court of equity to enjoin the corporation from selling its products at such prices as will entail a loss upon its shareholders or deprive them of the dividends to which they would otherwise be justly entitled, or at less than the fair value thereof in the open market, and from conducting its business in any manner other than the equal pro rata benefit of the owners of its capital stock; and from conducting business in the interest of persons or corporations, other than its shareholders, or for the purpose of injuring suoh shareholders.</p> <p> Same —Suit to compel corporation to issue shares to stochholders— </p> <p>>(3 ) Such court will also taka cognizance of an action by suoh stockholders against such corporation to compel the corporation to issue and deliver to the stockholders certificates for their shares of stock, and to grant such stockholders the right to inspect the - books and records of the corporation. \</p> <p> Right to inspect boohs of adverse party-- </p> <p>•.(4.) The right of either party to an action under Rev. Stat. sec. 5290, to an inspection and copy of the books, papers, and documents in possession or control of the adverse party containing evidence relating to the merits of the action or defense, is not confined to any court or to any class of cases, and is applicable to cases tried by the court.</p> <p>Same- Power of Court—</p> <p><(5.) The circuit court has power to make and enforee an order under Rev. Stat. sec. 5290, granting to the plaintiffs in an action the right to examine the books of a defendant corporation, so far as will enable plaintiffs to. obtain the facts and evidence of facts, necessary to enable the court to pa«s upon'the questions raised in the pleadings.</p> <p>Same — Questions to be submitted to the court—</p> <p>f{6.) In such oase, if there is any question in regard to any . -book or paper as to whether it is proper for plaintiffs to see or inspect it, the matter should be brought before the court granting the order, by the party who made the objection to the examination.</p> <p>Same — Contempt proceedings for refusal to obey order—</p> <p>>(7.) At any time after the making of an order of inspection under sec. 5290 Rev. Stat. directing defendants to allow plaintiffs to inspect their books, plaintiffs may make suoh demand and ask that they have the examination, and on refusal may make an application to the court for proceedings as for oontempt, and the filing .of a petition in error in the supreme court, should not delay them in suoh. proceedings, unless stayed by supersedeas from the proper court.</p> <p>Same — Proceedings on supersedeas order—</p> <p>(8.) When in suoh case- such application for proceedings as for contempt has been made, and a motion is made in the supreme court for an order superseding the order of the circuit, in regard to the examination of the books, the plaintiff may file their motion in the cirouit court to have the party show cause, and have it stand pending the decision of the supreme court, and call it up, upon a decision of the supreme court denying the supersedeas.</p> <p>Sams — Power of court to punish for contempt—</p> <p>(9.) The circuit court has, independent of statute,the right to punish for contempt for disobedience of parties of an order made under Bev.Stat. sec. 5290, directing a party to an action to allow an inspection of books, papers and documents by the adverse party.</p> <p>Same — Construction of sec. 5990, Rev. Stat.—</p> <p>(10.) Such section will not be so construed as to impute to the general assembly an intention to abridge the power of a court created by the constitution to punish contempt summarily, such power being inherent and necessary to the exercise of judicial functions.</p> <p>Stockholder may demand dividend from profits—</p> <p>(11.) A stockholder as a general rule has a right to demand a dividend from the profits of the corporation.</p> <p>Directors of corporations, trustees for stockholders—</p> <p>(12.) The directors of a corporation are trustees for the stockholders and for each of them, and it is their duty as trustees, to use the capital of the company lor the purpose of producing profits for the stockholders, and on their abuse of suoh trust a court of chancery will call them to account.</p> <p>Secretary acting as general manager in absence from state of directors — Refusal to comply with order of court, under orders from-superior officers — Contempt of court—</p> <p>(IB.) The secretary of a corporation whose principal directors are not residents of and not within the state, but who is in possession of its books and acting as general manager, will be held for contempt of court for refusal to comply with an order of court to submit the books of the corporation to the inspection of the adverse party, although in doing so he is aoting under the orders of his superior offioers an.d the directors of the corporation.</p>

<p>Seo. 4029-1-2-3, Rev. Stat. directory only—</p> <p>Sections 4020-1-2-3 Rev. Stat. providing that funds levied for the common schools should be devoted, in oertain-cases, to high schools, when construed together are directory and not mandatory.</p>

The plaintiff avers, in substance, that Wm. A. Neil in his> life time platted and laid out a subdivision in the city of Columbus, a particular description of which is given; that lots in said subdivision were sold and conveyed as numbered and designated on the recorded plat thereof and with reference to the location of the various lot lines and the streets and alleys as designated on said plat; that one of the lots so sold and conveyed is lot No. 63, now owned by the…

<p>Interurban Railroads governed by same laws as Street Railroads— (1.) Suburban and interurban railroads, having been classified by the legislature of the state of Ohio with street railroads, are governed by the laws relating to street railroads.</p> <p>Grade crossings of steam, and interurban Railroads — Sec. 2471R. S.—</p> <p>(2.) The act of the general assembly, passed April 27, 1896, (92 O. L. 315,) as amended April 25, 1898. (93 O. L. 334, Bates’ Statutes, section 247f) providing for interlocking or other safety devices at grade crossings where one railroad crosses another, does not apply to street railroads crossing steam railroads at grade. Street railroads crossing steam railroads at grade are governed by the provisions of section 2503,Revised Statutes,and the law passed May 4, 1891, (88 O. L.581, Bates’ Stat., sections 3443-5 and 3443-7).</p> <p> Wires of interurban Railroad strung across steam railroad —Sec. 3365-28, R. S.— </p> <p>(3.) The act of the general assembly passed April 21, 1898, (93 O. L. 154, Bates’ Stat., 3365-28) expressly requires all wires strung across steam railroad tracks to be placed not less than twenty-five feet above the steam railroad tracks, except trolley wires which may be placed at such heighth as may be agreed upon, when the same is approved by the Commissioner of Railroads and Telegraphs. When the trolley wire is placed twenty-five feet above the tracks, the approval of the Railroad Commissioner is not necessary.</p> <p> Interurban R. R. may cross steam railroad without compensation— </p> <p>(4.) Where a steam railroad crosses a highway or street, a street railway which has the right to lay its tracks in the street or highway may cross the tracks of the steam railroad without compensation to the steam railroad company.</p> <p>(Affirmed by the Supreme Court without report, January 22, 1901.)</p>

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

<p>Services imposed on public officers not incident to their office— Compensation besides salary permissible—</p> <p>The services performed on the Decennial County Board of Equalization, under the Hendley-Royer law, by the Auditor, County Surveyor and County Commissioners are not so “incident” or “germane” to the regular duties of the offices to which they have been respectively elected, as to make the provision for compensation contained in the Hendley law, in contravention of the act of the legislature (94 O. L., 396), or of the constitution (Art. II, Sec. 20).</p>

<p>Subdivisions 6 ana 7, seo. 3988, JR. S. construed—</p> <p>.Subdivision 7 of sec. 3988, R. S., relating to contracts for schoolhouses, which provides that “any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not; and if it is higher, such residue shall be rejected,”is apparently in coniflot with subdivision 6 of said section, which provides that “none but the lowest responsible bid shall be accepted; but the beard may, in its discretion, reject all the bids, or accept any bid for both labor and material, which is the lowest in the aggregate for such improvement or repairs;’’ but if possible said subdivisions should be reconciled. Therefore, where the discretion vested in the board by subdivision 3 is not exercised, then in the consideration of bids containing two separate items or more, any part of a bid which is lower than the same part of any other bid should be accepted.</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>Municipal Corporations--Power of taxation — Must be expressly ■granted—</p> <p>(1) . So far as applies to municipalities the rule laid down in</p> <p>the case of Mays v. Cincinnati, 1 Ohio St., 268, that a municipality can not exercise the power of taxation whether under the guise of a license or otherwise, except when the power to do so is unequivocally delegated to it by the legislative body, has not been modified by later decisions.</p> <p>Averments in petition — Matter within knowledge of defendant— Burden of proof—</p> <p>(2) . The averments in a petition are part of plaintiff’s case which he is required to make out. But where the information upon the matter is peculiarly within the knowledge of the defendant, and the evidence if introduced by the plaintiff would be of a negative character, the burden of proof is sometimes shifted to the defendant.</p> <p>Ordinance charging fee for permit to clean privy vaults — To what -extent legal—</p> <p>(8). While an ordinance providing a reasonable charge for supervising the work of removing the contents of privy vaults and for removing the bad effects thereof, for which the person cleaning is primarily responsible, and covering the cost of the issuing of the permits to do the work, and of collection, might be sustained, yei a charge which is to cover the expense of disinfecting the privy vault, the expense of which should fall upon the owner or occupier of the premises, or upon the oity, can not be imposed upon the person who performs a part of the duty of removing the contents and cleaning up the premises.</p>

<p>Proceeding in aid of execution before J. P. —Liability of debtor of judgment debtor on order of J. P. to pay over—</p> <p>(1) . Where in a proceeding in aid of execution before a justice ■ of the peace under sec. 6680 et seq., R. S., an order is made by the justice requiring one made a party to the proceeding, against whom the judgment debtor has a claim, to pay over, in case the judgment debtor should reoover a judgment against such party, a sufficient amount thereof to the judgment creditor to satisfy his claim, such party stands in the same relation to the judgment creditor as a garnishee in an attachment proceeding.</p> <p> Same— </p> <p>(2) . Such order of the justice of the peace will remain in force and binding on such third party, and will not be affected by the assignment of the judgment against such third party by the judgment debtor in the first action, to his attorneys under a pretended claim that the same is exempt to him by the exemption laws, where he has taken no legal steps to make his exemption rights available.</p> <p>Same — Homestead exemption — How right made available—</p> <p><3). In such a case, where the judgment debtor would be entitled to a homestead exemption, to make it available he should either institute a further proceeding in court before the money is paid over by his debtor to bis judgment creditor under the order of the justice, or file a motion before the justice where the order has been entered, for modification of the same to protect his rights under the homestead law. But after the money has been paid over by his debtor under the order of the justice,’ his right to claim the same under the exemption law is lost.</p> <p>Payment to attorney of one of two claimants — What not a trust— <á). Where in such case the attorney of such third party has paid over to the attorwey of the judgment creditor in the first action the part of the judgment as ordered by the justice of the peace,under an agreement that the latter should hold on to the money, and in case it should be adjudged ■ that the judgment debtor in the first action was entitled to it under his claim for exemption, that he should then indemnify or return the money to such third party, such arrangement does not create a trust against which the judgment debtor can assert his claim for exemption.</p>

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

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

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

<p>Permission by wife to husband to operate oil wells on her land without royalty — -Right of his assignee to operate without paying1 royalty—</p> <p>(1.) Where a wife allows her husband and bis partner to construct and operate oil wells on her land, without charging them royalty for the oil produced, and the husband afterwards conveys his right and title in and to such wells to a credit- or in satisfaction of his debt, such assignee is justified in believing that his assignor owned the entire oil produced' from such wells; and the assignment having been made with the knowledge and acquiescence of the wife, she is estopped from afterwards asserting any claim for royalty against such assignee.</p> <p>Reservation of oil rights not expressed in deed — Parol evidence admissible—</p> <p>(2). Where the wife afterwards conveys such oil lands, it being in the contemplation of the parties that the oil from the-wells in possession of her husband or his assigns, should be reserved to her, such reservation when not expressed in the deed of conveyance, may be proved by parol evidence.</p>

<p>Amendment of pleading in ease on appeal—</p> <p>(1.) A court has a right in a case coming to it on appeal to allow amendments to be made to the pleadings in furtherance of justice,and where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court.</p> <p>Power of municipality to destroy sewer in building general sewer •system — Local drainage by old sewer relieves property owner from ■assessment for new—</p> <p>(2.) Municipal authorities have the right, if acting in good faith, to construct a general sewerage system,and in doing so,they may destroy or change existing sewers; but in that case, if the old system afforded local drainage to any property, such premises can not be assessed for the cost of the new system.</p> <p>Suit to enjoin proposed assessment for street improvement proper— <3.) Property owners may seek to enjoin the levy of an assessment for a street improvement, and if the facts disclosed warrant it, may obtain an injunction and are not required to wait until the assessment is actually levied to sue to be relieved from it.</p> <p>Amendment of petition on appeal — New matter occurring since filing of petition—</p> <p>(4.) Where, during the pendency of a suit to enjoin the levying of an assessment for a street improvement, plaintiffs being entitled to the injunction but no temporary injunction being issued, the city proceeded to do the work and then assessed part of the expense on lots of plaintiffs which were not subject to assessment therefor,plaintiffs have the right, in the original action, by way of supplemental petition to set up such facts and seek to enjoin the collection of such assessment.</p>

<p>Mutual Benefit Certificate — Assignment of interest by beneficiary before death of person insured—</p> <p>(1.) A married woman, being the beneficiary named in a certificate of a mutual benefit association, (in this case the Knights and Ladies of Honor), may before the death of her husband, if in good faith and for a valuable consideration, transfer or pledge her interest in such certificate for the payment of a valid debt. But if the transaction is in the nature of a wagering policy, whereby the transferee becomes the holder of a policy on a life in which he has no interest, or for more than his actual interest, such a transaction can not be upheld.</p> <p>Same — Notice to Association not necessary—</p> <p>(2.) It is not necessary to make such a transaction valid that the company should be notified. But if the insurer without knowledge of the assignment pays the money to the beneficiary, such payment would relieve it from further liability.</p> <p>Failure of Association to comply with legal requirement — Validity of certificate—</p> <p>(3.) Where such an association, which was doing business in this state when the act of April 27, 1896, (92 O. L., 360) was passed, continued to do business after the passage of that act, but failed for some time to file its annual report with the State Commissioner of Insurance as required by that act as a condition for its privilege of doing business in this state, a certificate falling due in the meantime will not. be void in the hands of the beneficiary.</p> <p> Exemption of proceeds of benefit certificate from attachment etc. —Construction— </p> <p>(4.) The exemption of the money arising from such insurance, from attachment or other legal process for debts,under sec. 3631-18 B. S.,is to prevent its appropriation for the payment - of debts or liabilities of the holder of a certificate or of a beneficiary named therein or any person who may have any right thereunder. After the money come» into the possession of the person entitled to it, such person has only the right of exemption as to that fund which he has as to other property.</p> <p>Creditor's bill to subject certificate,brought before payment to beneficiary, premature—</p> <p>(5.) An action therefore in the nature of a creditor’s bill, by a creditor of the beneficiary, against the beneficiary and the Mutual Benefit Association to subject the certificate and the proceeds thereof to the payment of his claim, brought before the money due on the certificate reaches the beneficiary, is improperly brought, and such creditor obtains no priority thereby ovep other creditors. In such case payment into court will not amount to pavment to the beneficiary. (Smith, J., dissents.)</p> <p>Right of married women to contract — Liability—After-acquired property—</p> <p>(6.) Since the act of March 19, 1887, a married woman may make any contract with any person which she might make if unmarried, and for any debt contracted by her after that date her property acquired after that date, and while a feme sole, is liable as her general property for her debts.</p> <p>[This case on-error in the supreme oourt was dismissed for failure to file printed record within the statutory time, September 25, 1900 (44 W. L. B. 186), and a motion to reinstate the case was-overruled November 20, 1900 (44 W. B. B. 277)]</p>

<p>Dissolution Proceedings — Practice—</p> <p>When the report of a receiver in proceedings to dissolve a corporation is filed in court, as provided in section 5670, Revised Statutes, and proper exceptions are filed to such report, it is error for the court to refuse to hear such exceptions, unless the parties excepting give bond to the effect that in case said exceptions are not finally sustained, they will pay the costs of such hearing, as well as legal interest upon the indebtedness of the corporation during the time the confirmation of said report of the receiver is thereby delayed.</p>

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

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

<p>Photographs used at trial— Omission from Bill of Exceptions— Effect—</p> <p>(1.) Whore it appears from the bill of exceptions that at the trial photographs were admitted in evidence and that witnesses testified with reference to them, their omission from the bill of exceptions will prevent a reviewing court from considering the case on the question of the weight of the evidence. Hohly v. Sheely, ante, p. .484, approved and followed.</p> <p>Opinion Evidence — Ability to notice defect in ear while coupling— (2.) In answer to the question how much time a switchman has in coupling cars, it is competent for a witness to state that the operation requires such quickness of movement that his time and attention would be all oecoupied in the performance of this duty, and he would not have time to look out for any defect about the car.</p> <p>Fellow Servants — Oar Inspector and Brakeman — Sec. 3365-21 and 22-</p> <p>(3.) The question how far the rule that car inspectors and brakemen are fellow servants, laid .down in 12 Ohio St., 475 and 42 Ohio St . 318, is affected by the act of April 2, 1890, (sec 3365-21 and 3365-22 R. S.) is not yet settled by the decisions, but the court holds that the doctrine of fellow servant cannot be applied to car inspectors and other employes and woven into this statute so as to defeat its plain provision and purpose respecting presumptive knowledge of and presumptive negligence in the use of defective appliances. -></p>

<p>Permission by city to party to malee excavation in street — Liability of city for injury—</p> <p>Where a city grants to a party permission to make a dangerous excavation in a street, it is precisely the same as if ihe city had made the excavation itself, and in either case it is liable for injuries received by a passer-by in consequence of the unprotected condition of the excavation in the street, regardless whether it had any notice of such condition of the excavation or not.</p>

<p>Boys riding on hand car for pleasure — Not a license—</p> <p>(1.) The fact that boys of immature age have been acoustomed to ride on a hand car of a railway company, for their own pleasure, by the consent and invitation of the section foreman, although continuing at irregular periods for over a year, is not sufficient to constitute a license upon the part of the company to so use the hand car, when the rule of the company prohibits such use to the knowledge of the foreman, in the absence of a showing that some one of the managing officers of the company had actual or constructive knowledge of such permission and use.</p> <p>Biding on hand car for pleasure with consent of foreman— Company's liability—</p> <p>(2.) Where a boy fifteen years of age requested the section foreman to permit him to accompany the section men upon a hand car which was about to go down the tracks to bring in a signal, which request the section foreman granted,and the boy was injured by falling from the car while assisting in propelling it: Held, that no recovery can be had on the ground that the section men permitted the boy to assist in propellng the hand car, and in so doing, to stand in a dangerous place, without at least a showing that the section men wilfully and intentionally caused the injury.</p> <p>Whether the company owed any duty, or was responsible at all in such a case— quaere—</p>

<p>Obtaining money by false pretenses — Affidavit construed — Charge not relating to future event merely—</p> <p>An affidavit which charges the accused that “she falsely pretended to collect mcney and funds to provide shoes and clothing for certain destitute children and that she had arranged after such children were provided with suitable clothing to have them admitted to a certain orphan asylum by which false pretenses she did solioit and receive from the affiant twenty-five cents, with intent then and there to cheat and defraud affiant of such money, whereas in truth she was not collecting money ' for said children of which she then and there well kuew”, charges a representation of a present purpose in the collecting of the money — an existing fact which is properly negatived in the affidavit, and the false pretense so charged does not merely relate tó a future event.</p>

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

<p>Partnership — What necessary to hold party a partner—</p> <p>(1.) In order to hold one as a'partner for the debts of a partnership, it must appear that she actually was a partner, or that she held herself out as such partner, and that credit was given to the firm upon suoh representations.</p> <p>Same ■ -Effect of promise to pay claims of against partnership—</p> <p>(2.) The promise of a party to pay certain claims for work being done for a partnership firm, on the faith of which the work is completed,does not constitute suoh party a partner of the firm so that he can be held as such, on suoh claims, but such promise is a contract of guaranty.</p> <p>Same — Buying claims against partnership on third party's promise to pay—</p> <p>(3.) Parties who buy up claims against a partnership for work, upon the faith of a promise made by a third party, after the completion of such work, that she would pay the claims paid, cannot hold her, upon such promise,as a partner.</p>

Plaintiff in error, who was plaintiff below, in his petition alleges, in substance, that on September 1, 1899, at about 6 P.M. at a point on Walnut street south of and near Fifth street, in the city of Cincinnati, he stepped upon the running board of one of defendant’s electric cars going north on Walnut street, intending to become a passenger thereon; that while standing on the running board and 'holding to the handhold on the stanchion looking for a seat, and when about to…

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

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

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

<p>Failure of Railroad Oo to furnish return ticket contracted for— .Breach of contract only— Actual expenses only recoverable—</p> <p>(1.) Where a Railroad Co. contracts with a passenger for his transportation to a certain point where a return ticket is to be furnished him on demand within a certain time, and it fails to furnish such return ticket within the time specified, whereupon such passenger attempts to return without a ticket and for such want of a ticket is removed from the train, the Railroad Company is liable to such passenger only for breach of contract for its failure to furnish the return ticket,whatever the cause of such failure was; and in the absence of averment and proof of special damages, such passenger can only recover the money which he was actually compelled to expend, and he is not entitled to damages for being removed from the train.</p> <p>Special damages must be specially pleaded — Loss of time—</p> <p>•(2.) Unless in such case damages for time lost are specially pleaded and proven no recovery can be had therefor.</p> <p>Same — Additional causes of action—</p> <p>fS.) A passenger who by the fault of the Railroad Co. is without a ticket and is removed from the company’s train on-that account, can not create additional causes of action against the Railroad Co. by getting on and being put off one train after another.</p>

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

<p>Bill '-of sale'absolute on face — Parol evidence to show security for ■debt only—</p> <p>(1.) It is admissible, in an action at law, to show by parol evidence that an instrument, being on its face an absolute bill of sale, was in fact merely intended as security for a debt,and represented only part of the agreement between the parties. The effect of such parol evidence is not to vary a written contract, but only to show the whole contract of which the execution the bill of sale was a part.</p> <p>Sale of goods by creditor — Damages—Fraud, not essential—</p> <p>(2.) Where it appears by parol evidence that a bill of sale,absolute on its face, was merely intended as security for a debt, bur that the creditor,in violation of the agreement, has taken possession of the stock of goods and. sold them without accounting for the proceeds to the debtor, the debtor is entitied to recover damages from suoh creditor, and the fact that the debtor avers to have been fraudulently induced to sign the bill of sale but fails to establish fraud, will not prevent a ruoovery.</p>

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

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

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

This case was tried to a jury and resulted in a verdict for the plaintiff, Corcoran, for the sum of $9,500.

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

<p>A decision of the court overruling a motion to set aside a saléis not a final order that may be reviewed on error, where no-objection is made to confirmation.</p> <p>(Affirmed by the supreme court without report, 44 W.L.B.,287. )■</p>

<p>Gounty Turnpike — Road— Agency of bondholders in possession—</p> <p>(1.) When a turnpike road was by valid acts of the legislature placed in the hands of county commissioners, which acts provide that such commissioners shall employ or appoint such agents to make repairs to the road and to keep the gates and collect tolls, at such salaries and on such terms as they shall deem advisable,and the county having issued bonds for the construction and maintenance of the turnpike, which bonds were to be paid only out of the tolls collected on the turnpike,and such commissioners having proceeded under an invalid act of the legislature to surrender the road to the bondholders, such' bondholders on taking possession of the turnpike,did so as,and became ¿he agents and trustees of the county commissioners, and were to be considered as appointed as such, as provided for in the valid legislative aots.</p> <p>Same — Validity of legislative acts—</p> <p>(2.) In such case although the invalid act, if standing alone, is unconstitutional yet a3 it accomplishes what the oounty commissioners were empowered to do by the valid acts, namely the appointment of agents for the turnpike road, it is good for that purpose.</p> <p>Same--Adjustment of boundary line—</p> <p>(3.) Where such bondholders adjusted a disputed boundary-line between the turnpike read and a railroad running parallel with it, in consideration of which the railroad company surrendered to the bondholders some of the turnpike-bonds issued by the county, the bondholders will be deemed to have acted as agents of the county commissioners, and such bonds should be considered as cancelled.</p> <p> Contract amounting to collection-of tolls-- </p> <p>(4.) A contract between the turnpike company and a village, whereby in consideration of an annual rental of $600, paid' by the village, the residents of the village were exempted from paying toll upon any part of the turnpike within the village, amounted simply to the collection of toll for that part of the road in a way different from the ordinary way.</p>

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

<p>Gambling contracts — Liability when — R. 8. 6934-4370-4271-2—</p> <p>(1.) One who furnishes a telegraphic wire and instrument and market quotations, and has an interest in the commissions made on the sale of grain, stock &c., in a business where dealings in margins on the rise and fall of the market are carried on in violation of sec. 6934 Revised Statutes, (Vol. 79 O. L., 118), is interested in the business within the meaning of see. 4271 of the Revised Statutes, and is liable to one whose money is placed or lost in such transactions.</p>

<p>Compensation of County Officers — Act of March 29, 1898, constitutional—</p> <p>(1.) In so far as the act of April 22, 1896, (92 O. L., 697), and as amended March 29, 1898, prescribes and fixes the compensation of the county officials named therein, it does not conflict with the constitution of this state.</p> <p>Mandamus — Parties—Action against one of several county officers interested—</p> <p>(2.) In a proceeding in mandamus, brought on the relation of the state auditor solely against the county auditor, other county -officials are not necessary or proper parties thereto.</p>

<p>General appearance construed—</p> <p>(1.) An appearance will be taken to be general unless the contrary appears.</p> <p>Payment of one of two interested parties, with knowledge — Liability—</p> <p>(2.) L. was in the possession of a fund, the proceeds of property sold on commission,in which property G and D claimed interests, to the knowledge of L; D had admitted to L that the money could not safely be paid to D or G without the oonsent of the other. L paid the money to D without G’s knowledge or consent. G having established its interest in the property and claim on the fund, held entitled to judgment against L and D.</p> <p>Same — Joint judgment proper—</p> <p><3.) Whore the defendants are both liable for acts done in connection with the same transaction and to the same extent and amount, a joint judgment is proper.</p>

<p>Superintendent of public schools not a public officer—</p> <p>(1.) A superintendent of public school* appointed by a board of education under Rev. Stat. sec. 3982, is an employee of the board,and not a public officer within the purview of the constitution forbidding a change in the salary of public officers during their term of office.</p> <p>Law governing teachers contracts—</p> <p>(2.) Although a teacher may have a vested right in-a contract with a board of education which cannot be impaired by legislation, such contract is subject to the general rules governing the validity of contracts.</p> <p> Increase of salary during teacher's term— </p> <p>(3.) Although Rev. Stat. sec. 4017, authorizes boards of education to increase the salaries of public school teachers during the term for which they are appointed, where a teacher has been appointed for a definite term at a fixed salary,an increase of such salary during such term without a change of duties and with no new contract, will not give such teacher a right of action to recover therefor.</p> <p>Same — Validity and Rights under—</p> <p>(4.) A superintendent of public schools appointed for a certain term at a fixed salary, whose salary was increased during such term for meritorious services, there being no revision of the original contract, no new or additional service to be rendered, or other consideration moving in support of the increase, although entitled to retain such part of the additional salary paid,cannot recover for any portion thereof remaining unpaid.</p> <p>Same—</p> <p>(5.) Where a superintendent of school» or teacher is under a legal contractual obligation with a board of education to serve in that capacity for a certain time at a certain salary, a voluntary increase of his salary during such term is without consideration and against public polioy.</p> <p>Valid consideration for contráctil.) A promise to do a thing or the actual doing thereof, is not a good consideration for a contract, if the promisor, by contract or law, is at the time already bound to do the thing promised.</p> <p>School Superintendent — Voluntary Relinquishment—</p> <p>(7.) Where after the passage of a law abolishing his offioe a superintendent of sohools accepted another position under the school authorities created by such law, he thereby voluntarily relinquished his former position and the emoluments thereof, and cannot recover for his salary under his original oontract.</p>

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

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

<p>JRelease of dower by wife in favor of some of husband's creditors in his trust deed inures only in favor of such certain creditors—</p> <p>Where a wife in consideration of the scaling down of the claims of certain of her husband’s creditors and an extension of time on the amounts so reduced, has joined in'a trust deed, releasing her dower and said trust deed has been construed by the court under R. S., 6343 (56 O. L., 231), to inure to the equal benefit of all creditors as a general assignment, to the extent of the amounts of the claims intended to be covered by said trust deed the wife’s release of dower is operative: as to the other general creditors, not.</p>

The plaintiff sued for the benefit-of herself and other creditors to set aside the transfer of certain life insurance by Joseph Wachtel to secure the payment'of a note for $6,000, which said Wachtel had executed in payment of a debt arising out of marginal transactions; the general assignee brought a similar action.

<p>When charge not erroneous—</p> <p>(1.) A portion of a charge to the jury whioh if taken alone would be wrong, is not erroneous, when, if taken in connection with the whole charge, it is proper and the jury, when so taken, could not be misled by it.</p> <p>Verdict not reversed for unprejudicial irrelevant testimony—</p> <p>(2.) A verdict will not be reversed for the admission of irrelevant testimony which had no bearing on the case, if such testimony was not prejudicial.</p>

<p>Evidence of negligence not pleaded inadmissable—</p> <p>(1.) Evidence tending to establish acts of negligence not charged in the petition and having no relation to the negligence averred, should be excluded and its admission is error.</p> <p>Hiding bicycle in front of moving train is negligence—</p> <p>(2.) A person riding upon a bicycle who passes upon a railroad traclt located in the highway, in front oí a moving car not twenty feet away, is guilty of such negligence as will defeat a recovery in an action brought by his administrator against the company for negligently and wrongfully causing his death. Under such circumstanues the negligence of both parties, if both are guilty of negligence, is concurrent.</p>

<p>New trial before J. P. —</p> <p>. (1.) The authority of a justice of the peace to grant anew trial is limited by the terms of section 6560 Revised Statutes by which it is conferred.</p> <p> Bill of exceptions before J. P.~ </p> <p>(2.) The time for the preparation signing and filing of a bill of exceptions under section 6565 must be fixed by the justice of the peace when he has jurisdiction of the action. Such time must be not more than ten days from the date judgment was entered or from the date the J. P. with jurisdiction overruled the motion for a new trial.</p> <p> Same— </p> <p>(3.) When triaJ was had and judgment duly entered by a J. P. March 16, motion for a new trial filed March 17,and the motion heard and overruled March 21, the record being silent , as to any consent by the parties to the hearing of the motion five days after judgment entered. Held: That on March 21, the action was discontinued and the court had then no-jurisdiction to rule upon said motion, nor to then fix a time for the signing and filing of a bill of exceptions. Held,further, that a bill of exceptions in said action, signed and filed March 29, is not part of the record and will not be considered by a reviewing court.</p> <p>Incompetent evidence admitted — Effect—</p> <p>(4.) Evidence, not competent if objected to, when admitted without objection, has its natural probative effect.</p> <p>Forcible detention — Possession—Presumption—</p> <p>(5.) In an action of forcible entry and detainer by the owner of the fee against one in possession of the leased premises, other than the lessee,it will be presumed that the occupant is assignee of the lessee, unless the contrary be shown.</p> <p>Leased premises used for gambling —Liability of oicner—</p> <p>(6.) An owner of leased premises who has knowledge that the lessee is using the same tor gambling purposes and who does nothing whatever to hinder or prevent the lessee in such use, must be held to “knowingly permit” such use within the meaning of section 4275 of the Revised Statutes.</p> <p>Lease — Breach of condition — Re-entry—</p> <p>(7.) In Ohio only the lessor or his heir can enter for breach of a condition subsequent in .deed; but a lessor,his heir, or if he has aliened the estate, his grantee, may enter for breach of a condition subsequent in law.</p> <p>Same — .</p> <p>(8.) It is a tacit condition annexed by law to all tenancies that the lessee or his assignee will not by his unlawful act cause a forfeiture of the landlord’s estate,or by such act create an enforcible lien upon the landlord’s interest in the leased premises, and for breach of such condition the lessor or his grantee may by an action in forcible entry and detainer, enforce a forfeiture and recover possession.</p> <p>Mortgagee of leaseholder — When notnecessary party—</p> <p>(9.) In such action a mortgagee of the term is nota necessary party defendant.</p>

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

<p>Setting aside default against defendant — What necessary to show— <1.) In order to justify the common pleas in setting aside a default judgment against defendant and allowing an answer to be filed, the defendant must show that he has a good defense to tiie action, and to do so otherwise is a clear abuse of discretion of the court justifying reversal on error.</p> <p>Construction■ of contract as to time of payment—</p> <p><2.) When the original bill of goods shipped by plaintiffs to defendants contained the words “Time, 60 days,” and defendants write plaintiffs that they would not pay for them until after July 1st, to which plaintiffs assented by letter, the plaintiffs are entitled to payment immediately after July 1st.</p>

In November, 1894, the commissioners of Cuyahoga county, granted to the Akron, Bedford and Cleveland Railroad Company, a franchise to construct and operate a street railroad upon one of the public roads of the hamlet of Newburgh, within said county. One of the terms of the franchise was, that the track should be laid along the southern side of the highway. In May, 1895, the railroad company obtained a franchise over the same road, from the trustees of the hamlet of Newburgh.

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

<p>Suit for money paid afterwards invested in corporation — Corporation not proper party—</p> <p>B., as executor, sued R. for recovery of a large sum received from his mother-in-law, the decedent,and made a party defendant the corporation in which R. had invested a part of the fund.</p> <p>Held, by a majority of the court,that the money received from the mother-in-law was a loan, and not a gift; and by the full court that the corporation could not properly be made a party defendant.</p>

<p>Verdict not reversed unless manifestly against evidence—</p> <p>(1.) A verdict will not be reversed as against the weight of evidence unless it is manifestly so.</p> <p>Evidence of general reputation — When competent—</p> <p>(2.) It is competent for the purpose of showing that a railroad company was aware of the incompetenoy of a fireman, to prove that his general reputation was that he was a rough man with an engine, in an action for personal injuries against the company.</p> <p>Recalling witness discretionary with court—</p> <p>(3.) To permit a witness to be recalled and again testify is discretionary with the trial court and its action will not be disturbed unless such discretion is abused.</p> <p>Fellow servants — Question for Jury—</p> <p>(4.) Whether a fireman and a brakeman are fellow servants is a question for the jury under the evidence.</p> <p>Railroad brakeman — Assumption of risks—</p> <p>(5.) A railroad brakeman by reason of his position has to place himself in a known place of danger every time lie attempts to couple cars, and assumes the ordinary risks of such employment, but not those following the gross negligence of an incompetent employee of the company known by it to be incompetent.</p>

<p> Pudney Road Law unconstitutional— </p> <p>(l.J The fudney Road Law, so called, Rev. Stat. secs. 4670-4670-2 is unconstitutional.</p> <p>Motion to dissolve injunction — when not granted—</p> <p>(2.) A motion to dissolve a temporary injunction will not be-granted, in an action for a permament injunction, where it. will be necessary on the final disposiiton of the case to determine important questions arising from the issue of the-case, and on which depends the right to the injunction.</p>

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

<p>Allowance of fee of attorney for general creditors for contesting chattel mortgages of insolvent firm—</p> <p>(1.) Where on the appointment of a reoeiver for an insolvent firm, attorneys were employed by the general and unsecured creditors of the firm to contest the validity of certain chattel mortgages given in the firm name by one partner without the other’s consent, before the appointment of such receiver, which contest after being carried to the supreme court resulted in such chattel mortgages being adjudged invalid, such attorneys will be allowed reasonable fees, out of the firm funds in the receiver’s hands, for their services in defeating such chattel mortgages.</p> <p>Same — Buies in fixing amount of fee—</p> <p>(2.) In fixing the amount of such fees to be allowed, it should be taken into consideration that the attorneys for whom the allowance is to be made, represented the general creditors who are also liable to them for fees in the matter,and also tbe amount of the fund in the hands of the receiver for distribution, the amount of the chattel mortgage* declared invalid, and the sum allowed to the reoeiver and his attorneys for fees.</p> <p> Same- </p> <p>iS.) Where in suoh a case, it appeared that the sum of $2750 had been allowed and paid to the receiver and his attorneys,leaving the amount in the receiver’s hands $9100;and that the amount of the chattel mortgage* adjudged invalid was $6500, the attorneys for the general creditors should be allowed $750 for their services in defeating the chattel mortgages.</p>

<p>School Examiners and Municipal Officers not “officers!’ within ■sec. 20, art. II, of the constitution—</p> <p>1. The officers mentioned in section 20, article II,-of the constitution of Ohio, do not refer to either members of a board of school examiners or to the officers of a municipal corporation.</p> <p>School Examiners — Reduction of compensation during term—</p> <p>•2. A board of education has the right to reduce the compensation to be paid a member of its board of examiners during his term of office, but such reduction cannot be retroactive.</p>

The plaintiff in error, while driving along a “fill” on the Lower River road ten feet high, was thrown from her carriage and severely hurt by a cow climbing up the embankment and frightening her horse, which shied and went over the embankment on the opposite side. The accident happened BOO feet from a bridge to which the embankment or fill led.

<p> Chattel mortgage with power of sale to mortgagor void as to creditors— </p> <p>A chattel mortgage containing a provision allowing the mortgagor to retain possession of the mortgaged property, with a power of sale, is void as against a judgment creditor who has levied on the property, although, such power of sale was never exercised.</p>

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

<p> Error from joint judgment— </p> <p>One of two defendants against whom a joint judgment is rendered cannot alone prosecute error.</p>

<p>Correction of Pleadings—</p> <p>A mistake in omitting an initial letter from the name of a plaintiff corporation in a petition, may be corrected although the time within which proceedings in error may be . commenced has expired.</p>