Volume 22 — Ohio Circuit Court Reports

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

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

<p>Board of Equalization — Notice to be Given By—</p> <p>(1.) Under Tifie 13, Chap. 4, Rev. Stat., pertaining t.- boards of equali- - zatioiy none of these boards have authority to increase the taxes on ,• property without giving the party who is to be affected thereby notice and opportunity to be heard.</p> <p>¡Board of Equalization for Banks — Notice to be Given—</p> <p>' (2) The provision of section 2809 Rev. Stat., that the board of equa- [ lization for banks “shall hear complaints and equalize the value of 1 said shares according to the rules -prescribed by this title for val- . rung and equalizing the values of real and personal property,” is 1 broad enough to include not only the rules for assessing property, but also for equalizing the value of real and personal property, and is - governed by section 2804, Rev. Stat., providing that notice shall be| given to all persons, directly interested.</p> <p>Same — Records Must Show Jurisdiction—</p> <p>■ (3) The records of the board of equalization for banks must show ■ its jurisdiction and that it has retained it.</p> <p>Same — Adjournment Without Naming time of Next Meeting — Jurisdiction — ■</p> <p>(4) The board Of equalization for banks acquires juris hction to decrease or increase the taxes on banks by meeting on a certain day named by statute, and- every bank in the state is charged with notice , of that meeting; but when the board adjourns without naming a - time to meet again, but upon call of the president of the board, the ■ banks are left without knowledge of the time when the board will • meet again, and unless due notice is given of such meeting the proceedings thereat will be void. ■ . •</p> <p>Same — Remedy .of bank when tax increased by — Injunction—</p> <p>- (5)The remedy of a bank the tax on whose property has been increased • over $100 at such subsequent meeting without notice, is not unddr • section. 167,- Rev. Stat., but is more properly by injunction to restrain the collection of such increased tax.</p> <p>Same — Bank need not show over-taxation—</p> <p>'(6.) In order to avail itself of such remedy such bank is not obliged-to show -that its property is taxed at more than its true value in money, such action of the board being a complete nullity.</p>

<p> Construction of Bids for School Bonds </p> <p>A'bid for bonds in response to a prinied circular of a board off . education stating that it would on Dec. 2, 1889, receive sealed proposals, for coupon bonds to be dated Dec. 15, 1889, and that no bid ' for less than par and accrued interest to the date of delivery would \ be entertained, which offered “accrued interest to date,” is to be .construed'as meaning interest to date of delivery of the bonds.</p>

<p>Assessment for Street Improvement — Damages for Change of Grade— Where not Chargeable—</p> <p>(1) Jn an assessment for a street improvement damages awarded to persons owning property along the street on account of the change of grade affecting their access to their property are not chargeable against the property owners as’ a part of the costs and expenses of the improvement of the street.</p> <p>Petitioners for Street Improvement not estopped to Assess Illegality of Assessment—</p> <p>(2) When parties petition a city council for a street improvement, the presumption is that the parties asked the council to proceed under valid .nws and according to law to make the improvement and assessment therefor, and such parties will not be estopped from raising the question of the illegality of the assessment.</p> <p>Assessment for Street Improvement — What not to be deducted—</p> <p>(3) Where a contractor agreed to construct a certain street improvement for a certain stipulated sum, and the city agreed for a certain amount to furnish him a steam roller belonging to the city for use upon the street, the amount received by the city for such hire should not be deducted from the assessment for such improvement.</p> <p>Same — W,hat should not be included in— *</p> <p>(4) The amount of fees charged by the mayor’s clerk for service of notices, in excess of the amount allowed by law should not be included in such an assessment.</p> <p>Same — Not Invalidated by Contract to Keep in Repair—</p> <p>(5) An assessment for a street improvement will not be invalidated because the contract for the improvement provided that the contractor should keep the street in repair for a period of five years after it was finished, and the withholding of ten per.cent, of the contract price in order to enforce its completion and repair.</p> <p>Same — Nor by Retaining ten per -cent, of Contract Price — •</p> <p>(6) In such case such assessment is not invalid as' to the ten per cent, of /the contract price so withheld.</p> <p>Same — Cannot be attacked for Defect in Work — ■</p> <p>(7) An assessment for a street improvement cannot be attacked on the.ground that there is a substantial defect in the work done or in the performance of the contract, unless fraud is alleged.</p>

<p>Fireman’s Pension Law— Power of Legislature, to change—</p> <p>It is within the power of the legislature to wholly abolish or to change a law granting pensions to disabled members of a fire department, and no such member is entitled to any other or different pension, than provided by the existing statute.</p>

<p> Liability of master for injuries to servant working in building not-under masters control. </p> <p>(1) An electric company is not-responsible for injuries occurring to an employe through the inherent dangers of the place in which he was working in making repairs to electric wires in a building not owned or controlled by it, when the employe knew the dangers of the place in which he was required to work, except in one) respect, of which the company was equally ignorant, and of which ■ it had no better or more means of information than its employe! . possessed.</p> <p>Same—</p> <p>(,2) lnlsuch case the obligation of the employer towards its employe is not the same as if the work was done at the shop or factory o£ the employer.</p> <p>Objection to questions asked by plaintiff of his own witness—</p> <p>(3) The sustaining of an objection to- a question put by plaintiff to his own witness is not ground of error, when it is not stated what answer was expected, in case the witness was allowed to answer.</p>

<p>Fees of clerk of.courts of Cuyahoga county in crimimal cases—</p> <p>Under Rev. Stat. section 1365-1, fixing the salary and fees of the clerk of courts of Cuyahoga county, and such clerk is entitled to ’' the allowances of the ten per cent, commission provided in the stat ute upon money paid to him as fees out of the general fund of the! county treasury, and by him paid into the fee fund of the county, treasury, and also upon moneys paid to him as fees out of the state treasury and by him paid into the fee fund of the count'y¡ treasury.</p>

<p>Municipal Corporations — Negligence in permitting snow and ic£ ■ on.-sidewalks—</p> <p>A municipal corporation cannot be charged with negligence or held liable for allowing a sidewalk on one of its • streets to . have an inclination of two eighths of an inch to the foot greater! than provided by its own ordinance, ■ and permitting snow and ice to accumulate thereon, by reason of which a pedestrian was caused to fall and = sustain injuries .</p>

<p>Negligence of motorman of electric car crossing street—</p> <p>•(1) It is negligence in the motorman of an electric street carl when the car is from 150 to 200 feet from a street crossing, an-i he sees a wagon about to cross the track, not to try to stop ob slacken the speed of the car until almost at' the crossing when! by so doing the collision which ensued might have been avoided.</p> <p>When driver of wagon crossing street car track not negligent — •</p> <p>■(2) Is is not negligence in the driver of .a wagon, to attempt to drive across a street car track ahead of an approaching electrict car, when the car is so far away, that, by the exercise of reasonable care, it might be stopped before reaching the place of . crossing.</p> <p>Testimony of non-experts as to speed of electric car—</p> <p>■(3) The testimony of persons, not experts, who saw an electric car in motion on a particular occasion, as to the speed of the car,, is competent.</p> <p>Evidence of value of medical services under pleading—</p> <p>■(.4) In an- action for personal injuries, evidence as to the valué of medical services is admissible under a petition alleging that by reason of such injuries plaintiff was put to great expense for nursing, medicines and medical attendance, not setting forth the precise amount of expense for the medical services but laying his damages in toto, in the absence of a motion to make! the petition more definite.</p> <p>Damages — Charge to Jury—</p> <p><5) In such case a charge to the jury where the court said they - must be guided by. the evidence, although somewhat loose upon the subject of damages is not erroneous, if from it the jury would not be led to understand that they would be at liberty to conjecture what he medical attendance amounted to.</p>

<p>Action by minor for personal injuries against employer — Question of Negligence for jury under testimony—</p> <p>(1) In-an action by a girl of fifteen years of age against her employer! for personal injuries occasioned by a defective machine on which she was working, the defense being contributory negligence, the question whether she placed her fcot on the treadle of the machine while she had her finger in a certain position, and thus was-guilty of contributory negligence is for the jury, where in some parts of her testimony she says she did not so place it and in others that she did not think she did, that it was all done very suddenly, thait she was hurt, and just how everything occurred she cannot state1 positively, but to the best of her judgment she did not put her1 foot on 'the treadle.</p> <p>Same — Duty of employer to give instructions—</p> <p>(2) It is the duty of a company employing a girl of fifteen years of age to work on a machine, to give her, on entering its employ,, • proper instructions as to the manipulation and operation of thej machine, such as a reasonably prudent person would give a girl of. that age when set to operate a machine of that character.</p> <p>Same — Such instructions to child should he specific—</p> <p>(3) Such instructions to a child should be of more specific and of & different character from those of a grown person Of mature judgmert.</p> <p>Question of Child’s Negligence — How determined—</p> <p>(4) Under the law of Ohio the question of negligence in a child is to-be determined by the judgment and discretion of ordinary children of the age and experience of the child in question.</p> <p>Question as to whether instructions by employer to child is for jury—</p> <p>(5) Whether the instructions given by an employer of a girl fifteen years of age as to how she should operate a machine on which she was employed to work, was such as an ordinarily prudent and careful man would give to a child of her. age and experience, when, set to work on such a machine is, under the testimony, a question ’ for the jury.</p> <p>■ Question of Child’s Negligence is for Jury—</p> <p>(.6) It cannot be said as a matter oí law by a reviewing court that plaintiff, a girl fifteen years of age, with only four days experience in her employment, was guilty of contributory negligence, in continuing to operate a defective machine, after she was told by the foreman to go on with her work and that he would come and repair the machine, but such question is for the jury to determines.</p> <p>Employment of children as evidence of negligence—</p> <p>(7) As'Sec. 6986-1, Rev. Stat. prohibits the employment of a child under sixteen years of age to operate a dangerous machine and Sec. 6986-2 lb., makes such employment a misdemeanor and fixes a penalty therefor, the employment of a girl fifteen years old' to/ . operate such a machine is some evidence of negligence against the employer.</p>

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

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

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

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

<p>Corporations — Subscriptions for stock — Conditional stipulation in contract for subscription for stock, when not a condition precedent—</p> <p>(l) In a contract between a subscriber and a corporation for shares of capital stock in the company, which provides that the subscriber' shall be given a position in the company that will pay him two dollars a day or better, and on failure to comply therewith, the subscription to be null and void: Held, that such a stipulation for : employment contemplates that he will become a stockholder before he would be employed, and that compliance by the corporation witfe the condition is not to be regarded as a condition precedent to hi£ becoming a member of the corporation. Such a provision or conditioner employment is an independent stipulation, for the breach of which the remedy would be in damages, and not to recover back the subscription paid.</p> <p>Same — Such a stipulation is a condition subsequent— ■</p> <p>(a) A stipulation, in a contract with a subscriber to the capital stock of a corporation which provides that the subscriber shall receive, in addition to his stock shares, a position in the company as employee, that will pay him a fixed sum per day, is a condition subsequent. and the non-performance of the condition will not work a dissoltH tion of the relation of the subscriber to the company as a stockholder in the corporation.</p> <p>Same — Such a stiptilation combines two contracts—</p> <p>(3) A subscription to the stock of the- corporation on such a condition for employment is an agreement combining two contracts — one the contract of subscription, the other an ordinary contract of the corporation to perform the specified act of giving the employment. The subscription is valid and enforceable, whether the condition as to employment is performed or not. The condition is the same as a separate collateral contract between the corporation and the subscriber, for breach of which an action for damages is the remedy.</p> <p>Same — Conditional subscriptions against public policy, when—</p> <p>(4) A contract with a subscriber to the capital stock of a corporation which attempts to secure advantages and pivileges not common to all other stockholders or subscribers and without their knowledge and consent, is contrary to public policy and can have no effect to iimit in any way his contract of subscription, aim in so far as it attempts to do so, will be treated as a fraud upon such other stockholders not consenting thereto.</p>

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

<p>Improvement of county roads — Constitutionality—</p> <p>(1.) The act of April 16, 1896, entitled "an act to supplement sections--2622 and 2637 Revised Statutes of Ohio,” being sections 2822-1 to » 2822-4 and 4637-1 to 4637-11 Revised Statutes, providing for the improvement of county roads by county commissioner^, whatever may be its infirmity where private property is taken, is not open to- - to the objection, of its unconstitutionality where no private property is taken.</p> <p>Same — Construction of statute—</p> <p>(2.) Section 4637-1, Revised Statutes, and following sections were intended to confer upon county commissioners ample power to - improve county roads, determine the cost and expense of the same, and the proportion to be assessed upon the owners of property abutting upon the proposed imlprovement, and the proportion to be paid from the road improvement fund, and the proviso ím 1 section 2282-2, Revised Statutes, requiring one fourth ot the cost' and expenses of such improvement to be assessed upon the land abutting upon the imlprovement, in no way affects such power and-5 must be disregarded.</p> <p>Same — Constitutionality—</p> <p>(3.) Such an act therefore is not unconstitutional because of the proviso in section 2822-2. ‘</p> <p>Same — Power to improve county road within limit of city—</p> <p>(4.) Such act confers authority upon county commissioners to improve a part of a county road lying within the city limits of a municipal corporation.</p>

<p>Sufficiency of petition in action for negligence—</p> <p>(1.) A petition in an action against master for damages for servant’s death caused by defective machinery alleging that such defects were unknown to the servant, but not alleging that ¡hie had not the means of knowing, or .that by the exercise of ordinary care they would not have been known to him, is sufficient in the absence of objection taken thereto before trial. •</p> <p>Same — Charging knowledge—</p> <p>• (2.) Where such pe_ition charges iihht defendant knew of the defects in the machine, it is sufficient if the evidence proves that defendant ' in the exercise of ordinary care would have known of such defects.</p> <p>Negligence of servant— Facts not amounting to—</p> <p>(3.) It is not negligence in a carpenter employed by a stone company around the premises, in which was a defective fly wheel which he had assisted in adjusting, that he stood near to the wheel when it burst, in the line of its revolution, and in the same perpendicular plane as the wheel.</p>

<p>Personal liability of trustees of life insurance companies—</p> <p>The trustees of a life insurance company organized under act, April 25, 1898, sections 3631-24, Revised Statutes et seq., are not personally liable for a death loss upon a policy issued by the company-while they were in office as such trustees, but the policy holders- and the beneficiaries under such policies, must trust _ to tifie companies and the protection afforded them by the sections referred to.</p>

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

<p>Control of legislature over municipal public works. ,</p> <p>■(1.) The state, acting through its legislature, has absolute power and control over all the public works within the state, undertaken and carried on with public funds, whether the work be paid for by a municipality or by the state at large, and those who let the contracts, superintend the construction, audit the bills and pay them, are in such work but .the agents of the state, .whether the agency be created by the provisions of a charter or by special enactment.</p> <p>Same — Municipal corporation agent of state—</p> <p>,(2.) A municipal corporation is simply an agency of the state for the conduct of the affairs of government and- therefore subject to the control of the legislature in all respects, except as limited by the constitution.</p> <p>Power of state to compel municipal corpofations. to pay current wages—</p> <p><3.) It is competent for a state, by its legislature, to provide that its .agents and -agencies, wherever throughout the state they may be situated, in the doing of a public work, shall pay the going wages wherever the work is to be done by day’s work; and whenever it is to be done by contract, that the agent • wherever situated, shall put into the contract that it executes by authority of the state, a provision that the contractor shall pay such rate.</p> <p>Legality of municipal contracts incorporating such a statute—</p> <p>< (4.) A successful bidder for a municipal-contract, upon being awarcled and voluntarily executing the contract, into which! is incorporated the provisions of a statute, that labor to be performed under the contract, must be paid for by the contractor at the going rate, is bound by the terms of the contract, although the statute itself may be declared unconstitutional.</p>

<p>Sec. 3625, R. S., part of contract of life insurance—</p> <p>(1). Where the assured stated in his written application to the company for a policy of life insurance that he did not use intoxicating liquor at all but was a total abstainer from the same, which statements were untrue, such statements under sec. 3625, R. S., will not defeat the right to recover unless it be clearly proved that the statements were not only wilfully false and fraudulently made, but that the same were material and induced the company to issue the policy.</p> <p>Question of fact for the jury to decide—</p> <p>(2.) The question whether or not such answers were wilfully false andl fraudulently made, and were material, and induced the company to issue the policy, is a question of fact to be determined by the jury under proper instructions from the court.</p> <p>As to the charge of what constitutes intemperate habits in such case—</p> <p>(3.) Where the assured answered ini the application that he did not use intoxicating liquor at all, in any quantities or of any character, which answers were untrue, it was error for the court to charge the jury “that for a m,an to occasionally use intoxicating liquor or ■ to use it in moderation and an occasional indulgence to excess does not render a person an intemperate man.”</p>

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

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

<p>Street improvements — Unauthorized—</p> <p>The statutes do not confer upon municipal corporations the right to improve private property for street purposes without condemnation or consent of the owner, and much less to assess upon individual property the cost of an improvement which was not desired nor solicited.</p>

<p>Appeal fr-om the Court of Common Pleas- of Lorain county.</p>

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

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

<p>Will — Construction—Meaning of terms used — ■</p> <p>(1.) If any term has a primary or ordinary legal meaning, that is-the sense in which it ought to he construed, unless the court is reasonably satisfied, by evidence to be collected from the will itself, of the testator’s intention to use it, not in that sense, but in some different sense.</p> <p>"Legal representatives" defined—</p> <p>(2.) The primary or ordinary legal meaning of the words “or legal representatives” is that of “executors or administrators” as words-of limitation.</p> <p>Same — Gift—</p> <p>(3.) If the gift is -to take effect after a life estate, the will does not afford evidence of the testator’s intention to use the term otherwise than in its ordinary sense.</p>

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

<p>Township clerk of township trustees — Filing of papers—</p> <p>•(i.) The clerk of a township is also the clerk of its board of trustees, and when the board is not in session papers should be filed with the . clerk, in order to .constitute a legal filing with the trustees.</p> <p>Same — Return of papers Hied.—</p> <p>i(2.) Where a paper was filed with the township clerk, 'but returned by him to the person filing it as a mere convenience in carrying it to a meeting of the township trustees, it is a legal filing.</p> <p>Hamlet — Defective map—</p> <p>(3.) A defective map filed with a petition for the creation of a hamlet,with township trustees, may be supplemented by a more perfect one, before action is taken by the trustees.</p> <p>. Same — Two petitions for—</p> <p>(4.) Where two petitions are filed with township trustees each for. a hamlet, one for a portion of the township and the other for the whole township, the petition first filed should be first acted upon and submitted to vote, and if the petition filed last is first acted upon, the proceedings thereunder will be null and void.</p> <p>Same — Mandamus—</p> <p>{5.) In such case mandamus will lie to compel the township trustees ' to 'proceed upon the petition first filed, upon their refusal to so ■ proceed.</p>

<p>Court will not review evidence before tribunal on trial of fireman—</p> <p>(i.) Where a member of the fire department of the city of Cleveland is tried upon charge preferred before a tribunal provided by law for the hearing of such charges, found guilty and dismissed from the deportment, the circuit court on his petition for an order restoring him to his former position, will not go into the evidence as to the facts concerning the charges and specification, nor will it take any evidence concerning the proceeding before such tribunal.</p> <p>Rules for fire department—</p> <p>(2.) Sec. IS45-5I, R. S., contemplates that general rules for the government of nre department shall be fixed as therein provided, and is not confined to rules for appóintmnt and promotion of members.</p> <p>Same — Validity—</p> <p>(3.) Where rules for the government of a fire department were-promulgated by the mayor and head of the department, the fact that, the mayor joined in such promulgation will not render such rules-invalid under sec. 1545-52, R. S., providing for the control of such-department by the director thereof.</p> <p>Same—</p> <p>(4.) A rule of fire department providing that an officer thereof shall “not sell or assign his salary or incur or contract any debts or liabilities which he is unable or unwilling to pay, or neglect or refuse to honorably discharge and promptly pay all indebtedness “against him etc., is not void as being unreasonable.</p> <p>Same—</p> <p>(5.) A rule of a fire department providing that a member thereof shall, “not be guilty of conduct unbeepming an officer or a gentleman: or of conduct in any maner prejudicial to the good reputation,, order or discipline of the department, is reasonable.</p>

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

<p>Construction of will — Void agreement of beneficiaries—</p> <p>*(1.) Where a will devises to testator’s widow a life estate in his residence and one-third of the net income of his real estate during her life, and the balance, subject to such interest of the wife, to trustees, in trust to pav the rents and income to his children, or their issue, until the death of the last of the children when the property is to_ be ■ deeded in fee to the grandchildren, with power in trustees to improve any piece of real estate and to give a mortgage on any of it to raise money for making such improvement, in’which case the income of the property so improved must first be applied to pay off said mortgage, an agreement between the widow and children that ■ ha business biock should be erected on a certain piece of land, belonging to the estate, on a part of which was the family residence, ' which was to be torn down, and a mortgage given by the trustees . ' for the improvement, the income to be applied partially to the payment of such mortgage, and of the balance remaining, two-thirds to be paid to the widow, cannot'be enforced, as it is directly in conflict, with the provision of the will. •</p> <p>Same — Executed agreement—</p> <p>(■(a.) Where such an agreement has been executed by the trustees, the residence torn down, the improvement made, the mortgage given, the court will so construe the will and the contract made between.1 the parties as to restore them as nearly to their former position as-may be.</p> <p>Same—</p> <p>(3.) In such case the widow will be allowed such proportion of the income of the whole improved tract, as the value of the tract of ground on which was situated the residence, if unimproved, would bear to such whole improved tract, the value of the residence torn down not to be taken into consideration;_as to the balance of theincome_neither the widow nor the children are to share until the mortgage is paid.</p>

<p>Petition for Mandamus.</p>

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

<p>Contraed to furnish horse power — ■ Injunction—</p> <p>i. Under a contract between plaintiffs and-defendants whereby the latter were to furnish the former with a certain amount of horse power, which was- furnished by means of two pulleys, and two belts, an injunction will not be granted to restrain defendants from interfering with plaintiffs in the use of one of such pulleys and belts, if at all, unless it appears that the pulley and belt remaining in service was not furnishing the amount of power contracted for.</p> <p>Same — Injunction not proper remedy—</p> <p>2. "Where under a contract between plaintiffs and defendants for the furnishing to plaintiffs by defendants of a certain amount of horse power, plaintiffs claim that defendants have interfered with certain machinery and destroyed its capacity to furnishi such power and refuse or threaten to refuse to allow plaintiffs to replace or repair it, the remedy of plaintiffs is by an action for damages, and not injunction.</p> <p>Same — Action for damages■ — •</p> <p>3. Such action for damages would not necessitate a multitude of suits, as a single action would be sufficient.</p>

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

<p>Evidence of Partnership — Admissibility—■</p> <p>(i.) In an action against an alleged partnership firm, the defense of certain defendants being that they were not members of such partnership, the evidence of one of such defendants taken in another suit against the same parties, as partner, that there was a partnership existing hiring certain years, covering the time of the transaction sued upon in the case at bar, and that he and the other defendants were inembers of that partnership, is admissible, itsi weight end value being for the jury to determine.</p> <p>Admission of Partnership relations—</p> <p>{2.) The admission of partnership relations involves the admission of facts, as well as law.</p> <p>Partnership — Question of law and fact — ■</p> <p>{3.) Whether or not there is a partnership is a mixed question of law and fact.</p> <p>Proof of partnership from acts — Estoppel—</p> <p>{4.) One seeking to hold parties as partners on the ground that they held themselves out as such, must maintain it on the principle of estoppel.</p> <p>Proof of partnership — What necessary—</p> <p>(.5.) In such case it is not sufficient to show that they held themselves ou; to some one else as partners, or that they dealt in such a way as would cause other people to regard them as partners, but he must show that the alleged partners dealt with him in such a way as to give him the right to suppose they were partners, or that they-dealt with others in that way, and that it came to his knowledge before he dealt with them, that they had been so dealing, and from this he believed them to be partners.</p> <p>Partnership note — Estoppel—</p> <p>(6.) In an action on a partnership note signed by W. as B. C. W. where B. is ignorant of the transaction, he is not estopped to deny that there was such a firm.</p> <p>Oil Lease — Co-tenants not partners— ¡¡</p> <p>(7-) Where C. & W„, partners, owned a one-half interest in certain oil leases in which two other parties each owned a quarter interest, the agreement between the parties being, that in the purchase of four boilers for use on the leased lands, the firm of C. & W. should furnish two, and the other two parties one each, the latter cannot be held as partners of the firm of C & W. for the price of the two boilers purchased under such agreement by such firm. -■</p> <p>Proof of partnership — Admissibility of letters signed in firm name —</p> <p>(8.) Where the issue in a trial was as to whether certain defendants were partners, the admission in evidence of letters signed by one defendant with the names of certain defendants as partners, such signing being without the knowledge or consent of the other defendants, is error, although coupled with caution that they were not to be used as evidence against any other person than the writer, who was in default for answer.</p> <p>Partnership — Proper request to charge—</p> <p>(9.) A request to charge that defendants can only be held on certain partnership notes by proof they were members of the partnership, is proper in the absence of evidence that they held themselves out as partners.</p> <p>Same — Erroneous charge—</p> <p>(10.) In an action to hold defendants as member's of a partnership, there being no evidence that they ever held themselves out as such, it is error to charge that if they did so hold themselves out as partners, and obtained credit in that way, they were liable therefor, although not partners in fact.</p>

<p>Toledo school pension law is law of general nature—</p> <p>!(i.) The act for pensioning of school teachers in school districts in cities of the third grade of the first class (Toledo), 92 O. L., 683, being a law relating to public schools, is a law of a general nature.</p> <p>■Construction of language of such law—</p> <p>((.2.) The language in the first section of such act referring to the salaries of teachers “of city districts of the third grade of the first .class,” should be construed to mean and should read “school districts in cities of the third grade of the first class.”</p> <p> ■ Such act unconstitutional because not of uniform operation— </p> <p>1(3.) Such act at the time of its passage and taking effect being appli-cable only to the city of Toledo and containing a provision in section 2 requiring the board of education under the act to select three members of a pension committee, at its first regular meeting after the act took effect, and the teachers to select three members thereof, within thirty days after the act went into effect, and making no provision in such respect for cities which may thereafter come into this class, must be held to have been passed with reference to Toledo alone, and therefore to violate the constitutional provision that - all laws of a general nature shall have, a uniform operation throughout the state.</p> <p>■ Same — And as violating sec. 2 art. 12, and bill of rights—</p> <p>((4.) Such act in providing that one per cent, of the salaries paid to teachers shall be deducted therefrom and applied to create a school teachers pension fund, also violates sec. 2, art. 12, constitution of . Ohio, providing for a uniform taxation of property, and also the bill of rights, in the taking of the private property from one citizen for the benefit of another without his consent, and against 1 his will.</p> <p>Public school teachers not estopped to attack school laws as invalid—</p> <p>'(5.) One by accepting an appointment as a teacher in the public schools, and being notified in writing that his appointment was subject to the provisions of law and rules of the board which might be enforced relating to the appointment and compensation of teachers, is not thereby estopped from attacking the validity or constitutionality of any statute, as tbe appointment is accepted subject only to the valid and' constitutional laws of the state.</p>

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

The 'plaintiff in error brought an action in the court of common pleas against the defendant in error to recover damage son account of injuries received through the alleged negligence of defendant in error. The case was tried to a jury, which returned a verdict in favor of the defendant. A motion for a new trial was overruled and judgment was entered on the verdict.

<p>Negligence— Freight car brakes—</p> <p>(i.) It is not negligence in a railroad company to permit a freight car belonging to another company' to be attached to its freight train and carried over its road and Operated by its employes on which car was a brake, the eye-bolt of the brake being slightly larger and longer than generally used, the brake being in other respects perfect.</p> <p>Same—</p> <p>(2). The fact that a brake chain is a little longer than absolutely necessary is not evidence of negligence in a railroad company in using such chain, the evidence being that all brake chains are liable to wind upon themselves.</p> <p>Same — Injury not necessarily result of defect—</p> <p>(3.) In order to recover in an action by a railroad employe against the company for injuries occasioned by the company’s negligence, in using defective machinery, plaintiff must prove that the injury was caused by the defect complained of, -as, if the injury might have as probably been caused in some other way, no recovery can be had.</p>

<p>Railroad Engineer and brakeman on same train in same department—</p> <p>An engineer and a brakeman being upon the same train in the promotion of a single object, such as tihe moving of the train, and associated together in such a way in that enterprise that they would , . naturally be care ful of the .trainand therefore careful of one another, are in a single department, and not in separate departments, within the meaning of Sec. 3365-22, R. S., (87 O. L., 149) providing that every person in the employ of a railroad company “having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department” * * *.</p> <p>Same — Are fellow servants—</p> <p>(2.) Such engineer and brakeman are fellow servants in the same department.</p> <p>Defective Brake — Presumption of negligence—</p> <p>(3.) Although a defect m the machinery or attachments of a railroad car or locomotive consists in a gumming up cf a brake, the railroad company will be presumed to have been negligent in using it, and to have had knowledge of its condition.</p> <p>Same — Burden of Proof—</p> <p>(4.) In such case the burden is upon the railroad company to remove such presumption.</p> <p>Duty of railroad companies to adopt proper miles—</p> <p>(5.) Railroad companies are bound to adopt such rules as a person of ordinary care would discover and must know would be necessary for the safely of employes, even though it might have been some new thing, as some new employment or some new condition, with respect to which railroads an railroad men had no experience.</p> <p>Same — Negligence in failure to adopt, question for jury—</p> <p>(6.) It is a question for the jury to decide as to whether it is negligence in a railroad company in failing to adopt a rule requiring the engineer of a freight train to warn trainmen of his purpose to apply steam brakes, before applying them.</p> <p>Failure to adopt rules — Effect of on liability to employe—</p> <p>(7.) A railroad employe does not assume the risk of danger occassioned' by the neglect of the railroad company to adopt a proper rule for ■ governing the actions of its employes, unless he knew of the dangers arising from the failure to’adopt such rule.</p> <p>Same—</p> <p>(8.) A railroad employe proceeding in his usual employment, and not in pursuance of any particular order to do a particular thing, assumes-the risk of danger occasioned by the neglect of the railroad company to adopt a proper rule governing the actions of its employes, if he knew of the absence of the rule, and the danger arising from its absence.</p> <p>Pleading — Unnecessary to plead want of knowledge of absence of rule,</p> <p>(9.) It is not necessary for a railroad employe, in an action against the company for personal injuries, occasioned by the absence of a proper rule, governing the actions of its engineers, in the giving of a warn- , ing to trainmen before applying steam brakes, to aver that he had no knowledge of the -absence of the rule. • .</p>

<p>Writing acknowledging settlement not a mere receipt — Pariol Evidence inadmissible to vary—</p> <p>An instrument in writing containing these terms: “Received of the Superior Mining Company thirty-five -•hunderd dollars, being the amount in full for all royalties or amounts due, or to*become due, from said Mining Company under the lease or contract made between Henry Seeman and J. S. Seiberling,‘dated April 13, 1887,” is ¡an instrument acknowledging the receipt of money and also a -contract to the effect that parties have come to a settlement of all matters of account then existing between them, and have agreed upon the balance due or to become due from one to the other under said lease. Parol -evidence tending to prove that certain matters 'of account, then existing under said lease, were not included in such settlement would contradict the writing in this respect, and is not admissible.</p> <p>Petition in .Error dismissed in the Supreme Court, for want of jurisdiction, May 11, 190T, 45 W. L. B., 342. “This case having been erroneously dismissed by the Court, is by the Court on its own motion hereby reinstated upon the docket.” May 14, 1901.</p>

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

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

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

<p>Criminal law — View by jury — Defendant may waive attendance—</p> <p>(1.) Under sec. 7283, R. S., providing for view by the jury of the premises in a criminal trial, tihe defendant may waive his privilege . to accompany the jury, and it is not error'to permit the jury to view the premises, in the absence of defeñdant, if he waives such right.</p> <p>Same — Acts amounting to waiver—</p> <p>(2.) When the defendant in a criminal trial through his counsel, makes-a motion that the jury view the premises where the alleged crime occurred, which motion is granted, ‘defendant himself participating in the discussion between counsel and the court in regard to the view, giving the number of his house, hearing the court instruct the jury as to what they would do and not do upon the view, and-made no objection, nor asked to accompany them, and upon the return of the jury, his counsel in open court expressed himself as satisfied with the view, the defendant must be held to have waived his right to accompany the jury upon such view, if he had a strict legal right to so accompany them.</p> <p>Refusal to give definition of manslaughter in charge when not error—</p> <p>(3.) Where in the trial of an indictment for murder, the defense being insanity, the court before the argument to the jury, gave several instructions, at defendant's request, upon the questions of reasonable doubt of insanity, and a definition in the language of the statute defining the crime of murder in the first degree, in the second .degree, and manslaughter, and again in his general charge defined these cripes, it is not error to refuse a further request of defendant defining manslaughter made after argument, such request being a-correct abstract proposition of law, but being inapplicable to the defense of insanity or to the facts of the case.</p> <p>Misconduct of jury not prejudicial no ground to reverse verdict—</p> <p>(4.) A verdict of guilty in a criminal case will not be reversed for misconduct in a juror, while the jury were viewing the premises, in asking a question of a woman in regard to the premises, it not appearing that any answer was made, or that anything was done or said upon the view that could prejudice defendant.</p> <p>What acts of sheriff and jury not misconduct—</p> <p>(5-) Where the court in a criminal case, instructed the sheriff to furnish food to the jury upon their retirement, it is not misconduct of the sheriff, just before the jury retired fer sleep to ask them if they wished for anything to eat, or for the jury to tell the sheriff what they wanted, nothing being furnished but coffee and doughnuts.</p>

<p> Jurisdiction of Common, Pleas in action lo quiet title against trustee-in bankruptcy. </p> <p>The jurisdiction of a state court to declare a trust in and to quiet title to real estate, at the suit of a person in possession against a bank-- • rupt and his trustee in bankruptcy, is not divested by the Bankrupt Act of 1898.</p>

<p>'Trial after recovery of Prisoner once adjudged insane — What necessary — Sec. 7243, R. S.</p> <p>'Where is appears in the record of a criminal proceeding that the accused has been regularly found by a jury to be “not sane,” before such accused can be put on trial under the indictment, the record should be made to show by an 'entry by the court that the steps provided for by R. S., 7243, have been duly taken, and that the condition of the accused has changed from that of one not sane to that of a sane person.</p>

<p>Beneficiary Society Certificate — Acquiescence m illegal expulsion—</p> <p>1. The beneficiary in a benefit certificate of a mutual fraternal so-■1 ciety is not entitled to recover thereon, where the member to whom it had been issued had three years before his death been illegally expelled from membership therein, but who during such three years had not objected to such expulsion, applied for reinst .tement, appealed therefrom as provided in the by-laws, or paid or tendered ,any dues or assessments accruing after the attempted expulsion.</p> <p>Same—</p> <p>2. In such case three years is more than a reasonable time for the member to determine what he wished to do, or .intended to do with regard to his viod expulsion, and his neglect to do anything for that time, avoids the certificate.</p> <p>Reasonable time — When question of law—</p> <p>3. In such case, where such a length of time has elapsed that all reasonable men would agree that it was a reasonable length of time, the question then becomes a matter of law for determination by the court.</p>

<p>Collection of delinquent taxes—</p> <p>(j.) Under sec. 2781, R. S., providing that delinquent taxes entered upon the duplicate by the auditor shall be collected by the treasurer “the same as other taxes” it is competent and proper and it is the duty of the treasurer to institute an action for the collection of such taxes under sec. 2859, R. S., promptly upon the taxes being entered upon the duplicate.</p> <p>General verdict — When sustained— -</p> <p>(2.) A general verdict is to be sustained unless it is clearly inconsistent with any theory provable under the issues, that the evidence may tend to support.</p> <p>Collection of delinquent taxes — Penalty—</p> <p>(3.) The treasurer is entitled to collect 5 per cent, penalty on delinquent taxes entered on the duplicate by the auditor, under sec. 1094, R- S.</p> <p>Return for taxation by manufacturing company—</p> <p>(4.) A manufacturing company must return for taxation, materials for bridge structures, which it was erecting throughout the state, and which materials were partly put in form in another state, and then caused to be taken to the points where such bridge structures were being erected, and completed, and then and there placed into the structure, although such materials were never brought to the company’s factory.</p> <p>Suit to collect delinquent taxes—</p> <p>(5.) Where a county auditor proceeding under sec. 2742, R. S., finds omitted taxes of the current year, these may be entered upon the tax duplicate, and he may for the collection of such taxes, institute an action under sec. 2859, R. S.</p> <p>Same — Scope of such suit — Back taxes—</p> <p>(6.) In such case the county treasurer is entitled to have the suit go forward to recover all the omitted taxes of the current year, but no more, unless there was falsity in the returns, in which case, the suit can be brought for the omitted taxes for back years.</p> <p>Same — Sec. 2781, R. S., inapplicable to taxes before its passage—</p> <p>(7,) Sec. 2781a, R. S., passed March 22, 1890, providing that even in the case of taxes omitted by mistake or innocently, the auditor is authorized to go back five years, does not apply to events occurring bclore its passage.</p>

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

The petition alleged the sale of a piano by the Plocket Bros. Puntenney Company (to whose rights the plaintiff had succeeded) to the defendant for $400, of which a little over $50 was paid in cash and in an organ on the day of sale, and the balance agreed to be paid in installments for which notes were given secured by chattel mortgage on the piano sold.

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

<p>Order of probate court removing trustee under will not reviewable ■cm error—</p> <p>i. Section 6334, R. S, vests the probate court with complete and exclusive jurisdiction to remove a trustee appointed by it under a will, and an order of such court removing such trustee is not subject to review on petition in error. .</p> <p>Order of probate court in excess of jurisdiction a nullity—</p> <p>■ 2. An order of the probate court requiring a trustee named in a will to transfer property in another state to his co-trustee, if made in excess of the courts jurisdiction, is- a nullity, and non. prejudicial.</p>

<p>Dower — Conveyance by husband of equity in real estate without consideration and without knowledge or consent of wife — Is a fÁiud on her marital rights—</p> <p>(1.) Where a husband, voluntarily and without consideration, disposes of his interest in real estate, though it be only an equity therein, during coverture, without the knowledge or consent of his wife, it is a fraud on her marital rights, and she, at his death, is entitled to dower in such property.</p> <p>Bona fide purchaser without notice — -Right of—</p> <p>(2.) A bona fide purchaser of such property at judicial sale, without any knowledge or notice of this equitable claim of dower by the widow, would hold it free from such claim of dower.</p> <p>Purchaser of rea-l estate with notice sufficient to put on inquiry of 'claim of dower against same — Aot a bona fide purchaser—</p> <p>(3.) But where the purchaser of real estate at judicial sale had actual knowledge or notice that the widow claimed that she was entitled to the rights of a widow in said property, though the children of her deceased husband claimed she was not so entitled, and the purchaser, with such knowledge of such claim, decides that said widow has no claim, he decides at his peril; and if sufficient information comes to him to put him on inquiry, he cannot rely upon his rights as a bona fide purchaser for value.</p> <p>Rents and profits of real estate subject to dower—</p> <p>(4.) Persons having dower interests in real estate are only entitled to share in rents and profits from the date of filing of petition for assignment of dower.</p> <p>Share in rents cmd profits from date of filidg petition for—</p> <p>(5.) A widow, being entitled to dower in real estate, is only entitled to share in the rents and profits arising therefrom, from the date of filing of her petition for assignment of dower; and the commissioners in assigning dower shall ascertain the rental value of the property from that time.</p>

- The defendant was charged with the violation of an ordinance of the village, and on trial before the mayor, on July 3, 1900, found guilty; thereupon he filed a motion for a new trial on the ground that the finding was not sustained by sufficient evidence and was against the weight of the evidence, which motion was, on the same day, overruled, and upon request of the defendant the mayor then allowed until July 12th for the preparation and presentation for allowance of a…

<p>Divorce to husband for aggression of wife — Custody of Children in Wife — Necessaries for children — Wife cannot recover against husband for maintenance of children—</p> <p>Where a husband obtained a divorce a vinculo from his wife on account of her aggression, but the 'court by its decree assigned the custody of their minor children to the wife without an order respecting their maintenance, and while in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for such necessaries in the absence of proof of an express agreement by him to pay for such- necessaries, or of a request that they should be furnished to the children.</p>

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

<p>■Publication of Commissioners’ Report — Items in detail—</p> <p>(1.) Section 917, R. S., as amended 1900, (94 O. L„ 400),_ requiring county commissioners to make out an itemized and detailed report of their financial transactions showing to whom and for what purpose each item is paid, is not sufficiently complied with where the report sets out amounts in gross, without setting out what sums were paid for, or to whom they were paid as, for instance payments made to certain boards in gross and without specifying the names of parties to whom paid, or the items relating to expenses in connection with the operation of a court, without giving the amounts paid to each juror, witness, etc.</p> <p>Mandamus lies in behalf of publishers—</p> <p>(2.) Mandamus will lie to compel county commissioners to make the necessary itemized and detailed report of their financial transactions of the preceding year as required by section 917, R S., as amended 94 O. L., 400, on the application of publishers of newspapers having the necessary circulation to entitle them to such public cation, and as taxpayers. It need not be by a'public officer. The publishers of newspapers, have an individual interest, independent of the public, viz., the right to publish the report, and the benefits derived from the increase of the report in that it increases^ their fees for publication, upon which they are entitled to maintain the action.</p>

<p>Relation of Master and Servant — Amalgamated Association Rules—</p> <p>(1.) Where a rolling mill company employs a boss roller under the rules and regulations of the amalgamated association, the boss roller to employ his own assistant roller, roughers and heaters; the compensation to be an agreed price per ton for labor performed divided among the boss roller and his assistants, a certain percentage to each as provided by the rules of such association; the work to be continuous and the output of the mill to be un ’er the direction of the general superintendent and to his satisfaction; the rela' tion between the company and the employee is that of master and servant, and not that of contractor and contractee.</p> <p>Same — When servant can recover for injuries—</p> <p>(2.) In such case when a rougher is injured through the negligence of the assistant roller who is the superior of the rougher, and without fault upon the part of the rougher, the company is liable.</p>

<p>Repeal by implication—</p> <p>(1.) The general rule of construction is, that where a later act cover? the whole subject of an earlier act, and is plainly intended as a substitute for the former, the former act is. impliedly repealed.</p> <p>Does not apply where there is repealing clause—</p> <p>(2.) But this canon of construction does not apply where the revisory statute contains a repealing clause, limiting its operation upon tbe previous act.</p> <p>Section 8 of 86 O. L., 264, not repealed—</p> <p>(3.) Section 8 of the salary law of Cuyahoga county, passed in 1889, 86 O. L„ 264, was therefore not repealed by the revisory act of 1896, 92 O. L., but remains in force as a constituent part of the-salary law of said county.</p> <p>Local statutes — Constitutional law—</p> <p>(4.) Where an act, local in its nature and its operation contains one- ■ . section whose provisions, considered separately from the context, are “'of a general nature.” such section does not contravene sec. 26, art. 2, of the constitution.</p>

, The plaintiff in error was convicted under an indictment that Charged that he did receive and conceal certain stolen property. The evidence disclosed that the property was stolen by others, among whom was his brother, and deposited in a house owned and occupied by their parents, where the brothers had their homes. That the sheriff went to this house in search of the thieves and these goods, and found the brothers and others there.

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

<p>Six years statute runs against insurance—</p> <p>:(i.) Section 4981, R. S., providing a six years’ limitation, runs against an assessment for losses sustained by an insurance company, and begins to run at the time demand is made.</p> <p>Running of statute not interrupted, when—</p> <p>• '(2.) An order by the supreme court fixing the classes of policy holders and the assessment against each class, “subject to any defense which any individual member may have to show that he is not liable,” is available in an action by the receiver, and the running of the statute of limitations is not interrupted by the action of the supreme court.</p>

<p>Duly of railzvay as to moving sidetracked cars—</p> <p>(1.) Notwithstanding the absence of statutory regulations or requirements, a railroad company is required to exercise care proportionate to the dangers at a place where employes, in the discharge of their duties, are required 'to- cross the railw.ay tracks. Thus it is the duty of a railway company operating a side-track where cars . are stored, and where employes are frequently obliged to cross between the cars, to givé warning of a purpose to move such' cars.</p> <p>Rule as to passengers not applicable to employes—</p> <p>(2.) The rule .of law.' which excuses passengers from the obligation to observe strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not anply to employes whose duties may require them to cross the tracks in the yards or at the denrits of the railway company. Wabash Railroad v. Skiles, 64 Ohio St., 458, .(45 W. L. B., 386), followed.</p> <p>-Duty'of employe in crossing track—</p> <p>(3.) Where the servant is not engaged at work "upon the track in such a way as to have his attention drawn from trains coming or going, but simply passing over the track, he is obliged to exercise - as high a degree of care 'with, respect to looking and listening as any other person lawfully or of right passing^ over the track. Wabash Railroad Co. v. Skiles, supra, followed.</p> <p>Contributory negligence defeating recovery—</p> <p>(4.) A railroad employe engaged in operating a stationary engine and dynamo situated on opposite sides of a sidetrack, running through a cut, and where cars are stored, is-within the rules above stated, and in attempting to cross the railroad track without looking or listening for the approach of an engine, is guiltv of contributory negligence which will defeat his recovery notwithstanding the negligence of.the railroad company in failing to sound bell or . whistle. .</p> <p>When once looking and listening zvill not excuse—</p> <p>(5.) The fact that such employe once looked and listened before attempting to cross the track will not excuse him if, before crossing, . he allowed sufficient time to elapse for an engine to come into' position where it would render it dangerous for him to cross, and he then attempted to cross without looking or listening.</p> <p>Contributory negligence — Burden of proving excuse■—</p> <p>(6.) Where the circumstances disclose contributory negligence, the matter of excuse must be shown by the person injured and the rule is not different where the person is deceased; then it must be shown by the person seeking recovery for the death..</p> <p>Evidence of custom of signals competent—</p> <p>(7.) Evidence that it is the custom of a railway company to give warning of the approach of trains or engines at a point where employes were obliged to cross in attending to their duties, is competent to rebut a possible inference of contributory negligence; . such custom might come to have the force of a rule of the company requiring such warning; and an employe relying thereon might be excused from looking or listening; under such ircumstances it would not lie in the mouth of the company to say that an employe must be vigilant and suspicious, and watch out all the time for a violation of duty upon the part of the company or some employe of the company.</p> <p>Rule as to testimony admitted—</p> <p>(8.) Testimony admissible for any purpose should be allowed to go-to the jury under proper instructions and it is’ not good ground for refusing to receive it that it was admissible as proof on the substantive ground of relief sought.</p> <p>Evidence ruled out and issues not submitted—</p> <p>(9.) There is no authority upon which a reviewing court can consider evidence which had been ruled out, or determine results upon issues which might have been in the case but which were not submitted to the jury.</p>

<p>On appeal from the Court of Common Pleas of Athens county.</p>

<p>Husband and Wife — •Wife's right to maintenance—</p> <p>(l.) By the common law as well as by express statute a wife has the right as against her husband to support and maintenance. She is as to that extent his creditor, and can enforce such right against his property unless the rights of others have interfered to exclude her.</p> <p>Mortgage given to defraud wife of alimony invalid — ■</p> <p>(2.) Where a husband contemplating to abandon his wife executes a mortgage covering all his property, to secure a pretended indebtedness, but in fact without consideration and for the purpose of defeating any judgment for alimony she might recover in a suit for divorce and alimony which she might subsequently institute on the ground of his abandonment of her, such mortgage is a fraud on her rights, and the rights of no innocent parties intervening, it will be set aside against her claim for alimony, although the husband by false representations had induced his wife to join 'him in-the execution of such mortgage.</p> <p>Same—</p> <p>(3.) Where in such case the mortgage was executed by the husband to his brother-in-law, the consideration being a pretended indebtedness to his father to whom the mortgage was then assigned, who however did not know of nor request the execution of such . mortgage, held that the son was acting in the transaction as the' agent of his father, and whether the father’s claim was valid or not, he was bound by the fraud thus committed by his son on the rights, of his wife whether he had knowledge of his son’s intentions or not, and the mortgage in the father’s hands will be set aside as-against the rights of his son’s wife for alimony.</p> <p>Mortgages executed by husband before marriage, and four years before separation from wife, held valid—</p> <p>(4-) Under the circumstances of this case-, mortgages executed by the husband on part of his property, to his father, before his marriage, and four years before the separation from his wife took place, will' not be set aside as far as the wife’s right to alimony is concerned, although these mortgages were executed voluntarilv without request therefor from his father and although it seems probable that in executing them he was looking forward to a time when he-might be expected to respond in alimony to his intended wife.</p> <p>Deed fraudulently obtained from wife set aside—</p> <p>(5:) A husband conveyed to his wife the homestead property which thereafter was always treated and spoken of by him as her property, but four years later, and a week before he separated from his wife, he filed for record a quit-claim deed by his .vile to himself for the same property, claiming that the quit-claim deed was executed by her simultaneously with his deed to her for the property, but she denied the execution of such quit-claim deed and knew nothing of it; held, that she never having knowingly signed and executed such deed, it will be set aside and cancelled.</p>

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

<p>Operator continuing to work defective machinery — Promise to repair — Duty as to care—</p> <p>(1.) A promise on the part of the employer to repair a machine known by the employer and employe to be defective, will not relieve the employe from exercising ordinary care in the operation of that machine, and he is required to exercise such care as is commensurate with the danger of operating the machine.</p> <p>Working in dangerous place by order—</p> <p>(2.) Where an employe in obedience to orders goes into a place that may be palpably dangerous, if he does this in obedience to orders, it may be a question for a jury to determine whether in doing so he exercised ordinary care.</p> <p>Contributory negligence of operator in operating defective machine—</p> <p>(3.) Plaintiff, an adult person, acquainted with machinery, who on the promise of the employer to repair, continued to operate a stamping machine which was out of order, and while attempting to take out a sheet of stamped tin with his fingers, had his fingers crushed by the shaft coming down without his foot being on the treadle. It was perfectly plain from the evidence and an inspection of the machine that the tin after being stamped could be shoved out with the piece of tin that the operator was about to put in, and that the operator must have known the danger of having his fingers crushed in attempting to take out the stamped tin with his fingers in the defective condition the machine was in. Held, that plaintiff was guilty of contributory negligence in operating the machine, and can not recover.</p>

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

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

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

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

<p>On motion to dismiss petition in error.</p>

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

<p>Review on weight of evidence — Court not triers of facts—</p> <p>(1.) Where a case is taken on error to a reviewing court on the ground that the verdict is not sustained by sufficient evidence and is against the weight of the evidence, the reviewing court are not triers of the facts, but to determine as a matter of law, whether the verdict is sustained by sufficient evidence.</p> <p>Error as to charge of court not excepted to — Charge not to be considered for mere technical error—</p> <p>(2.) Where the charge of the court is not excepted to either generally or especially, at the time it is given, by either side, unless the charge is of such a character that a party was deprived of a fair trial, the case can not be reversed on account of any technical 'error that might exist in it.</p> <p>Street car stopping at railroad crossing — Not required to look for perdón getting on before starting—</p> <p>(2.) Where a street car is stopped at a railroad crossing within the-proper distance, to allow the conductor to go ahead and look out for approaching trains as the statute, section 3443-6, R. S., requires, it not being otherwise a regular stopping -place for taking on or discharging passengers, the conductor and motorman of the street car are not required as a matter of law to look before the car is started again to see whether any one was getting on, or about to get on the car.</p> <p>Person petting on car stopped at Railroad crossing — Negligence—</p> <p>(4.) Where in such case the car has stopped and the conductor goes, forward to the railroad track, and ascertains that the track is clear, and signals the motorman to come on, it is not negligence on t-he part of the employes of the Street R. R. Co. thereupon to start the car without first ascertaining whether any one is about to get on the car; and a person, who taking advantage of the stopping of the car is in the act of getting on without giving notice of his intention of doing so, and is thrown off by the sudden j erk which is usual in starting an electric car, and dragged and injured, can not have a verdict against 'him, set aside, on the .ground that the facts make the company guilty of negligence. Whether the company was-•negligent,or not was a proper question to submit to the jury, and their finding for the company will not be disturbed.</p>

The plaintiff submitted a bid to the defendants of $2.75 per thousand for the printing of election tickets for the November election of 1901, and sued to enjoin the award of the contract to S. Rosenthal & Co. at their bid of $4.40 per thousi- and.

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

<p>Evidence• — Contradicting own witness—</p> <p>(1.) In an action by a guardian to recover the value of notes ob-’ tained by defendant from a former guardian, where the latter proves an unwilling witness for plaintiff, and states in his examination in chief that he gave the notes to defendant as collateral security for money that he personally owed him, and on his cross-examination testified that he sold the notes as guardian to defendant, it is competent for plaintiff on re-examination of witness to prove by him that he had made contradictory statements before the trial.</p> <p>Same — Questioning truthfulness—</p> <p>(2.) In such case, it is competent for plaintiff to ask such witness on re-examination questions tending to show that his testimony on cross-examination, of having sold the notes as guardian to- defendant, was not true, and a paper signed by witness tending to prove this, is admissible.</p> <p>Purpose of such examinations—</p> <p>(3.) Such examinations afford valuable aid in judicial investgations and is competent for the purpose of proving the conscience of a witness, refreshing his recollection and giving him an opportunity of correcting his testimony and explaining 'his apparent inconsistency. And in case at bar the evidence is admissible as substantive evidence of facts in issue.</p>

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

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

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

<p>Receivership — Action to compel appropriation—</p> <p>(i.) Where a railroad company is in the -‘hands of receivers appointed' by the court in another state, not for the benefit o.f creditors, nor because the company is insolvent, but for some reason of which this court is not aware, presumably some scheme relating to reorganization, the title and estate of the railroad being in the company, the company, not the receivers, is the proper party in an action to compel appropriation of lands to which the company has no-title and upon which its road has been constructed.</p> <p>Purpose of sec. 6416, Rev. Stat.—</p> <p>(2.) The object and purpose of sec. 6416, Rev. Stat., relating to the-filing of a petition lor appropriation of land by a railroad company-in the probate court, and requiring a description of the lands sought to be appropriated and the use to which they are sought to-be applied, evidently, is to compel the railroad to -appropriate such an amount of land as the court shall determine necessary forks purposes, but such rule cannot have much force in a case where a railroad company has taken possession of land and operated its-road upon it for several years, and both parties seem to be' content, so far as the ..mount of land taken is concerned.</p> <p>Jurisdictional averments under sec. 6448, Rev. Stat. — ■</p> <p>(3.) Inasmuch as sec. 6448, Rev. Stat., requires a petitioner in a proceeding to compel a corporation to, appropriate property in its possession, to which it has no rip-hf-, legal or equitable, to allege in his petition that the land has been occupied by parties having no legal or equitable title thereto, that notice has been, duly served, and the-time of limitation under the notice has elapsed, such statements-are jurisdictional. The inference of the whole statute is that possession gives no equitable right nor any legal title to the lands.</p> <p>Date of compensation for lands unlawfully taken—</p> <p>(4.) A railway company, by taking possession of and constructing its road across -tlhe lands of another without appropriating the-same, or entering into any written agreement therefor, acquires no-legal or equitable title thereto under sec. 6448, Rev. Stat., authorizing proceedings to compel the appropriation of property so held. The railroad company, in such case, is a trespasser, and, notwithstanding it has held certain lands for fifteen years, the value of the-land at the time proceedings were brought, not at the date when it was taken, should govern- in estimating damages for its unlawful' appropriation.</p> <p>Property owner’s acts — Estoppel—</p> <p>(5.) A railroad company having taken possession of lands-of another without appropriation or written contract, the owner does not lose the remedy afforded him by sec. 6448, Rev. Stat., relative to requiring appropriation, by standing by and seeing a road constructed and operated on his lands unless he stands by in such manner as to-lead the road to believe that it may have the right of way without.: paying for it and assents to their going on the land.</p> <p>Unrecorded mop admissible as evidence — ■</p> <p>(6.) An unrecorded map of lands through which a railroad passes,, showing the location of the railroad and availability thereof for division into lots, is admissible in an action to compel appropriation, for the purpose of showing in what manner it might be divided and wihat may be done as to divisions.</p> <p>Depositions — Discretion of trial court—</p> <p>(7.) It is within the discretion of -the court to refuse to grant a motion to continue the hearing of a proceeding to appropriate land a. sufficient time to give the railroad company an opportunity to take-the deposition of the land owner, who is not present at the trial and is without the county.</p>

<p>Affidavit for attachment — Sufficient facts as to claim—</p> <p>{1.) An affidavit for attachment, Which states that plaintiff has commenced an action in the common pleas to recover $5,015, to become due and payable at stated times, upon two certain’ promissory notes, one of which is for $4,000, due in ninety days, and without interest until after maturity, and the other, the principal sum of which is not stated, due in ninety days with interest from date, sufficiently shows that the latter is for $1,000 principal and fifteen dollars interest; such an affidavit shows with substantial accuracy and clearness the facts, as to amount of claim, then due, etc. require! by sec. 5565, Rev. Stat. relating to attachments.</p> <p>Same — Affidavit insufficient—</p> <p>(2.) An affidavit for attachment which simply states that “said claim is just and affiant .believes.that plaintiff ought to recover thereon the sum of five thousand dollars,” without in any way stating when the claim will become due, is not sufficient to authorize attachment under sec. 5565, Rev. Stat.</p> <p>Judge cannot review his exercise of discretion—</p> <p>(3.) The exercise of discretionary power by a judge in allowing a writ of attachment, that is, whether he will allow or refuse the writ upon the facts and circumstances detailed in the affidavit as justifying a belief of the existence of fraud, cannot be reviewed in that court. Gans v. Thompson, 11 Ohio St. 597, construed.</p> <p>■■Cognovit notes must be strictly construed — Rule applied—</p> <p>(4.) Cognovit notes should be very strictly construed and under the warrant of attorney to confess judgment, a judgment can be rendered only against the persons designated. Thus, on such a note signed “Wickham & Co., H. C. Post, Geo. E. St. John,” ’a judgment against individuals composing the firm of Wickham & Co.on the strength of allegations in- a petition, is unauthorized; and the same is true of a judgment against “Halsey C. Post.” A judgment against “George E. St. John,” under the note in question, ■signed “Geo. E. St. John,” is not invalid, but a judgment in favor of “The Farmers’ National Bank of Mansfield, .Ohio,” on a'cognovit note running to “The Farmers’ National Bank” is irregular and void.</p>

<p>Contract — Agreement to pay sum in addition to interest — ■</p> <p>Where an officer of a bank entered into a contract with a merchant by which the latter was to purchase a stock of goods against which the bank and the merchant both had claims which they desired to secure, and providing that the officer should procure a loan from his bank for the merchant, in consideration of stipulated interest and payment of the bank’s claim against the goods, the contract should be treated as an independent agreement to pay the bank’s claim and not as one usurious by reason thereof.</p>

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

<p>Malpractice defined—</p> <p>(,i.) Malpractice is the negligent performance by a physician of the duties which are devolved and incumbent upon him on account of • his contractual relations with his patient. -</p> <p>Action for malpractice sound in tort — _</p> <p>(2.) The cause of action for malpractice, fo.r the negligent perform- - anee of the contract, rests on negligence and is, therefore, in tort ■ and not in contract.</p> <p>Is barred in owe year— _ ’</p> <p>(3.) An action for malpractice is within sec. 4983, Rev. Stat. the one ■. year’s statute of limitations.</p> <p>Duty of physicians generally—</p> <p>(4.V A physician is bound to use ordinary care and skill in the prac- , tice of his profession and it is his. duty when he once enters upon the treatment of.a patient to continue the treatment, with the exercise of such ordinary care and skill, until he has been discharged ' -iby the patient or: has himself .withdrawn from sudh service, after,-: having given reasonable notice to the patient in order that another physician may be procured. The character of his services and his relation to his patient'are such that he is not permitted arbitrarily to quit the services without cause or reasonable notice.</p> <p>Duty Of physician and surgeon after operation—</p> <p>(5.) The duty of a physician and surgeon to continue in attendance upon a patient after the performance of a surgical operation until the person is cured of the operation or until his services are no longer required is as incumbent upon him as the duty of exercising ordinary care and skill in the actual performance of the operation, and an action for malpractice does not accrue against ihim until the cure has been effected or until his attendance is no longer necessary.</p> <p>Rule applied — When statute begins to run—</p> <p>(6.) Where a surgeon, after performing _ an operation, negligently closed the incision leaving a “cheese-cloth sponge” inside, and, though called upon frequently to examine the condition of the wound, which was such as would have indicated to a reasonably prudent physician tihe presence of a foreign substance in the wound, permitted the sponge to remain there for a year and a half, during ■which time he was treating the patient and advising her that the wound would “be all right,” and nothing was said as to the termination of the relation of physician and patient until, at tihe end of about one year and a half, the patient charged the physician with malpractice, whereupon he declined to havé anything further to do with the case, the injury to tihe patient and the negligence of the physician were continuous and the statute does not run against an action therefor until the relationship is ended or prior to the time when the physician announced that he would do nothing further.</p>

<p>Mandamus -and injunction.</p>

<p>Pleadings — Consideration of on motion for judgment—</p> <p>(1.) Upon a motion for judgment on the ground that the petition does not aver sufficient facts to entitle plaintiff to recover, the court will consider the -petition as it would consider it if submitted upon general demurrer.</p> <p>Contracts' — Piéáding—Architects’ refusal to furnish certificates—</p> <p>(2.) Where a building contract specifies that “all payments shall be made upon written certificates of the architects to the effect that such payments have become due,” an averment in a petition, in an •action for an unpaid balance on such contract, that the architects of the building at the express direction and request of the owners, have failed, neglected, and refused to furnish plaintiffs with further certificates, is equivalent to an averment that the architects, at the express direction and request of the defendants, and wholly on that account, refused the certificates, and that there was no reason or justification in the facts for such refusal, and is sufficient to entitle plaintiff to recover under the rules laid down in Ashley v. Henahan, 56 Ohio St. 559, especially where no motion was made to make more definite and certain.</p> <p>Order permitting amendment subject to review—</p> <p>(3.) Under sec. 5114, Rev. Sitat., a petition may be amended to conform to the facts as found by the'jury in special findings, after the expiration of the three days, within which a motion for a new trial may be filed, and although no motion for a new trial was made. In making such amendment the court proceeds as if the evidence ■was then before it, precisely as if the evidence were then repeated, and the order is subject to review on error.</p> <p>Presumption as to regularity of order—</p> <p>(4.) The. authority under sec. 5114, Rev. Stat., to allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was . justified by the evidence in permitting the amendment; and if a party, by failing to make a motion for a new trial, is prevented from presenting the question to a reviewing court, it is his misfortune; he should not, if such motion is required, rely entirely on the special findings.</p> <p>General verdict and special findings—</p> <p>(5.) A general verdict should stand unless the special findings are necessarily repugnant to it.</p> <p>Findings not inconsistent with verdict—</p> <p>(6.) In an action on a building contract .providing that payment shall be made upon architects’ certificates in which the petition contains allegations that the architects, without justification, refused to furnish such certificates, a general verdict for the plaintiff is not inconsistent with special findings that the architects refused to furnish the certificates and that the reason for such refusal was “not satisfied with the work,” inasmuch as such findings are not inconsistent with a determination by the jury that the view entertained by the architects was not justified by the facts.</p>

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

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