Volume 3 — Ohio Circuit Decisions

Krror to the Court of Common Pleas of Miami county. Nigh brought his action against Keifer to recover damages for an alleged malicious prosecution upon a charge of unlawfully removing landmarks.

The original action was commenced before a justice of the peace. Fred. Boercher, who was plaintiff below, for his cause of action against the Iucor.porated Village of Tippecanoe, alleges in his petition, as follows: “That said village is a duly organized municipal corporation.

<p>SETTLEMENT OF ESTATES.</p> <p>Administrator cannot Bind Assets by his Conduct.</p> <p>An action at law cannot be maintained against an administrator1, as such, by an attorney upon an account for services rendered such administrator at his request, in and about the settlement of the estate, so as to bind the assets of such estate for the payment thereof.</p>

<p>COSTS IN DIVORCE CASES.</p> <p>Granting Decree cannot be Conditioned on Payment oe Costs.</p> <p>Where decree for divorce is granted the petitioner, she cannot be required to pay the costs as a condition precedent to the entry of the decree in her favor.</p>

<p>ACCOUNT BOOK — EVIDENCE.</p> <p>Party who offers Book in Evidence may be Questioned as to Habits of making Mistakes — may be Impeached by Reputation op his Books.</p> <p>In an action to recover an amount alleged to be due on a book account, the plaintiff offered himself as a witness to prove its correctness; Held: (1st) That it was competent on cross-examination to ask him “ if he had not within the past two years made more than twenty-four mistakes in his account, which he was compelled to rectify.” (2nd) It was also competent for defendant to offer his testimony of customers of the plaintiff, tending to prove that he kept incorrect accounts, and that the reputation of thé plaintiff’s books in the neighborhood among those who dealt with him, was bad,</p>

<p>TAXATION IN HAMILTON COUNTY.</p> <p>1. Commissioners and Board oe Control must Concur in Levy to make it Valid.</p> <p>Under the provisions of the statutes regulating the assessing or levying of taxes for county purposes in Hamilton count)', the concurrence of the board of county commissioners and of the board of control of said county, as to the total percentage to be levied, and the apportionment of the same to the several funds, is necessary. And where the county commissioners under the provisions of sec. 1006, Rev. Stat., have determined the total levy they deem necessary for the current year, and have apportioned it to the several funds, and transmitted the same to the board of control, which has amended the same, it is then to be returned to the county commissioners for their action and concurrence. But if the same be not agreed to by them, but is altered and again sent to the board of control, that body may legally reconsider its .whole action on the subject-matter, and again amend the last proposition of the commissioners, which in like manner is to be returned to the commissioners for their concurrence. And until the same proposition is concurred in by both boards, neither one is authorized to transmit to the county auditor, to be placed upon the duplicate, an assessment or levy of taxes, which, as a whole, has not been agreed to by the other body.</p> <p>2. Approval oe Levy may be Rescinded before Final Concurrence!.</p> <p>Where the action of the commissioners in making a levy is approved in part, by the board of control, and upon report of the same to the commissioners, they concur in the board’s action, except as to certain other deductions, and so notify the board, this is not such a concurrence of the bodies as will prevent a reconsideration of the levy by the board, and a change of the original proposition.</p> <p>3. Special Acts must be Construed with Existing General Laws.</p> <p>Local acts authorizing the commissioners to construct bridges, do not enable them to act independent of the board of control, unless the act so prescribes.</p> <p>4. Million Dollar Limit not to Include Expenses or Balances under Special Acts.</p> <p>Funds arising from special statutes passed since the general law, sec. 1005, Rev. Stat., in which the million dollar limit for the estimated expenses of the county is fixed, which authorize the levy of a road tax in addition to all other taxes, are not to be considered as making a part of such limit, and balahcse from such special funds are not to be included.</p>

<p>TAXATION.</p> <p>1. Reduction oe Time for Error Proceedings Applies to Pending Cases.</p> <p>The present act as to limitation of time for filing a petition in error, applies to judgments recovered since it took effect, although the suit was pending when it was passed.</p> <p>2. Same Limitation as to Cross-Petition as Petition.</p> <p>A cross-petition in error cannot be filed after the six months’ limitation has expired.</p> <p>3. Duplicate is Prima Facie Evidence Although Pleading sets forth Details of-Assessment.</p> <p>In an action by a county treasurer under sec. 2859, Rev. Stat., to recover taxes, be is not prevented from using the tax duplicate as evidence as therein provided, because his petition in addition to the short form of pleading therein authorized, contains a full statement of the steps taken in assessing the tax.</p> <p>4. Domicile of Defendant does not Affect Evidential Change of Duplicate.</p> <p>Although one defense is that the taxpayer is not a resident, the treasurer, plaintiff, may introduce the duplicate as prima facie evidence as provided in said act</p> <p>5. Correction of Omitted Taxes may go on Current Duplicate.</p> <p>A correction under sec. 2781, Rev. Stat., by assessment of personal taxes against a person, omitted, made in March, 1889, is authorized to be placed on the tax duplicate of 1888, then in the hands of the treasurer for collection.</p> <p>6. Treasurer Should be Permitted to Change Entries to Proper Book.</p> <p>Where entries of omitted taxes are improperly made upon the duplicate of each year in. which they were in default, instead of the current year, the technicality of their not. being charged on the proper book, should not be permitted to defeat their collection.</p> <p>7. Act not Invalid Because Part Operates Retrospectively.</p> <p>There is no violation of the constitution in sec. 2781, Rev. Stat, as amended April 14,. 1886, which invalidates a judgment recovered by the treasurer of taxes of the current-year and the penalties thereon. If that part of the act which authorizes going back five years is retroactive, it does not affect the validity of the part of the act which, operates prospectively.</p>

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

<p>LIMITATIONS OF ACTIONS.</p> <p>Evidence that add Purchases Within Six Years were eor Cash, Shows no Recognition oe Former Account.</p> <p>In an action on a book account running for fourteen years, the defendant plead the statute of limitations, and offered to prove that he had paid for each article as received, for more than six years prior to bringing the action; which evidence the trial judge refused to admit: Held, that this was error. Such testimony was proper, as tending to show that neither party recognized the payments as being an admission of liability on the former account.</p>

The petition in this case was filed to recover damages for an assault and bat.ery committed upou plaintiff by the defendant. The answer of the defendant first avers matters in mitigation of damages.

<p>EMINENT DOMAIN.</p> <p>1. Finding that Corporation has no Power to Condemn, no Bar to Quo Warranto, to Test the Right.</p> <p>A company incorporated for the express purpose of constructing a waterworks to supply a municipal corporation and its inhabitants with water in pursuance of a contract with such municipal corporation, as authorized by secs. 2434, 3550, 3551, Rev. Stat., is not invested with the power of eminent domain, and cannot appropriate land for a right-of-way for its pipes; nor is such company invested with such power by implication from the fact that such municipal corporation is invested with such power for the same purpose, and from the necessity of such company to obtain such right-of-way to carry out the object of the incorporation; nor is such company invested with such power under sec. 3878, because it is not a company organized for the purpose of transporting water through tubing and pipes, within the meaning of that section.</p> <p>2. Waterworks Company cannot Appropriate Right of Way for Pipes.</p> <p>A civil action in the name of the state, under the provisions of chapter 3, title IV., Rev. Stat,, is the only method provided by which the right of a corporation to the exercise of the power of eminent domain, may be directly tested; and the state not being a party, a judgment of a probate court, in a proceeding brought by a corporation to appropriate laud for a public use, that such corporation has the legal right to make such appropriation, is not a bar to an action in the name of the state, to determine the right of such corporation to the exercise of the power of eminent domain, although sec. 6420, requires the probate court to determine that question in the affirmative, before an appropriation can be made.</p>

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

<p>REAL ESTATE AGENCY.</p> <p>Commission for Sale not Earned by Finding Lessor with Privilege of Purchase.</p> <p>An agreement to pay a commission to a real estate agent if he should find a purchaser for certain real estate, does not entitle him to recover, when he only finds a person who is willing to take a lease for ten years with the privilege of purchasing.</p>

<p>SETTLEMENT OF ESTATES.</p> <p>1. Administrator Cannot bind Assets by his Note.</p> <p>Where an executor of a will, or the administrator of an estate, executes and delivers to an attorney-at-law a negotiable note, for services rendered to such executor or administrator in the settlement of the estate, no action can be maintained thereon against a subsequent administrator of such estate.</p> <p>2. Mention oe Services and Note in Account Raises no Obligation.</p> <p>Where such executor or administrator, on the resignation of his trust, before said estate is fully administered, files an account in the probate court for settlement, and mentions therein that such services have been rendered, and that he had given his note for the amount thereof, but no credit is claimed therefor, and no finding made by the probate court in relation thereto, in an action brought against a subsequent administrator to recover for such services, by the person rendering the same, these facts will not justify a recovery therefor.</p> <p>3. Must be a Finding oe Probate Court Allowing it.</p> <p>It would seem that if any compensation can be allowed therefor, it must be done primarily by the probate court in which the settlement of said estate is to be made.</p>

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

<p>ADMINISTRATORS — JUDGMENTS—PARTIES PARTNERSHIP.</p> <p>1. Joint Liability becomes Several upon Death of a Partner.</p> <p>B. and M. recovered a judgment against S., and W., as administrator of the estate of C., on a joint liability of S. and C., as partners. B. and M. received certain dividends on this judgment claim from N. who had been appointed as receiver for the insolvent firm of S. and C., and subsequently they presented to W., as administrator of the estate of C., a claim for the allowance of the balance due on the judgment, as a valid claim against said estate', but it was rejected by the administrator, and an action was then brought on such judgment by B. and M. against W., as administrator of C. (S. not being joined as a defendant), to recover the balance due thereon. The estate of C. is insolvent, and the assets thereof are not sufficient to pay his individual creditors, and the assets of the late partnership of S. and C. are not sufficient to pay the firm debts in full. Such judgment had never become dormant. Held:</p> <p>That the judgment against S., and W., as the administrator of the estate of C., under the provisions of sec. 6102, R.ev. Stat., was a several, and not a joint judgment, and S. _was not a necessary party to an action thereon._</p> <p>■„2. Judgment Against Administrator oe a Deceased Partner may be had on a Partnership Judgment for a Firm Debt.</p> <p>An action for a partnership debt may be brought against the administrator alone, on a judgment against one partner and the administrator of another deceased partner, and judgment rendered against the administrator, although second judgment could not change creditor’s right.</p> <p>:3. An Action Dies on a Judgment, though not Dormant.</p> <p>A judgment creditor may bring a new action on his judgment, though it is not dormant, and was rendered by a court of this state.</p> <p>•4. Second Judgment dobs not Disturb Priority of Individuad Creditors in Personae Assets.</p> <p>But if it was founded on a partnership liability of S. and C., the recovery of the second judgment against W., as administrator of the estate of C. alone, would not put the plaintiffs in any better position as to payment from the individual assets of the estate, than that before occupied by them. The rule that the individual assets of an insolvent, a member of an insolvent partnership, should be first applied to the payment of his individual debts, and the partnership assets be first applied to the payment of the partnership creditors, would seem to apply as well after, as before the second judgment.</p> <p>•5. Judgment Against Administrator need not be Presented for Aeeowance, and not Barred in Six Months.</p> <p>Where judgment has been entered against an administrator or upon a claim it is not necessary to present it to the administrator for allowance, and if presented and rejected, a failure to sue upon it for six months will not bar the claim.</p>

<p>in support of the jurisdiction of the court, cited: Burke v. Railway, 45 O. S., 631; sec. 6707 Rev. Stat.; Young v. Gerdes, 42 O. S., 102; Seville v. Wagner, 46 O. S., 52; C., S. & C. R. R. Co. v. Sloan, 31 O. S., 1.</p>

<p>STREET RAILWAYS.</p> <p>1. Statute Forbidding the Use oe Uninsulated Lighting Wires -not Applicable.</p> <p>The Act of March 12, 1886 [83 O. L., 143], does not apply to the use of wires in the streets of a city for conducting electricity to operate street railway cars.</p> <p>2. Council May Grant Right for Electric Railway — Not Void for Misnomer.</p> <p>A city council has the power, by ordinance, to grant, under proper conditions and restrictions, the right to construct and operate an electric street railway in the streets of the city. Such grant is not rendered invalid by reason of the fact that the grantee is designated in such ordinance as a “trustee.”</p> <p>8. Application in the Alternative — Publication Need not be Daily.</p> <p>An application to a city council for leave to construct a street railway may designate a portion of the proposed route in the alternative; and publication of notice of such application on the same day of the week for three consecutive weeks in_a daily news- ' paper published and of general circulation in such city is, under section 2502 Rev. Stat., sufficient in a case where the council proceeding under -such notice, passes an ordinance granting the right, notwithstanding a general ordinance of the city required such notices to be published in two daily papers of the city.</p> <p>4, Grant of Right of Way by City Council.</p> <p>The grant by a city council of the right to construct and operate a street railway is not necessarily invalid by reason of its covering only a part of the route specified in the original application.</p> <p>5. Bid too Late and Without Bond may be Rejected — Informality in Bidder’s Bond not Ground for Injunction in Suit by a Taxpayer.</p> <p>A city council caused notice to be published of an application for leave to construct and operate a street railway. Said notice was dated, and stated that “said application will be for-hearing after three weeks publication of this notice.” No time for the filing of bids for the franchise, or ior the consideration thereof, was otherwisefixed. After the expiration of three weeks from said first publication, and after certain bids had been filed, said council, in good faith, and in order to' assure itself of the sincerity of bidders in making their bids, adopted a resolution limiting the time for filing hids, and providing that each bid must be accompanied by a bond conditioned that the bidder, if his offer be accepted and the contract be awarded him, should accept the grant and construct said railway. Said bidders had knowledge and notice of said resolution in time' to refile their bids and procure and file the required bonds. Held: That the council might properly reject any bid because not filed within the time so limited, or because not accompanied by the required bond. Held, also: That, if the council, acting in good faith, grants the right to construct and operate a street railway to one whom it finds to be the lowest bidder, such grant will not be held invalid at the suit of a taxpayer of the city, and who was not a bidder for said right, simply because the bond accompanying such successful bid did not conform to the requirements of said resolution, and the bond accompanying the bid of another person did so conform.</p> <p>8. Determination of Council as to Lowest Bidder Not to be Interfered With Unless Clearly Erroneous</p> <p>The grant of such right to one whom the council has in good faith found and determined to be the bidder offering to carry passengers over said proposed railway at the lowest rates of fare, will not in such suit, be held invalid on the ground that his bid was not in fact the lowest bid, without clear proof that the council erred in such finding. (Certain bids on street railway fares compared.)</p> <p>7. Only an Abutter can have Injunction for Want of Consents — Taxpayer Cannot.</p> <p>A plaintiff, not an owner of any lots or lands abutting on any street on the route of a proposed street railway in a city, who brings suit under secs. 1777 et seq. Rev. Stat., against the city and those to whom the city has by ordinance granted the right to construct and operate a street railway in such city, to enjoin proceedings under such grant, will not be heard to complain that the owners of a majority of the feet front of such abutting lots and lands have not given their written consent thereto._</p>

<p>INTEREST.</p> <p>National Banks Entitled to Eight Per Cent.</p> <p>National Banks in Ohio are allowed by law to contract for interest on loans at the rate of eight per cent, per annum, and to reserve the same in advance.</p>

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

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

<p>APPEALS — WARRANTY.</p> <p>1. Appeal by a Party Carries up Questions Decided for and Against Him.</p> <p>Where the roadway and franchises of an insolvent railroad company have been sold for the payment of its debts, under the order of the court of common pleas, and a con- . troversy arises in such court between two persons claiming to be creditors of such i corporation as to the validity of the claim of one of them, and as to their priority on distribution of the proceeds of the sale, a judgment and • decree finding the'claim in controversy to be a valid one, and giving it priority over the claim of the other creditor, is the subject of appeal to the circuit court, and the case stands there for trial on both issues raised in the common pleas.</p> <p>2. Contract to Build Bridge Without Interfering with Running of Trains not a-Warranty to do so.</p> <p>Where the receiver of a railroad company, under the order of the court, had contracted with another, for the rebuilding of a bridge on the line of road, according to a specified plan, such work to be done in a skillful and workman-like manner under the supervision of the chief engineer of the railroad company, and so as not to interfere with the running of trains over the road, and such work was done according to the plans, and under the direction and supervision of such engineer and in a skillful and workmanlike manner, and without negligence on the part of the contractor; but such bridge when nearly completed was thrown down by a train passing over the same, whi'ch had probably been derailed before reaching the same, or by some other accident not caused by the fault of the contractor, the latter is not liable for the damages thus caused, and the clause in the contract that the work was to be done in such manner as not to interfere with the running of trains over the road, was not an absolute warranty by the contractor of the safe running of trains over such bridge.</p>

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

<p>EMINENT DOMAIN.</p> <p>1. Statute not Unconstitutional.</p> <p>.The right, under sec. 6448 Rev. Stat. to have damages assessed against a corporation for land which it has taken without compensation, is not unconstitutional as depriving the corporation of property without a trial, for the proceeding does not lie, except where the corporation has no estate in the land.</p> <p>2. Judgment eor Failure to pay Amount Assessed, Notwithstanding Error Proceedings.</p> <p>In a proceeding under sec. 6448, to compel a corporation to appropriate landiipo'n which it has entered, if the corporation fails for sixty days to pay the amount assessed, the court may enjoin it (sec. 6450 Rev. Stat.), from further occupancy, although it has filed a petition in error and given an error bond.</p> <p>3. Injunction does not lie Beeorb Sixty Days Expire.</p> <p>But the court has no jurisdiction to grant such injunction before the sixty days expire, as the corporation has that time in which to pay.</p> <p>4. No Injunction Without Bond.</p> <p>The injunction under sec. 6450 Rev. Stat. issued without an injunction bond is void.</p> <p>5. Averment oe Want oe Title is Jurisdictional.</p> <p>In a proceeding under sec. 6448 Rev. Stat. to compel a corporation to pay for property occupied by it without compensation, the averment that the corporation has no legal title or equitable right in the property is jurisdictional.</p> <p>,6. Must be Found Berore Jury is Impaneled.</p> <p>This jurisdictional fact must be found by the court before a jury is impaneled to assess the damages, otherwise all subsequent orders will be void and no contempt can be based on their disobedience.</p> <p>7, Where Order in Contempt is Invalid Habeas Corpus Lies.</p> <p>Employees of a corporation arrested for contempt for the violation of an order against the corporation, where the court has no jurisdiction to make the order, may be ■released on habeas corpus.</p> <p>8,., Evidence as to Want oe Jurisdiction in Contempt Cases.</p> <p>In a proceeding in habeas corpus evidence may be given to prove the want of jurisdiction in the court to make the order.</p>

<p>Error, to the Court of Common Pleas of Stark county.1</p>

The pertinent facts of this case are as follows: The city of Cincinnati, having determined to improve Lebanon turnpike or Reading road, changed the grade thereof as established under the charter and traveled for many years. Seasongood, as an owner of two abutting lots, filed his claim' for damages under Rev. Stat., sec. 2315, and the city under sec. 2317, filed its application in the court of common pleas for an inquiry and assessment of damages.

<p>Proceeding in error to reverse the judgment of the Court of Common Pleas..</p>

<p>MECHANIC'S LIENS.</p> <p>Payment Due Contractor of Public Work may be Stopped.</p> <p>The provisions of sec. 3193 and post, Rev. Stat., apply to a case where the board of county commissioners have legally contracted with a person for the construction, improvement or repair of any “turnpike, road improvement, or other public improvement.” And any sub-contractor, material man, laborer or mechanic, who has .performed labor or furnished material or machinery for the construction, improvement or repair of such improvement as provided therein, on compliance with the provisions of such sections, may require such board of county commissioners to detain all subsequent payments, due to the contractor, to secure such claim in the manner pointed out in the statute.</p>

This was an action brought by the defendant in error, against the plaintiffs in error, to recover damages for a false imprisonment under an invalid ordinance. ' R. S. Wheeler, one of the plaintiffs in error, answered, alleging , in substance, that at the time of the alleged false imprisonment he was mayor of the village of Arcanum; that he issued a warrant for the arrest of Gavin by virtue of an affidavit filed before him, charging a violation of .an ordinance of the…

<p>CONSTITUTIONAL LAW — OFFICE AND OFFICERS.</p> <p>1. Section 994, Rev. Stat., is Void under Sec 2, Art. X, oe the Constitution.</p> <p>An act for electing a county board of control for a term of five years (sec. 994 Rev.. Stat. as amended in 1886), is void under sec. 2, art. 10 of the constitution, that the term of county officers shall not exceed three years.</p> <p>2. Members oe County Board oe Control cannot Serve eor Three Years.</p> <p>The members so elected cannot serve for three years, for, as the constitution does not fix the term, but its maximum, the whole act is void.</p>

<p>ASSIGNMENT FOR CREDITORS — FRAUDULENT CONVEYANCES.</p> <p>1. Assignment in Contemplation oe Insolvency.</p> <p>A, being insolvent, had executed a chattel mortgage on a stock of goods, and at or about the same time she also executed a deed of assignment in trust for her creditors. The allegations of the petition were that the assignment and the mortgage were made in trust to prefer creditors, and also for the purpose of defrauding creditors, and to hinder and delay creditors; Held, that the facts stated bring the case under sec. 6343 Rev. Stat., and that an appeal is allowable.</p> <p>2. Giving oe Preferential Mortgages, after which an Assignment is made to Mortgagee — Effect.</p> <p>If preferential mortgages are given, and then an assignment for creditors is made, to one of the mortgagees, who endorses an acceptance thereon, but never gives bond or' qualifies as assignee, but takes possession and sells as agent for the mortgagees, he is liable for the proceeds as if he were assignee for creditors.</p> <p>3. Assignee must Hold Proceeds of Property for Eight Months.</p> <p>The assignee for creditors must hold the proceeds of the property without distribution until eight months have expired, and the court’s approval of a prior distribution is without jurisdiction.</p> <p>4. Such Mortgages are Illegal Preferences, when.</p> <p>If a debtor voluntarily executes mortgages to certain creditors who are not asking them, or pressing him, and then assigns for creditors, such mortgages are illegal preferences.</p> <p>5. Preferences may be Declared for General Benefit.</p> <p>If a creditor receive preferences which the law would treat as an assignment, and has disposed of the property, the common pleas court has jurisdiction to entertain a suit by a creditor to have the preferences declared for general benefit.</p> <p>6. Common Pleas Court Cannot Declare the Trust.</p> <p>But the court of common pleas cannot declare the trust. Its judgment must be certified to the probate court for the appointment of a trustee and administration of the trust.</p>

<p>AUTRE FOIS — NUNC PRO TUNC ENTRY.</p> <p>1. Entry that Jury stated they coudd not Agree is Insufficient.</p> <p>An entry in a criminal case that the jury stated they were'unable to agree, whereupon they were discharged by the court, does not sufficiently show that to be the reason of the discharge nor any finding thereof (sec. 7313 Rev. Stat.),'and the prisoner cannot be tried again.</p> <p>2. Question may be Raised on Subsequent Triad — Circuit Court may Raise the Question Sua Sponte.</p> <p>That the defendant can avail himself, of such action of the court in a proceeding brought to reverse the judgment rendered against him on a subsequent trial on said indictment, though prior thereto he had not filed a plea in bar, under sec. 7258, Rev. Stat., setting up such former acquittal. This was not essential, as all of the facts as to this appeared upon the record. The circuit court, in reviewing the conviction can raise this question sua sponte.</p> <p>3. Proper Entry may be made Nunc Pro Tunc — May be Reversed.</p> <p>If in fact such discharge of the jury was on sufficient ground,'and was the result of consideration by the court, but by accident or inadvertance, the order of the court discharging the jury was not properly entered upon the journal, a proper entry may be made, nunc pro tunc, at a subsequent term of the court, on proof of the facts,-or on the ' personal knowledge of the court. But in this case the evidence, on which an entry of ' this kind has been made, has all been brought into the bill of exceptions taken on the hearing of such matter, during the pendency of this proceeding in error, and being wholly insufficient to justify such entry, it, as well as the judgment on the verdict, _should be reversed.______</p>

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

<p>DISSOLUTION OF CORPORATION.</p> <p>1. No Receiver to be Appointed after Order of Dissolution.</p> <p>Upon application being made to the court of common pleas under section 5651 of the Revised Statutes of Ohio, for the purpose of dissolving a corporation, the court has no authority in law to appoint a receiver for the corporation until after the order has been made dissolving the corporation. Section 5587 of the Revised Statutes of Ohio, providing when and how a receiver may be appointed, does not apply to such a proceeding.</p> <p>2. Appointment Immediately after Application is Illegal.</p> <p>An order of a judge of the court of common pleas, upon such application being filed, immediately appointing a receiver is a nullity, and the corporation approving or ratifying such proceeding will sustain an allegation in an affidavit for attachment against the corporation. “That the corporation has disposed of its property with the intent to defraud its creditors.”</p>

Frances Millett brought suit in the court of common pleas against Valentine Arbaugh,.

<p>Error, to the Court of Common Pleas of Shelby county.</p> <p>Royon, guardian, etc., brought an action in the court below against Elizabeth C. Lines, now Estabrook, and others, demanding partition of certain real estate and an account of rents and profits.</p> <p>Estabrook joined issue, denying the plaintiff’s right to partition, and setting up a life 'estate under the will of her deceased husband in herself, averring said ward to be entitled to an estate in remainder only, upon the termination of the particular estate.</p> <p>The reply admits the defendant’s possession, but avers a forfeiture of said estate for life by reason of defendant’s neglect and failure to pay the taxes thereon for so long a time, that said lands were, on the eighteenth day of January, 1887, sold for delinquent taxes, and were not redeemed within the time prescribed by law for redemption by tenant for life. It is further averred that pending this suit, and fifteen months after the sale, the amount necessary to redeem said lands was deposited by said defendant with the treasurer of Shelby county, and that the holder of the certificate of sale surrendered the certificate, and accepted the amount of said deposit.</p> <p>The court below found and adjudged in favor of the plaintiff; and this proceeding is prosecuted to obtain a reversal of said judgment.</p>

• This action comes into the court by appeal from the court of common pleas. The controversy is between two electric street railroad companies, the Hamilton Street Railway & Electric Co„ and the Hamilton & Lindenwald Electric Transit Co., to each of which the city council of the city of Hamilton has granted the right to construct an electric street railroad upon certain streets of the city.

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

<p>EASEMENTS.</p> <p>1. Abutter’s Right of Access is Property.</p> <p>The easement of access from the street to an abutting lot. and from the lot to the street, is property within Art. 5 of the amendments of the constitution of the United, States, and within section 19, Art. 1 of the constitution of this state.</p> <p>2. Railway Company is Bound to Make Safe Street Crossings.</p> <p>Where a railroad crosses streets within the limits of a municipal corporation, the railroad company is bound to construct and maintain safe and sufficient crossings, and the approaches thereto.</p> <p>3. Must Construct Bridge and Approaches where on a Different Level.</p> <p>When the street and railroad track are not upon the same level, and the street crosses the railroad track by means of a bridge, the railroad company is bound to construct the bridge, and the approaches thereto.</p> <p>4. Railway Responsible for Injury in Throwing up Embankment Although Ordinance Authorized the Work.</p> <p>If, in constructing approaches to t-he bridge, the railroad company is compelled to throw up an enbankment in the street to such height as to cause an injury to the easement Of access to an abutting lot, the railroad company will be liable to the owner in an action for damages for the injury done, and this, although the council of the municipal corporation has, by ordinance, prescribed the height and dimensions of the bridge, and the height and grade of the approaches thereto</p>

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

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

<p>WATER RIGHTS OF CANAL LESSEES.</p> <p>1. Prior Lessee may have Injunction to Prevent Subsequent Lessee from Reducing His Water Rights.</p> <p>D., having by lease from the State Canal Commissioners, the prior right, for the purpose of running his mill, to draw from a certain level of the Miami & Erie Canal, surplus water not necessary for the use of navigation, to the amount of 1800 cubic feet of water per minute, may maintain an injunction against a subsequent lessee of said Commissioners, restraining such subsequent lessee from drawing water from said level at such times or in such manner as to interfere with D.’s prior right thereto, D.’s right to draw some water from said level being admitted, and" the controversy between the parties being as to the extent and priority of their respective rights to such surplus water.</p> <p>2. It Need not Appear that Complainant first Applied to State authorities for-Relief:</p> <p>Such action may be maintained without its appearing that D. had, before its commencement, unsuccessfully applied to the state authorities to let more water into the higher levels of the canal, or otherwise to obviate the injuries complained of.</p> <p>3. Court has Equity Jurisdiction to Determine Extent of Disputed Rights.</p> <p>The fact that both parties have rights, but the extent of them is in dispute, gives equity a jurisdiction to determine such extent without the rights being first established in a. law action.</p> <p>4. Lessees above His Level are not Necessary Parties.</p> <p>The lessees of water power on levels of said canal lying above the level in question, though proper parties to such proceeding, in order that the rights of all parties claiming the right to use surplus water which might affect the quantity of surplus in-the level in question may be determined and defined in one action, are nevertheless, not necessary parties, especially in an action wherein no averment is made in the pleadings that such lessees on the superior levels are using such water in excess of the amounts leased to them by contracts prior in date to the plaintiff’s lease</p> <p>5. Commissioners Could, by a Subsequent Writing, Define Amount of Water to-be Used.</p> <p>It was competent for the Canal Commissioners and the owner of lease obtained ini 1859 for the purpose of avoiding disputes, If acting reasonably and in good faith, by a subsequent written instrument,, to fix and define the number of cubic feet of water per minute which should be deemed equivalent to the quantity sufficient to propel said several kinds of machinery as provided in said lease, and such subsequent modifying contract made in 1869, affords a valid construction of said original lease " as against another lessee of water power from said level under an unrecorded lease from said Commissioners, granted in 1866, but under which no possession was taken till after 1869, and of which subsequent lease no actual notice or knowledge came to said original lessee or his assigns, till after 1869.</p> <p>6. Prior Lessee is. not Estopped by Seeing Second Lessee Erect Expensive Machinery.</p> <p>D. is not estopped to maintain his action for-an injunction by standing by and seeing: - defendants’ mill constructed without objection, there being no allegation nor proof that- he knew or had notice or knowledge pf facts charging him with knowledge that the defendants’ mill would require so much water from said,level as to interfere, .with íiis rights under said lease.</p> <p>7. Court, will Appoint Commissioner to Report Plan of adjusting Rights of Lessees.</p> <p>When the "court' has ascertained- and determined the respective-rights of owners of water power privileges, and difficulties appear as to the most practicable method of carrying the decree into execution, the court will appoint a commission to investigate and report to the court a practicable plan for effectually securing to the parties concerned their respective rights to the use of the water in question, unless the -parties themselves agree upon some satisfactory method.</p>

<p>SALES — CHARGE TO JURY.</p> <p>1. Purchasers of one Known by Them to be Insolvent are Bona Fide Buyers.</p> <p>If a person buys goods without intending to pay for them, mere knowledge by -subsequent buyers of his insolvency, will not make them buyers with knowledge.</p> <p>2. Judge may Assist Jury that is Unable to Agree.</p> <p>When a jury reports to the trial judge that they are unable to agree upon a verdict in a case submitted to them, it is right and proper that the judge should inquire of-then) as to the cause of such disagreement, and if in his opinion it is necessary that he should restate his views of the law, or give additional proper charges in the presence of the parties and counsel, it may rightly be done.</p> <p>3. Exception to Charge may be Taken after Jury Retires.</p> <p>It is not necessary to thevalidity of an exception taken to the charge of the court to the jury, that it be made in the hearing of the jury, provided it be made in time for the court to correct the charges.</p> <p>4. Subsequent Special Charges may cure Apparent Error in General Charge.</p> <p>Where there is language in a charge given by the court to the jury, which if standing alone would be erroneous, but it further appears from the bill of exceptions that special charges upon the same subject had been given to the jury, and such special' charges do not appear therein, and^where it appears from other parts of the charges set out,_ that the law on the same point was correctly stated to the jury, and it was told by the judge that such instruction had before been given to them, the judgment should not be reversed for such apparent error, if it really occurred, (which is doubtful,) as it was cured by the subsequent statements.</p>

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

The plaintiffs say in the petition that they are executors of Michael Cook, deceased. Said Michael Cook, on March 7, 1884, recovered a judgment before a justice of the -peace of Allen county. Ohio, against John Stephenson and Charles C. Woodward, for $257.69 and costs, which judgment was to bear interest at eight per cent On February 23. 1886, a transcript of said judgment was filed’in the office of the clerk of the court-of common pleas of Allen county.

<p>ELECTIONS.</p> <p>1. Not Void Because Fuel Statutory Notice not Given.</p> <p>The township trustees will not be enjoined from erecting a building for the use of the-township, after the funds for such purpose have been paid into the township treasurer, on the ground that the notice for the election submitting the proposition for the erection of such building was not given the full time required by statute.</p> <p>2. Erection oe Building not to be Enjoined, After Fund Paid in, Because of Defective Election Notice.</p> <p>An election will not be declared void because the notice required by statute was not given, for the full length of time specified, when it appears that the great body of electors-had actual notice of and participated in the election.</p>

<p>MUNICIPAL ASSESSMENTS.</p> <p>1. Waiver oe the Twenty-Five Per Cent. Limit by Petitioner and His Grantee.'</p> <p>H., the owner of lots, on March 11, 1887, signed a petition asking for the improvement, of an avenue in a certain manner, and a like petition, signed by more than three-fourths of the owners of property abutting on such avenue, had prior thereto, on the 14th day of January, 1887, been presented to the board, and on its recommendation, the city council had, prior to the nth day of March, 1887, passed a resolution declaring it necessary to improve said avenue in accordance with the prayer of such petitioners. A few days after March 11, 1887, the said petition of H. was filed and placed with the other papers relating to such improvement. On May 13, 1887, the council passed an ordinance providing for the improvement. On August 3, 1888, the assessing ordinance was passed, and on September 30, 1887, H. conveyed his lot to S., the plaintiff, who had no knowledge of the signing of the petition of H. The assessments on these lots was for more than 25 per cent, of their value, and one of them was a corner lot, and if the assessment is. to be governed by the law in force prior to March 11, 1887, such lot should be assessed for_ 41.34 feet, instead of 135 feet, as was done. Held: That H. having signed the petition for the improvement which in effect waived the benefit of the 25 per cent, provision which he otherwise might have claimed, and such petition having been placed with Jthe papers in the case, before the board recommended the passage of the ordinance to improve, it should be presumed that the board acted on the. faith thereof, and the subsequent grantee of H. can not have the benefit of such 25 per cent, provision.</p> <p>2. Riding and Acting upon such Petition is a Proceeding, and is not Aeeecteb by Change in Statute.</p> <p>Such petitions having been filed and acted upon by the board and council prior to March. 11, 1887, this initiated a proceeding for such improvement — and the section of the-statute regulating assessments having been amended March 11, 1887, such_ amendment under the provisions of section 79, Rev. Stat., did not affect such pending proceeding, but the assessment on such corner lot should have been made in conformity with the provisions of the section as it stood prior to March 11, 1887, at the time of the improvement ordinance.</p>

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

On September 10, 1885, the defendant John W. Vogelsong executed and delivered to the plaintiff his promissory note for $1,330; due on or before five years from date, and secured by mortgage on land in Paulding county. On November 2 following, said defendant Vogelsong executed and delivered to plaintiff his certain other promissory note for the sum of $1,000, due in five years after date, secured by mortgage on the same land.

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

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

Levi Lambright was employed by the railroad company as a switchman and brakeman on May 28, 1889. In his petition he says the railroad company, regardless • of its and unlawfully failed to adjust, fill, or block the same, so as to protect its employes from Having their feet caught therein.

<p>MUNICIPAL GAS PLANTS.</p> <p>1. Trustees Cannot Furnish Gas at a Nominal Price.</p> <p>.The gas trustees of a city, owning and operating a natural gas plant, have no authority to furnish gas to manufactories without cost or at merely a nominal consideration, but must, under such rules and regulations as are prescribed by the city council, make a uniform rate to all persons using gas under the same conditions.</p> <p>2. Action of Trustees without Ratification of Council is Void.</p> <p>A contract made between the gas trustees of a city owning and operating a natural gas plant, and a manufactory, to furnish ga3 at a merely nominal consideration, wherein another party is relieved from its contract, and so done without any action or ratification of the city council, is void for want of authority in the gas trustees to make it.</p> <p>3. Equity Will not Enforce; Gas Contract Where a Trustee is Beneficially Interested.</p> <p>If one or mote of the gas trustees of a city owning and operating a natural gas plant, are beneficially interested in a contract to supply natural gas for fuel to a manufactory at a nominal consideration, such contract will not be enforced in equity.</p>

<p>FIRE INSURANCE.</p> <p>Policy not Invalidated by Judgment Lien, Unless Risk is MateriallyTncrbased.</p> <p>'Under sections 3643 and 3644 of the Revised Statutes a policy insuring against loss by fire is not necessarily avoided by the recovery of judgments against the assured subsequent to the issuing of the policy, and before the loss, which judgments became statutory liens upon the property covered by the policy, even though it be stipulated in the policy that “if the assured shall procure, or suffer to accrue any incumbrance covering the property therein specified, or any part thereof,” the insurance thereunder shall immediately cease and determine. In order to have that effect, in the absence of fraud, it must appear that the recovery of the judgments diminished the insurable interest of the owner in the property insured to an extent that materially increased the risk.</p>

<p>REPLEVIN.</p> <p>Where Owner Regains Possession, no Damages for Doss of it Can be Recovered.</p> <p>Heyns was the owner of a planing mill. A receiver was appointed by the court who took charge of said mill. The receiver placed the mill in charge of Heckman. A constable levied on the mill and sold it as the property of Heckman to N. & Sons. Heyns replevied the mill from N. & Sons. The receiver had Heyns cited for contempt of court. Heyns turned the machine over to the receiver. In an action on the bond N. & Sous recovered of Heyns the value of the machine. Held, this was error. The real owner having possession of the machine, N. & Sons could only recover damages for loss of possession.</p>

<p>MUNICIPAL LIGHTING.</p> <p>Contract for, Based on Prices of Fuee Gas Construed.</p> <p>A company agreed to furnish a city with a certain number of electric lights at a certain price, stipulating that the price was based on the price the city charged the company for natural gas for fuel in manufacturing electricity, and to be increased in proportion if the price of the fuel was increased. Under this contract the company furnished the city with electric lights, and also furnished them to individuals. The gas trustees of the city raised the price of gas fuel. Held: The contract is valid, but applies only to lights furnished to the city, and not to individuals, and the city cannot raise the price of gas, under sec. 2489, Rev. Stat., for fuel for running the electric lights furnished the city. But for to those of individuals, but not the gas trustees alone, can raise the price,' under sec. 2489.</p>

<p>ERROR.</p> <p>Granting Motion for New Trian for Excessive Verdtct not a Finan Order.</p> <p>The granting of a motion for a new trial on the ground that the judgment is excessive, is not such a final order as entitles the party recovering the verdict to go up on error.</p>

<p>FRATERNAL SOCIETIES.</p> <p>1. Courts Will not Interfere With Judicatories of an Order Unless a Right is Infringed.</p> <p>A member of a mutual benefit association is subject to the decision of the judicatories of the order, and cannot apply to the courts, unless a property right or contract is infringed.</p> <p>2. Authority of the Supreme Lodge Over Laws of the Order.</p> <p>The supreme lodge of the A. O. U. W. has the power to alter, amend or abrogate the laws of the order, and has exclusive jurisdiction as to all matters pertaining to the welfare of the order.</p> <p>3. Mistake in Application — Heavier Assessment than Agreed Upon Resulting From Division of Jurisdiction — Subsequent Payments a Waiver.</p> <p>A benefit certificate, by the laws of the order, could only be legally issued on application requiring a compliance by the applicant with the rules that are or may be enacted by the order, but by mistake his application was on a blank requiring compliance with the rules of the grand lodge of that particular jurisdiction. The supreme governing body of the order afterwards divided the jurisdiction into two, and thereby imposed a heavier assessment on such member, the mortality being greater in his grand lodge’s jurisdiction. Held: He is subject to such change. It does not violate his contract. Also that payments made by him after the change would waive any right to object.</p>

<p>SETTLEMENT OF ESTATES — LIMITATIONS.</p> <p>1. Distributee’s Right or Action is Barred in Six Years From Thirty Days After Order of Distribution.</p> <p>An action brought and prosecuted under secs. 6195 and 6199, Rev. Stat., by the distributees of a decedent’s estate, to recover an unpaid balance remaining in the hands of the administrator, is barred by the Statute of Limitations, unless such action is commenced within six years alter the expiration of thirty days from the date of the order of distribution made by the probate court. It is not a continuing and subsisting trust, but becomes a personal liability.</p> <p>2. Misrepresentations of Administrator as to the Amount do not Suspend Operation of Statute.</p> <p>The administrator’s misrepresentation as to the amount found in the order of distribution does not prolong the time. The distributees had no right to rely upon them.</p>

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

The defendant in error brought suit in the court of common pleas to recover of the plaintiff in error $162.90, the contract price for improvements and repairs upon his house. The answer admitted the averments of the petition, but pleaded a set-off upon a note executed by the defendant in error to another and by him indorsed to the plaintiff in error.

<p>HUSBAND AND WIFE.</p> <p>Contract as to Purchase oe Bands Construed — Trust not Established Unless Certainty oe Prooe.</p> <p>By parol contract between husband and wife, they were to buy certain lands in her name, he to have an interest to the' extent of his payments. It was so bought, but she made all the cash payments, and he paid part of the balance, but the actual amount is not clearly ascertained. Held, the contract and purchase created no trust, the. husband had merely an oral contract to acquire a further interest. The amount he paid being uncertain, and also the extent of his interest, specific performance will not be granted, nor a trust established. Certainty of proof is necessary for this, and the husband’s claim for what he paid cannot be recovered in such an action.</p>

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

<p>FORGERY.</p> <p>1. Two .Counts of Indictment Charging one Offense is not Available First on Motion in Arrest of Judgment.</p> <p>Objection to an indictment containing two counts, on the ground that each count charges an offense different and distinct from that charged in the other, is not available for a defendant when made for the first time by a motion in arrest of judgment. ■</p> <p>2. Parol FVTdence of Written Documents After Notice to Produce.</p> <p>On the trial upon an indictment for forgery, parol evidence- regarding the defendant’s dealings with notes and documents relevant to the issue, and which are, at the time of the trial, presumably in the possession of the defendant, and which she has due previous notice to produce at the trial, will not be excluded on the ground that the notes and documents themselves have not been produced and offered in evidence.</p> <p>3. To Rebut State’s Proof that an Accomplice Received Forged Note, cannot be Shown that there was an Opportunity for Some One else to Deliver the Note.</p> <p>The general rule that the evidence must be confined to the issue, and that inquiry into facts entirely collateral and leading to a controversy over matters altogether foreign to the case before the court cannot be permitted, applied. To rebut evidence by the state that the accomplice received a forged note from the defendant who made it, it is not relevant for the defendant to show that the accomplice used secretly to meet another person at defendant’s house, even though the accomplice had denied this. Such evidence merely shows opportunity for some one else to make and deliver the note, and does not tend to prove his main testimony false.</p> <p>4. After State Shows Receipt of Large Sums of Money as Result of the Forgery, Rebutting Evidence of Her Financial Distress at the Time not Admissible.</p> <p>On the trial upon an indictment for forgery, after the state had given evidence tending to show that as the result of the forgery and the uttering by the defendant of the note in question, and of other such notes, she had received large sums of money, the defendant offered evidence tending to prove that about that time and for several months next subsequent thereto, she was in indigent circumstances; that her property was then under chattel mortgages; that she was and had been paying high rates of interest and was financially distressed: Held, that the evidence thus offered by the defendant was properly excluded.</p> <p>5. Rejection of Admissible Evidence not Ground for Reversal, if no Weight could have been Attached to it.</p> <p>Where, on trial of an indictment, the trial court excluded certain evidence offered by the defendant, and which might have been properly admitted, a reviewing court will not disturb the verdict rendered or the sentence pronounced where all the evidence given at the trial, together with the charge of the court and all its proceedings, are before it in the record, and it thereby appears that the jury would have been manifestly unjustified in giving any appreciable weight to the rejected evidence, had it been admitted.</p> <p>6. Proof of Possession of other Forged Notes Admissible as Bearing on Guilty Knowledge.</p> <p>On the trial of an indictment for forgery, proof of the possession by the defendant of other forged notes about the time of the making and uttering of the note in question, is admissible as bearing upon the question of guilty knowledge or intent, whether such possession be before or after the alleged forgery. And such proof is admissible though several months intervene between the time of the alleged commission of the forgery charged in the indictment, and the possession by the defendant of such other forged notes, in a case where the evidence clearly tends to prove that her possession of and dealing with the several notes were related parts of the execution of a connected scheme or plan of fraud and forgery.</p> <p>7. Testimony Leading to Prove that Defendant had been Carrying on a Connected Plan of Forgery, Admitted.</p> <p>On the trial of an indictment for forgery by uttering forged paper, testimony of transactions by the defendant with other notes and papers, and which tend to prove her to have been carrying on one connected plan of fraud and forgery, whereof the forgery charged in the indictment was a part, and which testimony tends to connect her with the uttering of the note charged in the indictment, is admissible, although no direct proof is given that such other notes were forged.</p> <p>.8. Filling out Note over Forged Signature, Forgery Committed where Note was Written.</p> <p>'Where the defendant produced to an accomplice in Lucas county, a paper with only the name “Richard Brown” upon it, and then and there caused a promise to pay money in the usual form of a promissory note to be by him written above it, so as to have it appear that the name was the signature to a promissory note, with the criminal intent to utter it as a promissory note of Richard Brown, she may be convicted of forgery in Lucas county, though no direct proof is offered of the place where said name was written.</p> <p>:9. Forger Indicted for Altering Forged Papers may be Convicted.</p> <p>A forger who procures another to utter the forged note, and is indicted for uttering it, may be convicted under sec. 6804 Rev. Stat., though he is only the procurer, or abettor.</p> <p>10. Where Evidence on Motion for New Trial for Misconduct of Jurors is Conflicting, Decision not Disturbed.</p> <p>Where on the hearing of the defendant’s motion for a new trial, charging misconduct of jurors, the evidence before the trial court was fairly conflicting, and the trial court overrules the motion, its action thereon will not be disturbed by this court.</p> <p>11. Statement of a Juror After Verdict as to Conduct in Jury Room not Admissible.</p> <p>Evidence of what a juror said after the rendition of a verdict as to improper occurrences in the jury room, will not be received to invalidate the verdict.</p> <p>12. Making Forged Note and Altering Same, Charged in Separate Counts, only One Crime.</p> <p>Where an indictment contains two distinct counts, the first charging the defendant with the forgery of the note, and the second count charging her with uttering a forged promissory note, and a verdict of guilty is rendered against her on each charge, and it clearly appears from the record, though not charged in the indictment, that both counts relate to one and the same note, a separate sentence on each count is erroneous, and the defendant should be sentenced upon the verdict as for the simple crime of forgery.</p> <p>13. One Finding not to be Annulled and Another Sustained.</p> <p>A reviewing court cannot annul one sentence and sustain the other, but must remand for re-sentence. ,</p>

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

<p>INJUNCTIONS.</p> <p>Power oe Probate to Grant Injunctions when other Judges are Absent is Constitutionae.</p> <p>That part of section 5573 of the Rev. Stat. which provides that “the probate judge of the county may grant injunctions in actions pending in either the court of common pleas, or the circuit court of the county, in the absence from the county of the respective judges of such courts,” is a valid and constitutional enactment.</p>

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

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

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

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

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

<p>COUNTY SURVEYOR.</p> <p>t. County Surveyor is an Officf;r within the Constitution.</p> <p>If the statute of April 25, 1890, 87 O L. 295, amending sec. 1166, Rev. Stat., required the commissioners of Hamilton county to appoint the surveyor of said county, then in office, to discharge the duties of the office of county engineer of said county, which office had been established under the provisions of sec. 1002, Rev. Stat., so much thereof is in violation of sec. 27, art. 2, of the Constitution of the state, as being, in effect, an appointment by the general assembly of a particular person to fill such office — the act in question not having abolished the office of county engineer, but only providing that the commissioners should appoint such person to fill the same, discharge the duties and receive the emoluments thereof.</p> <p>2. Act is Prospective and not Unconstitutional.</p> <p>If such provision is prospective only, and is not to take effect or be operative until the commencement of a new term of the county surveyor, it would not be open to such objection, and it being “a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively,” and it being also a rule of the law, that where a statute is open to two constructions, one of which would make it unconstitutional, and the other would not, that it is the duty of the court to adopt that construction which would uphold the law: Held, That such provision in this statute is prospective only, and cannot operate until there is a new term in the office of county surveyor.</p>

<p>STREET RAILWAY FRANCHISE.</p> <p>1. To Enjoin Grant to one not the Lowest • Bidder Plaintiff need not be an Abutting Owner.</p> <p>The authority oí a taxpayer to institute a suit in his own name on behalf of a municipal corporation, under sec. 177S Rev. Stat.. depends upon the fact whether the solicitor of the corporation has refused,_ after being requested in writing, to bring the sun, and the fact whether the party is a taxpayer. The plaintiff taxpayer need not be an abutting owner. It is not to protect any right peculiar to the taxpayer, but to protect a right that belongs to the city.</p> <p>2. Validity of Contract Depends upon Bid to Carry at Lowest Rate on Fare</p> <p>The question whether a valid contract has been made by the city with a party for the construction and operation of a street railroad route under sec 2502 Rev Stat . depends upon the fact whether such patty in his bid agreed to carry passengers at the lowest rates of fare. A grant of a route to one not the lowest bidder is void.</p> <p>3. Consents of Abutters Inure to Benefit of Lowest Bidder</p> <p>The consents of abutting property owners to the construction and operation of a street railroad route required under the statute, by whomsoever obtained, inure to the benefit of the lowest bidder To permit the abutting owners to dictate to which of the bidders their consents shall inure would be to permit them to absolutely control the award of the contract, which the statute requires shall be settled by competition in rates of fare only. ></p> <p>4. When Court wiee not Investigate Objections to Lowest Bid</p> <p>Where the lowest bid was rejected because of an alleged want of consents from abutters, the court will not investigate objections to it not made before nor passed upon in the award, on the ground that it was a sham bid.</p>

<p>SUNDAY CLOSING OF SALOONS.</p> <p>L. Hotels and Eating Houses Defined.</p> <p>That the words “regular hotels and eating houses,” as used in section 8092 Rev. Stat. designate places, the principal and not the subordinate business of which is the carrying on of a hotel or an eating house.</p> <p>2. Liquors Drank at Tables though paid for at Bar, Constitutes a Sale at Tables.</p> <p>The evidence showed that the place kept by the defendant, and which he allowed to be open on Sunday was a large hall, (not a regular drug store), in which intoxicating liquors on other days of the week were sold and exposed for sale. The bar and beer counter both stood in such room in the usual way, and many tables stood in such room, at which persons were supplied with such liquors, ordered from the waiters and paid for by' them at the bar or beer counter, and supplied to the guests at the tables, who there paid the waiters therefor. Held, that this constituted a sale at the tables where the liquors were furnished and paid for.</p> <p>3. Enclosing the Bar with a low Wire Scrfen does not Satisfy the Law.</p> <p>On the Sunday in question a wire screen was placed on the top of the counter, around the bar in such room, four feet high, but not reaching to the ceiling The beer counter was in no way separated from the other part of the hall in which it stood, but the beer pumps behind the same were covered by a box, and beer could nor be drawn therefrom without removing the box therefrom, which box was kept locked. On this Sunday no person was behind the bar or counter, and no liquors were sold in such room, but the doors thereof were open to the public, and many persons came into the room and were served with other refreshments at-such tables. This was a violation of the law, the room or part of the room in which liquors were on other days of the week sold, not being securely closed, but open.</p>

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

<p>ACCIDENT INSURANCE.</p> <p>1. Failure to give Notice excused if Insured was in Delirium.</p> <p>The condition contained in an accident indemnity policy, that the insured shall give notice within ten days from the date of the accident, and that failure so to do shall invalidate all claim under said policy, is excused when the insured during said time is in a stare of delirium.</p> <p>2. Due Diligence of Notice is Question for Jury.</p> <p>Immediate notice of the accident is in time, if given with due diligence in view oí all the circumstances, which is a question of fact for the jury.</p> <p>3. Refusal of Company to Furnish Loss Bl inks is Waiver of Proofs</p> <p>If the company refuse blanks on which to make formal proofs of loss, which blanks the policy promises to furnish, the proofs are waived.</p>

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

<p>FIRE INSURANCE.</p> <p>3. A Non-Expert Witness may Testify as to Value.</p> <p>In an action brought upon a policy of insurance issued by a Mutual Fire Insurance Company, to recover for the loss of mill property and machinery destroyed by fire, a witness who was well acquainted with the property, and knew its cost, although not an expert, was properly permitted to testify as to its value.</p> <p>2 Under Petition Alleging full Performance, and Answer iAlleging ' Non-Payment OF ASSESSMENT, BURDEN IS ON DlCFENDANT. '</p> <p>In such action, where the answer alleges, and. the reply denies, that certain assessments were regularly made upon the premium notes of the plaintiff, and payment thereof demanded and refused, it is not necessary for the plaintiff, in his evidence in chief, to disprove such allegations, although he has, iñ his petition, averred full performance on his part, of the terms of the contract. The defendant must prove the assessment.</p> <p>3. Non-Payment of Assessment Cannot be Proven by Parol.</p> <p>On the trial of such an issue it is not competent for the company to make parol proof of the alleged assessment unless the proper foundation is laid for introducing secondary evidence. The records of the company, or a duly examined and proven copy thereof, showing the action of the proper authorities in making the assessments, should be produced, or the absence thereof properly accounted for.</p> <p>4. Overvaluation of Land, Without Bad Faith, not a Violation of Policy.</p> <p>The by-laws of the defendant company, which were made part of the policy of insurance, declared that an over-valuation of the property insured should avoid the policy. The lands upon which the buildings and machinery insured were situate, appeared, by the testimony, to have been over-valued. The answer did not aver that the lands were over-valued, nor did the testimony show an over-valuation of the property' insured, namely, the buildings and machinery; nor was any bad faith shown. Held: That these facts furnished no defense to the action.</p> <p>6 Company is not Prejudiced by agent’s Excessive Estimates Based on Truthful Statements of Assured.</p> <p>Where the agent of an insurance company, in taking an application for insurance against loss by fire, himself writes out the answers of the applicant to interrogatories propounded in behalf of the company, he acts, in that regard, as the agent of the company. and if any mistake occurs in writing out such answers, such as an excessive estimate of value, based on the truthful statements of the assured, without fault on the part of the assured, the latter is not prejudiced thereby.</p> <p>Appointment of a Receiver not a Change of Title, Etc.</p> <p>The mere appointment of a receiver over the affairs of a corporation on default judgment is not a change of title or possession, or taking into custody under a proceeding.</p> <p>7 Officers of a Corporation in Hands of a Receiver Should Make Proof of Loss.</p> <p>Though the assured, a corporation, is m the hands of a receiver, it is proper for its officers to make the preliminary proof of loss</p>

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

<p>PROCEEDINGS IN AID OF EXECUTION.</p> <p>Cannot be Maintained Upon Dormant Judgment.</p> <p>In a proceeding in aid of execution under section 5464, Rev. Stat., the action must be founded upon a judgment, and cannot be maintained upon a judgment which had become dormant at the time of the commencement thereof.__</p>

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

<p>EXEMPTION.</p> <p>Pension Money not Exempt in Pensioner’s Hands.</p> <p>Under sec. 4747 Rev. Stat. of the United States, pension money is not exempt from liability for the pensioner’s debts after it has come into his hands, and there is no statute in Ohio exempting pension money in the hands of the pensioner from liability for his debts.</p>

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

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

<p>APPEALS.</p> <p>1. Statement of Pacts.</p> <p>A transcript was filed in the court of common pleas for appeal from the judgment of a magistrate for $15.50, rendered on a verdict returned by a jury in a trial before him. The transcript showed that the bill of particulars filed with the magistrate claimed $60.00 as the amount due. On motion to dismiss the appeal for the reason alleged, that before the trial in the magistrate’s court an amended bill of particulars had been filed, claiming only nineteen dollars as the amount due, the court of common pleas permitted the parties to read affidavits pro and con as evidence on said motion, and on said evidence found that the amended bill had been filed as alleged; decided the case was not an appealable one, and rendered judgment against the defendant (plaintiff in error) for the same amount as that rendered by the magistrate, and costs. Held:</p> <p>2. Common Pee as Cannot Receive Proof that Justice’s Transcript is Erroneous.</p> <p>The transcript of the magistrate on its face showed that the case was appealable and the court erred in permitting affidavits to be read to show that the transcript was erroneous. If it were not correct, the remedy was to procure from the magistrate a true one, and file it by leave of court, as a substitute for the erroneous one.</p> <p>3. Where Casf. is not Appeaeable there can be no J udgment but Dismissae.</p> <p>The court having found the case not one for appeal, had no jurisdiction to render any judgment except one of dismissal.</p> <p>4. Circuit Court wiel Order Common Peeas to Issue a Writ of Restitution.</p> <p>Upon suggestion of counsel that an execution had been issued in the court of common pleas, and plaintiff in error had paid the amount of judgment and costs under protest, this court held that the judgment of the court of common pleas be reversed, with costs, and plaintiff in error be restored to all things he had lost by reason of such erroneous judgment, and the case be remanded to the court of common pleas to carry this judgment into effect, that court being the proper one to issue the writ of restitution as the records of execution and payment were then.^</p>

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

In a case in the court of common pleas of this county, in which Elijah P. Jones was. plaintiff,'and the plaintiff in error and the defendant in error and others were defendants, the defendant in error, on its cross-petition, recovered a decree against the plaintiff in error upon a mortgage. The property of plaintiff in error was three times appraised and twice offered for sale under each appraisement, but was not sold for want of bidders.

<p>FORECLOSURE SALE.</p> <p>1. assignee’s Compensation Protected on Sale by Sheriff.</p> <p>Where an assignee is seeking sale of a three-quarter interest in a tract of land, and mortgagees are seeking sale of the rest, the whole should be sold by one officer, and the sheriff may be ordered to sell the whole, but the assignee’s compensation should be protected.</p> <p>2. Land Mortgaged in Specific Parts will not be Sold as an Entirety.</p> <p>A tract of land subject to mortgages on specific parts of it will not be ordered sold as an entirety, but each mortgaged parcel will be appraised and sold separately, that each may be paid from the proceeds of its own part.</p> <p>3. When Vendor who buys in is not Required to Protect his Vendee’s Title.</p> <p>Where several persons own land in common, subject to a mortgage of which each has assumed a proportion, and one sells part of his share with a warranty to a third person, who assumed a corresponding share of the mortgage, and, on foreclosure, such vendor buys in the property, he takes title clear of all the owners, for he is not required to protect his vendee’s title against default of the others.</p> <p>4. Apportionment of Land Among Several Mortgages, — Riparian Property.</p> <p>The G tract, supposed to contain 80 acres, but having only 78 acres, was bounded east by the M. river, but between the upland and the river was a valuable property, covered by shallow water, and also lowland formed by accretions, the whole owned by the same persons. There was a mortgage on “The north forty acres of upland in the G. tract,” without other description, also one on the part next south containing 30 acres of upland. and one on the west ten acres of.the part south of the north 70 acres. Held: The first two mortgages contain not oniy the amounts stated, but also the part of the riparian property contained between their lines projected to the channel, but the last mortgagee can extend his lines upon the riparian property far.enough to get ten acres, and the rest goes to the general creditors of the owners</p>

<p>BANKS AND BANKING.</p> <p>1. Prompt Notice and Return of Check Necess ary to Hold Paying Bank on Forged Paper.</p> <p>To shift the loss sustained upon forged commercial paper, the holder must give prompt notice of the forgery, when discovered, and return the check to the party upon whom the loss is sought to be cast.</p> <p>2.- Reasonable Chance for Protection Must be Given to the Party who will Suffer the Loss.</p> <p>Reasonable opportunity must, if possible, be given the party upon whom the burden of forged paper is sought to be thrown, to protect himself from loss thereon.</p> <p>3. One who Misrepresents Commercial Paper is Estopped from Asserting to the Contrary.</p> <p>A party representing commercial paper to be “all right” when he had knbwledge of its spurious or doubtful character, will be estopped from afterwards asserting the contrary as against those to whom the representations have been made.</p>

<p>FRATERNAL INSURANCE.</p> <p>1. Prima Facie Case made by Proof of Death Certificate, and that Class was Full.</p> <p>A certificate of membership in an aid association providing for a consideration named and paid, to pay to the beneficiary a stipulated sum of money upon the death of the member insured when the class of which he is a member is full, and further requiring the payment of assessments of a specified amount upon the death of each member in the class, of itself makes a prima facie case against the company, when it admits in its answer the execution of the certificate, and that the class was full when the certificate was issued, and sets forth no other defense than non-payment of these assessments, and that the class was not full at the time of death.</p> <p>3. Burden on Defendant to Prove Depletion of Class and Nonpayment of Assessments.</p> <p>In such case, where the answer alleges as sole defenses that the class of which the assured was a member, was not full at the time of the assured’s death by reason of lapses and deaths, and that certain members of that class, naming them, had died at dates given, holding valid certificates of membership in the company, and that the company made assessments against the assured by reason of the several deaths, which assessments the assured failed and neglected to pay, whereby he forfeited his membership, such facts, when denied in the reply, must be proven by the defendant affirmatively, and no evidence need be offered by the plaintiff under the general allegation of performance of all the conditions on her part in making her case in chief.</p>

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

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

This case was brought before this court on application for an order suspending an order dissolving a temporary injunction granted by the judge of the court ■of common pleas of this county.

<p>TRUST ESTATES.</p> <p>1. A Devise to a City for a College to be Erected on a Certain Tract does not Restrict it to that Spot, if it Becomes Unsuitable.</p> <p>A devise to a city for a college of the highest grade to be erected on a certain tract will not be construed to restrict the location of the building perpetually to one spot. That if the site selected by the testator was at that time a proper one, but should for any reason thereafter become unsuitable, the trustees under the will would be authorized to erect buildings and conduct the institution on other suitable grounds.</p> <p>2. City was Capable of Taking as Devisee, and Court of Equity Will Enforce the Provisions of the Gift.</p> <p>Such a devise is not a private one, but in its nature a gift to a general public use; the city was capable of taking under the will as devisee, and a court of equity will enforce its provisions, or so mould them to suit changed circumstances, as will best carry out the real intentions of the testator and make the devises most conducive to the welfa're of the beneficiaries.</p> <p>3. Trustees may Remove Buildings to More Suitable Site Without Forfeiting Estate.</p> <p>Should the trustees remove the university to another and more suitable site, they would be authorized under the will, to lease the present site and treat it generally as the other real estate devised for the purpose of the university; and this, without forfeiting any part of said estate, or causing it to revert to the heirs of the testator.</p> <p>4. Acts of Trustees Cannot Create Forfeiture.</p> <p>Acts or omissions of the trustees cannot create a forfeiture and the reversion of the property to the donor’s heirs. The court would only remove the trustees and appoint others, or compel due performance.</p> <p>5. City may set Apart Public Ground for a College, Though Paid for by Taxes and Bible is Used as a Book of Instruction.</p> <p>The city of Cincinnati has the authority under the act of April 16, 1870, 67 Ohio Laws, page 86, to set apart and appropriate for said university, any public ground of the city, not specially appropriated, or dedicated by ordinance for any other purpose, notwithstanding said ’property was paid for by a tax levied oh the general duplicate of all the property of the city, nor would this power be limited by the fact that the testator had provided that “the Holy Bible, King James’ version, should be used as a book of instruction in the university.”</p> <p>6. Powers of Trustees may Be Defined in Action to Obtain Director as to Ambiguous Will.</p> <p>An action under section 6202 of the Revised Statutes to obtain the opinion and direction of the court as to an ambiguous will, but applies when altered circumstances render the carrying out of a trust in literal terms of the donor undesirable, and the trustees desire to know their powers.</p> <p>7. In Such Suit Court Cannot Inquire Whether Trustees Have Done or Omitted Acts of Forfeiture.</p> <p>Upon such an application any question as to whether the trustees have committed acts, or omitted to perform any duty which is alleged as a ground of forfeiture of the estate to the heirs of the donor, constitutes no defense and cannot be inquired into. The property has been devised for public charitable purposes, and a court of equity will see that the trustees perform their duty under the will, or remove them and appoint others who will, and in no event can the heirs of McMicken assert any title or ownership inconsistent with the use to which the property has been devised.</p>

The administrator of the estate of Thomas Fuhrman filed’ his petition in the probate court to sell real estate to pay debts. Mary A. Fuhrman, the widow of the decedent, filed an answer claiming dower, waiving the assignment thereof by metes and bounds, and praying that she may have the same in monev out of the proceeds of the sale. The property was ordered sold and was sold for $3,700.

<p>PRACTICE.</p> <p>1. Error in Remanding a Case Leaves it in Circuit Court.</p> <p>'The circuit court reversed the judgment in this case at the cost of the defendant in error, and remanded it to the court of common pleas to be proceeded in according to law, and for execution for costs. The clerk entered the judgment of reversal and the order remanding the cause for execution upon the journal, but failed to enter the order remanding it for further proceedings. No mandate was ordered, or issued, or sent. New pleadings were filed in the common pleas, and judgment recovered by the defendant in error, to reverse which, a petition in error has been filed in the circuit court. This, under B.olles v. Stockman, 42 O. S., 445, leaves the case still pending ( in the circuit court.</p> <p>2. New Triad in CommonPeeas Thereafter is Without Jurisdiction.</p> <p>The proceedings in the court of common pleas, after the reversal by the circuit court, were without jurisdiction, and the circuit court has no jurisdiction to review.</p> <p>8. Record Must Show Bides oe Exceptions to have been Aeeowed as weed as Signed.</p> <p>In order to make a bill of exceptions a part of the record, the journal must show that it was allowed, as well as signed.</p> <p>Queries: 1. Can the circuit court, by an entry upon its journal nunc pro tunc, cure the defect in the original entry?</p> <p>2. Can a mandate issue upon a corrected journal entry as of the proper date?</p> <p>3. Can the court of common pleas order such mandate to be recorded on its journal as required by sec. 5239, Revised Statutes, as of a date prior to the proceeding in that court and subsequent to the reversal?</p> <p>4. If the foregoing corrections can be made and omissions supplied, are tney necessary, or will it be presumed that that was done which should have been done?</p>

<p>BILLS OF EXCEPTIONS.</p> <p>1. Questions as to Bill oe Exceptions must be Determined by the Trial Court ; Record oe its Allowance is Conclusive.</p> <p>In an error case pending in the circuit court, a motion to strike from the files thereof a bill of exceptions, which the transcript of the journal entries made in the court of common pleas shows was duly and regularly signed and allowed by such court, should not be granted on the grounds: 1st, that as alleged, it does not truly state what occurred at the trial, and was improperly obtained; or 2nd, that it was signed by the trial judge by mistake, he not knowing what it contained when he signed it; or 3rd, that the attorneys for the plaintiff in error improperly withdrew it from the files after it was signed, so that it could not be amended by the judge at the term at which it was signed, or 4th, that it was not presented to the attorney of the defendant in error as the statute requires. These are questions which in the first instance must be determined by the trial court, and while the record of such court shows an allowance of that bill, this is conclusive while such record stands.</p> <p>2. Where Motion for New Trial is Filed After Three Days, Reason must Appear on the Journal-</p> <p>If the court allows a motion for a new trial to be filed after three days, because unavoidable accident had prevented it before, this must appear on the journal. A mere statement in the bill of exceptions of such allowance will not avail.</p> <p>3. Provisions for Submission oe Bills to Opposite Counsel Appear Mandatory.</p> <p>The provisions of secs. 5298, 5301 and 5302, Rev. Stat., as amended April 25, 1890 (Ohio L., vol. 87, p. 206), seem to be mandatory in their character, and to require that a bill of exceptions not taken during the progress of the trial, shall be submitted, by the party excepting, to opposing counsel for examination, not less than ten days before the expiration of forty days from the end of the term at which the verdict was rendered, or the decision (including the overruling of a motion for a new trial), was made, and to the trial judge, for his signature, not less than five days before the expiration of said forty days.</p> <p>4. Probable that Bills would be Stricken From files if not so Submitted.</p> <p>Whether, if not so presented to opposing counsel as the statute provides, or a reasonable effort be not made to comply with this requirement, the court should refuse to sign the bill, or if signed and allowed without it having been done or waived in some way, the opposing party is entitled, on proper application to the court which so allowed it, to have the entry of the allowance stricken out, is not presented in this case, and is not decided — though it is probable that if such state of fact were shown, and it appeared that the person objecting was without fault or laches ou his part, the court would be justified in granting the application.</p> <p>5. Journal Entry Should Show Bill Submitted or Waived.</p> <p>In view of these new provisions and requirement of the statute, it would seem to be good practice for the court allowing such bill, to have the journal entry show that they had been complied with, or waived, or that for sufficient reasons it could not be done.</p>

Hatch sued the railroad company as a common carrier to recover the value of goods shipped to him from Sandusky to Findlay, which the company failed to deliver. The company admits it carried the goods; that they arrived at its station at Findlay, and that they were not delivered to Hatch.

<p>BURIAL RIGHTS.</p> <p>1. Next of Kin may Controe Buriae and Seeect Peace.</p> <p>The next of living kin of a person deceased have the right to the control, custody and burial of the body of .such deceased, and may select the place of burial.</p> <p>2. If they Disagree, Court wiee Determine Proper Course.</p> <p>But this right is one in which all the next of living kin have an equal interest, and when they disagree as to the place of burial, and appeal to a court of equity to adjust the controversy, the duty devolves upon the court, in the exercise of its best discretion, and having due regard to the rights of all the parties, to determine what, under all the circumstances, is the proper course to pursue. A mere majority have not the right to require disinterment.</p> <p>3. Right of Buriae a Mere Easement — Court wiee Protect Reeatives in its Enjoyment.</p> <p>The right of burial in a public or church cemetery, though conveyed by grant, is nevertheless an easement only; and where persons visiting the place of burial in such cemetery of a deceased relative for the purpose of testifying their respect or affection for the dead, are improperly interfered with by the owner of the easement, a court of equity may interpose for their protection.</p>

Error 10 the Court of Common Pleas of Flancock county. The plaintiff in error was plaintiff below. He sues the city to recover damages for a personal injury.

The question arising in this case is whether the plaintiff was an “employe” of the defendant chair company within the meaning of sec. 3206a, Rev. Stat., and entitled to the preference therein given.

<p>RAILWAY LEASE — ARBITRATION.</p> <p>1. Provision in Lease for Submission of Differences to Arbitration is Valid.</p> <p>The arbitration clause contained in the lease of the Cincinnati Southern Railway made by the Trustees, under and by which it is provided that all questions of difference arising between the parties thereto shall be submitted to arbitration, is valid and binding, not 'only upon the parties thereto, but upon the City of Cincipnati, the real owner of the demised property, such provision being one that is incorporated into nearly all leases of railroads, and this lease in all of its terms having been duly approved by the agents of such city, specially authori? d, and which as a whole has been acted upon by the City for nearly ten years.</p> <p>2. Offices of Trustees Continued after Making Lease.</p> <p>The office, powers and duties of the Trustee» of the Cincinnati Southern Railway did not cease with the making of said lease, but still continued.</p> <p>3. Clause Includes Disputes as to Terminal Facilities, but not Damages for Misrepresenting Condition of Road.</p> <p>The claim of the lessee company arising out of the alleged breach by' the Trustees and the City of the provisions of the lease for the expenditure of certain money in the purchase of terminal facilities for the railway so leased, and upon which said company has demanded an arbitration, is fairly covered by the arbitration clause in the lease, but not the other demand made by said lessee company for a submission to arbitration of its claim for damages sustained, losses incurred, and expenditures made by it by reason of the false and, fraudulent representations made, as it is claimed, by the Trustees and by the City before the lease was executed, as to the condition of said railway.</p> <p>4. Injunction will not Be Granted to Prevent Arbitration Because Part will be Illegal.</p> <p>One of tne questions to be submitted to arbitration being proper, the fact that the demand also seeks arbitration as to one which does not come within the contract of submission docs not afford good ground for a court of equity, in an action for injunction brought for that purpose, to enjoin any arbitration under such demand.</p> <p>5. Nor Against the Arbitration of the Improper Question — Award would be Void.</p> <p>Nor should the court interfere by like proceedings to restrain the arbitration of such improper question. Should the arbitrators proceed to adjudicate matters not covered by the agreement of submission, an award on the merits thereof would be void, and, on petition therefor, would be so declared, and set aside by the court.</p>

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

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

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

<p>BUILDING ASSOCIATIONS — ESTOPPEL.</p> <p>1, Member, Fully Informed, Borrowing, Under Old Rule Changed by Law, Estopped. From Denying Its Legality.</p> <p>While sec. 3835 Rev. Stat., as amended April 15, 1880, now gives to borrowing members o£ a building association, other rights, yet where such an association, at a time when the statute did not restrict it, adopted it the plan of, in addition to such rebate of interest, to allow dividends to borrowing members, omy on dues paid by them during the fiscal year for which the dividend was declared, and to allow dividends to non-borrowing members on all dues paid by them prior to declaring such dividend; and it at the time a person became a member of the association, he was fully advised of the manner in which dividends were declared, and with full knowledge thereof continuously for eight or nine years continued to receive dividends so declared, and without, complaint allowed such association to deal with all of its members on the same plan, and to pay or credit to non-borrowing members, many of whom are not now members thereof, such dividends, such person is now estopped from claiming that such, method was contrary to the statute in force, and that he was entitled to dividends on. a!! dues paid by him.</p> <p>2. Present Rule Not in Conflict With Statute.</p> <p>It seems that since the amendment to this section, passed May 8, 1886, the manner ofi declaring dividends adopted by the defendant company, herein 'mentioned, is not hi conflict with the provisions of such section as so amended.</p>

<p>CONTEST OF WILLS — EVIDENCE.</p> <p>Where Mere Preponderance is Required, Charge of Pair Preponderance is Error.</p> <p>In the trial of an action to contest a will on the ground that it was not, in fact, executed and attested as required by law, it is error to charge that the jury must be satisfied, by a. fair preponderance of all the evidence, that the paper writing is not the last will of the decedent, or they must find that it is. The words “satisfied” and “fair” require more than a mere preponderance.</p>

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

<p>STREET IMPROVEMENTS.</p> <p>1. Abutters May Enjoin Illegal Assessment Without Applying to Solicitor.</p> <p>The owners of property abutting on a road or street proposed to be improved at their expense, have a private right of action to insist that they_ shall not be illegally assessed, and they are not required before bringing such private action, to request the village solicitor to bring suit.</p> <p>2. Assessment Restrained for Sidewalk on One Side of the Street Only.</p> <p>When, in an incorporated village, there is a general ordinance providing for a sidewalk on each side of a street, a special ordinance requiring that on a certain street there shall be a sidewalk only on one side, and the curb line of the street shall be the line of the street on the other side, is an unreasonable one, contrary to the policy of the law in regard to sidewalks in municipal corporations, and in violation of the rights of the property holder who is thus attempted to be deprived of a sidewalk in front of his property, and he is entitled to an injunction to prevent his property from being assessed for such improvements.</p> <p>3. Road Improvement Commenced by County must be Continued by Village Therein, in Same Manner.</p> <p>If the legislature has authorized a county to improve a certain road, and the county has undertaken to do it in a particular manner, if a village in which part of it lies has aay power to improve that part, it cannot improve it in any other manner.</p>

<p>APPEALS.</p> <p>Defense to Action for Services, Alleging Overpayment and Involving Complicated Accounts not Appeal* sle.</p> <p>iu an action brought before a justice of the peace to recover the value of services rendered under a contract, and for damages for the breach of a contract, an appeal was taken by the defendant to the court of common pleas, from the judgment rendered by the magistrate. In the appellate court the defendant filed an answer denying the allegations of the petition as to the breach of the contract, and by way of cross-petition set up a claim for money against the defendant, alleging a mistake in a settlement made between rfie parties, and an overpayment made by defendant to plaintiff, praying for an account to be taken of their dealings under the contract between them, and that the defendant be credited with the amount found -to be due him. Held: The issues presented are triable by jury and an appeal in such case did not lie to the circuit court</p> <p>Motion to dismiss appeal.</p>

<p>EVANGELICAL ASSOCIATION.</p> <p>Power of Fixing the Holding of Conference may be Delegated to a Committee.</p> <p>The constitution, or discipline, of the Evangelical Association of North America required the general conference to fix the time and place of the next general conference, and, in default of their doing so, another body was Jo affix it. A general conference fixed the' time, but delegated to a board the duty of fixing the place. The other body, claiming that such action was void, as the delegation of legislative power, or of a trust, fixed a different place, and then two conferences were held, each claiming to be the true one. Held: Fixing the place was a ministerial or administrative act, and could be delegated to a committee, and, hence, the former act was legal.</p>

<p>STREET RAILWAY FRANCHISE.</p> <p>1. Competitive Bidding or Consents not Required for Renewad of Grant,</p> <p>It was not the intention of the legislature to apply the provision of section 2502 of the Revised Statutes, in respect to publication of notice and competition in rates, to a renewal of the grant of a franchise to a street railway company to occupy the streets; nor is the consent of the property owners a condition precedent to the validity of such grant.</p> <p>2. May be Renewed Previous to Expiration of Originad Grant.</p> <p>Whenever in the opinion of the city council the public welfare would be promoted thereby, it may, by agreement with a street railway company, terminate a grant previous to its expiration, and renew the franchise for any period not in excess of the limitation fixed by statute.</p>

<p>OIL AND GAS LEASES.</p> <p>1. Conveyances for a Term and so Long as Production Pays are Licenses.</p> <p>What are denominated gas or oil leases containing. a clause conveying premises for a term of years and so long as gas or oil are produced in paying quantities, are not strictly leases, but are licenses, coupled with a conditional grant.</p> <p>2. Nominal Consideration is Sufficient.</p> <p>A consideration of one dollar and the fact of expenditure by the licensee on the faith of the contract is sufficient to support it.</p> <p>3. Provision for Length of Term not Arbitrary.</p> <p>That the term, “and so long as gas or oil are produced in paying quantities,” has no legal or fixed meaning, but^depends upon the intention of the parties as ascertained from the facts and circumstances surrounding each case.</p> <p>4. License not Forfeited for Non-Payment of Taxes,</p> <p>A license to use land for oil wells the lessee to pay the taxes is not forfeited for their nonpayment if there is no clause of forfeiture, but the remedy is at law only.</p>

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

<p>INSOLVENT ESTATES.</p> <p>Secretary of Insolvent Company not an Operative Entitled to Preference in Distribution.</p> <p>The secretary of an incorporated manufacturing company is not an operative and is entitled to the preference over general creditors, provided for in sec. 6355 Rev. Stat. Although, as such secretary he acted as manager, overseer and superintendent, and in so doing performed manual labor in packing and shipping for the concern, it would not change the rule.</p>

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

The defendants in error, by their answers and cross-petitions filed in the court of •common pleas, allege that Caroline Sharkey died intestate, January 11, 1889, and seized in fee of certain real estate in said county, leaving her son, Elmer L. Sharkey, her sole heir at law; that thereafter, said Elmer L. Sharkey executed to them several mortgages to secure the payment of certain promissory notes, their cross-petitions containing appropriate averments as to the existence of…

<p>First-case, appeal from — second case, error to the Court of Common Pleas of Lucas county.</p>

<p>QUO WARRANTO.</p> <p>1. Jurisdiction of Circuit Court Limited to County.</p> <p>In a proceeding in quo warranto, brought in one of the circuit courts of this state, against three persons, neither of whom resides in, or is found in such county, and no appearance of such persons is entered thereto, they can not legally be constructively served by publication of notice under sec. 6771, Rev. Stat. Under these circumstances such proceeding can not be maintained in such county.</p> <p>2. Cannot be Brought by Directors of Corporation on Their Own Relation.</p> <p>Under the provisions of sec. 6763, Rev. Stat., quo warranto cannot be brought by persons claiming to be directors of a corporation against usurpers, on their own relation. It should be brought by the prosecuting attorney on his own relation, or by leave of the court, or of a judge thereof in vacation, on the relation of another person.</p>

<p>Proceedings in Quo Warranto. Plearing on Demurrer to the Petition.</p>

<p>STOCK AND STOCKHOLDERS.</p> <p>1. Voting Power of Stock May be Transferred to Trustee to Arrange Differences.</p> <p>An agreement by which shareholders of a corporation (a railroad company) turn over to another person, or a trustee, voting power in the stock, for the purpose of arranging certain differences between the common and the preferred stock, and to readjust the affairs of the company, in the interests of the stockholders, and to which all had an opportunity to become a party, is not illegal.</p> <p>2. Proxy May Vote Under Direction of Others, Whether Stockholders or Not.</p> <p>While the law may not tolerate an arrangement by which the voting power of the shareholders of a corporation is turned over to another person or corporation absolutely, all other rights to the stock being retained by the owner thereof, yet it does recognize and allow the vote of such owner to be cast by another person duly authorized to do so. Such vote so cast is the vote of the principal acting by his agent. And any number of shareholders may authorize the same person to vote for them, and direct that such vote be cast for particular persons, or to bring about a particular result, not contrary to law or to public policy. Nor would it be illegal to stipulate that the proxy so appointed should cast such vote in accordance with the direction of one or more persons, named by the owner, whether they be shareholders or not.</p> <p>3. Shareholder iMay Transfer Stock to Trustee, for Indefinite Period.</p> <p>A shareholder has the right, for a legitimate and proper purpose, to transfer his stock to another, as trustee for him, or for another person, and may stipulate that the trust shall continue for a specified period, or indefinitely, and that during its continuance, the trustee shall have the legal title thereto, and the right to vote upon it.</p> <p>4. Shareholders Entering Agreement to Give Control of Line to Another Railroad, Not Ineligible as Directors.</p> <p>And the fact that after or before the making of such agreement, secret negotiations had been made between the trustee and the representatives of another railroad company fa connected but not a competing line) which resulted in an agreement by which the control of the railroad was to be in the hands of said other railroad company, would not, were it illegal, justify excluding such stockholders as entered in such agreement, from the office of director, even though they were elected to such office in pursuance of an agreement with the other railroad company.</p> <p>5. Combination Agreement is Legal.</p> <p>But under the provisions of sec. 3300 Rev. Stat. such an agreement would not seem to be illegal.</p>

<p>SPECIAL LEGISLATION.</p> <p>1 Improvement Authorized by General Act may be Completed Under Special One.</p> <p>Power conferred by a general law being exercised by special legislation is valid, as where a city has proceeded, under a general law, to construct a public improvement, and its funds give out, the legislature may, by special act, confer power on it, to complete the enterprise. Sec. 2491 Rev. Stat. forming part of the act of 1892 (89 O. L. 236).</p> <p>2. Law Empowering Certain Cities to Act Before a Fixed Date is Special.</p> <p>A law, general in terms, empowering cities of a certain grade to do something before a fixed date, or before the next election, is a special act, and is in conflict with sec. 1, art. 13 of the constitution.</p>

<p>STREET RAILWAYS.</p> <p>RELEASE BY ABBUTTBR, Extends TO SECOND Track AND BINDS GRANTEE.</p> <p>Where a village grants to a railroad the right to lay its tracks in a eertain street, and the abutting owner sold the right of way to the road and released all damages, the road may, ten years later, lay an additional necessary track, and a grantee of the first owner is not entitled to an injunction or damages.</p>

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

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

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

<p>TAXATION.</p> <p>1. Ohio Executor oe New York Estate not to be Listed.</p> <p>The mere fact that a resident of New York appoints a resident of Ohio as one of his executors, all the property and the settlement of the estate being in New York, does not entitle the auditor here to list any of the property here ior taxation.</p> <p>2. Auditor’s Notice oe Intention to List Authorizes Injunction.</p> <p>Notice by the auditor that he will put property on the duplicate, unless immediately • returned for taxation, is sufficient to authorize asking an injunction.</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>MARRIAGE.</p> <p>1. Marriage of Man Under Guardianship May be Valid.</p> <p>A marriage freely and voluntarily entered into by a person of full age, and of sufficient mental capacity to understand and carry out the same, but which marriage took place after a guardian had been appointed for him by the probate court by reason of intemperance, which guardianship continued until his death, and where the parties to such marriage lived together as husband and wife for sixteen months, and until his death, without any objection on the part of the guardian, but with his tacit consent, and where no proceeding was ever taken before the death of the husband, to annul such marriage, held to be valid and binding.</p> <p>2. Adjudication of Incapacity not Conclusive.</p> <p>The adjudication of a probate court in such a proceeding, that by reason of intemperance the person was incapable of taking proper care of himself or of his property, and appointing a guardian, is but prima facie, and not conclusive evidence of his' want of capacity to contract a marriage.</p>

<p>TRADE-MARKS.</p> <p>1. Need not Contain Names or. Locality of Manufacturer.</p> <p>To constitute a device or design a trade mark, it is not necessary that it should contain the name of the manufacturer, and his place of business and similar statements.</p> <p>2. Injunction to Stop Resale will Issue against Buyer of Pirated Goods.</p> <p>Injunction against selling goods with a piratical trade mark will issue against a buyer without notice. He obtains no right there being no market overt in this country.</p>

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

<p>HUSBAND AND WIFE.</p> <p>1. Action of Husband Against Wife to Compel Her to Assist in His Support.</p> <p>Where since the, passage of the act of March 19, 1887, “to define the rights and liabilities of husband and wife,” a woman of large means marries a husband without property, which was known to the wife before the marriage, and after said marriage the husband being in no fault, the wife combines with her son by a former marriage, and, together with said son, by cruel usage and threats of enormous bodily harm, excludes, the husband from her dwelling and premises, and refuses to assist in his support, he being old and infirm and unable to support himself, she is liable, and it is her duty to assist in the support of the husband so far as she is able, and he may maintain an action for assistance in his support and to enforce such duty.</p> <p>2. Such Action is Equitable in its Nature and Triable by the Court.</p> <p>That such action is not for the recovery of money only and triable by a jury, but is. equitable in its nature and triable by the court.</p> <p>3. Wife’s Property May be Subjected to Husband’s Support.</p> <p>That in such action the husband’s interest in the wife’s property may be declared, and the property subjected to the payment of such reasonable amount as may be found necessary for the husband’s support, (ist) by appropriating, through a receiver, the personal property; (2nd) by sequestering the rents and profits of the realty, and (3rd) by sale of the realty, when the same is necessary.</p> <p>4. Husband’s Right to Occupy Dwelling Enforced by Contempt.</p> <p>The husband has a right, if desired, to be restored to the occupancy of the dwelling, to be enforced by order, and if necessary, by proceedings for contempt.</p> <p>5. Husband’s Rights Depend Mainly Upon statutes.</p> <p>While the ante-nuptial intention of the wife to charge her property for the support of ' the husband is entitled to consideration, the rights of the husband rest mainly upon., the provisions of the statute, .being of a higher nature.</p>

<p>DIVORCE.</p> <p>Husband not Liabee for Support of Chied Granted to Custody oe Wiee.</p> <p>Where a wife deserted her husband, and on this ground he obtained a divorce from her,, but the court by its decree gave the custody of their child to the mother, at her request, and against the wish of the father, who was able and willing to support such' child, and desired to do so, and sought to have the custody thereof, the mother can not thereafter recover from the father the value of her services rendered to,, or the amount paid by her for the necessary expenses of such child, where there-has been no express agreement by him to compensate her therefor.</p>

<p>MECHANIC’S LIEN.</p> <p>1. Suspension of Work Induced by Owner does not Defeat a Dien Fired within the Statutory Time.</p> <p>Where a mechanic commenced and performed a large part of the work, but at the request of such owner suspended work thereon temporarily, though on different occasions in the meantime he came with his men and materials and sought to complete his contract, but further delayed tlie same at the request of the owner, until four months had elapsed since any work had been done by him on the building, when the owner without cause wrongfully refused to permit him to do anything further on the contract, a mechanic’s lien, filed within the statutory period after the contract was so terminated, was legal and valid, and took effect from the date of the first item of labor performed.or material furnished by the contractor for such building, and was superior to an intervening mortgage.</p> <p>2. Priority of Dien over Mortgage.</p> <p>The fact that during the time that the work was so suspended, and after the giving by the owner of said premises of a mortgage thereon to another person, the mechanic attempted to put a lien thereon to secure the amount then due upon his contract, but in which, by mistake, the premises were not correctly described, would not estop him from claiming priority on his lien subsequently taken, as against such mortgage.</p>

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

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

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

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

<p>SIDEWALKS — PLEADINGS.</p> <p>3. Abutter not Liable eor Injury from Defective, Sidewalk if City must Repair.</p> <p>A person injured by a fall caused by stepping through a sidewalk rendered defective by reason of want of proper repair, cannot recover damages for such injury in an action against' the owner of the lot abutting upon the sidewalk. A demurrer to a petition praying for such damages is properly sustained.</p> <p>2. Averment of Liability a Conclusion of Law.</p> <p>An averment in a petition for damages for personal injuries sustained by stepping through a walk which was out of repair, that “then and there and long prior thereto it had been the duty of said defendant to keep said sidewalk in safe condition,” is a conclusion of law, and not an allegation of fact.</p>

<p>On motion to dismiss appeal.</p>

This was an action brought upon a promissory note by the defendant in error, who-was the payee of the note, against the principal and the plaintiffs in error, who were his. sureties. The defense of the sureties was that after the execution of the note by them, it was materially altered by the principal with the knowledge and consent of the defendant in error, by the addition of the words “with all reasonable attorney’s fees,” without their ■ knowledge or consent.

<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>On motion to strike bill of exceptions from the record and files.</p>

<p>' SEWERS.</p> <p>Abutter who did not Pay Assessments may tap Upon Payment oe Eicense Fee.</p> <p>An abutting proprietor has the right to tap a public sewer on payment of the license fée, without paying two dollars a foot, although the assessment for its construction was adjudged invalid, and he consequently never paid but part of it.</p>

<p>DEVISES — LIFE ESTATE.</p> <p>1. When Remainder Over on Attempt to Alienate Life Estate is Valid.</p> <p>A devisee by his will gave to his wife three or more separate parcels of real estate, “for the term of her natural life, or as long as she may remain my widow.” He then provided that after the death of the wife, his son was to have the use and benefit of the property during the period of his natural life, but without the right or power to alienate, charge or incumber, or in any manner anticipate his life estate in said property. And at his death, or when he attempted to so alienate, charge, incumber or anticipate his life estate, the property was to go to his children. During the life of the widow she and the son executed a mortgage on one of the parcels, which during the life-time of the widow was fully paid and satisfied.. Held:</p> <p>That the interest devised to said J. C. P. in said premises, was one which but for the provisions of the will, might have been aliened or incumbered by him during the lifetime of A., the widow.</p> <p>2. Provision of Will Terminating Life Estate Upon Attempt to Encumber, is Valid.</p> <p>That the provision of such will that when the son “shall attempt to so alienate, charge, incumber or anticipate his said life estate,” that it should at once, pass to his children, was valid, and on the execution and taking effect of such mortgages respectively, his estate^ in the land so mortgaged, ceased and determined, and the same passed to the plaintiff, his only child.</p> <p>3. Involuntary Sale on j udgment is not an Attempt to Alienate.</p> <p>That the sale of the other parcel of such real estate, on executions issued on judgments rendered against J. C. P., did not operate to forfeit his life estate therein, as it was involuntary, and not an attempt by him to alienate, charge, incumber or anticipate.</p> <p>4. Termination of Dife Estate by Remarriage.</p> <p>A devise to the widow for life, or so long as she remains a widow, and after her death to a son, may mean to the son not only at death, but at the termination of the life estate by the widow’s remarriage.</p>

<p>STREET ASSESSMENTS UNDER SPECIAL ACT.</p> <p>1. Legislature may fix Taxing District — Law not Invalid Because Outside Lands are Benefited.</p> <p>The act of April 22, 1890, for the improvement of Erie avenue, (87 O. L. 577), and the proceedings under the same are not invalid, on the sole ground that it is alleged and shown that other parcels of land, adjacent to, but outside of the assessment district created thereby, will be greatly benefited by such improvement, and much more than other parcels within the same. The right of the legislature to fix the limits of the taxing or assessment district in such cases, can not be' questioned.</p> <p>2. Want of Provision that Assessment shall not Exceed Benefits does not Invalidate.</p> <p>Nor should such act by this court be held to be unconstitutional, upon the ground that by the • provisions of the same the lands within such district are to be assessed for the construction of the improvement "in proportion to the benefits which may result from said improvement to said lots and lands,’’ and there is no express provision therein, that such assessment shall not in any case exceed the amount of the benefit conferred thereby on such property. If land was shown to have been assessed beyond its benefits, it would be a violation of the constitutional rights of the owner, and the assessment would be enjoined by the court.</p> <p>3. Not Enjoined Because Road Not Public Property if it Becomes So.</p> <p>An assessment under a special statute will not be' enjoined because the road to be improved was not public property, if it became such since the proceedings were begun.</p>

<p>APPEALS.</p> <p>1. Giving Bond Dispenses with Notice oe Intention to Appeal erom Probate.</p> <p>Under the provisions of section 6408, Revised Statutes, which point out the steps to be taken when a party desires an appeal under section 6707 from any order or decision of the probate court in the cases named, to the court of common pleas, it does'not seem essential to the appeal that a person required to give an undertaking therefor, should also give notice of his intention to do so, by causing an entry of such intention, to be made upon the journal of the probate court.</p> <p>2. One not Required to give Bond must give Written Consent.</p> <p>A person who is not required by the terms of such section to give an undertaking for atr appeal, must give written notice to the court of his intention to appeal, within the time limited for giving bond. Whether this is to be done by having an entry made upon the journal of the probate court, or in some other way, Quaere:</p> <p>3. Finding oe Probate as to Priority oe Mortgages not Conclusive.</p> <p>Two mortgages had been executed to different persons on the same chattel property, which was afterwards assigned by the mortgagor for the benefit of creditors. One of these mortgages, with the note secured thereby, was transferred by the owner to K. The holders of the two mortgages asserted their claims in the probate court against the proceeds of such property, and the assignee, by written motion, called upon the court to adjudicate as to the validity and priority of such mortgages, which was done. The assignor of such note and mortgage was not a party to the proceeding. On appeal to the court of common pleas, a judgment was rendered that the mortgage so assigned was invalid. Such judgment should not be reversed, on the ground that the assignor of such mortgage, or the general creditors, were not parties to the proceeding, or that proper issues were not made by the pleadings in the case.</p> <p>4. When Entire Case is Appealed erom, Whole should be Disposed oe.</p> <p>The whole case having been appealed to the court of common pleas, and that court having disposed of but one of the several issues made, or questions raised, and then remanded the case to the probate court, this was erroneous.</p> <p>5. Partial Appeal not Allowed.</p> <p>No appeal from part only of an indivisible order of distribution by the probate court can be made.</p>

<p>SCHOOL LAW.</p> <p>1. Board or Education not to Increase its Own Number.</p> <p>The school board of a special school district consisting of three members, is not authorized by virtue of sec. 8694, Giauque’s Stat., or-8035-213 Smith and Benedict’s Edition, to change its number to five, and an election will be declared void whereby such change is attempted, and the persons claiming to be so elected, will be ousted.</p> <p>2. A Member Legally Elected Holds until Successor Elected.</p> <p>But where one of the parties claiming to be so elected, holds his office by virtue of a prior.legal election, he will still hold it under Rev. Stat,, sec. 3924, until his successor is legally elected and qualified.</p>

<p>Silas Maynard Stone et al. v. Philip Doster et al. — Appeal from the Court of Common Pleas.</p> <p>Ithiel Stone et al. v. Silas Maynard Stone et al.</p> <p>Error to the Court of Common Pleas.</p>

<p>EJECTMENT — LIMITATIONS.</p> <p>1. Petitioner not Showing action B'rred. ni-ed not Plead Limitations.</p> <p>The petition in this case, (the action being for the recovery of real estate), was in proper form, and not showing that it was apparently barred by the statute of limitations, it was not necessary for the plaintiff to make averments therein, to bring himself within any of the exceptions contained in ihe statute.</p> <p>2. Answer Showing an Lstoi-pel Rkply n> id not Plead Exceptions to Statute</p> <p>For a first <h ense, the answer denied the title of the plaintiff to the land in controversy. Under this the defendant was authorized to show an adverse occupancy of the premises by her and her grantor for more than twenty-one years before the commencement of the suit. The second defense did not expressly plead the statute of limitations as a bar to the maintenance.of the action, but alleged that she and her grantor had held the undisputed possession of the premises since September 26, 1863, under such circumstances, (stating them), as would estop the plaintiff from claiming possession thereof. This did not require the plaintiff by his reply, which contained a denial of the new matter in the answer, to set up facts which showed that he was within some one of the exceptions of the statute of limitations.</p> <p>3. Grantee of Married Woman has Ten Years after Disability Removed to bring Ejectment — Adverse Holding over 21 Years.</p> <p>On the issues thus made, trial was had, and as is conceded, the plaintiff showed a good paper title to the land in controversy. It was admitted also that the defendant, and those under whom she claimed, had continually occupied the property adversely, from September 26, 1863, to the commencement of the suit, August 13, 1890. The plaintiff, to show that he was not thereby barred from maintaining his action, proved that at the time of the taking possession of the premises by the grantor of the defendant, and for several years thereafter, Mrs. Swartz, the grantor of the plaintiff, was a married woman, the wife of Leonard Swartz, and so continued until his death. By the statute of limitations then in force, and which governs this case, (Section 10 of Code of 1853. S. & C. 945), a woman who was under the disability of coverture when her right of action accrued, might bring the same within ten years after the disability ceased, although her lands had been held adversely during her coverture, and afterwards, and before suit brought, for more than twenty-one years. And the grantee of such married woman had the same right.</p> <p>4. Error op Court in Directing a Verdtct.</p> <p>The trial court in this case, assuming that this suit was brought within the ten years after the coverture of the grantor of the plaintiff terminated, when there was no evidence showing such fact, and no admission thereof, erred in directing the jury to return a verdict for the plaintiff.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Water Works and Kleccric Rights Provider for in one Resolution.</p> <p>Where the council of a municipal corporation under the provisions of secs. 2835 and 2837. Rev. Stat., passed a resolution declaring it necessary to increase the capacity of its system of water-works then in operation in the village (operated by steam), and to construct in connection therewith an electric light plant, so as to provide for the lighting of the streets and avenues of the village to the best advantage, and at the least possible expense, and submitted the question of the issue of the bonds of the village to an amount not exceeding $15,0ÜU, to pay for the same, to the voters of the village, said proceedings and the vote taken being regular and in strict accordance with the law, .and the vote being largely in favor thereof, such proceedings and vote are not invalid .or unlawful on the sole ground, that the questions of the enlargement of the waterworks system, and the construction of an electric light plant were coupled together. It was, substantially, one improvement.</p>

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

<p>Error to the Court of Common P-leas of Hamilton county.</p>

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

Joseph P. Cloud died in 1872, leaving a last will and testament by which he bequeathed to his widow Martha A. Cloud real and personal property, on which he placed a value of $27,000.00, and devised to his two children William and Ellen Cloud the residue of his property of every kind to be equally divided between their heirs, etc., and authorized his executor, William F. Converse to sell real estate and convert the same into money as soon as practicable and divide the…

Guernsey Y. Roots, qualified as assignee of the Mason City Coal & Salt Co., of W. Va., in the year 1871, in the Probate Court of Hamilton county. Afterwards an assignee in bankruptcy, James A. Waddell, was appointed by the U. S. Court of West Virginia.

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

This case was tried in the circuit court on appeal from the Court of Common Pleas of Erie county.

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

<p>FUNDS DEPOSITED WITH ARCHBISHOP.</p> <p>1. Trustee has Claim on Property Improved by Advancements from his Own Funds, which Passes to assignee.-</p> <p>While it is the law that where a trustee, like the Archbishop of the Roman Catholic Church, holding the legal title to real estate, but which in fact is held by him as trustee and for the benefit of a particular church, congregation, society, school or seminary, “has made advances from his own private means, otherwise than as donations, to assist in buying or improving the trust property, he has a claim upon the particular propertr so purchased or improved, which passes to his assignee in insolvency as individual assets,” and in such case the burden is on such assignee to show that such advances were not made as donations, but with an expectation of re-payment. And it should also appear from accurate accounts kept by the trustee, or when, as here, the action is on behalf of creditors, it should be shown with reasonable certainty that such advances were made and the character of them.</p> <p>2. Where it is Reasonably Certain that Advances were from Funds of Depositors, Court must Regard their Rights.</p> <p>When in a case like this, it appears that no such accounts have been kept through a period of more than forty years, but it is reasonably clear from all of the evidence that large sums, at various times, must have been advanced, which could only have come from loans made to the archbishop by those who are now asserting these claims through the assignees in insolvency, ihe tourt should have regard u> lueir rignls, and non, the best evidence in the case as to the amount of the advances so made, other than as-donations, find the amount of the same, and subject the particular estate for whose benefit they were made, to the payment thereof.</p> <p>3. Interest not Allowed where Depositors did not Know of Advances, except from Time of Demand.</p> <p>Where such advances have been made during a period of forty or fifty years prior to such assignment, and during this time the trustee, as bishop and archbishop of the diocese, holding the legal title to all the real estate in question, had the supreme control thereof, and such advances, and improvements made upon the trust property, wt remade without any agreement or understanding with the respective congregations or societies, as to the re-payment of such advances, and in many cases, the amounts thereof were unknown to the beneficiaries, and no demand (except in a single instance), was ever made by such bishop for re-payment, in such case interest will not be charged on such advances from the time they were severally made, but from the time demand was. made therefor, viz., from the bringing of this action.</p>

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

<p>Error to tíre Court of Common Pleas of Luoas County.</p>

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

<p>RAILWAY EMPLOYEES.</p> <p>Failure to give Reason for Discharge not Ground for action.</p> <p>• A railway corporation for the failure to furnish a discharged employee the reason (in writing) for such discharge, is not liable in a civil action to the penalty or forfeiture provided by an act of the legislature, passed April 2nd, 1890. [Vol. 87 O. L., 149.]</p>

In the court of common pleas Blackwelder sued Parker upon some notes. The case was tried to a jury, verdict was rendered for Blackwelder for the full amount claimed, and judgment was entered upon the verdict. Parker moved for a new trial upon the ground of misconduct of the jury, and supported this with the affidavits of three jurors, and that of his attorney.

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

<p>RIPARIAN RIGHTS.</p> <p>1. Provisions of Law Considered.</p> <p>Under sec. 8 of the act of the legislature, of February 4, 1825, Swan’s Statutes 1841, 747-748, the Canal Commissioners were authorized to take and appropriate any lands, waters, streams and material necessary for the prosecution of the improvement provided for in the act.</p> <p>2. Compensation to Owner of Property thus Taken.</p> <p>Under said section the owner of the property thus taken, upon application therefor, could have compensation awarded to him. Application for such compensation was required to be made within one year from the time the property was taken possession of by the Canal Commissioners.</p> <p>3. Conditions which Amount to an Appropriation by the State.</p> <p>Where “slack-water”' is caused to exist in one of the tributaries of a river, across which a dam was erected to provide for slack-water navigation in the river in which the dam was placed and as a feeder to the canal, and which slack-water does in no way interfere with the common and ordinary use of the premises and stream by the riparian owner. Held: An appropriation of the bed of the stream so as to vest the fee in the state does not exist.</p> <p>4. State Invested with Fee in Bed of Streams — How.</p> <p>In order to invest the state to the fee in the bed of the stream, there must be such serious interruption to the common and ordinary use of the property as will be equivalent to a taking.</p>

The petition in this case is for injunction and damages, to restrain continuance of nuisance. On the trial below, judgment was given for plaintiff, and an appeal taken. Application is now made to stay injunction, and allow defendant to operate plant until trial of case in this court.

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

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

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