Volume 4 — Ohio Circuit Court Reports

In the court below an action was brought by Ross against Robert H. Todd, as guardian of Henry Hunt, animbecile.” for articles furnished to the imbecile before the appointment of the guardian. The guardian denied that the articles were furnished, and the plaintiff offered himself as a witness to prove that fact. Defendant objected to the competency as a witness under sections 5240, 5242, Rev. Stats.

<p>1. Where services required by law are performed by the sheriff, and no compensation is provided therefor, such services must be regarded as gratuitous.</p> <p>2. The compensation provided for sheriffs for “keeping and providing for prisoners in jail,” section 1235 Rev. Stats., is for services required by section 7379 Rev. Stats., and no ocher or further compensation for such services is provided for or contemplated by the latter.</p> <p>3. The only compensation provided for services required under section 7379, is that which is allowed under section 1235 “for keeping and providing for prisoners in jail.” For other services, if any such there be, required to be performed under section 7379, no compensation is provided by statute or otherwise, and none can be recovered.</p>

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

Defendant in error brought suit in the court below to recover of the plaintiff in error, an imbecile, the sum of $1235, for services perfórmed by her for him, as his hired servant, at his special instance and request.

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

<p>A gas light company (iu operation), duly organized and authorized by the vote of the people of a city, to erect gas works, etc. etc., can make legal contracts with the city, to furnish gas, without another vote of the people. Sec. 3551, Revised Statutes, applies only to the formation of anothercompanv.</p> <p>A contract duly entered into, between a gas light company and a city, is legal under sec. 2485, Revised Statutes, although it fails to secure to the city council the right to purchase the gas plant.</p> <p>The power of a city council to contract with a gas light company to furnish gas under sec. 2491, Revised Statutes, is limited under section 2479, Revised Statutes, to a period of time not exceeding ten years.</p> <p>A contract to be legal must be evidenced by an ordinance duly passed, together with the written acceptance of the gas light company, as provided by section 1693, Revised Statutes.</p> <p>Parties under such a contract acquire vested right. An ordinance repealing the contract ordinance, is void and of no force or effect.</p>

The defendant in error filed his petition in the court below setting forth that the plaintiff in error is the duly elected, qualified and acting auditor of said county of Greene.

<p>M. had two sons, G. & S. S. was the father of eight'children. M. had made provision for his son G., and being desirous of providing for S. and his children, he advanced to the two children of S. then of age, about §3,590.00 each. He then conveyed to G. as trustee, real estate of the value of about §20,0000. He was to take immediate possession thereof, collect the rents, pay the taxes and expenses thereof, and pay from the proceeds to S. §1,000 per year, and the residue to the grantor during his life. The deed then provided that G. was to convey to each of the said six children of S. as they respectively arrived at full age, the one equal sixth part of said real estate in fee-simple, “ but should any of them die before arriving at full age, or before receiving a deed as aforesaid, without issue surviving them, the share tract that he or she would be entitled to, shall vest equally in the. other heirs of S. surviving, and be conveyed by my said trustee in the manner heretofore designated; but it is understood that no conveyance shall be made by my said trustee or his successors until the period of thirty days after my death.” After the execution of this deed four other children were born to S. A., one of the six children named in the deed, died in 1887, under age and without issue. M., the grantor, died in 1888. On a petition filed by the trustee to obtain a construction of the deed, and the direction of the the court as to whom he should convey the land, Held :</p> <p>1. That the word 1-1 heirs ” in the sentence “ shall vest equally in the other heirs of S. surviving,” is to be construed as meaning children of S.</p> <p>2. That on the death of A. under age, and without issue, during the life of the grantor, his share vested in all the surviving children of S., and if that, if any one of them was dead, leaving issue, such issue took the share its parent would have taken.</p>

<p>An application to change or renew an undertaking for appeal under section 5233 Kev. Stat., is a “proceeding” within the meaning of section 5114 Rev. Stat.</p> <p>Where by mistake an appeal undertaking is conditioned that the appellant shall abide and perform the order and judgment of the District Court instead of the Circuit Court, such undertaking may, with the consent of the surety, be amended by correcting the nameiof the appellate court therein ; or the Circuit Court may allow a new undertaking to be given.</p>

The petition in the original action avers, in substance, that on September 1, 1858, John Schiml and the said Michael Schiml were owners in common, in equal shares, of two lots in the city of Dayton; and that on September 5, 1858, said John Schiml died intestate, seized in fee simple of the undivided one-half of said' realty, leaving said August J. Schiml his sole heir, and said Theresa Schiml his widow.

<p>Appeal from the Court of Common Pleas of Montgomery County.</p> <p>This cause is submitted upon a demurrer to the answer.</p> <p>Poock, as treasurer of Montgomery county, sues Joseph Ely, Samuel Paullin and David Banker, as trustees of original surveyed township number one, range five, east, etc., of Warren county, Ohio, alleging that prior to the proceedings by the County Commissioners of Montgomery county complained of, the lands in the petition described, being the south-east-quarter of section twenty, town six, range four east, etc.,. were under acts of congress of April 30, 1802, and March 3, 1803, donated by the United States to the State of Ohio, in trust for the support of common schools, and were set aside and assigned to said original surveyed township for school purposes and the use and benefit of the schools therein; that at ■and during said period, the said trustees held, managed and ■controlled said lands for the uses and purposes aforesaid, and ■that defendants as such trustees now hold the same for said uses and purposes. That on the 30th day of January, 1880, •a petition was presented to the commissioners of said Montgomery county, praying that body to lay out, establish and construct under the provisions of the act of the legislature of March 29,1867, as amended May 6, 1876, entitled, “an act to authorize county commissioners to lay out and construct free turnpike roads,” a certain county road, known as “ Bachman Road Improvement,” through said lands. That after due notice of the filing of said petition, viewers were appointed who, on the 19th day of March, 1880, reported in favor of said improvement, that the same was necessary, and setting forth the lots and lands which would be benefited thereby, and ought to be assessed for the expense of the same, among which were the lands aforesaid. That a majority of the land-owners whose lands would be benefited by the improvement having signed the petition, such proceedings were had by said commissioners as that said improvement was ordered to be made, and three disinterested freeholders appointed to apportion the expense, etc., and to report their action to the county auditor. That although said lands in question lie within the bounds of said road improvement, and were included within the report of said viewers and the order of the commissioners, and were benefited, and ought' to have been assessed for said improvement, they were by mistake omitted by said freeholders in making said apportionment. That afterwards, October 22,1885, such proceedings were had by the commissioners that a re-apportionment of said assessment was made, and the sum of $510.34 apportioned to and assessed upon the lands described, for making said improvement, which upon due notice and hearing was approved and confirmed by said commissioners, and said assessment duly placed upon a special duplicate, and placed in the hands of the plaintiff for collection; that the same, although past due, has not been paid. Judgment is asked for the amount of said assessment, interest and penalty, payable out of the rents, issues and profits of said lands, and other relief.</p> <p>The trustees by their answer admit that they “hold and control for the use and benefit of the public schools of said township, the lands and tenements in the petition described ; and that said lands were donated, under the acts of Congress named, by the United States to the State of Ohio, in trust for the support of common schools; and they further say that said-lands were accepted and held by the State of Ohio, in trust, for the support of the public schools, with the understanding and agreement that the said lands should be and remain, so long as held, for said purposes, by the state, exempt from taxation, and with the further agreement that, if sold, the proceeds should forever be preserved inviolate and undiminished. That said obligation has been ever since its organization, faithfully observed by the state, and all lands so received have been held, and were, and are, exempt and free from taxation and from assessment by the state, for any purpose whatsoever.</p> <p>“Defendants admit the establishment and construction of said free turnpike road through said premises, but deny that said lands ought to be assessed for the expense thereof, or that it was by mistake that said lands were not included in said apportionment; and aver that said omission was intentional, and in accordance with law and usage, and in the good faith required of them towards the United States; and that the subsequent action of the commissioners in assessing said lands for said improvement, and of the auditor in placing said assessment upon the tax duplicate against said land, were unjust, illegal and void.”</p> <p>cited: State v. Oom’rs, 17 Ohio St. 558; Reeves v. Treasurer of Wood Co., 8 Ohio St. 333; Hill v.. Higdon, 5 Ohio St. 243 ; Lima v. Cemetery Asso., 42 Ohio St. 128; Balto. v. Cemetery Co., 7 Md. 517; Sheehan v. Good Samaritan Hospital, 50 Mo. 155; St. Louis Public Schools v. St. Louis, 26 Mo. 468; Lockwood v. St. Louis, 24 Mo. 20; Cooley on Tax. (2 Ed.) 207, 606, 607, 650, 652 and 653; 2 Dillon Mun. Cor. § 777. Rev. Stats. § § 2264, 2274, 2276, 4833, 4835, 4836, 4838, 4842, 4843, 4844; 1 Chase St. 72, 73, 74, 534; Chap. 1 Title X and Chap. 1 Title XI Rev. St, 18 How. pp. 173, 181, 182; 82 O. L. 70; 83 O. L. 156; 1 Greenleaf Ev. § 490.</p> <p>cited : 1 Chase St. 72, 73, 74; 2 Chase St. 1477; 3 Chase 1802; Cooper v. Robinson, 6 McLean, 101; Cooper v. Roberts, 18 How. 173 ; 14 How. 267; Const. Ohio Art. VI § 1. 5 Dillon, 445 ; 2 Dill. Mun. Corp. § § 773 and 614. Cooley Tax. 172, 173; 31 Ohio St. 352; 84 111. 227; 42 Pa. St. 25 ; 116 Mass. 193; 36 Cal. 220; 47 Cal. 353. 4 S. & R. 354; 66 111. 322; 82 O. L. 122; 80 111. 384; 118 111. 52.</p>

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

<p>Appeal from Court of ^Common Pleas of Franklin County.</p>

<p>1. A judgment will not be reversed because a challenge for cause of a regular juror was improperly sustained.</p> <p>2. Nor because the right to open and close the case was given to the party who would have prevailed if no evidence had been offered, unless the record shows that there were no special reasons for directing that order of trial.</p> <p>3. Upon the trial of issues touching the good faith of the holder of a negotiable note invalid as between the parties, evidence of his knowledge of the consideration, to be competent, must lend to show knowledge at the time of his purchase.</p> <p>4. The weight of evidence considered.</p>

<p>A lessee of a perpetual lease, with the privilege of purchasing at any time, sought to exercise the option after the death'of the lessor. The heirs and also the administrator of the lessor and of her husband, claimed the fund. The lessee filed a bill of interpleader^making all of them parties. JECeld: That in such a case the heirs are entitled to the purchase-money, unless it be alleged andfproved, that it is necessary to pay debts or legacies of the deceased lessor.</p>

<p>Certain territory lying contiguous to the Village ot Westwood, Hamilton county, and which was a part of Special School District Ho. 1, of Greene township, under the statutes authorizing the annexation of contiguous territory to a village, on the application of the corporation, was by the action of the county commissioners duly annexed to, and became a part of, the Village of Westwood, which constituted another school district, known as “The Westwood Village School District.” The board of education of Special District Ho. 1, never in any manner consented to the transfer of such'territory to The West-wood Village School District, under sec. 3893, Rev. Stats., or otherwise.</p> <p>JOfeld: That such territory, so annexed to the village, did not become a part of The Westwood Village School District, but remained a part of Special School District Ho. 1.</p>

<p>The Board of Public Affairs of Cincinnati advertised for proposals to furnish for the Water Works “screaned lump coal for steaming purposes, according to specifications on file in their office,” and '“reserved the right of rejecting any or all bids.” The specifications on file in the office provided that the bidders will name the kind of coal, and, if possible, give comparative value of the coal to the second (2d) Pool Youghiogheny coal, and “that the engineer of the Water Works shall cause rigid examination to be made of the coal as it is received, and shall have power to refuse any coal which does not conform to the stipulations of the contract. Relator proposed to furnish “ Winifrede coal ” at a certain price per ton, but did not give the “ comparative value of that coal to second Pool Youghiogheny coal.” The bids were referred to the engineer of the Water Works, who reported certain crucial tests of that and other coals by an expert, tending to show that the other coals proposed to be furnished, were when quality was one of the tests, really the cheaper, and recommended a contract to be made with such other bidders, which was done; Held:</p> <p>1. That the proposals of relator did not conform to the advertisement;</p> <p>2. That as the specifications made the engineer of the Water Works the final arbiter as to the quality of the coal to be furnished, it was proper for the board to refer proposals to him, and act on his report;</p> <p>3. Such, action of the board will not be interfered»with by mandamus, in the absence of fraud, or gross carelessness amounting to fraud;</p> <p>4. In determining which bid was the lowest, the board was authorized to take into consideration the quality of the coal as one of the factors, and not merely the lowest amount of money per ton.</p>

<p>There is no statute or law authorizing a struck jury for the trial of questions of fact in the Police Court of Cincinnati.</p>

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

<p>The County Commissioners of Pickaway county, under a special act, authorizing them to remodel the court-house and build an addition or additions thereto, proceeded to advertise for sealed proposals, for furnishing all the furniture and fixtures (ineluding°vault furniture) for the eourt-housg in said county then being remodeled and added to. The specifications called for special proposals for the vault furniture in metal. Two bids were received for furnishing metallic vault furniture, each of which was lower than the estimate. The commissioners accepted the bid which was higher in price, and which was defective, in that it included materials not required by the specifications; and thereupon entered into a contract with the bidder, after correcting the defective bid.</p> <p>Upon an application for a mandamus by the lower bidder, whose bid conformed, in every substantial particular, to the plans, specifications and schedules, and who had done nothing to waive his right, and had used reasonable diligence in asserting it:</p> <p>Held: 1. That the lower bidder was entitled to a mandamus compelling the commissioners to award the contract to him.</p> <p>2. That said letting was controlled by sec. 799, as amended, Vol. 85, page 221, Revised Statutes, which requires that the contract shall be awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price.</p> <p>Held, further, That whether the letting was controlled by sec. 799, as amended, or sec. 794, the awarding of the contract to the higher bidder under the foregoing facts, was an improper exercise of discretion on the part of the commissioners, and that the contract should have been awarded to the lower bidder.</p>

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

<p>On the facts set forth in the petition—</p> <p>Held: That there has been such conduct on the part of the relator as amounted to a waiver on his part of compensation for a part of the time he acted as school examiner; and that in analogy to the statute of limitations, the court should now refuse a writ of mandamus requiring the Board of Education of the City of Cincinnati to fix the compensation of the relator for any period prior to six years before the commencement of this proceeding.</p>

At the January Term, 1889, of the Court of Common Pleas of Preble County, the plaintiff in error was tried upon an indictment for murder in the first degree in killing his mother, Carolina Sharkey. The jury found him guilty of miurder in the first degree as charged. His motion for a new trial was overruled, and sentence of death to be executed September 13, 1888, was pronounced in accordance with the verdict.

<p>1. Where on a trial, a verdict is rendered by the jury in favor of the plaintiff, and a motion was duly filed for a new trial upon the ground that the charge given to the jury, and excepted to at the time, was erroneous, and the motion for a new trial was not decided until ohe following term, when it was overmled, and a bill of exceptions taken, containing the charge excepted to, with so much of the evidence only as showed its relevancy, the reviewing coui't can not on such bill of exceptions properly consider the question whether thei'e was error,in such chax-ge; one reason therefor being that the bill was not taken at the term at which the charge so excepted to was given to the jury, and does not set out all of the evidence given on the trial of the case.</p> <p>2. Quere: Under secs. 5298 and 5101, Rev. Stats., as amended Max-ch 11, 1887 (Vol. 84, 69-70), and further modified in some respects April 11, 1888 (Vol. 85,181), is a bill of exceptions of any avail, even to raise a question of error occurring at the trial of a case, oriin the overruling of a motion for a new trial on. the ground that the verdict of the jury, or the finding of the coux-t is against the law or the evidence, unless such bill is presented to the trial court within thirty days from the end of the term “ at which the vex-dict was rendered or the finding of the court is made,” (on the facts and law of the case,) and signed as in said section 5301 px-ovided ?</p> <p>3. Where a plaintiff by his petition claims a judgment against the defendant for the breach of a contract, and the defendant by his answer and cross-petition denies the contract sued on, and sets up a different contract as to the subject matter, and claims damages of plaintiff for its breach, and for an amount due upon an account, which new matter is denied by the x-eply, and the issues thus raised are tried to a jux-y, which returns a verdict as follows: “ We, the jury on the issue joined find for the plaintiff, and assess his damages-at §2289.57,” and the reception of this verdict was excepted to, as not responsive to all of the issues made, and such exception noted on the journal of the court:</p> <p>Held, That these facts all appearing of record, a bill of exceptions is not necessary to raise the question of the sufficiency of the verdict; but that it was a substantial answer to the issues submitted, and the court did not err in receiving the same and rendex-ing a judgment thereon.</p>

<p>1. Where the common council of a municipal corporation has, by ordinance, created a board of improvements, the council may, by repealing such ordinance, abolish the board so created; and thereafter, the powers conferred by law upon the board of improvements, will be vested in the council.</p> <p>2. Where a municipal corporation is without a board of improvements, or a board of commissioners of sewers, the common council of such corporation is authorized and required, by law, to exercise the powers and perform the duties which would devolve upon such boards respectively, were they in existence.</p> <p>3. An ordinance providing- for the construction of a sewer within a sewer district theretofore created, is not rendered invalid by reason of the fact that it was passed within two weeks after the last publication of notice of the preliminary resolution, and before the expiration of the time allowed for filing claims for damages under such resolution ; especially is this so where no claim for damages has been presented, or allowed.</p> <p>4. In making special assessments to provide for the cost of constructing sewers within a municipal corporation, the power of the council is limited, as to the amount to be assessed, by the provisions of sections 2380 and 2384 of the Revised Statutes. By section 2380, “the , assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain, or sewer, such lots or lands.” By section 2384, the further limitation is imposed that “in no case shall the assessment exceed the sum of two dollars per foot front on the property assessed.” These provisions are applicable, whether the corporation has been divided into sewer districts, or itself constitutes a sewer district; whether the sewer constructed is a main sewer, intended to furnish drainage for tho whole territory lying within the district, or is a local sewer, properly so-called; and whether the assessment is made by the feet front, or according to benefits, or upon the duplicate valuation. The excess is to be collected by general levy upon all the property subject to taxation, embraced in the sewer distriot. Rev. Stats., secs. 2380, 2384, 2682 and 2683, paragraph 20.</p> <p>5. Lots or lands not needing local drainage, or which are already provided therewith, are, by the statute, exempt from special assessment for the cost of constructing sewers (Rev. Stats., sec. 2380). And the court may determine, upon the evidence submitted, whether any lot^ or lands assessed do, in fact, need local drainage, or whether they are already provided therewith.</p> <p>6. An act of the legislature authorizing the levy by the common council, of a general tax upon all taxable property situate in a sewer district duly created within the municipality, to defray the cost of constructing sewers therein, is constitutional.</p> <p>7. A failure on the part of the common council to provide plans and specifications relating to a sewer system, and to cause estimates to be made and submitted, of the probable expense thereof, as directed by the statute (secs. 2366-2378), can not be interposed as a defense by the owners of property abutting upon, and specially benefited by the construction of, a sewer, under proceedings in other respects regular, against the collection of a special assessment, not exceeding the amount authorized by the statute, levied upon such property for the purpose of paying the cost of such sewer. Where the assessment is in excess of the sum authorized, it may be reduced by the court.</p>

<p>Where the drawer of a check on a bank, causes the same to be certified as good by the bank upon which it is drawn, and afterwards delivers it to another in exchange for a legal demand upon himself, or otherwise puts it into circulation, the fact that it is so certified does not discharge him from liability to the holder thereon, if the same is duly and legally presented for payment, and due notice given to him of its non-payment.</p>

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

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

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

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

<p>1. In a criminal action for forging a will, the will claimed to be forged containing recitals of facts, the truth or falsity of these facts may be shown as bearing upon the question of the genuineness of the will.</p> <p>2. Where these recitals are of the feelings of the claimed testate,' her acts and declarations may be introduced, -to show that her feelings were not those recited in the alleged will.</p> <p>3. It is not necessary that she should have said directly that her feelings were not those recited in the alleged will. Declarations which are the natural expressions of feelings, inconsistent with such a state of feeling as is recited in the will, are admissible to disprove the recital. For instance — the recital in the alleged will being that Mary E. Breck ■was her “only true friend on earth,” it is admissible, to show that she said she considered said Mrs. Breck “á scheming and dangerous woman.”</p> <p>4. For this purpose declarations, apparently the natural expression of feeling, made a reasonable time before the date of the alleged will, may be admitted, and where they are introduced, evidence of similar declarations made shortly after the date of the alleged will, are admissible as tending to show a continuance of such feeling.</p> <p>5. An expert in this case, on direct examination, after he had testiiied that the signature to the alleged will was forged, was asked if he would pay a check so signed. He answered he would not. Held: the question was improper, but the answer under his previous testimony was immaterial, and not substantial injury. '</p> <p>6. A witness cannot state as the reason why former testimony was impressed upon his memory, his conjectural conclusion therefrom as tp the intention of the prosecuting attorney in conducting the examination.</p> <p>7. Where reliance for conviction is upon circumstantial evidence, it is not necessary that a circumstance should be proved beyond a reasonable doubt, unless it is a necessary link in a chain of circumstances, which, chain of circumstances is necessary to a conviction. A person may be properly convicted by a large number of circumstances, no one of which alone is established beyond a reasonable doubt.</p> <p>8. Where a reviewing court is asked to review on the weight of evidence a question of forgery, the alleged forged paper and the genuine signatures inti'oduced should, in some manner, be made a part of the bill of exceptions.</p>

<p>In section 6148 of the Revised Statutes the word “ land ” includes the interest of an owner of a lot in the street upon which such lot is situated.</p>

The plaintiff brought suit in the court of common pleas against the defendant, praying that he be adjudged to allow the claim set up in the petition as a valid claim against the assets of the firm of Hooven & Allison, in his hands to be administered. From the final judgment rendered in the court of common pleas an appeal was taken to this court, where a motion to dismiss the appeal was interposed upon the ground that the action is not appealable. This motion was overruled.

<p>1. The unauthorized alteration of a promissory note after its execution and delivery, by erasing therefrom the words “the order of” before the name ef the Payee, and inserting therein the words “or bearer” in a blank space inadvertently left after the name of the payee, avoids it as to prior non-consenting parties in the hands of a subsequent bona fide holder for value.</p> <p>2. In an action of a promissory note branded and condemned by blemishes or erasures ou its face, the burden of proof is upon the plaintiff to show that it was in that form when executed and delivered bythe maker, or was subsequently assented to by him.</p>

<p>Opinion on motion to vacate order dissolving injunction.</p>

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

Error, to the Court of Common Pleas of Huron County. This is an action brought by Adaline Higbee to recover six semi-annual dividends, declared by the defendant bank in April and October of the years 1884-5-6, on its capital stock, to which Joseph B. Higbee’and Jay A. Higbee, it is claimed, are entitled on the shares held by them during that time in the capital stock of the hank, to-wit, 100 shares owned by Joseph B. Higbee and 40 shares owned by Jay A. Higbee, of the par…

<p>Error to the Court of Common Pleas of Muskingum County, Ohio.</p>

On May 5th, 1885, John Fallestine made his last will. He died December, 29, 1887, and his will was admitted to probate January, 14, 1888. He left a widow, Sarah S. Fallestine, an infant daughter, Maria May Fallestine, and three married daughters, Celia Williams, Catharine Zahn and Margaret J. Groff. The provisions of his will are as follows : First item provides for the payment of debts.

<p>Appeal from Court of Common Pleas of Stark County.</p>

<p>1. The power of determining whether a bill of exceptions is true or not, is vested in the judicial officer to whom it is presented for allowance.</p> <p>2. Upon petition to compel the allowance and signing of a bill of exceptions, if the answer to the alternative writ shows that the defendant is willing to sign a true bill, but that the bill presented is not true, a peremptory writ will be refused.</p> <p>3. To entitle the relator to the writ, he must plead issuably all the facts necessary to show dereliction on the part of the officer against whom the writ is prayed; he must also show by proper averments that facts which would justify the.omission complained of do not exist; that the relator has a clear right to the performance of the act which he asks the court to order; that he will be prejudiced by its non-performance, and that he has no other adequate remedy.</p>

<p>Error to the Superior Court of Cincinnati.</p>

<p>The common council of the city of Cincinnati in due form of law passed an ordinance making detailed and specific appropriations for the several objects for which the city had to provide for the first half of the fiscal year, and transmitted such action to the board of tax commissioners of such city, “for approval, amendment or rejection,” as it might determine, in conformity with the provisions of sec. 2690 (i) (3 Rev. Stats. 124), which board then approved the same, except that it increased the aggregate amount of the appropriations made by the council, by the sum of §25,000, which increase was never after-wards in any way sanctioned or concurred in by the common council.</p> <p>Held: That such increase was not valid or legal.</p>

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

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

<p>1; Where money is illegally drawn frorp the county treasury, .the .prose-. cuting attorney of the co'uiit'y, in 'the’ absence óf a statute authorizing .. him to' .do so, can not bring -an action-'an the'.nafne -of the státe, for the use of such county, and recover a judgment therefor. Sec. 1277, Rev. Stats., on]y authorizes him to sue in such manner to restrain a threatened misapplication of the funds of the county, or the completion or execution of a contract in contravention of the law of the state, or which was procured by fraud or corruption; and no other statute authorizes him to bring an action in cases like these. That duty is imposed upon the county commissioners as the financial representatives of the county.</p> <p>2. Sec. 1278, Rev. Stats., only authorizes a suit by a taxpayer for the benefit of the county in cases in which the prosecuting attorney may by law bring such an action, and where on the written application of a taxpayer he has failed .or neglected to do so.</p>

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

<p>The act of February 7, 1884, entitled “ An act to protect all citizens in tlieir civil and legal rights,” Yol. 81, Ohio Laws, page 15, imposes a penalty not to exceed jjlOO, on any person who violates it; and the violator shall also be deemed guilty of a misdemeanor, and upon conviction shall be fined not to exceed ?100, or shall be imprisoned not more than thirty days, or both.</p> <p>Held, An action will not lie against a partnership in its firm name alone to recover a penalty for the violation of the act.</p>

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

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

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

<p>1. After real estate has been sold on foreclosure of a mortgage, and the funds are in court for distribution, the court may permit the city to be made a party, and set up a claim of lien for an assessment on the property for improvement of the street on which it abuts.</p> <p>2. Such assessment is a lien under sec. 2285, from the date of the assessment, and is prior to any mortgage given by or judgment rendered against the owner on an ordinary debt.</p> <p>8. When the terms of the ordinance of assessment provide that if the assessment be not paid within twenty days, it shall then be payable in ten equal annual installments with interest, the amount to be decreed to the city is the present value of such obligation, or the court may decree that amount to the owner of the land, charging the lien for all the payments on the land and to be paid by him as they mature.</p> <p>4. When a wife has united with her husband in a mortgage of his property releasing her right of dower therein, on sale of the property on foreclosure her contingent right of dower is to be ascertained in the entire ’’proceeds of the sale, from tables of mortality, aided by evidence respecting the state of health and constitutional vigor of husband and wife respectively, and his interest therein shall be exhausted before resorting to the interest of the wife. The release of the wife’s dower in the mortgage does not inure to the benefit of subsequent judgment creditors, as held in Mandel v. McOlave, 22 Law Bulletin, 26, to be reported in 46 Ohio St.</p>

<p>The Pullman Palace Car Co. contracted to sell to Joseph Bros, certain articles at a stipulated price per 100 pounds, but nothing was said as to the time of payment therefor. On May 25 the articles were delivered to the purchasers to be weighed, and on ascertaining the quantity, demand was made on them for payment, and it was diligently urged, but postponed by the purchasers, who without the knowledge or consent of the company, on May 28, contracted to sell the articles to the defendant in error, and delivered the same to it, and on May 31st, refused to pay the company therefor. On the 1st of June, the Car Company hearing of the sale and delivery to the Globe Rolling Mill Company, between 9 and 10 o’clock A. M. notified it of their claim to the property, and demanded possession thereof, which was refused, and the Car Company replevied the goods the same day. Sometime during the day, the exact time not being shown, the defendant in error gave to Joseph Bros, a check on the Fourth National Bank of Cincinnati for the agreed price of such articles, which was deposited in the Ohio Valley Bank before 1 P. M. of said day, and payment of which might have been stopped by defendants notifying the First NationalBank before 4 P. M. On the trial these facts being shown, no evidence was offered by the defendant tending to show that the check had been given to Joseph Bros, before the notice of plaintiff’s claim was received</p> <p>Held: 1. That no time for the payment for the articles having been fixed by the contract between the plaintiff and Joseph Bros., it was a sale for cash, and the delivery of the articles and the payment therefor were to be simultaneous and concurrent acts, and no title vested in Joseph Bros, until payment thefor unless this was waived by the Car Company. And the fact that the articles were delivered to Joseph Bros, to be weighed, would not of itself, operate as such waiver, and nothing was in fact done by said company which had this effect, and as between the company and Joseph Bros., on their failure or refusal to make the payment, the company could legally reclaim such property.</p> <p>2. If, after such delivery to Joseph Bros., for the purpose of ascertaining the weight, they had sold the property to a bona fide purchaser for value, who had paid for the same, or incurred liability on account therof, such purchaser would have taken a good title thereto. But if it were shown that notice was received by the purchaser, of the claim of the Car Co. before it paid therefor, it was not a bona fide purchaser, and occupied no better position than did Joseph Bros. And when it was shown that such notice was received before 10 o’clock, A. M., and the check in payment for the articles was executed the same day the burden of showing that it was given before the notice was received, was on the defendant.</p> <p>3. On this state of fact the charge of the court to the jury “that their verdict must be for the defendant, unless it appeared from the evidence that notice of plaintiff’s rights and claims was given to the defendant, not only before defendant paid the Josephs for the axles, but also before the contract of purchase for the axles entered into between the defendant and Joseph Bros, had been completed by the delivery of the axles to defendant,” was erroneous and prejudicial to the plaintiff. The court also erred in refusing to grant the motion for a new trial, based on the ground that the verdict Was against the weight of the evidence.</p>

<p>Error to the Court of Common Pleas of Franklin County,</p>

James Harvey Halsey and James Smith, jr., partners under the'firmlname^and style of Halsey & Smith, sued The Longstreth & Ayer Manufacturing Company, a corporation, in the court of common pleas, upon three promissory notes and an account for goods sold and delivered.

<p>1. When a resolution was passed by a village council to appoint a superintendent for the erection of a public building, but by accident it was omitted from the minutes, it is competent for the superintendent in a suit for his salary to prove by oral testimony that the resolution had been passed, but omitted from the minutes.</p> <p>2. Such superintendent cannot recover for services unless a certificate be issued by the village clerk previous to the alleged contract, that the required money is in the village treasury.</p>

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

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

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

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

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

In this case the Common Council of Cincinnati passed an ordinance fixing the grade of.the north curb of Atkinson Street extending east and west between Clifton Avenue and Moerlein Avenue, at 1.64 in 100 feet, and provided in said ordi-. nance that the grade of the south curb should be “ as near like that of the north curb as practicable.” The intersecting streets, Clifton Avenue and Moerlein Avenue, ascend a hillside at a steep grade.

<p>The act of April 10, 1889, Ohio Laws Vol. 86, page 221, crating a Board of Work-house Directors composed of females for the female department of the work-house, is an act creating an office, and the directors therein provided for, are officers, within the contemplation of Sec. 4, Art. 15, of the constitution, and such office can only be held by electors, viz: “male citizen of the age of twenty-one years who shall have been residents of the state one year” etc.; as prescribed by Sec. 1, Art. 5, of the constitution.</p>

<p>1. Where a widow applies to the probate court for letters oí administration on the estate of her deceased husband, which is resisted by the next of kin (a son) of the deceased, the court may, if it thinks fit so to do, grant such letters to the widow, unless good cause be shown why it should not be done,</p> <p>2. Where on such application the only evidence offered by the next of kin in opposition thereto, was a written agreement made between the husband and wife, about ten years before the death of the former, by which they agreed to live separate and apart from each other during their lives. And in consideration of $2,500 to be paid by him to her, the receipt” of which she acknowledged therein, she agreed to support and maintain herself without any charge upon him, and in no event at any time to lay any claim to the property of her husband, it was not error on the part of the court to grant her application.</p> <p>3. There being no evidence that said post-nuptial agreement was fully carried out, or that it was a fair, reasonable and just one under all the circumstances of the case, the court was not bound to give any weight thereto.</p> <p>4. Even if this had been shown, ás this agreement did not waive her right to a year’s support from her husband, on this ground the court might rightly appoint her as administratrix thereof.</p>

<p>Error to the Court of Common Pleas of Franklin County.</p> <p>Jacob Rothweiler, as administrator of Charles C. Helwig, deceased, Caroline Salome Ketter and Maria Rosina Scherman filed their petition in the court of common pleas against the Home Life Insurance Company and Charles T. Ryan, alleging that on March 19th, 1864, the insurance company executed its policy for $2,000.00 on the life of Charles C. Helwig, payable to his wife Anna Helwig, for her sole use; that there was therein written the condition that if said Anna should die before said Charles, the amount of the policy should be paid to her children by said Charles, for their use, or to their guardians, if they should be under age; that on Nov. 24, 1872, Anna died, leaving Anna C. Helwig, her only child surviving her; that on October 5, 1877, Anna being then over eighteen years of age, united with Charles, her father, “ in a written application and order to said insurance company, requesting it to pay the amount of said insurance ” to the plaintiffs, Mrs. Ketter and Mrs. Scherman (who were daughters of Charles by a former marriage), and said Anna C., in equal proportions, or to their heirs. On December 29, 1881, Anna C. died, leaving an only child, about one year of age, and this infantlchild died September 21, 1883. June 4, 1885, Charles C. Helwig published his last will and testament, bequeathing the proceeds of said policy to his two daughters then surviving, Mrs. Ketter and Mrs. Scherman. All premiums, were paid by said Charles, and the insurance was effected by him.</p> <p>September 24, 1885, Charles C. Helwig died, and his said will was admitted to probate, and letters of administration with said will annexed were issued to said Rothweiler. The petition further alleged that the defendant Ryan claims an interest in the proceeds of. the policy, and prays for judgment.</p> <p>The company, admitting its liability, brought the amount of the policy into court, and filed an affidavit showing that Ryan, without collusion with it, made claim to the subject of the action.</p> <p>Charles T. Ryan, by answer and cross-petition, alleges his marriage with Anna C. Helwig; his appointment and qualification as administrator of her estate ; that he is the father of her said infant child that survivedjher; denies the assignment of said policy by Anna C.; repeats the other averments of the petition ; alleges that Charles Helwig, Anna Helwig, Anna C. Ryan and her infant child all resided in Ohio when they died, and that Helwig resided in Ohio when the policy was issued. He also alleges his appointment and qualification as administrator of the said deceased child.</p> <p>The plaintiffs demurred to this answer and cross-petition. Their demurrer was overruled in the court of common pleas, and it was adjudged that Ryan was entitled to the proceeds of the policy. The reversal of that judgment is the object of this petition in error.</p>

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

<p>An action was tried before a judge and jury, and a njmtion for new trial made before, and overruled, and judgment on the verdict entered by the same judge on the 10th of-November, 1888; his term expired on the 3rd of December thereafter, and another judge took his place, who had not officiated as judge iu any stage of the case ;</p> <p>Held: That the latter judge was not authorized to sign a bill of exceptions embodying the testimony in the case, and exceptions to rulings, etc., of the former judge.</p>

This cause is submitted to the court upon the issues joined between Abram Sharp and Harvey and Emma Cockell upon an agreed statement of facts, which is in substance as follows: That Harvey and Emma Cockell, being the owners of sixteen promissory notes given by Phcebe A. Burwell and husband to one David Mackey, sold the same in October, 1888, to Abram Sharp.

<p>The provisions of a will devising realty to a devisee, he to divide the fee-simple among the heirs of his body, by deed or will, as to him shall deem best, do not empower sueh devisee to will the property.to one of his heirs to hold for three years and then distribute among certain parties, named in proportions as stated in the will.</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>Street Oars — Injury by falling off from over-crowded car— What will not amount to negligence in running car.</p>

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

<p>1. Sec. 2804, Revised Statutes, prohibiting the County and City Boards of Equalization from increasing the valuation of real estate, except “ on reasonable notice to all persons directly interested, and an opportunity for full hearing of the questions involved," is mandatory, and must be strictly complied with.</p> <p>2. Where no other kind of notice is prescribed in the statute, it must be actual notice.</p> <p>3. Notice of intent to increase valuation served on one owner of an undivided interest in real estate, will not bind any of the others, nor authorize the board to increase the valuation as against the owner of the undivided interest who is served.</p>

<p>Where the court of common pleas in a case pending before it, has for distribution a fund claimed by two parties, and by its decree divides the same, giving a certain amount thereof to each of them, and one gives notice of her intention to appeal to the circuit court from so much of said causo, (decree), as affects her rights in the sum awarded to her adversary, an appeal taken in pursuance of such notice should be dismissed on motion. Our statute contemplates and provides for an appeal from the whole of a decree, unless the interest of one of several parties is separate and distinct from that of the other party or parties, in which case, if ho desires to appeal the part of the case in which he is interested, it may be done. But in no case when the decree is entire, can he appeal from one part of a decree against him, leaving that part favorable to him to stand unaffected.</p>

<p>1. In an indictment for unlawfully offering to sell promissory(notes, the-signature to which had been procured by false: pretenses, it„ is not necessary to allege that the notes are of any value where ¡a copy thereof is set forth in the indictment.</p> <p>2. Upon the trial of a criminal case it is not error for the court "to refuse to instruct the jury, at the request of the defendant, upon matters of law before the argument begins.</p> <p>8. Declarations of co-conspirators are always competent evidence against anyone of them when made in furtherance of the common scheme or design, whether they are jointly indicted or not. While it is tho general rule that such evidence should not be admitted until after the state establishes the conspiracy prima facie, yet, if the record shows that such evidence was offered before proof of conspiracy, it is not error to the prejudice of the a< cused if there is sufficient evidence to establish the conspiracy after the admission of such declarations.</p>

The following facts appear from the bill of exceptions : The defendant in error sued the plaintiff in error to recover Sixty-six dollars and fifty cents (866.50), alleging in her petition that the same was due for board, washing, work and labor, and money loaned to and for Thomas Cosgrove, the decedent, at his request. To the petition a general denial was filed.

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

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

<p>Where a railway company, having obtained from the tenant for life a deed of quit-claim of premises over which it proposes to construct and operate a permanent line of railway, is about to enter upon the lands for that purpose, against the objection of the owner] of the remainder in fee, and without making compensation to him, such proposed action on the part of the railway company may be enjoined at the suit of such owner, until compensation has been duly made.</p>

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

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

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

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

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

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

<p>The defendant, under a contract with S. Bros;, put in fixtures for using natural gas for heating a steam boiler connected with the engine in the electric plant of S. Bros.</p> <p>The plaintiff was at the time the engineer of S. Bros., in charge of said boiler and engine.</p> <p>The first time the natural gas was used to heat the boiler, and while plaintiff was so in charge of and operating said boiler and engine, the fire, owing, it is claimed, to the negligent manner in which the fixtures were put under the boiler by the defendant, so super-heated one part of the boiler as to cause it to explode, whereby the plaintiff was seriously injured.</p> <p>1. Held, that the contract relations of the defendant were with S. Bros. alone.</p> <p>2. That the defendant owed no duty to the plaintiff that rendered it liable to him for the alleged negligence of defendant.</p>

The relator presented his petition to the judges of this court,, in which it is averred that he is a resident and tax-payer of the state. That May 26, 1888, he was employed as a tax inquisitor by the County Auditor, County Commissioners and County Treasurer of AÍlen county, under section 2781 Rev. Stats.

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

The action is for the foreclosure of an instrument claimed to be a chattel mortgage.

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

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

<p>1. Sec. 2807, Revised Statutes, governing the equalizing of assessments, which provides that “ when any addition shall be ordered to be made to any list returned under oath, a statement of the facts on which such addition was made, shall be entered on the journal of the board,” is mandatory, and must be strictly complied with.</p> <p>,2. It is not sufficient, merely to state that an addition was made; the facts which have been proved to them by satisfactory endeavors, and upon which the addition was made, should be stated clearly, so that the officer, or court, before whom may come the reviewing of the acts of the Board of Equalization, shall be able on inspection of the record, to see whether the facts therein stated, are such as to justify the action of the board.</p>

<p>R. D. died testate, devising to his widow D. N. D., as follows : “ I give and devise to my beloved wife Delila N. Dukes the house and lot of land on which the same is situated, and on which I now reside, near Findlay, in the county and state aforesaid, and described as follows: (here follows a pertinent description of the property) during her natural life — also all my household goods and furniture, money, notes, and evidence of debts, which I may own and possess at the time of my death, she, piy said wife, to use and enjoy during her natural life. At the death of my said wife the said real estate above described and the personal property remaining unconsumed, I give and devisé to my children share and share alike.” The widow elected to take under the will.</p> <p>Held: 1. That the plaintiff has a life estate in the lands described in the will.</p> <p>2. That the defendants, the other devisees named in the will, take a fee in remainder.</p> <p>3. That the plaintiff has thé right to apply to the court of common pleas and have the relief granted her as provided by section 5803, Revised Statutes.</p> <p>4. Such right exists notwithstanding the fact that the real estate devised was all that the testator was seized of at the time of his death.</p>

Sarah O’Brien as administratrix of the estate of Patrick O’Brien, deceased, sued the railroad company for damages for negligently causing the death of said Patrick O’Brien. The railroad company denied all negligence on its part, and claimed that O’Brien was guilty of contributory negligence.

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

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

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

<p>M. P. S. conveyed to W. S. and A. J. S,, husband and wife, certain real estate in the following form, “do give, grant, ¡bargain, sell and convey unto the said grantee and their heirs, the following described premises, situated in the county of^Haneock, and state of Ohio, and known as the west half of the south-east quarter of section nine (9), township two (2), north, range eleven east, etc. All the lands here conveyed are to be held and eDjoyed by the said Wilson Skinner and Abbey J. Skinner, his wife, during their natural lives, and at their decease are to go and pass to their heirs.” Held: That W. S. and A. J. S. took an estate in fee simple.</p>

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

The obligation executed by the village is valid, and must all be construed together. If the transaction is contrary to public policy, Kline was in pari delicto and Mohn is without remedy. 28 Ohio St. 251; 16 Ohio St. 54; 46 Ohio St. 195, 207 ; 33 Ohio St. 321; 2 Pomeroy’s Eq. Jur., secs. 938, 940. The transaction was not a wager, as there was no mutuality of risk. 2 Ohio C. C. Rep. 415, 418. If it were a wager, the right to recover is barred by limitation-.

<p>A., B., C. & D. were the owners in fee simple, as tenants in common of certain lands, each owning the one equal fourth part thereof, the first three being partners in business. A., B. & C., all of them being then married, and their wives not joining therein, executed to E. a deed in fee simple for said real estate. In an action brought by a creditor of such partnership to set aside this deed as in fraud of creditors, it was adjudged by the superior court of this city, that such conveyance was not fraudulent in fact, but was in law only a security for a certain sum found by the court, and it was further adjudged that it be set aside as an absolute deed and that it stand only as a mortgage to secure the amount found to be due to the grantee, and the court thereupon appointed S. as a trustee to take possession of the premises, and to institute proceedings for the partition thereof, and to sell the interest therein of A., B. & 0., and pay from the proceeds the amount found to be due to their various creditors. Thereafter D., the owner of the other one-fourth, commenced in the court of common pleas a proceeding for the partition of said premises, making A., B. & C.,'S. the trustee, and all lien-holders parties, and S. by his answer and cross-petition set up his claim as trustee, and made defendants thereto the wives of A., B. & C., who appeared and severally filed answers, each averring therein that she had an inchoate right of dower in one equal fourth .part of . the premises, but consenting that they, if sold, be sold free from her dower, and praying that she might receive the value of her said interest from the proceeds of the sale.</p> <p>On the hearing the court found that D. was the owner of one-fourth of the premises, and that A., B. & O. had each been the owner of one-fourth thereof, but that S. as trustee was now the owner of three-fourths, and that the wives of A., B. & C. each had an inchoate right of dower in the one equal fourth part thereof, and partition was accordingly ordered. Partition, however, could not be made, and the whole was sold. The court having found the value of the contingent right of dower of said wives severally, it was ordered over the exception of the trustee, that such value be paid to them severally, and that the residue of the proceeds of the three-fourths be paid to S. as trustee, to be applied by him so far as it would go to the payment of the debts of said A., B. & O. No incumbrance of their interest in said lands had been made by such wives, and the residue of the proceeds of such sale was not sufficient to pay the debts of said A., B. <&. C. as ascertained by the court and ordered to be paid.</p> <p>JETeld: That the action of the court in finding the value of such interest, and ordering it to be first paid from the proceeds of the sale, was not erroneous. That such persons having an inchoate right of dower in the premises, were under the circumstances of the case proper parties, and that such right was property having a substantial value, which could be ascertained with reasonable certainty, and as against the claims of the assignors, or the creditors of the husbands, the value so found should be adjudged to them out of the proceeds of the sale of the lands so sold free of their dower.</p>

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

<p>The conductor of a delayed passenger train may provide other and different means to transport the passengers upon the train under his charge to the place of destination, but he is not authorized to receive, transport and discharge other persons than those upon the, delayed train, and if he does só and they are injured the railroad company will not be liable.</p> <p>A person who voluntarily places herself in a dangerous position upon a hand-car to be carried as a passenger, assumes the risk incident to such mode of conveyance, and if injured can not recover from the railroad company.</p>

It appears from the record that David D. Smith commenced in the Court of Common Pleas of Portage County an action in replevin against James Northcott to recover possession of four head of horses.

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

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

<p>Habeas Corpus.</p>

<p>Where L. purchased at sheriff’s sale property of T. under an arrangement between them whereby L. paid the purchase-piice and took the title to himself to hold for himself and T. jointly, and L. had in his possession at the time property of T. which w'as sufficient to pay one-half the purchase-price of said property, and which was, by the arrangement, to be converted into money and applied to the payment of T.’s share of the purchase-price, and was so converted and applied by L., T. is entitled to a conveyance of an undivided half of said real estate.</p>