Volume 4 — Ohio Circuit Decisions

Some years prior to 1887, certain fifty-four acres of land in Sandusky county, Ohio, descended to Henry W. King from his father, who died intestate, subject to the dower right therein of Mary C. King, widow of said intestate. The south twenty-nine acres of the tract was assigned to. said widow as her dower.

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

<p>STREET ASSESSMENTS.</p> <p>Failure to Give Notice Exempts Prom Filing Claim eor Damages.</p> <p>Failure to give the property holder the written notice provided by sec. 2304, Rev. Stat., does not relieve him from the payment of the assessment for street improvement, but exempts him from the requirement of filing claim for damages with city clerk under sec. 2315, Rev. Stat.</p>

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

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

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

<p>SUPERSEDEAS BOND.</p> <p>Pismissal Equivalent to Affirmance of Case.</p> <p>A dismissal by the Supreme Court for want of printing is equivalent to an affirmance of the court below within the terms of a supersedeas bond.</p>

<p>OBSTRUCTION OF SIDEWALKS.</p> <p>1. Storekeeper’s Right to Use of Sidewalk.</p> <p>Storekeepers have a right to the reasonable use of the sidewalk in front of their places of business, with appliances for the purpose of receiving and shipping goods.</p> <p>2. May Lawfully Obstruct Same.</p> <p>And while in the careful and reasonable use of the same they may lawfully obstruct the walks temporarily, and persons using the walk must wait until the hindrance is removed, or avoid it, or if they can pass over it, they must exercise reasonable care in doing so.</p>

<p>PRACTICE — ERROR.</p> <p>Failure to Have Summons in Error Issued.</p> <p>A petition in error was filed in the circuit court August 26, 1893, but no praecipe for summons in error issued until February 8, 1894. Held, same was not within the time-required by law.</p>

<p>Appeal from Lucas Common Pleas.</p>

<p>INJURIES FROM DEFECTIVE BRIDGE.</p> <p>1. Joint Liability of Railroads and Municipality.</p> <p>For injuries received by tbe fall of a bridge, erected by a railroad company so that a public street could cross its tracks, while a street car is crossing, the street railroad, the municipality, and the steam railroad, all of whom had notice of the unsafe condition of the bridge, are jointly liable.</p> <p>H. Damages for Personal Injuries not Excessive.</p> <p>A verdict of $14,000, for personal injuries, in favor of a man twenty-five years of age who is permanently crippled so as to probably require medical attention all his life, and who had previously been in good health and earning $1.80 a day, will not be interfered with by a court*of error on the ground of passion or prejudice.</p>

<p>Error to Tucas Common Pleas.</p>

<p>MASTER AND SERVANT.</p> <p>Injury prom Defective Appliances.</p> <p>Where a leaky valve in a locomotive caused it to start and injure an employee cleaning out the ashes, the company is liable.</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Duty of Yardmaster — Injury to Subordinate.</p> <p>It is not the duty of a yardmaster who has assigned a sufficient number of braketnen to-attend to switching a freight train, to go with them and see that they do their duty. Hence, if cars without a. brakeman at the end run down an employee who relied on the habit of having a brakeman there, he cannot recover.</p>

<p>DEATH BY NEGLIGENCE.</p> <p>Where Employee Contributed to his Own Death.</p> <p>Where the weight of the evidence, in a suit for death of a railway employee, showed that the injury occurred where there were no switches or frogs, where the decedent had no duties to perform, and by his stepping thoughtlessly in front of a moving engine, the railroad company can not be held.</p>

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

<p>NEGLIGENCE.</p> <p>Unguarded Tank in Sidewalk.</p> <p>A brewery company having placed a tank in the street at the side of the brewery, for hot mash, and leaving same uncovered or unguarded, is liable for injuries to a boy six years of age, who slipped into the tank and was badly scalded.</p>

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

<p>CORNER LOT ASSESSMENT.</p> <p>Permitting Improvement to go on Not Estopped.</p> <p>The owner of a corner lot is not estopped to dispute an assessment for the whole length of the side street by having permitted the improvement to go on under an ordinance, for such assessment.</p>

Charles Maier, fifteen years old, was injured by having his foot run over by a street car while in the employ of the street car company, driving a horse attached to a street car, over Erie street bridge in Toledo, and recovered judgment in the court of common pleas against the street car company for $---, damages for his injury, two former trials having resulted in a disagreement of the jury.

<p>FELLOW SERVANT.</p> <p>Recovery Prior to Vice Principar Daw.</p> <p>Prior to tbe act of 1890 (87 O. D. 149), a brakeman injured in coupling cars by reason ol the inspector having left in a bolt so large as to bind the link, could not recover because the inspector was a fellow servant.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>1. Joint Liability op Railroad Companies.</p> <p>The delivery of a defective car by one railroad to another, in consequence of which an employee of the latter company is injured, makes both companies liable to such employee.</p> <p>2. Prima Facie Evidence oe Negligence.</p> <p>Proof, under 87 O. L., 149, of such defect is prima facie evidence of the negligence of the railroad company.</p>

<p>PRACTICE — ATTORNEY FEES.</p>

<p>BASTARDY.</p> <p>Deeay in Giving Bond on Compromise.</p> <p>A compromise in bastardy is not vitiated by a delay of ten months to give bond under see. 5617, Rev. Stat., before discharge of defendant, though he was at large, and a second proceeding is barred.</p>

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

<p>JURISDICTION.</p> <p>1. Transfer From one Court to Another.</p> <p>The prosecuting attorney is authorized under sec. 6367, Rev. Stat., in certain counties to proceed, in prosecution in which the probate court has jurisdiction, in either the probate,or the common pleas court, but this does not authorize a transfer of any such prosecution from the common pleas to the probate court.</p> <p>2. Basis of Criminad Prosecution.</p> <p>No person can be placed on trial for a crime against the law of this state until he has been charged with the commission of such crime upon oath or affirmation; the mere information of the public prosecutor is insufficient. Art. 1, sec. 14, Const.</p> <p>3. Misdemeanor — Jurisdiction.</p> <p>Where a person is prosecuted under the statute for misdemeanor, punishable by imprisonment and fine, he may at any time raise the question of jurisdiction.</p>

<p>PLEADINGS — RAILROADS—NOTICE.</p> <p>1. Ordinances Attached to Petition.</p> <p>Ordinances attached to a petition, under sec. 5085, Rev. Stat., form no part of the petition and a demurrer on the ground of defects in the ordinances is not well taken.</p> <p>2. Proof of Notice to Railroad Company.</p> <p>Notice to a railroad company, under sec. 2496,Rev. Stat., to light its tracks, served by sending a registered letter and with proof of the written receipt of the addressee, sustained.</p> <p>3. When Misnomer is Immaterial.</p> <p>Such notice to the proper officer by the name of C., H. & D. Railway, instead of Railroad, is an immaterial misnomer.</p> <p>4. Cost of Electric Lighting.</p> <p>Municipal corporations may, under sec. 2497, Rev. Stat., recover the cost and expense of lighting by electricity, though its use for such purposes was not specifically contemplated by the law in question.</p>

<p>MUNICIPAL CORPORATIONS-ELECTRIC LIGHT POLES.</p> <p>1. Electric Light Poles in Public Streets.</p> <p>Prior to the act of 1886 there was no authority for municipalities to grant to anyone the right to occupy its streets for electric light poles, and poles which were existing at that time were there by mere suffrance, and city authorities might require them to be removed, or annex to their maintenance such conditions as might seem reasonable.</p> <p>2. Municipal Authorities May Control Same.</p> <p>Companies erecting poles, or continuing use of those already erected, after the law of • 1886, devoted them to public use and gave municipal authorities the right of reasonable regulation over the same.</p> <p>3. Continuing Power to Regulate Use by Other Companies.</p> <p>The law of 1886 confers a continuing power in the common council to provide that one company may use the poles of other companies, under certain regulations and when such joint use is practicable, without condemnation proceedings in the probate court</p> <p>4. Court of Equity will Determine Compensation.</p> <p>In the absence of any regulations by the council as to the compensation to be paid for the use of such poles, if the company seeking such use, fails to agree with the owners, a court of equity will determine the rights of the parties in this regard.</p> <p>5. Costs Taxed Against Parties Seeking Use of Poles.</p> <p>In such a proceeding the costs will be taxed against the party seeking to obtain joint use of the poles.</p> <p>6. - Pees of Stenographer as Costs.</p> <p>Whether the fees of a stenographer, in such a case, under the statutes applying to this court, can be allowed as costs, quere?</p>

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

<p>PERSONAL INJURIES — EVIDENCE.</p> <p>1. Proof That Sidewalk was Defective on Both Sides of Street.</p> <p>In an action for personal injuries from a defective sidewalk, plaintiff sought to prove .that the sidewalk on the side of the street opposite the place where he was injured was out of repair for the purpose of showing that a person passing along said street had no choice, for both sides were bad and unsafe : Held, that such testimony would have been proper in rebuttal after the defendant had offered testimony to show that the defect was noticeable, and that a way existed there which the plaintiff could have taken, but without such testimony on the part of the defendant, it was properly excluded.</p> <p>X Proof, Repairs Immediately After Accident, Incompetent Evidence.</p> <p>Evidence showing that the defendant, immediately after the accident, made a repair of the defective sidewalk, is not competent testimony to show that the defendant knew, prior to the accident, that the defect existed.</p> <p>8. Statements of Plaintiff in Action for Personal Injuries.</p> <p>A conversation between plaintiff and one of the members of the council of the village after the accident is not competent to bind the village by an admission of a past fact and evidence of the plaintiff’s statements as to his suffering, of his being injured, coupled with other statements in the nature of a recitation as to how his injuries occurred is incompetent and was properly excluded.</p> <p>4. Statements of Witnesses as to Plaintiff’s Condition.</p> <p>The testimony of a witness that plaintiff “was a bricklayer and mason by profession, but after the accident, was unable to do anything on account of the injury to his left foot,” does not come under the rules which admit the statement of a witness that he observed that another person was disabled or sick or suffering pain.</p> <p>5. Hearsay Evidence Not Competent Proof.</p> <p>The statement of a witness which embodies hearsay evidence, although portions of his testimony might have been competent, if all offered together, should be excluded.</p> <p>6. Refusal to Charge Re-Burden of Proof.</p> <p>The refusal to charge the jury that the burden of proof is on the defendant to prove that the plaintiff contributed to his injury by his own negligence, is not error where the plaintiff, in the introduction of his own testimony, affords some presumption of such contributory negligence as would prevent his recovery.</p> <p>1. Measure of Damages — Probable Suffering.</p> <p>A request to charge that “if you find for the plaintiff, in assessing his damages, you should award him full compensation for the injury received. In this you may consider the pain suffered, and which naturally and probably will be suffered and the effect it has had and probably will have,” * * * contains an erroneous proposition. The mere probability of what might happen in the future is not proper ground lor'the assessment of damages.</p> <p>t. Duty of Court Regarding Requests to Charge.</p> <p>Under the amendment to sec. 5190, Rev, Stat., which provides that when the evidence is concluded, either party may present written instructions to the court on matters of law and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced, it is the duty of the court to give or refuse to give such instructions at that time, and the refusal to do so is error sufficient to warrant reversing the judgment.</p>

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

<p>MARRIAGE — CHILDREN.</p> <p>Children Born out of Lawful Wedlock, Legitimate.</p> <p>Under sec. 4175, Rev. Stat., children born out of lawful wedlock, whose parents subsequently intermarry, are deemed legitimate and the meaning of that statute is that such children shall be regarded, in all respects, precisely as if the marriage had occurred before instead of after their birth.</p>

<p>FOREIGN EXECUTIONS.</p> <p>Failure to Properly Index Names.</p> <p>The index to such foreign execution docket must show the names of all parties to the judgment and a failure to comply with this, or other requirements of the statute will defeat the lien of such judgment as against subsequent purchasers or creditors</p>

<p>STREET RAILWAY FRANCHISES.</p> <p>1. Right to Erect Poles goes with Street Railway Grant.</p> <p>When a city grants to an electric railroad company the right to the use of the street for railway purposes, the right to erect and use poles goes with it.</p> <p>2. When Poles and Wires not a new Servitude.</p> <p>Such poles, and wires, are not a new servitude, it not appearing that poles are put in front of any gate or door.</p> <p>8. Proximity oe Electric to Telephone Wires.</p> <p>That the wires may go near a telephone wire, does not show danger calling for interference. _</p> <p>4. Oral Authority for Written Consents.</p> <p>Though the requirement of written consents (of property owners to street railway franchise) excludes oral consents, yet they may be by husband or agent on oral authority. If the authority is clear, the informality in signing is immaterial.</p> <p>6.Agent’s Signature for Married Woman.</p> <p>An agent’s signature of a married woman’s name in her maiden name is valid.</p> <p>6. Husband’s Signature for his Wife.</p> <p>A signature by a husband as for himself when his wife is owner is not sufficient.</p> <p>7. Burden of Proof.</p> <p>A consent by Mrs. A, where the property was owned by A, who is dead, being counted, the burden is on the plaintiff to show that she was not the heir at law.</p> <p>8. Signature of the Owner of Remainder in Fee.</p> <p>A son having charge of the property, and owning the remainder, subject to the life estate of his mother, eighty years old, whom he supports, will be counted as of the owner.</p> <p>9. Signature of Trustees under a Will.</p> <p>Trustees having control to preserve property for ten years, under a will with very full authority, can sign for the property.</p> <p>10. Conditions Subsequent are Between Signers and Builders.</p> <p>Conditions subsequent in consents, that the road shall be begun and completed within a certain time, is between the signers and the builders and will not preclude the council from counting such consents.</p> <p>11. Action of Council upon Consents.</p> <p>Where a city council pass upon the consents, the burden is on the contestant to disprove the authenticity or authority to sign.</p> <p>12. Reinstating Consent After Ordinance has Passed one Board.</p> <p>This rule applies where the withdrawal of a consent is itself revoked by telegram, and so, though the telegram arrived after the ordinance passed the first body, but before it passed the last.</p> <p>13. Where Property is Sold After Consent.</p> <p>If a signer sells his property and the buyer, knowing, did not withdraw the signature, the property will be counted.</p> <p>14. Authority to Agent to use His Judgment.</p> <p>Authority to an agent to use his best judgment as to signing, authorizes counting signatures by him.</p> <p>15. Tenant in Common may Sign for his Proportion.</p> <p>A tenant in common signing should be counted for the proportion of his undivided share.</p> <p>16. One Partner may Sign for Firm Property.</p> <p>Consent by one partner in the firm name is valid for the whole, being firm property.</p>

<p>EVIDENCE — ACCOUNTS.</p> <p>When not Admissible as Evidence.</p> <p>Roans of money merely, without mutual dealings, is not the proper subject of book account so as to admit the book, as evidence under a petition for the money.</p>

<p>ITINERANT VENDORS.</p> <p>Constitutionality op Law Relating to.</p> <p>The act of April 23, 1894,- 91 O. L-, 173, to prevent and punish fraud in sales of wearing apparel at public or private sale by itinerant vendors, and to regulate all such sales, is constitutional and valid.</p>

<p>CONTRACTS — RAILROADS—RIGHT OF WAY — NOTICE.</p> <p>1. Deed oe Right oe Way with Reservation — Notice to Purchasers.</p> <p>L owning a farm through which a railway company desired to construct a railroad, executed a contract in 1880 whereby he agreed to convey to said company a right of way upon condition that said company construct an under cattle pass, connecting the portions of the farm divided by the railroad. In 1883, after the construction of the cattle pass, L conveyed to the railway company a right of way across his farm ; the deed was without reservation and contained no reference to the cattle pass. The railroad was subsequently sold under foreclosure proceedings and the purchaser sought to fill up the cattle pass, which had remained in possession of L and his heirs from the time of its construction, claiming that the contract for its construction having been recorded in a record of deeds was of no effect in giving to subsequent purchasers notice of L’s rights under it; and that possession of land retained by the grantor after he had made a deed, conveying the land, is not notice to any purchaser who takes from his grantee: Held., that L’s possession was not inconsistent with his deed to the railway company of a right of way_ and that therefore, under the general rule that the possession of lands by a person is constructive notice of whatever right he actually has in the lands, his possession was notice to those who subsequently dealt with the land in question; that whether or not the railway company could be required to maintain the cattle pass, the original contract providing only for its construction, it had no right to fill it up.</p> <p>2. Contract Binding Though not Signed by Railroad Company.</p> <p>Such a contract, containing stipulations to be performed by the railroad company, though signed only by the party of the first part, is as binding as though officers of the railroad company had signed it.</p>

<p>WILLS — DEVISE.</p> <p>Bequest of Lot Divided by street.</p> <p>R, for many years owned a certain tract of land in Monroeville, known as lot 121, which prior to his death was divided by the opening and extension of a street. R, occupied the portion of the lot on one side of the street for warehouse purposes, and the other was occupied by his servant, H, who received a certain sum in wages and the use of that portion of the lot without rental. R, in his will, devised to H “ the lot known as number-, in Monroeville, Ohio, on which the said H now resides.” Held: That under said will, H took only that portion of the lot lying on one side of the street, which he had actually occupied.</p>

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

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

<p>DITCHES — EVIDENCE—JURY.</p> <p>I. Dhce di Front of Dweeeing.</p> <p>In an action for a penalty against a supervisor of roads for putting a ditch in front of a dwelling without permission, whether it was done wilfully is immaterial. Sec. 4715a, Rev. Stat.</p> <p>2. Expert Testimony.</p> <p>A witness can describe bow the supervisor left the ground, but cannot be ashed, not being an expert, whether he left a ditch there, this being one of the issues.</p> <p>3. Cause of Action not Transferred by Sate.</p> <p>A cause of action, as above, is not transferred by a subsequent sale of the property by the owner.</p> <p>4. Jury in Justice Court Viewing Premises.</p> <p>Under sec. 6705, Rev. Stat., a justice may, in a proper case, send his jury to view premises, provided they are in substantially the same condition as when the cause of action arose.</p>

<p>INJUNCTION.</p> <p>1. Advertisement on Competitor’s Goods.</p> <p>Where the proof shows that plaintiff is being injured through an advertisement placed on goods made by a competitor in imitation of those manufactured by plaintiff, an . injunction will be allowed.</p> <p>2. Misrepresentations — Injunction.</p> <p>But as to mere misrepresentations, from which plaintiff fails to show actual injury,, no injunction will be granted.</p>

<p>OIL LEASE.</p> <p>1. Proceeds from Sale of Oil Lease Owned by Three Debtors.</p> <p>In distributing proceeds in the bands of a receiver, derived from an oil lease owned by three debtors, they will be deemed tenants in common and no discrimination between their individual and joint creditors unless there was a partnership in fact or by holding out.</p> <p>■2. Contract, with License to Enter.</p> <p>An oil license is not a lease, but an incorporeal hereditament or contract, with a license to enter.</p> <p>.3. Waiver of Mortgage Security.</p> <p>If mortgagees let in to operate an enterprise in order to pay their own debt and apply the money realized to other creditors, they waive their security as to still other creditors whom such act tends to defeat.</p>

<p>MASTER AND SERVANT.</p> <p>1. Injury to Common Laborer Working under Engineer.</p> <p>Where a person employed by a railroad company as a common laborer or helper, and by the company’s orders is placed under the immediate personal charge and direction of a locomotive engineer, known as a “hostler,” such engineer is not a fellow servant, but a principal, and the company is liable to an employee who may be injured by his negligence.</p> <p>2. Manner oe Doing the Work will not Change Relations oe Employees.</p> <p>The relations of superior and subordinate having been established at the time the service was entered into, the fact that the work in which the men were engaged, the manner of doing it, at the time of the accident, would not alone constitute one superior to the other, will not alter or change the original contract.</p> <p>8. Relations oe Superior and Subordinate.</p> <p>A master mechanic in the employ of a railroad company, having general authority to hire men, stands in the relation of the company to the men and will be held to have authority to establish the relations between them of superior and subordinate.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Question as to Vacancy in Oeeice.</p> <p>The exclusive right of the council to judge of the election returns and qualifications of its own members, under sec. 1679, Rev. Stat., does not extend to a case where the controversy is whether, under the law, there is any vacancy or office then to be filled by election or appointment.</p> <p>2. Appointment Must be eor Unexpired Term.</p> <p>Section 1724, Rev. Stat., must apply to determining whether the appointment shall be-until the next election or for an unexpired term, and under that section an appointment of a councilman by the mayor must be for the unexpired term of the person, elected to the office.</p> <p>3. Misapprehension Cannot Abridge Term.</p> <p>The misapprehension of the true tenure of the appointee, on the part of the mayor, the-appointee or others, cannot abridge the term fixed for his continuance in office.</p> <p>4. Appointee may Hold Until Successor is Elected and Qualified.</p> <p>Under secs. 1713 and 1724, Rev. Stat., in connection with the more general provisions o-sec. 8, councilman appointed for an unexpired term may hold office until his successor is elected and qualified.</p> <p>5. Appointment or Election Anticipatory oe Vacancy.</p> <p>While regular elections are required and held in anticipation of the expiration of an-official term, and appointments are made, while the person holding the office is still serving his term, yet neither an election nor an appointment to fill a causal vacancy can be held or made anticipatory of the vacancy nor until its actual vacancy.</p> <p>9. Consent of Council Need not be by Actual Vote.</p> <p>While it is not absolutely required, upon the appointment by the mayor of a councilman to fill a vacancy, that the consent of the council should be expressed by actual vote-upon the direct question, such consent must be manifested by same affirmative act,-mere silence or failure to object not being sufficient.</p> <p>7. Election of Appointee Clerk pro tern is Sufficient.</p> <p>A record of the proceedings of the council indicating that the person appointed to fill a vacancy, was, after his appointment, elected clerk pro tempore, together with like evidence of recognition as a member, is sufficient to show that he was then a member and the appointment having been made in the presence of the council, its members knew that his only claim to a seat was by virtue of that appointment which only needed their consent to make it effective.</p> <p>9. Is not Merely Recognition as de facto Member.</p> <p>Such affirmative action of the council should be allowed a broader signficance than being treated as merely recognition as a de facto member, as it fully shows the consent required by sec. 1724, Rev. Stat.</p> <p>9. When Council may Act Upon Appointment.</p> <p>The council is not required to take immediate action upon the appointment but whenever it gives the requisite consent it cannot thereafter undo its effect, nor oust one who then becomes a de jure member, except in the manner provided by statute for his removal.</p>

<p>FELONY — ERROR—JURY—MALICE.</p> <p>1. Presence oe Accused when Jury is Called Out.</p> <p>The accused in a felony case has the right to be present when any proceeding is taken in his trial, such the calling out of the jury to inquire as to the progress.</p> <p>2. Error is Prejudicial to Defendant.</p> <p>Error in a criminal case is presumed to be prejudicial to the defendant.</p> <p>3. Hastening Jury’s Deliberation is Error.</p> <p>It is error for the court, in a felony case, to seek to hasten the jury’s deliberation for his own convenience, even by merely inquiring as to their progress, with a statement that his train leaves soon.</p> <p>4. Cross-Examination may Extend to Entire Issue.</p> <p>The defendant cannot introduce his own distinct defence or avoidance on cross-examination of plaintiff’s interests but otherwise cross-examination is not confined to matter brought out in chief, and may extend to the entire issue.</p> <p>5. Malice and Intent to Kill.</p> <p>Intent to kill and also malice must be affirmatively shown to authorize a verdict of murder in the second degree.</p>

<p>PROSECUTING ATTORNEY.</p> <p>1. Conviction of Crime not Necessary to Removal from Office.</p> <p>It is not necessary in the removal of a prosecuting attorney for official misconduct, that he should at first or at any time be indicted, tried and convicted criminally of the offense charged against him.</p> <p>2. Complaint of Official Misconduct Need not be Verified.</p> <p>A complaint under sec. 1272, Rev. Stat., relating to neglect of duty or misconduct in office of prosecuting attorneys, need not be verified by oath.</p> <p>3. Misconduct while, in Office not Ground for Removal.</p> <p>To warrant removal under said section there must be official misconduct; mere misconduct while in office is not sufficient.</p> <p>4. Prosecuting Attorney must Deposit County Funds at Once.</p> <p>It is the duty of the prosecuting attorney who, being employed by the county commissioners, collects funds belonging to the county, to deposit the same in the county treasury at once._ He is presumed to know the specific direction of the statute in this regard and a failure to comply with it is official misconduct. The fact that another attorney might have been employed to make the collection does not relieve the prosecuting attorney from official responsibility.</p> <p>5. Inability to Advise County Officers — Contract with Third Person.</p> <p>The prosecuting attorney is the legal adviser of the county officers and in placing himself in a position to be obliged to either refuse to give such advice or give it hampered by a contract with a third person, adverse to the interests of the county, is official misconduct.</p> <p>6. Prosecuting Attorney as Tax Inquisitor.</p> <p>An agreement with a tax-payer by a prosecuting attorney who is also acting, under contract with the county commissioners, as tax inquisitor, that he will not investigate such tax-payer, as to his taxes prior to a certain date, where the time referred to in the apreement is within the time specified by the statute for investigation constitutes official misconduct.</p> <p>7. Evidence in Proceeding to Remove Public Prosecutor.</p> <p>In a proceeding to remove a person acting as prosecuting attorney the matters to which evidence is to be addressed on the trial are the issues in the case and not whether there is any complaint’at all, by proper persons, unless that issue is actually raised by the prosecuting attorney or is presented by the record on its face.</p>

<p>SCHOOL DISTRICTS.</p> <p>1. Transfer ob Territory from One District to Another.</p> <p>Whether it is essential to the protection of the probate court, in proceedings to transfer certain territory from one school district to another, that it be averred that the petition for such transfer has been filed with the board of education of the townships affected, and has been denied. Quere'i</p> <p>3. Jurisdictional Averments as to Territorial Lines.</p> <p>If it be shown in the application that it is sought to take, by certain lines, a certain defined territory from one township school district and attach it to another, this is sufficient as to a jurisdictional averment, in showing the purpose of the petition relative to the change of lines of the districts affected.</p> <p>3. Taxation of New Territory.</p> <p>Territory attached to a school district from adjoining districts should be taxed with the district to which it is removed and is not subject to the power of taxation by the old board of education of the district from which it has been detached.</p> <p>4. Act of 1888 Confers Corporate Powers and is Void.</p> <p>The act of 1888, 85 O. L., 412, authorizes the board of education of Chicago Junction village school district to borrow money and issue bonds, confers corporate powers, is iu ■conflict with section 1, article 13, Constitution, and void.</p>

<p>JUDGMENT OF FORECLOSURE.</p> <p>Allegations Insufficient to set aside Foreclosure.</p> <p>In an action to set aside judgment of foreclosure, under sec. 5354, Rev. Stat., allegations that plaintiff, in the foreclosure suit, did not own tbe mortgage and that his allegations as to an error in describing the property mortgaged were false, are insufficient.</p>

<p>Error to tbe Court of Common Pleas.</p>

<p>BILL OF EXCEPTIONS — APPEAL AND ERROR.</p> <p>1. When Judge has no Authority to Allow Bill of Exceptions.</p> <p>A judge of tbe court of common pleas has no authority to allow a bill of exceptions upon a bearing or order made by him at chambers upon amotion to dissolve an injunction.</p> <p>2. Petition in Error and Appeal in Same Proceeding.</p> <p>Where a petition in error joins in one proceeding, copies of the order of the judge dissolving an injunction at chambers and the' judgment of the court upon a demurrer and an appeal is also taken from the'order made at chambers, the petition in error must fail if the appeal is. properly taken and perfected, because there is then no judgment to be reversed.</p>

<p>DITCHES — EQUITY.</p> <p>«Courts of Equity have no Authority to hear anew Questions of Pact.</p> <p>The act of 1891, amending sec. 4560, Rev. Stat., 88 O. D., 504, was not intended to give authority to courts of equity to hear anew questions which the laws provide shall be submitted in the first instance to county commissioners and township trustees in ditch proceedings, upon its being suggested that such inferior tribunals have come to many conclusions upon questions of fact.</p>

<p>PARTIES.</p> <p>1. Mortgagees in Replevin of Mortgaged Property from an Assignee.</p> <p>Where an action of replevin is brought against an assignee who holds and is selling a stock of goods under an agreement with the mortgagees, whereby the proceeds are applied on the mortgage and the balance for the benefit of creditors, the mortgagees are uot improper parties to the suit.</p> <p>2. Party Allowed to Come.in Cannot be sent out of Case at mere Discretion of Court.</p> <p>Where a party has been allowed to come in, prepare a cross-petition, file it and become a party defendant to- the case, he cannot be sent out of the case at the mere discretion of the court for failure to give notice of his intention to become a party or without sufficient reason.</p>

<p>MORTGAGES.</p> <p>1. Incomplete Transaction.</p> <p>R. paid to S. a certain sum of money for the purpose of taking up a mortgage held by B. on certain real estate, supposing S. tobe the duly authorized agentof B. S. negotiated with B. for a settlement of the mortgage and secured an arrangement by which it should be paid and canceled. B. produced the note but S. declined to pay the money without the mortgage. The amount agreed upon was deposited in the bank with the note to be paid upon delivery of the mortgage. A few months later B. died without delivering the mortgage and the money deposited was withdrawn by S.: Held, that the transaction was incomplete and that the representatives of B. were entitled to the note and mortgage and that neither S. nor R. had any right to interpose in the matter.</p> <p>2. Priority oe Mortgages.</p> <p>Evidence to defeat the priority of a mortgage recorded previous to one bearing an earlier date, tending to prove that the second mortgage had notice of the first mortgage, not recorded, and was acting as agent for the party subsequently seeking to foreclose it, must establish such knowledge and relationship beyond question.</p>

<p>MORTGAGES.</p> <p>Reissue cw a Mortgage.</p> <p>Where a party who is the maker of a mortgage leaves it in such a position that it can be issued, or he himself issues it as a valid mortgage, after it has been paid, then between the mortgagor and any person who becomes the purchaser of that mortgage, the purchaser will hold the mortgage free from any defense.</p>

<p>PAYMENT — MORTGAGE.</p> <p>Unauthorized Payment without Securities.</p> <p>When payment of money in satisfaction of a mortgage, to a person who claims to be the owner of the paper, but is without the securities, is unauthorized.</p>

<p>DEEDS.</p> <p>Deed ob an Aged Man for Care and Support Sustained.</p> <p>Evidence of a man between 75 and 80 years of age, and somewhat feeble, would, in-recounting circumstances of his life or remembering old associates, frequently cry without any apparent reason for his emotion, is not sufficient ground for setting aside.a deed for care and support, where no inequity appears.</p>

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

<p>STREET ASSESSMENTS — APPEALS.</p> <p>1. Personal Judgment for Street Assessments.</p> <p>Owners of lots or lands become personally liable for the payment of legal and valid street improvement assessments, and a personal judgment in such cases is proper.</p> <p>2. Priority of Mortgage not to be made an Issue.</p> <p>Assessments legal and valid are prior and superior to the lien of a mortgage, and the question of priority cannot be made a substantial issue in such cases.</p> <p>8. Action for Personal Judgment and Sale of Lots not Appealable. ,</p> <p>An action for a personal judgment for a street assessment, sec. 2285, Rev. Stat., and for the sale of lots, involving only an issue as to the validity of the assessment is not appealable.</p> <p>4. Marshaling Liens does not make Action Appealable.</p> <p>Such action is not made appealable by making a mortgagee a party in order to marshal liens, if the m irtgagee claims merely a priority, and the owners do not deny the mortgage.</p>

<p>BILL OF EXCEPTIONS — NEW TRIAL.</p> <p>1. Bill of Exceptions Must Embody Affidavits.</p> <p>Affidavits filed with a motion for a new trial must be embodied in the bill of exceptions in order to have them become part of the record.</p> <p>2. An Court Appellate will not Act on an Affidavit for and against a New Trial.</p> <p>An appellate court will not be disposed to disturb the ruling of the trial court upon a motion for a new trial, based simply upon an affidavit on one side and affidavit denying upon the other.</p>

<p>TAXES AND ASSESSMENTS — LIMITATIONS.</p> <p>1. Authority to Make Taxes and Assessments.</p> <p>It is not entirely clear in Ohio that the liability for taxes and assessments is one created by statute, so far as assessments for local improvements are concerned. The primary principle which lies at the base of any right to make such assessment, is the supposed local benefit to the particular lands assessed; and might thus be regarded as a liability arising from considering the equities of the matter, and it might be held that the statute has simply pointed out the means by which the amount of such local benefit and liability should be ascertained and declared. Quere.</p> <p>2. Statute of Limitations does not run Against Political Divisions.</p> <p>The general doctrine that the statute of limitations does not run against the sovereign, does not apply to any division of the state, such as counties, townships or municipal corporations.</p> <p>3. Six Years Statute oe Limitations does not run Against Ditch Assessments.</p> <p>The six years statute of limitations cannot be successfully pleaded against an action by a county, brought under sec. 1104, Rev. Stat., to recover old township ditch assessments.</p> <p>4. Treasurer not Entitled to five per cent, on Taxes Collected by Suit.</p> <p>A treasurer suing under sec. 1104, Rev. Stat., to collect taxes is not entitled to the five per cent, penalty provided for in sec. 1094, Rev. Stat.</p>

<p>APPEALS.</p> <p>Suit on Certificate of Indebtedness, not Appeai.abbe.</p> <p>An action against a city for balance due upon a certificate of indebtedness, issued iff satisfaction of the judgment of a probate court, for land appropriated, to be paid for from assesssments, is an action at law, whether it proceeds as upon said certificate or upon said judgment, and although it prays for an accounting as to the amount collected' and paid upon other certificates, which the ordinance provides should be paid, with plaintiffs pro rata.</p>

<p>PLEAS IN BAR.</p> <p>Conviction Under Ordinance not a Bar to State Prosecution.</p> <p>A trial, conviction and sentence under an ordinance of a city, by the mayor of the city, is not a good plea in bar to an information filed under the state statute, involving the same transaction.</p>

<p>DEMURRAGE FOR DETAINED CARS.</p> <p>1. Rurbs or a Rairroad Company Concerning Removar or Freight.</p> <p>It is reasonable that a railroad company should have some rule as to when freight should be removed from its cars; and forty-eight hours would seem to be a reasonable time within which to make the removal.</p> <p>2. Contract between Shipper and Rairroad Company as to Removar or Freight Sustained.</p> <p>An express contract, made between a shipper of freight and a railroad company by the terms of which the shipper agrees to remove the freight within forty-eight hours after notice of its arrival at its destination, or pay a reasonable compensation for the detention of the cars, is not against public policy and in the absence of fraud, both parties are bound by its terms.</p> <p>S. Shipper Bound by Contract He did not Read.</p> <p>A shipper who signs such a contract under which freight is received by a common carrier is bound by its terms although the contract was not read by him and he failed to know its contents.</p> <p>4. Conditions Written as Printed, Sustained.</p> <p>The fact that important conditions of the contract are written as printed after the signature and on an opposite page does not vary the rule where there is an express reference to such conditions on the face of the contract above the signature.</p>

<p>RAILWAY COMPANY.</p> <p>1. Duty of Railroad Company toward Sick Passenger.</p> <p>If a passenger is received on a railroad train, and becomes sick, it is part of the duty o£? the company, and its servants, so far as may be consistent with the safe movement of the train, to afford such assistance as they reasonably can to the passenger thus afflicted.</p> <p>2. Removal of Sick Passenger to Comfortable Place.</p> <p>If the passenger’s condition demands it and there is a place upon the train where he can be taken, where he will be comfortable so that a surgeon can properly perform duties toward him, it is the duty of the railroad company to afford such facilities and aid in reaching that place as is consistent with the duties of the officers of the train.</p>

<p>PLEADING.</p> <p>1. Proof of Defective Appliance — Areegation.</p> <p>An allegation in a pleading that a spring used in the operation of a coal bucket, had become weak and was easily displaced from the latch, furnishes predicate, for the proof that the latch itself had become rounded by continual and general use, and comes within the rule laid down in Davis v. Guarnieri, 45 O. S., 485.</p> <p>•% Presenting New Issue in Charge is Error.</p> <p>It is error for the court, in a charge to the jury, to present an issue not raised by the pleadings in the case.</p>

<p>Mandamus, Appeal.</p> <p>Injunction, Appeal.</p>

<p>COUNTY AUDITORS.</p> <p>1. Term of County Auditor Begins Third Monday of October After his Erection.</p> <p>The term of office of a county auditor elected at the November election, 1893, does not commence until the third Monday of October next after his election, as provided for by the act of May 24, 1894 (91 O. R., 398).</p> <p>2. The Third Section of the Act Referred to is Invadid as Extending Term.</p> <p>The legislature is without power to create a vacancy in the office of county auditor, and to fill it by extending the term of the incumbent beyond a period of three years. The second section of the act above named is invalid.</p> <p>3. Attempt of Regisraturb to Firr Vacancy Does not Invaridate First Section of The Raw.</p> <p>The attempt of the legislature to fill the vacancy, does not invalidate the first section of the act which fixes the time at which the term of county auditors shall commence.</p>

On application for temporary injunction. The city of Cleveland, by its director of public works, wishing to purchase cast-iron water pipe exceeding $5,000 in. value, on January 19, 1894, advertised for sealed proposals to be received February 16,1894, “lor furnishing and delivering such cast-iron water pipe and special castings as may be required by the waterworks division of the department of public works of the city of Cleveland.” In the advertisement, reference was made,…

<p>GARNISHMENT.</p> <p>1. Debt of Foreign Corporation is Subject to Garnishment in Ohio.</p> <p>A corporation of another state which has its factory and business here, may he served with summons here, and a garnishment in another county, with personal service in the county where its factory is, gives jurisdiction to subject the debt.</p> <p>2. Creditors Request that Garnishee buy Goods Does Not Invalidate Attachment</p> <p>A garnishment will not he set aside for fraud by reason of the creditor’s request that the garnishee buy from the debtor the goods, the price of which was garnisheed, for there was no duty and no deception,</p>

<p>PLEADING.</p> <p>1. Very General Allegations Sustained against demurrer.</p> <p>Very general allegations of bow an injury by negligence occurred are, sufficient on demurrer.</p> <p>2. The Remedy is Motion to make more Definite and Certain.</p> <p>Tbe proper method of obtaining a fuller statement of plaintiff’s cause of action is by way of motion to make more definite and certain.</p>

In this case, in the court below, a petition was filed January 16, 1893, by the defendant in error against the plaintiff in error, and T. A. Ashworth, sheriff of Miami county, alleging in substance that the plaintiff in error on November 23, 1892, recovered a judgment in the court of common pleas of Marion county, Ohio, against the defendant in error upon a promissory note with a warrant of attorney thereto, issued execution thereon to the sheriff of Miami county, who had…

<p>EVIDENCE.</p> <p>1. Instructions to Disregard Certain Evidence Cures Error in Admitting it.</p> <p>A charge to the jury to disregard certain, evidence cures error in admitting it, although such instruction is based on the facts of the case, and not on the ground of its competency.</p> <p>2. Repairs after Accident are Incompetent Evidence.</p> <p>Subsequent repairs and alterations by the defendant to prevent recurrence of similar injuries are not admissions of negligence and are incompetent evidence.</p>

<p>UNBLOCKED RAILWAY SWITCH.</p> <p>1. Evidence that Plaintiff Called Attention of Company to Dangerous Switch is Competent,</p> <p>In an action for injuries resulting from an unblocked railway switch, it is competent for the plaintiff, who admits having know edge at a certain time prior to the accident of the unblocked or dangerous condition of the switch, to show that he called the attention ot the company’s officers to the switch in question and at the time of the accident he had reason to believe and did believe that the said switch had been blocked.</p> <p>2. Having Notified the Company, Plaintiff might Reasonably Suppose that the Switch had been Blocked.</p> <p>In such a case, the plaintiff might properly be held not to have assumed the risks and dangers incideut to permitting the switch to remain unblocked, and would be error for the court to charge that 1: “If the jury find from the evidence that the plaintiff knew, or by the exercise of reasonable care and caution on his part, in the performance of his service, he should have known of the perils of the switch and thereafter remained in the service of the company, he took upon himself and assumed the risks and perils of such service.”</p> <p>3. Notice to Assistant Yard-Master is Notice to Company.</p> <p>Although such person is not the one to actually put in the block, and may not have charge of the tracks or their maintenance and repair, yet having charge of all the operations of the yard which might subject plaintiff to danger, it was his duty, having information of the dangerous condition of the switch, and having made a promise to repair it, to see that it was done before he ordered the plaintiff there, and in this respect he stood in the place of the master.</p> <p>4. The Practicability of Blocking a Railway Switch is a Question for the Jury.</p> <p>The question as to whether it is the duty of a railroad company to block a certain switch is one for the jury.</p> <p>5. Measure of Damages.</p> <p>A verdict of $7,000 for injuries to plaintiff, by having his foot crushed, by which he was permanently crippled, will not be disturbed on the ground of passion or prejudice. (Plaintiff’s age not given.)</p>

<p>CHATTEL MORTGAGE.</p> <p>1. A Chatter Mortgage, Given by a Partnership, Must be Fired in Township where Bach oe Partners Beside.</p> <p>A chattel mortgage given by a partnership and filed in the office of the county recorder, but not filed in the townships where each of the partners reside, is wholly inoperative and invalid as against creditors; the filing of a mere copy in the township where one of the partners resides, and the subsequent removal of the county recorder’s office to. the township where the other partner resides, are not sufficient to gn e validity to the mortgage.</p> <p>2. An Oír Werr Consists oe the Hore, Drive Pipe, Casing and Tubing.</p> <p>An oil well, within the meaning of sec. 3184, Rev. Stat., consists, in addition to the excavation or hole in the ground, of the drive pipe which is inserted in the ground, the casing and the iron tubing; it is upon these articles only that a lien may be obtained under the general term “oil well,”</p> <p>3. Drirring an Oír Werr is a “Job” within Sec. 3188, Rev. Stat.</p> <p>Drilling or constructing an oil well is a “job” within the meaning of sec. 3188, and several' claimants, having exclusive liens upon certain specific property used in drilling or operating the well, may be permitted or required to pro rate upon that part of the property which constitutes the oil well proper.</p>

<p>TAXATION OF NATIONAL BANK STOCK.</p> <p>1. State Courts Must Follow U. S. Supreme Court on Federal Statutes.</p> <p>A state court must follow tbe construction given by the U. S. Supreme Court to a U. S. statute.</p> <p>2. Moneyed Capital (5219, U. S.) Includes “Credits” as Used, Sec. 2730, Rev. Stat.</p> <p>The phrase “moneyed capital” found in sec. 5219, U. S. Stat., includes many kinds of property called “credits” in sec. 2730, Rev. Stat.</p> <p>3. “Greater Rate” (5219, U. S.) Includes Rate oe Percentage oe Taxation an» Means oe Determining Amount or Value.</p> <p>The phrase “greater rate” in said section 5219, refers to, and includes both the rate of percentage of taxation, and the mode of determining the amount of value of the property to be taxed.</p> <p>4. State not to Exercise Prohibited Power.</p> <p>The only power a state has to tax national bank stock is derived from the act of congress-granting such power, sec. 5219, U. S. Stat. A state cannot exercise that power in ai mode prohibited in that section.</p> <p>5. Debts May be Deducted in Valuing National Bank Stock eor Taxation.</p> <p>Where a tax is levied on national bank stock, when the owner of the same at the time-had “bona fide debts” amounting to more than his “credits,” and his national bank stock taken together, and where he applied to the proper officer and board to have such “bona fide debts” taken from his national bank stock; and “credits” by the State Statute are many of them moneyed capital taxable only so far as they exceed the bona fide debts of the owner of them, such tax is illegal and voidable, and the county treasurer will be restrained by the court from collecting the same.</p>

<p>ESTOPPEL — ERROR.</p> <p>1. Husband Conveying to his Wife, Without Consideration, is Estopped from Claiming Title after Adjudication in Divorce Case.</p> <p>Where a conveyance of land is made by a husband to his wife, without consideration,, and subsequently, in an action by the wife for divorce and alimony, the court based its-judgment in regard to such land on these facts, the husband is estopped from subsequently suing to enforce an alleged agreement by the wife to reconvey to him.</p> <p>2. Motion for New Trial Necessary to Bring Such Questions Before' Appellate' Court. •</p> <p>In such an action, in order to bring the question of res adjudicata or estoppel before the appellate court, a motion for a new trial must be made in the court below.</p>

<p>BILL OF EXCEPTIONS.</p> <p>1. Bill Cannot be Filed or Considered after Fifty Days.</p> <p>The filing of a bill of exceptions after the expiration of the fifty days, the limit allowed by law, as well as the order of court, is entirely unauthorized.</p> <p>2. Parties Cannot Waive Time Limit on Bill.</p> <p>This requirement, as to time, cannot be waived even by consent of the parties.</p>

<p>NEGLIGENCE.</p> <p>1. Switching a Car, without Warning, Against Car being Coupled, is Negligence.</p> <p>Switching a car against one which has just been switched to a stationary car, and which the helper is then engaged in coupling to the stationary car, constitutes negligence where such helper had reason to expect warning of the movement of the cars.</p> <p>2. Measure oe Damages.</p> <p>A verdict of $2,500 for the loss of three fingers undisturbed by the appellate court.</p>

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

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

<p>DISTRIBUTION AMONG CREDITORS.</p> <p>1. When Appointing Trustee eor Creditors Defeats Priority.</p> <p>Where, on notice published in a suit to set aside a conveyance as in fraud of creditors, some other creditors came in and gave the security required by sec. 6344, Rev. Stat., but on appeal to the circuit court the case was amended so as to claim that the grantee became trustee for all the creditors, this change probably prevents the plaintiff and creditors who gave bond, from having priority on distribution.</p> <p>2. When Circuit Court wide not Give Priority.</p> <p>The circuit court will not give them priority after the Supreme Court has denied there was any.</p>

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

<p>ASSESSMENT.</p> <p>Excessive Assessments — Payment oe Second Defeats Defense to First.</p> <p>Where streets are improved on two sides of the same property, the owner having paid the second assessment in full, cannot resist the first assessment on the ground that the two assessments exceed twenty-five per cent, of the value of the property.</p>

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

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

<p>Error to Hamilton county Common Pleas.</p>

<p>FORGERY.</p> <p>An Indictment which does not Show any False Making, InsueeicienT.</p> <p>An indictment on an unauthorized order by a village clerk on the treasurer, issued by hiim as genuine, without personating another, states no offense by the mere averment that he knew it was a false order.</p>

<p>CUSTODY OF CHILD.</p> <p>Custody oe Child should not be Changed Except for Cause.</p> <p>A decree, in a divorce proceeding, giving the wife the custody of a minor child, should not he changed or interfered with unless it appears that the mother is 'not a suitable-person to have the custody of the child.</p>

<p>EMINENT DOMAIN.</p> <p>Act for Appropriation without Finding that Public Interest Requires it is Void.</p> <p>The act of 1893 (90 O. R., 28) requiring township trustees on a petition of a majority in ownership on a dedicated street set out on a recorded plat, to open the str et in the manner indicated on the plat, and to appropriate real estate for the purpose, and assess the cost thereof on the land abutting, without requiring a finding by the trustees that public interest requires such taking, is unconstitutional and the assessment will be enjoined.</p>

<p>Error to Hamilton Common Pleas.</p>

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

<p>SALE OF LIQUORS.</p> <p>1. An Information may Vary from Affidavit.</p> <p>The information filed in the police court of Cincinnati must substantially conform to the affidavit charging the offense upon which it is based, but jurisdiction having been obtained, within the limits in which an indictment may vary the charge and still subject the accused to the consequences of a default, on his recognizance taken by the-magistrate, the information filed in the police court may vary and depart from the affidavit.</p> <p>2. Not Objectionable if Confined to one Kind of Liquors.</p> <p>The affidavit charged the defendant with selling “intoxicating liquors” in a brothel while the first count in the information charged that the sale was of “intoxicating liquors, to-wit: beer,” in a brothel. This was not such a substantial or prejudicial variation or departure from the offense charged in the affidavit as to make the count subject to a demurrer.</p> <p>8. Law Prohibiting Sales in Brothels not.Unconstitutional.</p> <p>The act of May 4, 1891 (88 O. L., 567), to prohibit the sale of intoxicating liquors in brothels is not in conflict with the constitution of this state, or with article 14 of the constitution of the United States.</p>

<p>PARTITION — APPEAL AND ERROR.</p> <p>Judgment Ordering Partition the Only One from Which Appeal Lies.</p> <p>In partition, the only final judgment from which an appea lies is that ordering the partition and ascertaining the shares. The subsequent proceedings and confirmations are to carry out the final order, and error only lies to them.</p>

<p>INSTRUCTIONS TO JURY.</p> <p>Party Desiring Must Ask for Special Instruction.</p> <p>If a party desires a special instruction to the jury, he should ask for it, and not having done so, if the charge actually given was correct and not excepted to, he cannot avail himself of a failure of the court to charge upon the desired point.</p>

<p>PLEADING — EVIDENCE.</p> <p>1. A Crericar Error in Petition Shourd be Disregarded.</p> <p>A clerical error in a petition, the year being given as 1893 instead of 1894, should be disregarded.</p> <p>2. Witness May Give the Whore of Conversation Inquired About Though Originar Inquiry Incruded onry Part.</p> <p>Witnesses called in rebuttal of plaintiff’s testimony concerning a conversation, were properly allowed, upon cross-examination, to testify further as to.things said in the same conversation and not inquired about of the plaintiff.</p> <p>3. Motion to Rure Out Incompetent Shourd Not Incrude Competent Proof.</p> <p>After incompetent evidence has been received without objection, a motion to rule out all that was said, if part of the testimony was competent, is too broad and was properly overruled.</p>

<p>ENACTMENT OF LAWS.</p> <p>1. Existence op a Taw Determined by House and Senate Journals.</p> <p>In determining the existence of a statute, the house and senate journals may be examined, notwithstanding the act appears in the annual laws with the required certificate of the speakers of each house, and the usual certificate of the secretary of state appended to the volume.</p> <p>2. Acts op 1891 are Both Invadid.</p> <p>Neither of the acts appearing in vol. 88, O. T., 256 and J279, were ever passed by either house, nor was the same act on the subject passed by both houses. Neither is a valid act.</p> <p>3. Court Cannot Consider Invadid Taws.</p> <p>Where an act is plainly invalid for other reasons, it is beyond the duty of the circuit court to pass upon its constitutionality.</p>

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

<p>NEGLIGENCE — APPROACHING TRAIN.</p> <p>I. Duty to Look and Listen Not Excused By Obstruction, when Train Known to be Due.</p> <p>A person in command of the ordinary human faculties, driving along a public highway, on coming to a known railroad crossing where trains are, to his knowledge, about due to pass, is guilty of negligence if he attempts to cross the railroad tracks without first stopping to listen and without looking for approaching trains, when, by looking from his vehicle, he could have seen an approaching train, at such a distance from the track that by stopping he could avoid danger, although the railway company had for a long time kept a flagman at said crossing to warn travelers of passing trains, if, on the occasion in question, it was about or a few minutes before the time the flagman usually left his post for the night, and his office was seen to be closed, and he not ib sight, and although neither of the signals of the approach of the train, required by statute, was given.</p> <p>2. Must Not Attempt to Drive Over when Approaching Train is Seen.</p> <p>At such crossing and at such time, and under the circumstances above recited, such traveler actually sees the approaching train, and when if he had stopped, he would have been secure from danger, and he does not stop, but attempts to drive over said crossing ahead of the train, and is hit and injured by the train at the crossing, he cannot recover damages from the railway company for such injury.</p>

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

<p>MUNICIPAL LEGISLATION.</p> <p>1. Actuad Notice of Meeting and Attendance Cures Defect in Notice.</p> <p>A meeting of the village council of R., consisting of six members, was called by the-mayor for October 29. The members were all notified of the time, place and purpose of the meeting, which was to transact some particular business, “ and for other business coming before the council.” The notice to meet does not appear to have been in writing. At the time and place fixed for meeting, the mayor and five members met and acted as a body and transacted business. Held: The meeting was valid.</p> <p>$. Adjourned Meeting of a Quorum is Vadid.</p> <p>Where such meeting is adjourned to a specified date, and at such date all the members-meet, transact business and adjourn to another specified date, and at such date all the members meet, transact business and again adjourn to a specified date, and at such, last mentioned date a quorum of the council meet, the meeting is valid and the council may transact any business within the power conferred by the statute.</p>

<p>ADOPTION — STATUTE OF FRAUDS.</p> <p>When Writing and Part Performance Take Case out of Statute of Fraud.</p> <p>A verbal agreement to adopt a child was faithfully carried out, but the statutory adoption was delayed until she was of age, and then a formal adoption by petition and entry was made in the probate court: Held,, though void, the writing and part performance take the case out of the statute of fraud and the adopted daughter became the heir.</p>

<p>ATTACHMENT.</p> <p>1. Inability bob. Malicious Attachment is not Debt FraudlenTly Incurre».</p> <p>A liability for malicious attachment, as where a creditor of a firm attached property of a corporation of the same name, knowing it was not the debtor, is not an obligation fraudulently incurred, though morally wrong.</p> <p>2. Notes Due to Executor and Trustee Cannot be Attached bor Personal Debt.</p> <p>Notes due to an executor and trustee as such are not subject to attachment for his personal debt, though he is a distributee of the estate and his share would exceed the amount garnisheed.</p>

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

<p>WATER WORKS — EASEMENT.</p> <p>1. Water Works Trustees may Contract eor Water.</p> <p>Sections 2409 to 2415, Rev. Stat., are sufficient to authorize trustees of waterworks already constructed to contract with mill owner for part of the slack water above his dam.</p> <p>2. Retinquishment oe Part oe Easement Does not Require Deed.</p> <p>A mill owner’s right to dam a stream gives him no property in the water, and his grant to a city owning waterworks above of the right to take his slack water above the dam conveys nothing, but merely relinquishes his right to the easement to have such quantity flow over his dam; such relinquishment, therefore, does not require a deed, and binds his subsequent mortgagees or purchasers, though without actual notice.</p> <p>8. Aeter Grant oe Stack Water, Owner has no Right to Destroy Dam Except to Abandon, and Repairs Must be Made Promptty.</p> <p>After a mill owner has granted to city waterworks the right to take slack water above his dam and the city has laid its pipes, and is doing so, and paying the agreed rental, his subsequent mortgagees or purchasers have no right to take down the dam, except in order to abandon it or make necessary repairs. If the latter, they must repair with reasonable expedition. If they delay wantonly or without previous due preparation, injunction will be granted.</p>

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

<p>STOCK AND STOCKHOLDERS.</p> <p>1. Issue of Stock for a Nominal Consideration to Stockholder is Void.</p> <p>An issue of treasury stock by the directors of the corporation to one of their numberu for the nominal consideration of one dollar is void.</p> <p>2. A Stockholders’ Petition Asking for a Receiver, but not Asking for a Disso-</p> <p>lution will be Refused.</p> <p>A stockholders’ petition for a receiver of the corporation, and that he proceed to collect unpaid assessments, but not asking dissolution or winding up, whei e the directors are endeavoring in good faith to carry on the business, though they have committed illegal aets, will be refused.</p>

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

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

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

The facts were substantially as follows: On November 17,1886, Lewis H. Mason took judgment on a cognovit, in the court of common pleas of Wyandot county, Ohio, for $5,018.95, against Michael Charlton and A. B. Charlton, the latter being surety. He caused execution to issue to the sheriff of Crawford county, who by direction of plaintiff’s counsel levied upon 160 acres of Charlton’s land now in question.

<p>ATTACHMENT.</p> <p>1. Wrongful Preference oe one Creditor not Ground eor Attachment by Another.</p> <p>The wrongful preference by a corporation of one creditor does not furnish a ground for an attachment on the same property by another creditor.</p> <p>2. Motion eor New Triad not Necessary to Review Dissolution oe Attachment.</p> <p>No motion for a new trial is necessary to authorize a reviewing court to review the facts on which the courts below determined a motion to dissolve an attachment.</p>

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

<p>HOSPITALS.</p> <p>1. Section 2166, Rev. Stat., is not in Conflict with the Constitution.</p> <p>Section 2166, Rev. Stat., authorizing a city to contract with a hospital association for the care of the sick, and to acquire a permanent interest therein, is not contrary to sec. 6, art. 8, of the constitution.</p> <p>2. Council may Enter into Contract for Care of the Sick.</p> <p>The council of a municipality may enter into a contract with an association organized for charitable purposes, within the corporation, for the management oí a hospital already erected for the sick and disabled, to provide medical and surgical aid and nursing for sick and disabled persons, free of expense to those who are unable to pay, and at cost to those who are able to pay.</p> <p>3. Representation on Board, or Interest in Property, not Necessary in Order to Contract.</p> <p>The fact that the municipality is not represented by one or more of the board of trustees, and that it has no interest in the grounds or buildings except as lessee (for a term of ninety-nine years) of one building situated on the real estate, suitably arranged and prepared with free wards, does not preclude the council from entering into the said contract.</p>

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

<p>TIME OF TRAINS — PENALTY.</p> <p>1. Action eor Penalties Under Act oe May, 1886 (83 O. D., 118.)</p> <p>An action for penalties amounting to $14,340 for 1,434 violations, under the act of May, 1886 (83 O. U-, 118), requiring railroad companies to give notice at stations whether passenger trains are on schedule time or not, under a penalty of $10 for each violation, was held to be but one violation, viz.: the failure to have a blackboard.</p> <p>2. Suit for Penalty must be Brought Before Justice or Mayor.</p> <p>Such an action must be brought before a justice or mayor, otherwise it could not be in a township, city or village.</p> <p>3. Common Pleas Court Would Not Have Jurisdiction.</p> <p>The court of common pleas would not have jurisdiction for the further reason that only $10 is recoverable.</p>

<p>COSTS.</p> <p>1. Prba. Setting up Settlement by Dependant, can only be Filed on Payment op Costs.</p> <p>If a defendant settles a case after suit brought without agreement that plaintiff shall pay costs, his plea, puis darrien continuance, setting this up, can only he filed on condition that he pay the costs, or judgment be rendered against him therefor.</p> <p>2. Upon Settlement by Dependant, Appellate Court will not try the Case to Determine Costs.</p> <p>If, after decree for plaintiff and appeal, the defendant satisfies the plaintiff’s claim, the appellate court will not try the case to determine who shall pay the costs, but will dismiss at defendant’s costs.</p>

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

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

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

<p>ASSESSMENTS.</p> <p>Act op April, 1893 (90 O. L., 251), is not Invalid in not Limiting Amounts to Benepits.</p> <p>A statute requiring township trustees to condemn land to widen a particular road, and assess back the cost on abutters, is not invalid by reason of not limiting the amount to the benefits, and thus allowing confiscation, for the courts would enjoin an assessment exceeding benefits.</p>

<p>LIFE TENANT CONVEYING FEE.</p> <p>Dease with Privilege of Purchase Sustained and Deed Ordered.</p> <p>On-petition of the life tenant under sec. 5803, Rev. Stat., the court decreed that she could, as trustee, lease the land for five years with privilege of purchase, and if purchased could give a deed after first accounting to the court and giving bond to secure the money received. The lease was made and at the end of five years the lessee paid part, and put up buildings, but the trustee refused to give a deed. On suit by the lessee, for deed tendering the balance: Held that the decree for a lease is valid until reversed; that the trustee will be compelled to account and give a deed on full payment, but the lessee’s part payment in advance of the accounting being unauthorized is null as to the remaindermen, and he must pay them their full share, but it is valid as to the trustees’ share.</p>

The plaintiffs, in these cases, sued to recover the value of shares in the ■defendant building association, which they claim were transferred to them by Eliza Lloyd, now deceased. The parties made defendant were the building .association and Frank Bowles, administrator of Eliza Lloyd. The building ■association answered, admitting that it had in its possession money belonging to Eliza Lloyd, and asking the direction of the court as to whom it should be paid.

<p>RECORD EVIDENCE.</p> <p>1. In the Absence oe Complete Record Pleadings,. Docket and Entries may be Used.</p> <p>A record of an action should contain, and is, a history of the cause, from its beginning to its end; and where a complete record has not been made, when it is desired to be used as evidence in another action, the pleadings, and docket and journal entries, may be used instead of such record.</p> <p>2. Docket Entry may be Used as Evidence in an Action on the Bond.</p> <p>Where an order of the court, by consent of parties, was entered on the journal, directing the defendant to execute an undertaking (which was lost) to discharge an order of attachment issued therein, and as a substitute therefor, with sureties, to the approval of the clerk, and the clerk subsequently entered upon the appearance docket: “Bond to be substituted for attachment filed January 9, 1875, A. L. Moffatt, A. B. Reid, George S. Case, surety,” such entry is a part of the record, and may be given in evidence, in an action on the lost undertaking, when issue is taken upon the averments of the petition as to such action and attachment proceedings, and the giving of such undertaking, when it appears that a complete record was not made in such action.</p> <p>3. Where Material Part oe Entry is Competent, Objection to Whole should be Overruled.</p> <p>In such case, if it is conceded that a material part of such entry is competent, a general objection to the whole entry should be overruled.</p> <p>4. Court may Charge that such Evidence be given such Weight as it Fairly Deserves.</p> <p>In such action, it is not error, to the prejudice of the defendant, for the court to say to the jury: “This entry, however, is to be given such weight only as in your judgment in connection with the other evidence in the case it fairly deserves.”</p>

<p>PRINCIPAL AND AGENT.</p> <p>Deposit oe Note eor Collection and Remittance Establishes the Relation oe Principal and Agent and the Trust Fund thus Created is not Subject to Assignment.</p> <p>A note due in New York was deposited in a private bank for “ collection and remittance/’ and after collection this bank gave the depositor a draft on a New York bank for the proceeds, but failed before it could be collected, and the New York bank remitted the amount due from it to the insolvent bank to its assignee for creditors!: Held, the depositor and the first bank were principal and agent. The draft did not terminate this relationship and the assignees must pay over.</p>

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

<p>RAILROADS.</p> <p>Daw Requiring the Stoppage of Trains is Valid.</p> <p>Section 3320, Rev. Stat., directing that each railroad company shall cause three of its regular passenger trains each day to stop at cities or villages having over three thousand inhabitants, long enough to receive and let off passengers, is not invalid as interfering with commerce.</p>

<p>REPLEVIN.</p> <p>Prato and Intent to Sell at a Sacrifice on part of Mortgagee can be set up ntDefense in a replevin Suit.</p> <p>A claim that defendant in replevin had been induced to give the mortgage by fraud, and that the mortgagee was about to sell the goods at a great sacrifice, can he set up in defense in the replevin suit, and hence no injunction will lie against the suit and to have the mortgage declared void.</p>

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

<p>TELEGRAPH COMPANY — DAMAGES.</p> <p>l. Sections 3462 and 3463, Relating to Telegrams gives no Action to one who is not the Sender or Forwarder of the Message.</p> <p>Sections 3462 and 3463, Rev. Stat., are penal, hence must be strictly construed and give no action in favor of one not the sender or forwarder of the message. Under these sections the sender of a dispatch is the person whose name is signed thereto. The one desiring to send is the person who presented it to the company for transmission; the one forwarding has reference to the telegraph company.</p> <p>2. Mental Pain not Ground for Damages unless Accompanied by Pecuniary Loss or Physical Injury.</p> <p>Damages cannot be recovered from a telegraph company for mental pain and suffering, for simple negligence in failing to transmit a dispatch, unless accompanied 'with pecuniary loss or physicial injury.</p>

<p>Application for Mandamus.</p>

<p>UNLICENSED DOGS — CONSTITUTIONAL LAW</p> <p>An Ordinance for the Sale of Unlicensed Dogs is Unconstitutional.</p> <p>An ordinance for the sale of dogs found at large without a license cneck is unconstitutional as being in the nature of a penalty imposed upon the owner without a notice, hearing or judgment.</p>

<p>CEMETERY.</p> <p>1. Vote not Necessary to Acquire Additional Land for Cemetery.</p> <p>The requirement of a popular vote for “cemetery or no cemetery,” under sec. 1465, Rev. Stat., does not apply to acquiring additional ground lor an existing cemetery.</p> <p>2. Law oe 1893 does not Authorize such Additional Land within Prescribed Distance from Dwelling.</p> <p>The local law of 1893 (90 O. L., 183) authorizing a township to add land to its cemetery, did not, by implication, authorize it to add land within 200 yards of a dwelling.</p> <p>3. Same Rule and Remedy Applies to Additions to a Cemetery as to its Original Establishment.</p> <p>The same rule and remedy applies to land for an addition to a cemetery as provided by sec. 1464, Rev. Stat., relative to land for cemeteries.</p> <p>4. Special Act for a Particular Township to use Land for a Cemetery is Valid.</p> <p>A special act to authorize a particular township to use land for a cemetery, which the general law would forbid being so used, is local in its nature, and, hence, valid.</p> <p>5. Property Owner has Vested Rights in the Prohibition Against Locating a Cemetery within 200 Yards of His Dwelling.</p> <p>The prohibition against locating a cemetery within 200 yards of a dwelling, sec. 1464, Rev. Stat., confers on the owner of the dwelling a vested right in the nature of an appurtenance which cannot be taken away by repeal after he has begun an injunction suit.</p> <p>6. A Law Establishing a Cemetery within 200 Yards from a Dwelling would be Void unless it Provided Compensation.</p> <p>While the general assembly might authorize the establishment of a cemetery within the prohibited distance of a dwelling, such a law would be void as against the owner of a dwelling unless it provided compensation in money for the depreciated value of the dwelling.</p>

<p>NOTICE OF APPEAL.</p> <p>Notice oe Appeal Filed Five Days After Judgment is too Late Although Motion for New was not Disposed of.</p> <p>Judgment being entered Nov. 23, and a motion for a new trial filed Nov. 25, a notice of appeal filed Nov. 28, is too late, although the motion was not disposed of.</p>

<p>TAXATION.</p> <p>1. All that is Necessary to Exempt Property, under Sec. 2732, Rev. Stat., is-Exclusive use for Purposes Mentioned.</p> <p>All that is necessary under sec. 2732, Rev. Stat., to exempt “public colleges, public academies, all buildings connected with same, and all lands connected with public institutions not used with a view to profit” from taxation is that such property shall he-exclusively used for the purposes mentioned.</p> <p>2. The State Regards Holder of Legal Title as Owner for Tax Purposes.</p> <p>When a purely charitable institution sells, by land contract, its real property, which has been exempt from taxation, and retains possession of the same until payments-are completed, and continues to devote same to charitable uses, such vendors continue during such time to be the owners of the property under the taxing laws of the state.. and the property continues to be exempt from taxation under both paragraphs one- and six of sec. 2732, Rev. Stat.</p> <p>3. Agreement to Pay Taxes Means Legal Taxes.</p> <p>Under such contract, the contractee’s agreement to pay taxes means only legal taxes.</p> <p>4 Stjit to have Property Taken from Tax Eist is Property Brought Against the Auditor.</p> <p>A suit to compel the striking off of exempt property from the tax-list, and enjoin the collection is properly brought against the auditor.</p> <p>¡6. Property Ceasing to be Exempt Judy, 1893, Cannot be Taxed Bt-fore 1894.</p> <p>Where the causes which make real property exempt from taxation cease to exist on July 1, 1893, there is no authority in law for placing such property on the tax lists for taxation before the year 1894.</p>

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

<p>WILLS — DEVISE.</p> <p>Disposition of Remainder upon Executory Devise for Life Only.</p> <p>A devise to a son with words of perpetuity, and a later clause that if he should die without issue before the testator’s widow, she should have the land for life, but makes no provision for the remainder, does not make the remainder intestate property, but only defeats the son’s interest to the extent that the lesser interest is carved out of it. This should certainly be the rule if the will shows that to be the intent.</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>Appear from the Court of Common Picas of Coshocton county.</p>

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

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

<p>RAILROADS — INFANT—NEGLIGENCE.</p> <p>1. The Care Required oe a Railway Company at a Crossing is Measured by the Hazard There.</p> <p>The care and prudence required of a railroad company to protect persons passing along the street, at a crossing of the highway, is measured by the hazard that attends the transaction of business at that point.</p> <p>2. The Duty oe a Child to Look out eor Cars is not that oe an Adult.</p> <p>The duty of a child standing on a street at a railway crossing, to look out for approaching cars, is not the same as that of a mature person.</p> <p>3. A Railroad Company Must Exercise Ordinary Care to Protect Even Trespassers.</p> <p>A railroad company is bound to exercise ordinary care to protect persons on their tracks, notwithstanding that they may be .trespassers.</p> <p>4. The Father, at Common Law, Has no Right oe Action eor Death oe his Son.</p> <p>The father, at common law, has no right of action against one causing the death of his son by negligence.</p>

<p>EXECUTIONS.</p> <p>1. Reviewing Court May Consider Materiad Pacts not Embraced in Findings of the Triad Court.</p> <p>If the facts found by the trial court do not embrace all the material facts disclosed by the • uncontradicted evidence furnished in the bill of exceptions, the reviewing court will determine the case from the whole record, including the facts found and additional facts warranted by the evidence.</p> <p>2. The Daw Redative to Enforcing Judgment by Execution Must be Strictdy Eoddowed.</p> <p>Proceedings to enforce the collection of a judgment by process of execution are purely statutory, and the provisions of the statute must be substantially followed._</p> <p>.3. Lew on Foreign Execution Without Further Proceedings is not Good Against a Subsequent Mortgagee.</p> <p>. Where an execution is issued to a foreign county, with instructions to the officer that when real estate is levied upon it shall be returned without further proceedings, and it is so returned after levy, and no further action had (.«■ enforce collection, a mortgage executed subsequently to the levy will have priority.</p> <p>4. Adías Execution, Without Further Proceeding? wild not Preserve the Judgment Lien.</p> <p>The alias execution provided for by sec. 5405, Rev. Scat., to be issued after levy has been made, is an execution to sell the real estate previously levied upon, and not for the purpose of again levying upon the same premises. An execution issued and again levied upon the real estate previously levied upon, and ordered to be returned without further proceedings will not have the effef' ’•o preserve thejudgment lien under sec. 5380, Rev. Stat.</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>RECEIVERSHIP.</p> <p>' 1. Evidence upon Application eor Receiver Should be Clear and Definite.</p> <p>A receiver should only be appointed upon the application of a creditor claiming breach of contract, when the evidence before the court relating to the grounds of appointment is clear, definite and satisfactory.</p> <p>2. In Describing a Contract Sued upon the Word “Similar” is too Indefinite.</p> <p>In an action based on a contract “ similar ” to the one of a previous year, the court was not upon such an indefinite statement, warranted in appointing a receiver.</p>

<p>Heard on FJrror to Common Pleas Court of Hamilton county.</p>

<p>DECREES OF PROBATE COURT.</p> <p>Decrees oe Probate Court Cannot be Set Aside upon mere Motion.</p> <p>The probate court has no power, upon mere motion, to vacate or set aside its properly made decrees and judgments, and can only do so by a proceeding under sec. 5307, Rev. Stat.</p>

<p>ASSIGNMENT PROCEEDINGS.</p> <p>Assignee’s Liability on Assignor’s Contracts oe which assignee has no Notice.</p> <p>An assignee of an insolvent debtor is under no liability to a third person on a contract entered into by the latter with the assignor prior to the assignment, where the assignee has had no notice of such contract and no opportunity to perform thereunder for his assignor.</p>

<p>LOCAL DRAINAGE.</p> <p>Local Drainage Defined.</p> <p>The “local drainage” that is meant by sec. 2280; Rev. Stat. of Ohio, is such a sewer or such a system of sewers, as looking to the dimensions, the mode of construction, the material used therefor, the location, the outlet, and the sanitary conditions, will not only benefit the persons who have constructed the sewer or system of sewers, but will not be detrimental to the rights of the public, both present and future.</p>

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

<p>REMEDY BY INJUNCTION. ’</p> <p>1. Equity will not Grant Relief by Injunction Except where Rights are Clear and Have First'been Established at Law.</p> <p>A court of equity will not interfere to restrain a private nuisance where some of the questions in dispute are pending in an action at law in another court; and even when a court of equity has undivided jurisdiction of such questions, it will not grant relief to a party by injunction, unless his rights are clear and have first been established at law.</p> <p>2. Division of Lot Conveys Basement Essential to Enjoyment of Land Granted.</p> <p>Where a drain has been constructed on a parcel of laud by the owner thereof, and such parcel of land is afterward divided by the owner into two lots so that said drain is on both lots, and such lots are subsequently conveyed to different purchasers without any reservation as to the use of such drain, each purchaser takes his lot with all the rights that his grantor had with respect to such drain, and burdened with all servitudes that such drain may create, provided said dráin is reasonably necessary to the enjoyment of the land granted.</p>

<p>STREET RAILWAY LEGISLATION.</p> <p>1. Council May Waive or Ignore an Ordinance which it has Authority to Repeal.</p> <p>The legislative body of a municipality can, in particular instances, waive or ignore the provisions of an ordinance, which it might, at any time, repeal, and, by special legislation, can enact a legal and valid ordinance though the same may not be done in the particular mode or manner prescribed by the ordinance whose provisions are thus waived or ignored. <</p> <p>2. The Notice Required by Sec. 2502, Rev. Stat., is Sufficient if Given before Passage of Final Ordinance.</p> <p>■- Under proceedings of the legislative body of a municipality for the establishment of a street railway route, the notice required to be given by sec. 2502, Rev. Stat., is sufficient) if given before the passage of the final ordinance, although it is subsequent to the passage of the first ordinance or resolution.</p> <p>3. Party Electing to Operate Connecting Lines, for One Fare, Cannot Complain of the Provision as to Gross Earnings.</p> <p>The grantee of a street railway route, under an ordinance providing for the payment to the city of 2$ per cent, of the gross earnings of the route and 2¿ per cent, of the earnings of connecting lines, who, of his own accord, elects to operate the route granted, with connecting lines, for the one fare, cannot be heard to complain that the ordinance makes an unfair and unjust discrimination.</p> <p>4. Forks in Street Railway does not make Two Different Lines.</p> <p>The fact that at a certain point a street railway route “ forks ” and becomes two diverging branches, does not destroy the unity of the route, or make it two diverse and different routes.</p> <p>5. Running for a Distance over Private Grounds does not Invalidate Ordinance.</p> <p>The fact that for a part of the way the line may not run over any of the streets or alleys of the city does not of itself make the route illegal.</p> <p>6. Mayor need not Sign or Approve Ordinance.</p> <p>An ordinance granting a street railway franchise is valid without the signature or approval of the mayor.</p>

<p>REAL ESTATE.</p> <p>Execution Sale oe a Barn, Built Under Verbal Agreement oe Joint Ownership oe Building and Rand, as Personalty, Conveys Nothing.</p> <p>A livery barn built by B. & H. upon B.’s land, with, stone-wall foundation let into the earth a foot or more, under a verbal agreement for a joint ownership of the building and so much of the real estate as is required for its use, is prima facie a part of the real estate, and a levy upon and sale of the interest of H. therein, as personal property, conveys nothing.</p>

<p>ATTACHMENT.</p> <p>£. In Attachment, Intention to Defraud, Must be Shown.</p> <p>Attachment being an extreme remedy, the attaching creditor must bring his case fairly within the statute, and where the ground for the attachment is that the debtor has disposed of his property with intent to defraud his creditors, an intention to defraud must be shown.' Rolling Mill Co. v. Packard, 1 Ohio Circ. Dec., 46, followed.</p> <p>2. Reviewing Courts Other' Than the Supreme May Examine Weight of Evidence to Justice’s Refusal to Discharge Attachment.</p> <p>It is competent for the court of common pleas, upon petition in error, to reverse the order of a justice of the peace refusing to discharge an attachment, to look into a bill of exceptions allowed by the justice, showing all the evidence, for the purpose oí determining whether such order of the justice was sustained by sufficient evidence.</p>

<p>NUNC PRO TUNC ENTRY — BILL OF EXCEPTIONS.</p> <p>1 A Bill op Exceptions Will Raise the Question as to Errors op Law.</p> <p>A bill of exceptions, under the amendment of 1891 to sec. 5301, Rev. Stat., is available to raise the question whether errors of law occurred at the trial, though the motion for a new trial was not overruled until a subsequent term. Certainly it will properly raise the question whether the verdict of the -jury or the finding of the court was against the weight of the evidence.</p> <p>% Nunc pro tunc Depriving Pasty op His Right to Bill op Exceptions is Error.</p> <p>A trial Was had at the April term, a motion for a new trial was continued to the July term, and then overruled, but the clerk made the entry oa the preceding April minutes without the knowledge of the losing party, who in the October term procured a vacation of the entry, but the court ordered the vacation to be entered as of the day of the July term when the motion was overruled: Held, erroneous because depriving the party of his chance to take a bill of exceptions, and that the last entry should have been in the October minutes, and exceptions signed then should not have been struck off as out of time.</p>

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

<p>ANIMALS RUNNING AT LARGE.</p> <p>Owner Cannot Recdaim Stray Animad Without Tender or Payment. '</p> <p>If an animal be found running at large without the fault or knowledge of the owner, he cannqt reclaim it without paying or tendering payment of reasonable compensation to the person taking it up and keeping it.</p>

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

<p>TOWN PLAT — STREETS.</p> <p>1. Ac* OR 1831 Applies to Land no* Within Corporate Limits.</p> <p>The act of 1831 that when a person wishes to lay out a town he shall make a plat showing lots and streets, and the streets shall thereby belong to the county, does not mean an incorporated town, but applies to a subdivision by a proprietor not within a municipal corporation.</p> <p>2. Statute or Limitations as to Country Roads not Applicable To Platted Subdivision.</p> <p>Section 4668, Rev. Stat., that a country road not improved for seven years shall revert, does not apply to streets dedicated to the county by reason of a proprietor platting a subdivision, and lot owners inclosing such street for less than twenty-one years before action do not acquire title.</p> <p>8. Twenty-one Years Must Elapse Before Suit is Brought,</p> <p>A lot owner in adverse possession of a street, seeking to enjoin a city from improving^ it, cannot, by supplemental pleading, have the benefit of the statute of limitations, which runs out after suit is brought.</p>

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

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

<p>COUNTY CLERK — MANDAMUS.</p> <p>County Clerk holds Office until Successor is Elected.</p> <p>Under the constitution and laws of Ohio, the term of office of the clerk of court of common pleas continues until his successor is elected and qualified, and this is so even if the time for his successor to qualify and take his office has been extended, as under the act amending sec. 1240, Rev. Stat., passed March 2, 1893.</p>

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

<p>GRADE OF STREET.</p> <p>1. Verdict for Damages not Sustained by Evidence.</p> <p>Where plaintiff consented to the cutting of the grade on the street in front of his premises to a depth of twenty-four inches and the defendant cut to a depth of five feet, a judgment for the total damage done by the whole cutting cannot be sustained.</p> <p>2. Charge that Virrage Authorities Passed Resorution to Lower a Grade, .Rereased Defendant from Previous Cutting of the Grade Erroneous.</p> <p>In an action for damages tor cutting down a grade, the charge of the court that while defendant may have unlawfully cut down the street, yet if the authorities of the village afterward adopted a resolution to lower the grade still more, and plaintiff could not recover damages therefor against the village, that defendant would also be free from liability, is erroneous.</p> <p>3. Member of a Board Cannot Testify as to what Board Expects to Do.</p> <p>A member of the board of village.trustees cannot testify that the board expect to adopt a grade, on a certain street, without delay, for he cannot bind the board.</p>

<p>Error tq the Superior Court of Cincinnati.</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>BILLS AND NOTES — ATTORNEY.</p> <p>1. Attorney has no Authority to Compromise Note on Hand for Collection.</p> <p>The indorsement of an overdue promissory note, in blank, by the holder thereof, doee not authorize an attorney at law, with whom it is left for collection, to make a compromise settlement thereon.</p> <p>2. Owner May Recover Balance After Compromise by Attorney.</p> <p>Where an attorney, holding notes for collection, as stated above, accepts less than the amount due thereon, the owner may collect the balance even though the maker did not know that the attorney was not the owner of the notes.</p>

<p>INJUNCTION.</p> <p>1. Courts of Equity are Governed by Principles as Well Defined as Legal Principles.</p> <p>Rights of parties in a court of equity are determined by equitable principles, quite as certain and well defined as legal principles in a court of law, and it is a misconceived notion .that the rights of parties in a court of equity are to be determined by the notions that a chancellor may have as to what is right or just between the parties.</p> <p>2. Application for Injunction Must Show that Irreparable Injury Will Follow AND THAT THERE IS NO REMEDY AT LAW.</p> <p>Where an agent of stockholders is winding up a bank, and a stockholder entitled to a large dividend has given the bank his note for such agent’s accommodation as an individual, taking back the agent’s mortgage to hold him harmless, which mortgage the agent has transferred to the bank, so that the agent holds both note and mortgage but threatens to deduct the note from the dividend, and such stockholder brings suit to enjoin this. Held, the parties are merely debtor and creditor; each is entitled to a jury trial, one on his claim for a dividend and the other on the note, in which the question can be raised, hence, no irreparable injury is shown. Nor can equity enforce an order for payment of money by a debt, for that would be imprisonment for debt. Hence, injunction must be refused.</p>

<p>APPEALS — EXECUTORS.</p> <p>1. Action for Money, Arising under Principles of Subrogation, is Appealable.</p> <p>An action for money against a trustee carrying on business under the direction of a will, where plaintiff’s right, if he has any, must arise under the general doctrine of subrogation, is an equitable action, and is appealable.</p> <p>2. Suit Against Trustee Should Allege that he Has given Bond Required.</p> <p>Where the will appoints a party as executor and also as trustee to carry on business, separate and apart from his duties as executor, such party is required', under sec. 5981, Rev. Stat., to give separate bonds for each position, and in a suit against him, on a claim. arising in the business so carried on by him as trustee, the petition should allege that he had given the bond required as trustee.</p> <p>8. Will Directing Estate to be Used in Carrying on Business is Subject to Law that Personal Debts Must be Paid.</p> <p>Where the will directs that the whole personal estate should be used in carrying on a business, such direction is subject to the law that the personal estate must first pay the personal debts of the testator, and only the personal estate remaining after payment of such personal debts can be used by the trustee to carry on the business.</p> <p>4. What Creditor must Allege to be Subrogated to Rights of Trustee.</p> <p>Where a creditor of the business thus carried on by such trustee, who as executor of the estate has paid personal creditors of the testator out of the personal estate, asks to be subrogated to the rights of such trustee as against such creditors paid, on the ground that the business was thus carried on by the trustee with the consent of such personal creditors, and that they were paid with the proceeds of the business thus carried on by the trustee, the petition should state how long the personal creditors agreed to the carrying on of the business; whether the creditors were paid after the plaintiff furnished anything to carry on said business, and whether such personal creditors were paid from any fund which plaintiff helped to produce. s</p> <p>5. Trustee has Rights to be Indemnified for Liabilities of the Business.</p> <p>In carrying on such business, the trustee has a right to be indemnified for liabilities growing out of the running of the business, and if he chooses not to do so, and is insolvent, the creditor may assert his right in his stead by way of subrogation. And in such case the petition should allege what fund is to be reached.</p>

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

<p>BOARDS OF EDUCATION.</p> <p>1. Section 20, Art. 2, Const, does not Refer to School Examiners or Municipal Officers.</p> <p>The officers mentioned in sec. 20, article 2, of the constitution of Ohio, do not refer t° either members of a board of school examiners or to the officers of a municipal corporation.</p> <p>2. Board of Education may Reduce Examiner’s Pay, but not Retroactively.</p> <p>A board of education has the right to reduce the compensation to be paid-a member of its board of examiners during his term df office, but such reduction cannot be retroactive.</p>

<p>COUNTY COMMISSIONERS — TAXES.,</p> <p>1. Act &), O. R. 217, is Mandatory as to Time for Revy.</p> <p>The provision for levying taxes for a certain improvment, contained in an act passed bj! the general assembly of Ohio, found in 90 O. R., 217, is mandatory, and not directory! on the county commissioners, as to the time when such levy for taxes is to be made) and the levy tor the first installment of said taxes should be made in the year 1893.</p> <p>2. Must be a Tender of Payment Before Bond can be Issued.</p> <p>Before such county commissioners can be compelled to issue the bonds provided for bjl • said act, there must be a tender of payment for such bonds. "</p>

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

<p>PRIVATE CORPORATIONS.</p> <p>1. Injunction will not be Granted to Prevent Election oe Directors in Private Corporation.</p> <p>The holding of an election to fill the office of director of a private corporation which, it is claimed, is not vacant, will not produce such great or irreparable injury as will warrant an injunction.</p> <p>2. Quo Warranto is the Form oe Action to Test the Title to such Oeeice.</p> <p>Where there is a controversy as to whether there is a vacancy or not, the election should be allowed to proceed so that the person entitled, may test his right and that of his opponent to the office by a proceeding quo warranto.</p>

<p>PLEADING.</p> <p>1. Refusal of Company to Furnish Blanks Shows an Excuse for not Averring that Proofs were Furnished.</p> <p>Refusal of an insurance company to furnish blanks for proof of loss without assigning a reason therefor, shows an excuse for not averring that proofs were furnished.</p> <p>2. Insurance Policy Attached to Petition may be Referred to in Deciding Demurrer.</p> <p>If a petition on a policy of insurance attaches a copy and expressly makes it part of the petition, it may be referred to for the purpose of deciding a demurrer.</p>

<p>CHANGE OF GRADE.</p> <p>Where Expense of Change oe Grade Should be Borne by General Public.</p> <p>Where the grade of a street is changed simply to conform the grade to the general system of grades and which new grade so established was not better than the old grade, and did not specially benefit the abutting property, the general public should bear the expense and no assessment should he made on the abutters.</p>

<p>HOMESTEAD EXEMPTION.</p> <p>1. Owner oe Diee Estate is Owner oe Homestead.</p> <p>An instrument of lease, conveying to the grantee named an absolute estate for life in a tract of land, including dwelling house and other buildings, and containing provisions forfeiting said life estate only for waste, non-paymeut of taxes, and in case a sale thereof on execution is permitted, constitutes such grantee the owner of a homestead, and entitled to its benefits, within the meaning of the law relating to homesteads and exemptions.</p> <p>2. Cannot Claim Exemption in Rieo oe.</p> <p>Such grantee, while in undisputed possession of the premises under said lease, and actually occupying and using them as the home of his family, is not entitled to the exemptions of personal property, in lieu of a homestead, provided in sec. 544, Rev. Stat.</p>

<p>FIRE INSURANCE — EVIDENCE.</p> <p>1. Notice oe other. Insurance by Telephone to Insurer’s Oeeice Suepicient.</p> <p>On the question of the insured having notified the insurer of other later insurance obtained by him, he may show that he called up the insurer’s office by telephone and-communicated the fact to the person answering the call without further connecting the insured with such person.</p> <p>’ 2. Unanswered Questions in Application are Waived.</p> <p>Unanswered questions in an application for fire insurance are deemed waived.</p> <p>8. Condition as to Incumbrance Waived ip Questions Unanswered.</p> <p>A condition requiring property to be unincumbered is waived by giving insurance on aw application leaving questions as to losses unanswered.</p>

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

<p>JURY TRIAL.</p> <p>Triad by Jury Waived by Conduct.</p> <p>The right of trial by jury may be waived in open court by conduct of the party amounting to an estoppel.</p>

<p>SUPERINTENDENT OF SCHOOL.</p> <p>PRESUMPTION THAT SUPERINTENDENT, WITlT OTHER TEACHERS IN SCHOOI,, IS NOT Teaching Branches not Authorized by his Certificate.</p> <p>The board of education of G., a village, at a regular meeting, by motion, tendered to C., the election as superintendent of a school in which branches other than those enumerated in the certificate issued to C. by the board of school examiners were taught, giving C. notice of such action. C. accepted the employment tendered and entered upon his duties.</p> <p>Held: That this constituted a valid and subsisting contract between C. and the board; that in the absence of proof, other teachers being employed in the school no presumption arises that C. actually taught branches not enumerated in his certificate.</p>

<p>REVIVOR OF JUDGMENT.</p> <p>Motion for Revivor Cannot be Treated as Petition.'</p> <p>A motion asking for a conditional order of revivor of judgment cannot be treated as a petition to which an answer and cross-petition may be filed asking for equitable relief.</p>

<p>PRACTICE.</p> <p>Court may Limit the number op Witnesses.</p> <p>The trial court may exercise a reasonable discretion in the limitation of the number of witnesses who may be called in proof of a fact though that fact may determine the issue.</p>

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

<p>MUNICIPAL ASSESSMENTS.</p> <p>Want op Personal Service of Passage of Resolution may not be Fatal.</p> <p>Under the provisions of sec. 2304, Rev. Stat., when it is deemed necessary by a city or village to make certain public improvements, it would seem that personal service cE the passage oE the preliminary resolution should be made, and by a person authorized to serve the same. But when such written notice is sent by mail by a person so authorized, to such owner, addressed to him at a post-office in the county in which such owner resides, and at which he sometimes receives his mail matter, and such notice is actually received by him in due time, and more than twenty days before any further action is taken by the city or village in regard to such improvement, this would seem to be sufficient; but if not, the failure to give the personal notice is .not so far jurisdictional as to make any future proceedings in regard thereto, void as to such person. The case would then come under the provisions of the curative statute, section 2289, as a “technical irregularity and defect,” and in such case the property should only be held liable for so much of the assessment levied thereon as may be found to be just and equitable.</p>

<p>JURY TRIALS — DAMAGES.</p> <p>. View of Premises not Evidence, but Solely to Apply Evidence.</p> <p>In an action for damages to abutting property on account of street improvement, where the jury views the premises, but no testimony is offered as to the value of the land taken, such view alone does not constitute evidence.</p> <p>. Plaintiff is Entitled to at least Nominal Damages for Injury to his Property Rights.</p> <p>Where it appears from the evidence that property rights of the plaintiff have been infringed, it is error to direct a verdict for defendant because no damages are proved, at least nominal damages must be awarded.</p>

<p>MUNICIPAL IMPROVEMENTS.</p> <p>Want of Authorized Personal Notice to File Claims Supplied by Actual Notice.</p> <p>Notice of the passage by the council of a village of a resolution declaring it necessary to make a public improvement, under the provisions of sec. 2304, Rev. Stat., (as it stood before the amendment of March 15, 1889), so as to make it obligatory upon them to file their claims for damages within a certain time after such notice, or be barred therefrom, must be given to the owners of the abutting property personally, and by some one authorized by council, as well as published or posted, but if the marshal leaves at residence, without having been authorized by council, and the property holder actually receives the notice, the defect is probably cured.</p>

<p>SIDEWALK ASSESSMENTS.</p> <p>Walk Constructed Part Way must be Assessed on Whole Length.</p> <p>Under the provisions of the act for a sidewalk on Madisonville road, passed April 15, 1892 (89 O. L., 640), a special taxing district is created. And where the trustees of the township, under the provisions of such statute, have constructed a sidewalk for a part of the distance only on the east side of the road mentioned therein, and assessed two-thirds of the cost thereof on the lots and lands abutting thereon, by the foot front, and the other one-third thereof on the lots and lands on the west side, opposite thereto, by the foot front, such assessment is not made in conformity with the provisions of such statute. The assessment for the sidewalk already constructed, and for the sidewalks hereafter to be constructed under such law, should be on all of the lots'and lands in such taxing district by the foot front, viz: two-thirds on the whole of those on the side on which such sidewalk is constructed, and the other one-third on those opposite thereto, although no walk has yet been constructed in front of some of the land. Constructing part does not exhaust the power to construct the rest.</p>

This case is in this court on appeal from the court of common- pleas, and was heard upon demurrer to the petition. The substance of the material facts of the petition arej that plaintiffs are owners of land abutting on Edwards road, and a portion of them own property abutting on the right-of-way of said railway, and their means of access to said railroad is over the tracks of said company.

<p>IMPROVEMENT OF STREETS.</p> <p>•City to Pay Costs of Reducing Excessive Assessment — Interest on Correct Amount Aeeowed from Date of Decree.</p> <p>Where plaintiff has acted promptly in bringing an action to compel a city to correct an excessive assessment, if successful, the costs should be taxed against the city, and interest.on the amount justly due, should be allowed from the date the court so found, and not earlier.</p>

<p>WIDENING STREETS.</p> <p>Property Beyond Ends or the Improvement not to be Assessed.</p> <p>The city of Cincinnati condemned land for the purpose of widening and extending one of the streets of the city, and assessed the cost and expense thereof on all of the lots on said street by the foot front — not only on the lots and lands abutting on the part of the street so widened and extended, but on the lots and lands abutting on other parts of such street — having declared that they also will be specially benefited by such appropriation. Held: That the assessment made on such lots and lands not abutting on such improvement, is invalid.</p>

<p>SUBSCRIPTIONS.</p> <p>Subscriptions eor Endowment of Coi/cege Enforcibde.</p> <p>Subscriptions promising to pay money for the endowment of an educational institution, are enforceable where work was done and expenditures made in reliance upon such promises.</p>

The action below was one brought by the Village of Bond Hill to determine the amount of damages (if any) which Mr. Martin should recover, resulting from the improvement by the village, of what was originally known as the “Paddock Road,” but which is now within the village, and is one of the streets thereof, and is called Carthage avenue, the width of which is sixty feet.

<p>APPEALS.</p> <p>1. Action by Road Contractors against County is Arpealable.</p> <p>In an action by road contractors against a county, to collect what is due, where there are several lien holders, all claiming priorities against the fund, the action is in the nature of a creditor’s bill to assert and marshal liens upon the fund and is appealable.</p> <p>2. Arread not to be Divided as to Successful and Unsuccessful Parties.</p> <p>A person desiring to appeal cannot do so as to the parties who were successful against him, and exclude from the appeal questions as to the rights of others against whom he was successful. The question in this case being the disposition of a fund in which all the parties were interested, and the notice of appeal being as to those against whom the appellant was unsuccessful, the appeal was insufficient.</p>

<p>TELEGRAPH WIRES.</p> <p>When Injunction wile not be Granted to Prevent Additional Wires</p> <p>A. brought suit in 1891 to enjoin the stringing of additional wires by a telegraph company upon a pole in the street in front of his premises. The pole and eight wires-had been continuously used by the telegraph company for a period of nine years-prior to the purchase of the property by A. in 1890. Held, A. has mistaken his remedy. A court of equity will not entertain a suit for an injunction under such circumstances, but will remit the plaintiff to his remedy at law.</p>

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

<p>REPLEVIN.</p> <p>1. Value of Property to be Assessed Separate from Damages.</p> <p>Under sec. 6616, Rev. Stat., as amended April 3, 1891 [88 O. L., 275] the verdict must assess the value of the property taken and delivered to the plaintiff separately from-the other damages assessed, so that if the plaintiff elects to have the property returned, and it cannot be found, a judgment may be had for its value.</p> <p>2. Items not to be Valued Separately — ‘Vll Taken or None.</p> <p>The jury need not fix the value of each item separately, so that defendant may take part and leave part, for his election must be to take all or none.</p>

<p>APPEALS.</p> <p>No Appeal where Personal Judgment and Foreclosure Sought.</p> <p>Where a personal judgment and the enforcement of a mechanic’s lien are asked, although not separately stated and numbered, the cause is not appealable.</p>

The defendants in error brought suit in the court of common pleas to set aside the will of the late Mrs. Allen of Glendale, upon the ground that at the time of its execution, she was of unsound mind. The estate devised had passed to her by the will of her husband, who died about twenty months before her. They had no children. Thé contestants are the collateral heirs of testatrix and her husband.

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

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

<p>FIRE INSURANCE.</p> <p>1. Existing Mortgage not to Defeat Pot.tcy Unless Pum-h</p> <p>A policy of fire insurance is to be governed by secs. 3643 and 3644, Rev. Stat, and read as if that statute were a controlling part of it; and the fact that the premises were mortgaged will not defeat a recovery unless there was intentional fraud on the part of the assured.</p> <p>2 Waivir of Proof of Doss may be After Time for Expires.</p> <p>A waiver of the time for the presentation of proofs of loss may be made after the time fixed by the policy for such presentation as well as before.</p> <p>3. Different Occupation of premises tuan Represented.</p> <p>If the premises were partly occupied differently from the statement in the policy, and there was no intentional fraud on the part of the assured, and the agent of the company taking the insurance knew it, these facts will not defeat recovery. i. Pleading of Waiver of Proof of Doss.</p> <p>It is a sufficient pleading of waiver of the filing of proofs of loss within the time stipulated in the policy to say that defendant waived the filing within the time stipulated and prevented plaintiff from complying with the stipulation of the policy.</p> <p>5. Objection Waived if not Made Until in Reviewing Court</p> <p>Especially if after issue made, trial and judgment, objection is first made in the review-tag court.___</p> <p>6. Waiver of Proof of Loss- Waives Condition Limiting Time for Bringing Suit.</p> <p>The waiver of proof of loss and denial of liability upon the policy in any event is a waiver of a condition that suit shall only be brought after sixty days after proof of loss.</p>

<p>ERROR.</p> <p>Absence oe some Original Papers with Petition does not Deprive Jurisdiction— Time Given.</p> <p>Where all of the original papers in a case necessary to exhibit the error complained of are not filed with the petition in an error case, this does not deprive the reviewing court of jurisdiction thereof, but such court may require the provisions of the statute to be complied with, and on a failure by the plaintiff in error to do this, may dismiss the case.</p>

<p>Motion to dismiss appeal as to part of the original defendants.</p>

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

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

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

<p>MECHANIC’S LIEN.</p> <p>Contractor’s Order on Owner does not give Sub-Contractor a Priority.</p> <p>An order for money on the owner, given by the contractor to a sub-contractor for balance of material furnished, with the knowledge of the owner, does not give such subcontractor a prior claim to the money yet in the hands of the owner to a mechanic’s liens properly filed under the statute by other sub-contractors before such order has been accepted by the owner or by him promised to be paid.</p>

<p>BANK TAXATION.</p> <p>1. Assets of Banks to be Returned fob. Taxation by assignee.</p> <p>Under the statutes of this state, “money,” including gold and silver coin, bank notes of solvent banks in actual possession, and every deposit which the person owning, holding in trust, or having the beneficial interest therein is entitled to withdraw in money on demand;” held by an assignee or trustee for the benefit of creditors on the day preceding the second Monday of April, of any year, must be returned by him for taxation for the current year, as well as all specific articles of personal property, and all “investments in bonds, stocks, joint stock companies or otherwise held by him as such assignee or trustee, which, under the law, are taxable if held by an individual, a resident of this state.</p> <p>2. Property not Credits from which Dates may be Deducted.</p> <p>From the value of such property so held, the assignee or trustee can not legally deduct . the sum of the legal bona fide debts owing by his assignor at the time for making such return — no part of such property coming under the head of “credits” as defined in sec. 2730, Rev. Stat., from the sum of which the statute allows to be deducted the sum of the legal bona fide debts owing by the person from whom the return is made. Payne v. Watterson, 37 O. S, 121.</p> <p>3. Notes for Sale of Trust Property are Credits.</p> <p>Where such assignee or trustee holds notes given to him for property of the trust estate sold by him, such notes in his hands are “credits,” from the value of which the sum of the bona fide debts of the assignor may be deducted.</p>

<p>EJECTMENT — EVIDENCE</p> <p>1. Omission of Averment as to Possession not Objectionable after Trial.</p> <p>A failure to make an averment in a petition in ejectment, that the defendant unlawfully keeps the plaintiff out of the possession of the land claimed, when it does allege “and has so unlawfully kept her out of said possession continually since on or about the 2nd of September, 1886,” is not fatal, where no objection was made to the petition by motion or otherwise, until after verdict and judgment for the defendant, or until the filing of a petition in error by plaintiff, and where the whole case was tried in the common pleas court as if the proper allegation had been made.</p> <p>2. Plaintiff may be Nonsuited for Failure to make out Prima Facie Case</p> <p>Where the title of the plaintiff is denied by the answer of the defendant, and possession of the land claimed is, by force of the statute, thereby admitted by the defendant, to entitle the plaintiff to recover, he must show a better title to the land in controversy than that of the defendant. A prima facie case is made by his showing a conveyance to him or one of his grantors in his chain of title, by one then in the possession and occupancy of the land in question. If this is-not done, he must run his title by deed or other necessary proof, to some one shown or admitted to be the common source of title, to him and the defendant and in default oi there being such common source oi title, back to the government. And on his failure to offer evidence tending to do either, it is not error in the trial court to withdraw the evidence from t(he jury and render a judgment for the defendant.</p> <p>2. Upon Destruction of Records, Secondary Evidence of Contents of a Deed is not Admissible unless Proof of Loss of Deed.</p> <p>.Whether a memorandum, made by an attorney at law in the examination of the title in question, and which he testifies he believed to be correct, and which purports to give the names of the grantors and grantees to such deed, the date thereof and the consideration named, and the date of the record, with the description of the lot conveyed, and that it was duly signed and sealed, “two witnesses, duly acknowledged in Jefferson county, Ind.,” and where such record in the office of the county recorder, was shown to have been afterwards destroyed bv fire, was competent evidence: Quoere. But in this case, the original having been shown to have been in existence some time before the trial, and its absence not having been satisfactorily accounted for, such deed is the best evidence of its contents, and the memorandum was properly excluded by the court.</p>

<p>CORPORATIONS.</p> <p>After Agreement to Postpone Election or Directors, an Election prior to Adjourned Hour is not to be Upheld.</p> <p>Where at the meeting of the stockholders of a corporation for the election of officers, an agreement is made that the election be postponed until an hour agreed upon, or that takes place which justifies the holders of a majority of the stock there represented in believing that such postponement would be had, an election held by 'stockholders, parties tp such arrangement, holding only a small amount of such stock, in the absence, of the other parties, and prior to such time agreed upon, will not be upheld by the court.</p>

<p>Heard on motion to dismiss appeal.</p>

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

<p>DOW LAW TAXES.</p> <p>Where Tax is listed against Wrong Property, Premises Subject to are not Charged with Dow Tax at Tax Sale.</p> <p>When the “Dow law” tax for the year 1886, against a person chargeable therewith, was entered upon the duplicate for that year against such person, but by the mistake of the auditor a different property was described on such duplicate, and such tax was not paid and could not be collected; and when the premises on which said business had been carried on in 1886, had been forfeited to the state for the non-payment of the general taxes thereon, and at the sale of forfeited lands made in December, 1889, said premises were sold to a purchaser who had no knowledge of the non-payment of such Dow law tax, a»d the auditor having discovered in 1890 that such tax for 1886, had, by mistake, not been charged against such premises, cannot place the same on the duplicate of 1890, against the same and demand payment thereof from such purchaser, undei sec. 2803, Rev. Stat., or by any other law, and such assessment was not a valid lien on said premises owned by such purchaser.</p>

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

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

<p>FOREIGN CORPORATIONS.</p> <p>Resident Stockholders may have Mandamus to Eneorce Right to-Inspect Books.</p> <p>Where a private corporation, organized under the laws of a foreign state, is permitted by the charter to have an office -in this state, the officers of such corporation residing here and having possession of the books of the corporation, the right of the shareholders therein, grahted by statute of such state, to inspect the books of the corporation will be enforced, by appropriate remedies, in the courts of this state.</p>

<p>ERROR — TRIAL—WITNESS.</p> <p>1. Exceptions to Overruling Motion for New Trial, Necessary for Review of Weight of Evidence, but not as to Rulings on Evidence.</p> <p>Unless an exception be taken to the action of the court in overruling a motion for a new trial, a reviewing court will not consider the question whether the verdict was against the evidence. But in such case, exceptions taken at the time, to the rulings of the court admitting or rejecting evidence, may be considered.</p> <p>2. Independent Evidence for Impeachment not Proper on Cross-Examination.</p> <p>A party desiring to offer independent evidence with the view of impeaching the testimony of a witness of his adversary, can not do so during his cross examination of such witness, but must wait until the time arrives for him to offer his own evidence.</p> <p>3. New Evidence .Given in rebuttal, subject to Surrebuttal.</p> <p>New evidence, or evidence of new facts first offered by a party ih rebuttal, 'may after-wards be surrebutted by his adversary.</p>

<p>COSTS.</p> <p>Upon Settlement without Stipulation as to, Court may Direct as to Payment</p> <p>Where the claim upon which suit is brought is settled, before judgment, by the pailies,. nothing being said about costs, the court may award the same, under sec. 5351, Rev. Stat., against both or either of the parties as is right and equitable.</p>

<p>NEGLIGENCE.</p> <p>1. Liability of Railway Company not Obliged to Watch to Keep Trespassing Children Away.</p> <p>A railroad company is liable to trespassers upon its premises only for wanton or wilful acts of negligence; it need not be on the watch to keep them away. The rule applies to a child of tender years as to an adult.</p> <p>2. Not Liable eor Injury to Child who Climbed on Car without its Knowledge.</p> <p>Where a child of five years of age trespassed upon the premises of the railroad company, and while upon one of its cars without the knowledge of the agents or employes of the company, the car was attached to an engine, and moved, throwing him to the. ground and injuring him, the company is not liable.</p>

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

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

<p>RAILWAY FENCES.</p> <p>1. Abutting Owner may Recover Cost oe, and eor úse oe Premises During Construction.</p> <p>Where a railway company fails or neglects to construct and maintain along the line of its land such a fence as is required by sec. 3324, Rev. Stat., an abutting land owner may construct or repair such fence, and recover of such railway company the reasonable cost and expense thereof, including labor and materials, together with the reasonable value of the use and occupation of his .premises during the time such fence is being constructed or repaired.</p> <p>2. Cannot Recover eor Doss of Pasturage by Reason oe Company’s Negeect to Construct.</p> <p>In such case a land owner is bound, as far as possible, to protect himself and to confine his loss to the minimum; and for damages resulting from his negligence in not making _proper and reasonable effort to prevent loss he cannot recover.</p>

<p>NUISANCE — MARKET HOUSE — PARTIES.</p> <p>1. Parties whose Property will be Injured by the Neglect oe City may ask Injunction without First Applying to Solicitor.</p> <p>Under sections 1777 and 1778, the plaintiffs who have been damaged in their property rights by a failure of the city to perform its legal duty or to carry out a trust as to streets, may sue the city to enjoin such continuing injury to them, and to enforce such trust, without first requesting the city solicitor to bring the action, providing the injury to them is different from that done to the public generally. But the plaintiffs cannot bring their action on behalf of the public generally without first complying with the provisions of the above sections.</p> <p>2. In Suit to Enforce the Duty oe City to keep Streets Free from Nuisance, City is the Proper Defendant.</p> <p>When the statutes enjoin upon the city, likewise upon the city council, and in like man- , ner upon the director of public works, the duty of keeping the streets of the city free from public nuisances, and an action is brought to enjoin a nuisance in certain streets of the city, and to enforce a trust which the statutes place in the city alone as to such streets, the city is the proper defendant in such action.</p> <p>3. Abutters and Owners or Property not Abutting may Join as Plaintiffs.</p> <p>When a public nuisance affects several persons in the same manner by way of damages to their property, they may join as plaintiffs in an action to have the nuisance abated.</p> <p>4. City having Partially Obstructed a Street for over Twenty-one Years Acquires no Right to Continuance.</p> <p>A city cannot gain a right to use a street for purposes other than that of public travel because it has so used it for more than twenty-one years, when such use has been for only three days in each week, and for only one-half of each day so used, and when not being thus used the street has been used for public travel the same as any other street of the city.</p> <p>5. If Any One of Several Causes' of Action is Good, General, Demurrer will not Die</p> <p>Where a petition sets out three grounds of complaint, and a general demurrer is filed to the petition, and sufficient facts are averred to make any one complaint a good cause of action, the demurrer must be overruled.</p>

<p>GARNISHMENT.</p> <p>1. Garnishee Bound brom Time he is Served with Writ.</p> <p>The service of a writ of garnishment upon a party claimed to be indebted to the defendant, binds in his hands the property he may have belonging to the defendant at the time he is served with the writ, and any money that may be due and payable from him to the defendant at the time he is served with the writ.</p> <p>2. Not Bound for riuBSKQUENT Indebtedness</p> <p>Any indebtedness arising from the garnishee to the defendant between the day the writ is served on him, and the time he answers, cannot be reached under the writ.</p>

<p>PLEDGE.</p> <p>Pledgee who Purchases Collateral at His Own Sale is not Liable eor Conversion.</p> <p>Where one who holds the note of another and also certain mortgage notes deposited with him to secure the payment of the first note, without being authorized to do so, sold these collateral notes at public auction to himself, for a sum sufficient to pay the note held by him, and for a small sum in addition and then sent to the pledgor his original note and the overplus of money, but such pledgor claiming that the sale was invalid, refused to recognize it, but retained his note and thé cash sent to him, the pledgor without tendering the amount dim p- t'm n'-iginal note cannot maintain an action as for a conversion of such collateral sccu-:ties. which the pledgee was ready and willing to return on -payment of the amount actually due to him on the original note, nor the pledgor entitled to recover damages therefor.</p>

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

<p>TAXATION.</p> <p>1. Shares in Illegal Corporation not Taxable.</p> <p>Shares in the Standard Oil Trust, which trust was by our supreme court declared to be against public policy and void, are not taxable as such. A certificate of stock, void' as to all other purposes, is not valid for purposes of taxation.</p> <p>2. Taxing Equitable Interests.</p> <p>Whether any equitable interest may be taxed in Ohio, not decided.</p>

<p>FIRE INSURANCE.</p> <p>1. Title in Wife alone when Represented ias in Husband and Wife Jointly, Avoids Policy.</p> <p>Where in an application for an insurance upon a dwelling-house by husband and wife, they represent that they are the joint owners of the property, and agree that such representations shall be considered as a warranty, and avoid the policy if false, if in fact the title was in the wife alone, and she was the exclusive owner of the property, no recovery can be had on the policy issued upon such application, in case of loss'; and it is not necessary for the insurer to allege or prove intentional fraud on the part of the plaintiff in respect to such representations, sec. 3643, Rev. Stat., having no application to such a case.</p> <p>% If Policy Stipulates against Subsequent Mortgage such Incumberance Avoids Policy, notwithstanding Risk not Increased.</p> <p>If such’ policy contains a condition that if the property shall thereafter be encumbered, by mortgage or otherwise, by the insured, without the knowledge and consent of the insurer, such policy shall thereby become void, no recovery can be bad on such policy if the insured subsequently incumbers the property by mortgage, without the knowledge and consent of the insurer; and it is not incumbent on the insurer to aljege or prove that the risk was thereby increased. Sec. 3643, Rev. Stat., does not apply to, or cover such a condition.</p>