Volume 47 — Ohio State Reports, New Series

• The action below was a suit commenced by the Gas Company against the city, to enjoin it and its agents from using the gas of the company. The petition is as follows: The Zanesville Gas-light Company, for cause of action against the defendant, says: that the defendant, the City of Zanesville, is a municipal corporation duly organized under the laws of Ohio, and as such is successor to the town of Zanesville.

<p>Ebbob to tbe Circuit Court of Muskingum county.</p>

<p>Municipal Corporations — Gas Companies — Exclusive Franchise.</p> <p>A gas company incorporated under the act of May 1, 1852 (1 S. & C. 271), for the purpose of supplying gas for lighting the streets, and public and private buildings of a city, under authority from the city council erected gas works, and laid pipes for long distances, for conducting gas through the streets for public and private consumption. The council regulated, from time to time, the price which such company might charge for gas, and from time to time, made contracts with the company for lighting the streets. At the expiration of the last contract, no new agreement was entered into, and the city declined to take gas any longer from the company. The company complied with all the provisions of the law of the state relating to gas companies, and with all the requirements of the city council in that behalf. Held:</p> <p>1. That although there was no refusal or neglect by the company, to comply with the requirement of section 2480 of the Revised Statutes, as to laying pipes and lighting streets, and no neglect by the company to furnish gas to citizens and other consumers, in accordance with the prices fixed by the council, as provided in section 2482 of the Revised Statutes, the city council, under section 2486 of the Revised Statutes, was empowered to erect its own gas works at the expense of the corporation, or to purchase gas works already erected therein, whenever it might be deemed expedient and for the public good.</p> <p>2. That the company acquired no vested rights of which it would be deprived, without due process of law, by the city’s erecting its own gas works.</p>

Quo Warranto. The petition charges, that the defendants, claiming to be commissioners of Summit county, have since the. 2d day of September, 1889, usurped, assumed, and exercised the power and franchise to award and loan, at a rate of interest not less than two per centum, the moneys that are, or may be in the county treasury of that county, “ to such banks situated in said county, and duly incorporated under the laws of this state, or of the United States, as they may…

Exceptions to the Court of Common Pleas of Lake county. At tbe May term, 1886, of said court, an indictment was found against the defendant Brown, charging him, in five several counts, with incest, committed with Rose Cramer; his niece; each count charging the act to have been done on a different day from that named in the other counts. ■ In the first and second counts the defendant is' alleged to be unmarried, and the act denominated fornication, while in the third, fourth…

The action below was to recover damages against the city of Cincinnati for personal injuries sustained by the defendant in error, Miller, by reason of a street of the city being permitted to become and remain out of repair and in a dangerous condition. The case was tried in the superior court at special term, December 24, 1888, and a verdict for plaintiff on that day rendered.

This action was brought by Strauss against Cooch, constable, to recover possession of two horses.

<p>Error to the Circuit Court of Jefferson county.</p>

The defendant in error, Mary J. Sbafer, filed her petition in the Court of Common Pleas of Delaware county, against Daniel S. Benton, and the plaintiffs in error, Lewis Benton, Aaron Clover and Nancy Clover, asking for the foreclosure of a mortgage made to her October 28, 1882, by Daniel S. Benton, on the one undivided fourth part of 122| acres of land in Delaware county, Ohio, described in a deed dated August 9, 1878, from Phebe Benton to Lewis Benton and Daniel S. Benton,…

Quo Waebanto. The pleadings, together with the report of the referee, Hon. Channing Richards, disclose that the cities of Marietta, Ohio, and Parkersburg, West Virginia, are situated on opposite sides of the Ohio river, about twelve miles - apart; that one of the defendants, The Cincinnati, Washington & Baltimore Railway Company, owns and operates a railway that connects Marietta directly, and, by means of a railway bridge across the Ohio river at Parkersburg, the latter…

Error, to the Superior Court of Cincinnati. The action below was brought against the treasurer of ^Hamilton county to enjoin the collection of a tax.

Quo Warranto. Tbe petition states, that tbe defendant is a corporation organized under the laws of the state of Michigan for the purpose of carrying on, upon the assessment or co-operative plan, the business of insuring the lives of its members, and of providing to its members indemnity for disability by accident; that since the 1st day of April, 1889, the defendant has exercised, and claims the right to exercise, in this state, the privilege and franchise of transacting the…

The original suit was commenced October 10, 1878. It was in the nature of a creditor’s bill, brought by The Toledo Iron Company against The Sunday Creek Coal & Iron Company, an insolvent corporation. It contained two causes' of action, one based on certain alleged unpaid subscriptions to the capital stock of the company, and one on the liability of its stockholders to creditors under the statute.

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

The original action was commenced in the Court of Com mon Fleas of Hamilton, county, by the defendants in error, Marion G. Whetstone and John L. Whetstone, as trustees under the will of Richard A. Whetstone, deceased, against the city of Cincinnati.

The defendant in error, George A. Morey, brought, in the Court of Common Pleas of Fayette county, an action against The Southern Ohio Railroad Company, plaintiff in error, to recover damages claimed to have been sustained by him on account of himself and horse falling into a ditch that the plaintiff in error had caused to be dug and left unguarded, across Water street, in the town of Washington, in said county, on the night of November 9, 1885.

Ekror to the Circuit Court of Hamilton county. The Common Council of the city of Cincinnati, on the 81st day of March, 1884, adopted a resolution, on the recommendation of the board of public works, declaring it necessary to improve Hunt street, in said city, by grading, setting curbs and crossings, flagging and paving gutters, and macadamizing the roadway, in accordance with certain plans, profiles and specifications; the expense of said improvement, to be assessed per…

On January 6,1881, Joseph F. Stanley commenced suit in the Court of Common Pleas of Washington county against the administrator of Timothy Stanley, deceased, and his heirs, the claim having been disallowed by the direction of the latter.

<p>Municipal Corporations — Election of Councilmen.</p> <p>A city council is, under the provisions of the constitution, section 21, article 2, and section 16*79 Revised Statutes, the exclusive judge of the election of its own members.</p> <p>Whether its determination may be reviewed on error, quere.</p>

<p>Homicide — Jury may view scene of felony — Presence of accused — Not error when accused refuses to attend.</p> <p>It is not error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view.</p>

The plaintiffs in error, George Carlisle, John Carlisle, sen., John Carlisle, jun., John Ballentine and G. M. Ballentine, filed their petition in the Court of Common Pleas of Plighland county, against E. O. Hetherington, as treasurer of said count}!-, which petition reads as follows: Plaintiffs say, “That the commissioners of Highland county, Ohio, assuming to act under and by virtue of title 7, chapter 7, of the Revised Statutes of Ohio, on the 5th day of February, A. D.…

Tars action was brought by Michael Hilliard in the Court of Common Pleas of Cuyahoga county, in January, 1879, against the plaintiffs in error, and a large number of others, to enforce against them the liability alleged to have devolved upon them by statute as stockholders of “ The Forest City United Land & Building Association,” a corporation organized in March, 1867, under an act of the general assembly of the state of Ohio, passed February 21, 1867 (64 Ohio Laws, 18), and…

Ekrob. to the Circuit Court of Cuyahoga county. Action below was by the defendant in error against Harris Jaynes and Andrew Jaynes to recover upon an undertaking in attachment.

The original action was brought by John Karshner against Milton Armstrong in the Court of Common Pleas of Ross county, by filing therein the following petition: “ The plaintiff, John Karshner, says: That on the 26th day of April, A. D. 1877, The Cincinnati & Fayetteville Railroad Company was duly incorporated as a corporation under the laws of Ohio, for the purpose of building and operating a railroad from the city of Cincinnati, in the county of Hamilton, through the…

<p>JRailroads — Subscriptions to capital stock of — Conditional contract of subscription construed.</p> <p>The defendant subscribed to the capital stock of a railroad company, and thereby promised to pay the company the amount of his subscription “ when the track of the road should be laid ready for the running of cars”1 between certain specified points. The subscription contained the further provision that the amount should be payable when the road was completed “on the within terms,” provided the location did not - run through the defendant’s lands; “paid as donation.” The subscription was made for the purpose of aiding in the construction of the company’s road, and in consideration of the advantages thatmight accrue to the defendant therefrom, and especially from the construction of that part of the road between the points specified in the subscription, as well as in consideration of like subscriptions for that purpose by others. The railroad company completed the road between the specified points, ready for the running of cars, and the road was not located on the defendant’s land. Held: 1. The subscription was not a mere promise to make a gift to the company; the subscriber’s promise to pay was supported by a sufficient consideration.</p> <p>2. The subscription became due and payable when the road was completed between the designated points; it was not necessary that the company should complete its entire road before it could enforce the payment of the subscription.</p>

<p>Mortgages — Execution of — Application of statutes to — Legal and equitable character of — When made to a partnership in firm name, a valid lien.</p> <p>1. The statutes of the state regulating the mode of signing, sealing, acknowledging and recording mortgages, are limited in their application to these particulars; the legal or equitable effect of the instrument and its contents are unaffected thereby; and the rights of the parties and of third persons subsequently dealing with the land are to be determined by the general rules of law and equity, applicable to the subject in analogous cases.</p> <p>2. In order to mortgage land as security for a debt, it is not necessary, in all cases, to clothe the creditor with the legal title; it is sufficient if the intent to pledge the land as a security clearly appears from the instrument, and the instrument is duly executed and recorded, as required by statute.</p> <p>3. A mortgage upon real estate, made by the owner to a partnership in its firm name, to secure an indebtedness to it, duly executed and recorded, as required by statute, constitutes a valid lien upon the property in favor of the firm as a security for the indebtedness to it.</p>

<p>Chattel Mortgage executed by a partnership — When partners line in different counties, where tobe filed.</p> <p>A mortgage of goods and chattels, executed by the members of a partnernership, one of whom lives in the county where the property is situate, and the other in another county of this'state, upon property jointly owned by them, which is not accompanied by an immediate delivery and followed by an actual and continued possession of the things mortgaged, is void as against an assignee for the benefit of creditors of such mortgagors, subsequently appointed, unless, pursuant to section 4151, Revised Statutes, the mortgage, or a true copy thereof, be properly filed in the township where each of such mortgagors resides, notwithstanding the fact that such assignee had, at the time of the execution of the mortgage and of the assignment, full knowledge of tire execution and filing of the mortgage in the township where one of said mortgagors resided, and where the goods and chattels were situate.</p>

<p>Adjournment of court — Close of term — Bill of exceptions.</p> <p>Where the journal of a court of common pleas shows a regular adjournment from day to day, up to a day certain of the term, but no other adjournment thereafter during such term, except an entry of adjournment sine die on the last named day, which entry was, at the next succeeding term, by a nunc pro tunc order, stricken from the journal, as having been made through the mistake of the clerk, and further shows, that no judge was present, and no business was transacted in the court after such day certain, until the commencement of the next succeeding term, the adjourned term should be deemed to have closed on such day certain of the term as shown by the journal, and a bill of exceptions should be allowed, signed and filed within thirty days after the last named day.</p>

In 1880 an unincorporated company was formed, to continue six years, called The Candle Manufacturers’ Association, which included the manufacturers of ninety-five per cent, of the star candles in that part of the United States lying east of the 114° of longitude west of Greenwich, or substantially all the territory east of the western boundary of Utah.

The original action was commenced in the Court of Common Pleas of Defiance county, by the plaintiffs in error, Henry Behrens, Frederick Behrens, and John Knape, administrator of Daniel Behrens, deceased, against the defendant in error, George Behrens, to contest the validity of & lost or destroyed will alleged to have been made by Daniel Behrens, the father of the contestants, Henry Behrens and Frederick Behrens, and of the contestee George Behrens, and to have been…

The plaintiff in error, who was also the plaintiff in the courts below, brought, in the court of common pleas of Medina county, two actions, one against the defendant E. E. Andrews, and the other against the defendant John Nye; the pleadings in the two actions being substantially alike, if not exact copies, one of the other.

<p>Bill oe Exceptions by tbe prosecuting attorney to the decision of the Court of Common Pleas of Brown county.</p> <p>At the October term, 1889, of the Court of Common Pleas of Brown county, George W. Kindle was tried upon an indictment charging him with the murder of one Thomas Butt; On the trial, to maintain the issue on the part of the state* the prosecuting attorney offered in evidence a written statement purporting to be signed by Thomas Butt, purporting to contain a dying declaration by him of the circumstances immediately attending the crime and relating to the identity of the perpetrator. Before offering the paper the state called witnesses who testified to the satisfaction of the court that the said Butt, at the time the paper was written and when it was signed by him, was under a sense of impending death and had no hope of recovery, and that the paper was read over to him before he signed it. The statement was then, against the objection and exception of the defendant, admitted in evidence, and read to the jury. A verdict finding the defendant guilty of manslaughter having been rendered, the defendant filed a motion for a new trial, on the ground, among others, that the court erred in admitting in evidence the written statement of Butt. On this ground alone the court sustained the motion. To this ruling the prosecuting attorney duly took a bill of exceptions, which, upon leave, was filed in this court “ for its decisions upon the points presented.”</p>

<p>Estoppel — Eminent Domain — Abandonment—Former Decisions — Practice.</p> <p>1. When it has been determined by this court that the petition in a case states a cause of action, and the case afterwards comes before the court for the review of alleged errors occurring at the trial, the court will follow the prior decision, unless very clearly satisfied that it is erroneous.</p> <p>2. In the decision of this case on the demurrer, reported in 43 Ohio St., 228, it was held, that upon the averments of the petition, the plaintiffs might treat the easement of The Lake Shore & Michigan Southern Railway Company in that part of its right of way described in the contract between that company and the defendant set forth in the petition, as abandoned, and recover of the defendant damages as upon an appropriation. The fact, upon which the petition based the alleged abandonment, was the making of the contract alluded to, by which the Lake Shore company undertook to transfer that part of its right of way therein described, to the defendant for railroad purposes in perpetuity. The averments of the petition relating to the abandonment, are, that by the agreement between the two companies, The Lake Shore & Michigan Southern Railway Company, for the consideration therein named, “ abandoned to the defendant and undertook to permit and license the defendant to use and perpetually occupy for its railroad,” that part of the former company’s right of way referred to; and, “that by the abondonment aforesaid,” the easement of The Lake Shore & Michigan Southern Railway Company “ceased and terminated;” and, “that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thousand dollars.” The answer does not controvert the making of the contract between the two companies as alleged in the petition, but denies that the Lake Shore company intended .to or did thereby abandon any of its right of way, or that its easements or right of way ceased and determined by virtue of said agreement.</p> <p>Meld: (a.) These denials raise no issue of fact. They are the pleader’s construction of the contract, and his opinion as to its legal effect.</p> <p>(6.) By the decision upon the demurrer, it was settled that the effect of the contract made between the Lake Shore company and the defendant, was to work the abandonment claimed in the petition; and it was not error for the court,.on the trial of the case, to so instruct the jury.</p> <p>3. In order to estop an owner, from asserting title to his property, by his declarations or conduct, it must appear, that he was, at the time, apprised of the true state of. his title; that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved.</p> <p>4. While an owner, who stands by, and without objection, sees a public railroad constructed on his land, will, after the road is completed, or large expenditures have been made thereon, upon the faith of his apparent aequiesence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.</p>

<p>Master and servant — Negligence—When master liable for that of servant.</p> <p>1. The law requires of those who use dangerous agencies in the prosecution of their business to observe the greatest care in the custody and use of them.</p> <p>2. This duty cannot be shifted by a master from himself to his servants, so as to exonerate him from the negligence of the servant in the use and custody of them. Where they are so entrusted, the proper custody, as well as the use of them, becomes a part of the servant’s employment by the master, and his negligence in either regard is imputable to the master, in an action by one injured thereby. And where the injury results from tbe negligence of the servant in the custody of the instrument, it is immaterial, so far as the liability of the master is concerned, as to what use may have been made of it by the servant.</p>

<p>Error to the District Court of Hamilton county.</p> <p>The case is stated in the opinion of the court.</p>

John B. Strawn, the plaintiff in error, was surveyor of Columbiana county, Ohio, from January 1,1875, to January 1,1884; and in July, 1885, after his official term had expired, he presented to the commissioners of the county the following account: Salem, Golwmbiana Go., 0., July 6, 1885.

Ebror to the Circuit Court of Ashtabula county. On the 1st day of June, 1883, the plaintiff in error, a foreign insurance company doing business in this state, issued and delivered to the defendant in error, a resident of the county of Ashtabula, its policy of insurance, whereby, in consideration of the payment of the premium therein mentioned, it agreed and undertook to insure him to the amount of seven hundred dollars on his frame building situated in that county, against…

On the 7th of February, 1885, the plaintiff in error commenced its action in the Court of Common Pleas of Clinton county against Wm. N. Haines upon two promissory notes, secured by mortgage on lands in the petition described. Mary J. Haines, wife of William N., was made party and duly served with summons. The notes and mortgage were executed by the husband only.

<p>Railroads — Duty to fence track — Injury to stock — Section 3329, Revised Statutes, construed.</p> <p>The first clause of § 3329, Revised Statutes, provides, that, “ The provisions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or private crossing has been or may hereafter be taken into consideration, and estimated as a part of the consideration to be paid for the right-of-way, so far as the fence, or right to private crossing, has been or may be settled or paid for.” Held: that where stock of a third person gets upon the track of a railroad company by reason of such fences not being built by the landowner, the company is not, in the absence of negligence in running its trains, liable to the owner for injury to them. The duty of the company is, in such case, to use ordinary care and prudence to avoid injuring the animals.</p>

Joseph P. Lindsey, the defendant in error, commenced the original action in the Court of Common Pleas of Marion county, against J. W. Clark, Arthur L. Clark, C. F. Seffner and Susan E. Seffner, his wife, alleging that on the 20th day of June, 1884, he caused a transcript of judgment which he had recovered against said J. W. Clark before a justice of the peace, to be filed in the office of the clerk of the Court of Common Pleas of Marion county, and thereafter caused an…

<p>County and City Boards of Equalization — Powers and duties of.</p> <p>1. The statute prescribing the duties of annual county and city boards of equalization, provides: “That said board shall not reduce the value of the real property of the county below the aggregate value thereof, as fixed by the state board of equalization, nor below the aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures, over the value of- those destroyed, as returned by the several township assessors for the current year.” This provisio prohibits such boards, while engaged in equalizing the duplicate of the preceding year, from reducing the valuation of any lot or tract of land appearing on such duplicate, unless, at the time, they increase the valuation of other parcels of land then on the duplicate to an amount equal, at least, to such attempted reduction.</p> <p>2. The circumstance that such hoards, in, equalizing the valuation of new structures, largely add to the values thereof, as the same were fixed by the ward or township assessors, or by the county auditor, will not authorize them to reduce the valuation of any lot or tract of land that stood on the duplicate of the preceding year.</p> <p>3. When the valuation of new structures has been equalized by such boards, and from the aggregate amount thereof as thus equalized the aggregate value of all structures destroyed has been deductedj the amount then remaining should be added to the duplicate of the preceding year, after the same has been equalized pursuant to law.</p> <p>4. Where such boards undertake to reduce the valuation of certain lots or tracts of land found on the duplicate of the preceding year without adding to other parcels thereof an amount at least equal to the attempted reduction, they exceed their authority, and their action being without warrant of law, should be disregarded by the county auditor, and if, instead of disregarding the same, he transfers to the new tax duplicate such lands at the reduced valuation, the error thereby committed is not fundamental, but is a clerical one, which it is his duty to correct; and the auditor of state has authority to direct and require him to make the correction.</p>

Quo Warranto. The object of this proceeding is to have determined whether the defendants are entitled to exercise the powers and functions of members of the council of the city of Springfield.

Bill of exceptions by tbe prosecuting attorney to tbe decision of tbe Court of Common Pleas of Wayne county. Tbe facts in tbe case of Village of Van Wert v. Brown, are' sufficiently stated in tbe syllabus.

The plaintiff below, Williamson, brought suit in the court of common pleas against the defendant Hemm, to recover the value of certain supplies, amounting to some $325, claimed to have been furnished by him to the canal-boat “ Pocahontas,” of which, he averred, that Hemm was the owner, the supplies having been furnished to the boat on the orders of the captain during the years 1883 and 1884.

In Quo Warranto. On April 3,1890, the general assembly of the state passed an act entitled an act “To create a board of public works in and making certain changes in the government of cities of the first grade of the second class’; ” (87 Ohio. Laws 151,) and in pursuance of its provisions the defendants were appointed as such board for the city of Columbus by the Mayor thereof; and having duly qualified under the provisions of the law, are acting as such board for said city.

<p>Divorce — Alimony—What property liable to lien for — Section 5699, Revised Statutes, construed.</p> <p>An estate in remainder in real and personal property, which, remainder is vested as to interest though contingent as to amount, is real and personal property within the meaning of section 5699, Revised Statutes; and where, in a proceeding by a wife against her husband, a decree of divorce is granted and a case is made warranting the allowance of alimony, it is not error for the court to allow to the plaintiff alimony and adjudge that the same be made a lien upon such remainder held by the husband in such real estate.</p>

Tbe original action was commenced by tbe treasurer of Fayette county, Ohio, plaintiff in error, in tbe Court of Common Pleas of Fayette county, against tbe People’s & Drovers’ Bank, the defendant in error. The defendant is an unincorporated banking association, and in the year 1885, and for several years prior and subsequent thereto, it carried on a general banking business in Washington C. H. in said county of Fayette.

Tbe original action was commenced in tbe Court of Common Pleas of Jefferson county on tbe 3rd day of January, 1885, by Tbe Farmers’ Co-operative Trust Company, tbe plaintiff in error, against John Floyd, Davidson S. Gault, John Medill, A. C. Ault, and John F. Hartshorn, who are tbe defendants in error here, and William M. Lee, J. D. Whitham, Benjamin Griffith, R. C. Yance, S. N. Orr, John Farris, John Coad, Nathaniel Wells and Yirginius P. Duvall.

Erbob to the Circuit Court of Vinton county. The defendant in error brought her action before a magistrate against plaintiff in error, in trespass • for cutting and hauling away a crop of wheat upon lands that had been assigned to her as alimony, in an action brought by her against plaintiff in error (her then husband), for divorce and alimony, in the Court of Common Pleas of Vinton county.

<p>Contract — Action for breach of — When accrues — Measure of damages.</p> <p>Where goods are purchased upon an agreement to give a promissory note for the price, payable in one year with interest, on a refusal of the purchaser to make and deliver the note after the goods have been delivered, the vendor may, without waiting for the expiration of the credit, maintain an action at’once for the breach of the agreement, and the measure of damages will be the price of the goods sold and delivered.</p>

<p>Presentation of claims to administratoi — Disallowance of same — When statute begins to run against.</p>

Tlie indictment in the Court of Common Pleas of Trumbull county, Ohio, charged as follows: “ That George W. Mann, late of said county, on the 28th day of September, in the year of our Lord one thousand eight hundred and eighty-nine, with force and arms, in said county of Trumbull, and state of Ohio, unlawfully and knowingly did verbally threaten and accuse William Brigham and Almyra Brigham, his wife, with having committed tlie crime punishable by law, of administering…

<p>Municipal Corporations — Redistricting into wards — When election may be held in — Ouster of Members of council — Effect of — Tenure of office, of councilmen— What is not an abandonment of — Sections 8,1632 and 1673, Revised Statutes, construed — Pleading.</p> <p>1. Where a city council passes an ordinance redistricting the city into wards, no election can be held under it until the next ensuing annual election for corporation officers. An earlier election is specifically prohibited by section 1632 of the Revised Statutes. Hence, where a special election is attempted to be held for the selection of members of the council under such ordinance prior to the next ensuing annual election, such special election is inoperative, and persons holding seats in the council by virtue of certificates based upon such special election may be ousted by quo warranto.</p> <p>2. Where a judgment of ouster is pronounced against persons holding seats in a city council, and they are ousted therefrom on the ground that the wards from which they claimed to have been elected had no legal existence, such judgment of ouster does not create vacancies in the council which may be filled by a special election.</p> <p>3. Under section 1673 and section 8 of the Revised Statutes, a member of a city council is entitled to hold the office until his successor is elected and qualified.</p> <p>A The allegation in a pleading that a member of a council has wholly abandoned his seat as such councilman, does not state an issuable fact, and is bad on demurrer.</p> <p>5. The appointment by a city council of a member thereof to an office which the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office is absolutely void.</p>

The action in the superior court was brought by Louis Reemlin, Edgar W. Donham- and William Montgomery, members of the Board of Public Improvements of the city of Cincinnati, joining with them, the board, as a party plaintiff, against John B. Mosbjr individually, and in his capacity as mayor of the city, to enjoin him from appointing members of the board of city affairs, under the provisions of an act passed by the general assembly on the 24th day of October, 1890, at the…

<p>Incest — Section 7019, Revised Statutes, Construed — Affinity.</p> <p>Affinity is the relationship which arises from marriage between one of the spouses and the blood-relations of the other, and does not include persons related to the other simply by affinity. Therefore a husband is not related by affinity to his wife’s brother’s wife, and sexual intercourse between them, though immoral, is not an indictable offence within the provisions of § 7019 Revised Statutes.</p>

The action below was commenced in the court of common pleas by John D. Jones, a creditor of The Huron Iron Company, asking a judgment upon his claim and the appoint- - ment of a receiver on the ground that the company was insolvent and selling its iron at ruinous prices in order to raise money. All the creditors as well as stockholders were made parties, and a receiver was appointed.