Volume 5 — Ohio Circuit Court Reports

Nigh brought his action against Keifer to recover damages for an alleged malicious prosecution upon a charge of unlawfully removing land marks.

Error' to the Court of Common Pleas of Miami County. The original action was commenced before a justice of the peace. Fred. Boercher, who was plaintiff below, for his cause of action against The Incorporated Village of Tippecanoe, alleges in his petition “ that said village is a duly organized municipal corporation.

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

<p>In a suit brought by a debtor to have the adverse rights'of those who claim the amount he owes, determined, and such claimants intervene for that purpose, the issues joined between them are triable to a jury, and an appeal will not lie to the circuit court.</p>

<p>'Costs in divorce eases — Petitioner, where decree for divorce is granted, him, can not he required, to pay the costs as a condition precedent to the entry of the decree in lm favor.</p>

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

<p>1. Under the provisions of the statutes regulating the assessing or levying of taxes for county purposes in Hamilton county, the concurrence of the Board of County Commissioners and of the Board of Control of said county, as to the total percentage to be levied, and the apportionment of the same to the several funds, is necessary. And where the county commissioners under the provisions of sec. 1006, Rev. Stat., have determined the total levy they deem necessary for the current year, and have apportioned it to the several funds, and transmitted the same to the board of control, which has amended the same, it is then to be returned to the county commissioners for their action and concurrence. But if the same be not agreed to by them in the form in which it came to them, but is altered and again sent to the board of control, that body may legally reconsider its whole action on the subject-matter (if done according to the rules adopted for its government), and again amend the last proposition of the commissioners, which in like manner is to be’ returned to the commissioners for their concurrence. And until the same proposition is concurred in by both boards, neither one is authorized to transmit to the county auditor, to be placed upon the duplicate, an assessment or levy of taxes, which, as a whole, has not been agreed to by the other body.</p> <p>.2. Other questions passed upon by the court, as specifically stated in holdings Nos. 1, 2, 3 and 4 at the close of the decision.</p>

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

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

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

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

<p>1. A civil action in the name of the state, under the provisions of chapter 3, title IV., of the Revised Statutes, is the only method provided by which the right of a corporation to the exercise of the power of eminent domain, may be directly tested; and a judgment of a probate court, in a proceeding brought by a corporation to appropriate land for a public-use, that sucli corporation has the legal right to make such appropriation, is not a bar to an action in the name of the state, to determine the right of such corporation to the exercise of the power of eminent domain, although section 6420, Revised Statutes, requires the probate court to determine that question in the affirmative, before an appropriation can be made.</p> <p>2. A company incorporated for the express purpose of constructing a water works to supply a municipal corporation and its inhabitants with water in pursuance of a contract with such municipal corporation, as authorized by sections 2434, 3550, 3551, Revised Statutes, is not invested with the power of eminent domain, and, cannot appropriate land fora right-of-way for its pipes; nor is such company invested with such power by implication from the fact that such municipal corporation is invested with such power for the same purpose, and from the necessity of such company to obtain such right-of-way to carry out the object of the-incorporation ; nor is such company invested with such power under-section 3878, Revised Statutes, because it is not a company organized for the purpose of transporting water through tubing and pipes, within, the meaning of that section.</p>

<p>B. brought an action in the court of common pleas against a large number of defendants, alleging that he was a tenant in common with them in the real estate described in the petition, praying for the partition thereof, and an account as to rents and profits. His right thereto was denied by the parties in possession, and after trial on the issues raised by the pleadings, but before the entry of judgment thereon in favor of B., other persons claiming to own an interest in said real estate applied to be made parties to said action, but it not being at once, done,)they commenced an action in the Superior Court of Cincinnati against the parties to the other suit, asking therein for the partition of said premises and for an account. After this a final decree was rendered in the case in the court of common pleas, granting the prayer of the plaintiff, (the parties to the other case not having been made parlies to this), and an appeal taken to the circuit court. The case brought in the Superior Court was on the application of a part of the defendants, duly removed to the United States Circuit Court; and sundry new parties there made, and various interlocutory orders entered, but no final decree made. The plaintiffs in such case were by order of the Circuit Court of Hamilton county made defendants to the action, and filed their answer setting up these facts, and averring that by reason thereof this court had no jurisdiction of their persons or of the subject of the action.</p> <p>Held: 1. That such answer constitutes no defense, and a demurrer thereto should be sustained.</p> <p>2. On the appeal of such action to the circuit court, persons asserting an ownership in the lands sought to be partitioned, and who were not parties thereto in the court of common pleas, may properly be made defendants in the appellate court.</p> <p>3. On the removal of the action brought in the Superior Court to the United States Court, such court had the exclusive right to hear and detemine the same, but did not have exclusive jurisdiction of the subject-matter of the partition of such lands, or the settlement of accounts as to the rents and profits thereof. The pendency of either of such actions could not rightfully be pleaded' in abatement or bar of the other. Each court has jurisdiction of the action pending therein, and may proceed to hear and adjudicate the same, but on the entry of a final decree in one of ■said cases, settling the rights of the parties thereto, such judgment may be pleaded in the other action. And under the principles of comity governing courts of like jurisdiction, care would be taken by both to avoid improper interference with the other, and fully to protect the substantial rights of the parties.</p>

<p>An agreement to pay a commission to a real estate agent if he should find a purchaser for certain real estate, does not entitle him to recover, when he only finds a person who is willing to take a lease for ten years with the privilege of purchasing.</p>

<p>Habeas Corpus.</p>

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

<p>1. A confession of crime is not excluded as evidence because it was made to a police officer, or to a coroner engaged in an inquest over the deceased victim, nor because the accused is told “ he had better tell the truth,” nor because it is accompanied with emotion or distress, nor because accused is with his own consent placed under oath by the coroner, being cautioned that he need make no statement .tending to injure or criminate himself.</p> <p>2. Trior oral confessions are not merged in fhe confession reduced to writing, and are also admissible.</p> <p>.8. This confession before the coroner was not a judicial confession, and it was necessary that there should be other proof of the corpus delicti; but it is not necessary that the agency of the accused should be proved by other evidence which alone would prove the guilt of the accused beyond a reasonable doubt.</p> <p>A. Where the defendant was indicted and convicted under a count for murder in the attempt to perpetrate a rape, there are not two corpora delicti, but only one corpus delicti — the murder — requiring proof qutside the confession.</p> <p>5. A defense of sudden, uncontrollable epileptic homicidal impulse is gov. erned by the legal rules affecting other defenses of insanity.</p> <p>6. Within discretion, questions may be excluded by the court as being iu form loo argumentative.</p> <p>7. The rule admitting reputation as to family history, does not extend to allow hearsay as to specific facts of sickness or peculiarities of individuals of the family.</p>

<p>B. and M. recovered a judgment against S., and W., as administrator of the estate of 0., on a joint liability of S. and C., as partners. B. and M. received certain dividends on this judgment claim from N. who had been appointed as receiver for the insolvent firm of S. and C., and subsequently they presented -to W., as administrator of the estate of C., a claim for the allowance of the balance due on the judgment, as a valid claim against said estate, but it was rejected by the administrator, and an action was then brought on such judgment by B. and M. against W., as administrator of C. (S. not being joined as a defendant), to recover the balance due thereon. The estate of C. is insolvent, and the assets thereof are not sufficient to pay his individual creditors, and the assets of the late partnership of S. and C. are not sufficient to pay the firm debts in full. Such judgment had never become dormant. Held:</p> <p>1. That the judgment against S., and W., as the administrator of the estate of C., under the provisions of sec. 6102, Rev. Stats., was a several, and not a joint judgment, and S. was not a necessary party to an action thereon.</p> <p>2. Though it was apparently unnecessary to bring an action on such, judgment, it was maintainable. But if it was founded on a partnership liability o£ S. and C., the recovery of the second judgment against W-, as administrator of the estate of C. alone, would not put the plaintiH's in any better position as to payment from the individual assets of the estate, thau that before occupied by them. The rule that the individual assets of an insolvent, a member of an insolvent partnership, should be first applied to the payment of his individual debts, and the partnership assets be first applied to the payment of the partnership creditors, would seem to apply as well after, as before the second judgment.</p>

<p>Practice — The Circuit Court has no jurisdiction to review an order of the Common Pleas Court made at chambers.</p>

Petition in error praying for the reversal of the judgment of the court of common pleas for alleged error in sustaining a demurrer to the amended petition.

<p>1. The Act of March 12, 1886, Ohio Laws, Vol. 83, p. 143, does not apply Co the use of wires in the streets of a city for conducting electricity to operate street railway cars.</p> <p>2. A city council has the power, by ordinance, to grant, under proper conditions and restrictions, the right to construct and operate an electric street railway in the streets of the city. Such grant is not rendered invalid by reason of the fact that the granlee is designated in such ordinance as a “ trustee.”</p> <p>3. An application to .a city council for leave to construct a street railway may designate a portion of the proposed route in the alternative; and publication of notice of such application on the same day of the week for three consecutive weeks in a daily newspaper published and of general circulation in such city is, under section 2502 Revised Statutes, sufficient in a ease where the council proceeding under such notice, passes an ordinance granting the right, notwithstanding a general ordinance of the city required such notices to be published in two daily papers of the city.</p> <p>4. The grant by a city council of the right to construct and operate a street railway is not necessarily invalid by reason of its covering only a part of the route specified in the original application.</p> <p>5. A city council caused notice to be published of an application for leave to construct and operate a street railway. Said notice was dated, and stated that “ said application will be"for hearing after three weeks publication of this notice.” No time for the filing of bids for the franchise,, or for the consideration thereof, was otherwise fixed. After the expiration of three weeks from said first publication, and after certain bids had been filed, said council, in good faith, ánd in order to assure itself of the sincerity of bidders in making their bids, adopted a resolution limiting the time for filing bids, and providing that each bid must be accompanied by a bond conditioned that the bidder, if his offer be accepted and tho contract be awarded him, should accept the grant and construct said railway. Said bidders had knowledge and notice of said, resolution in time to refile their bids and procure and file the required bonds. Held: That the council might properly reject any bid because not filed within the time so limited, or because not accompanied by the required bond. Held, also: That, if the council, acting in good faith, grants the right to construct and operate a street railway to one whom-it finds to be the lowest bidder, such grant will not be held invalid at the suit of a taxpayer of the city, and who was not a bidder for said right, simply because the bond accompanying such successful bid did not conform to the requirements of said resolution, and tho bond accompanying the bid of another person did so conform.</p> <p>6. The grant of such right to one whom the council has in good faith found and determined to be the bidder offering to carry passengers over said proposed railway at the lowest rates of fare, will not in such suit, he held invalid on the ground that his hid was not in fact the lowest bid, without clear proof that tho council erred in such finding. (Certain bids on street railway fares compared.)</p> <p>7. A plaintiff, not an owner of any lots or lands abutting on any street on the route of a proposed street railway in a city, who brings suit under sections 1777 etseq. lievised Statutes, against the city and those to whom the city has by ordinance granted the right to construct and operate a street railway in such city, to enjoin proceedings under such grant, will not be heard to complain that the owners of a majority of tho feet front of such abutting lots and lands have not given their written consent thereto.</p>

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

<p>1. In an indictment for falsely making and. fraudulently uttering as true and genuine an instrument purporting to be a last will and testament, it is not necessary to allege that the person whose name is subscribed thereto as testator was of full age at the date when the forged instrument appears to have been executed.</p> <p>2. A person who lias signed his name as an attesting witness to a forged will, having at the time knowledge of the forgery, intending thereby to defraud, and who, after the death of th'e alleged testator, with like intent, appears in the probate court of the proper county, and there aids in procuring the admission of the forged instrument to probate by falsely and corruptly testifying to its due execution, is guilty of fraudulently “ uttering and publishing” as true and genuine the forged instrument, within the meaning of section 7091 of the Revised Statutes of Ohio.</p> <p>3. The plaintiff in error was indicted at the September term, 1887, of the court of common pleas. The record shows that he entered into a recognizance for liis appearance at the next term, and] that the case was continued generally. Like action was had at the succeeding term. At the third term, being the April term, 1888, he was surrendered by his sureties and committed to jail, and the case was continued for want of time for trial. At the September term, 1888, a like order was made. The accused thereupon applied for his discharge under sections 7309-11 of the Revised Statutes, which application was overruled. At the January term, 1889, the case was continued for want of material evidence. At that term two applications of the accused for his discharge were denied. He was tried and convicted at the succeeding (April) term, 1889, at which term two similar applications of the plaintiff in error that he be discharged on the ground that he had not been brought to trial within the time required by the statute, were disallowed. Held: That no error was committed by the trial court in overruling these several applications.</p> <p>4. Where evidence has been introduced tending to establish that an instrument purporting to be a last will and testament was falsely made and fraudulently uttered with intent to obtain control of the property appearing to be devised thereby, anything said or done by either of the parties to the fraudulent transaction, whether before or after the probate of the forged instrument, in furtherance of the common purpose to defraud, affects them all, and is admissible against either.</p> <p>5. In a criminal prosecution for forging a will, the truth or falsity of matters recited therein may be shown as bearing upon the question of the genuineness of the instrument. And where these recitals are of the feelings of the claimed testate, her acts and declarations occurring, shortly before and after the date of the alleged forgery may be introduced to show that her feelings were not those recited in the alleged will. Break v. The Siaie, 4C. (’. .R. 160, followed.</p> <p>6. A request to charge a proposition of law correct in the abstract, but having no relevancy to the case on trial, may be properly refused.</p> <p>7. Where, upon the trial of a person accused of forging an"instrument pur- ■ porting to be a last will, a witness for the state testified that shortly before the date of the instrument in question, in a conversation with the alleged testatrix, he read to her a portion of a letter written to him by a third person, having reference to a proposed testamentary disposition of her property, the defendant is not entitled, upon cross-examination, to have read to the jury, a certain other portion of the same letter, unless he consent that the entire letter may be read.</p>

<p>1. Where a mortgage oí chattel property contains a provision that the mortgagee, upon default made, may take possession of the property and sell the same at public or private sale, but that until default the mortgagor shall retain possession, such provision creates an implied contract that the mortgagee may, upon such default, enter the place where the property is kept by the mortgagor and take the same.</p> <p>2. In such case, where the property is household furniture, in the house of the mortgagor, and, upon default made, the mortgagee is peaceably admitted into such house by the wife of the mortgagor, in his absence, such mortgagee may remove such furniture by force, and will not be liable as a trespasser therefor, where no actual combat takes place, and no unnecessary force is used in overcoming resistance to the removal of the furniture.</p> <p>3. In such case, if the mortgagee use more force than is necessary to overcome the resistance made, he will be liable as a trespasser for the excess of force used; and will also be liable for the excess in value, if any, of the goods mortgaged over and above the debt, and not for the full value of the goods: nor can the jury be allowed to assess punitive damages against such mortgagee in such case, for “ acting from a wanton and malignant spirit, and with a corrupt and wicked design,” in the absence of evidence thereof, and where the petition does not charge such spirit or design.</p>

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

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

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

<p>1. Employes of a corporation, arrested for contempt of court for the violation of an order against the corporation, where the court has no jurisdiction to make the order, may be released on habeas corpus.</p> <p>2. In a proceeding in habeas corpus evidence may be given to prove the want of jurisdiction in the court to make the order.</p> <p>3. Section 0118 of the Revised Statutes of Ohio is not in violation of Art. 14 of the Constitution of the United States.</p> <p>4. Under section 6118 of the Revised States of Ohio, one of the jurisdictional facts to be averred in the petition, and proven, is that the corporation “ has no right, legal or equitable, in the premises ” ; otherwise the court has no jurisdiction to impanel a jury to assess damages.</p> <p>.5. In a proceeding hy the owner to compel a corporation to appropriate land, the filing of a petition in error and the giving of an undertaking does not prevent the court from enjoining the corporation from using or occupying the premises after sixty days from the date of the rendition of the judgment; but in such case the court has no jurisdiction to enjoin before the expiration of the sixty days.</p> <p>.6. An injunction issued by virtue of section 6454 of the Revised Statutes of Ohio, without the giving of an undertaking, is not authorized by law.</p>

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

The pertinent facts of this case arc as follows: The City of Cincinnati, having determined to improve Lebanon Turnpike or Reading Road, changed the grade thereof as established under the charter and traveled for many years. Seasongood, as an owner of two abutting lots, filed his claim for damages under Revised Statutes, 2315, and the City under Revised Statutes, 2317, filed its application in the court of common pleas for an inquiry and assessment of damages.

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

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

The plaintiffs pray for the construction of the will of Har•riet E. Ide, for the judgment of the court as to whether it gives to her son, Appleton J. Ide, and her daughter, Julia B. Clarke, an estate in fee, or for life only, in the property described in the petition, and for direction to the plaintiffs in the discharge of their duties.

This was an action brought by the defendant in error, against the plaintiffs in error, to recover damages for a false imprisonment under an invalid ordinance.

<p>The act of April 21st, 1886, (sec. 994, Revised Statutes) amendatory of, and repealing the section as it before s¡¡ood, and fixing the term of office of the members of the Board of Control of Hamilton County at five years instead of three, as originally provided, is in conflict with the provisions of Sec. 2, Article 10, of the Constitution of the State, and therefore invalid. And no person elected under the provisions of such sections, can legally exercise the functions of such office for any term or time.</p>

<p>A. being insolvent, executed a chattel mortgage upon a stock of goods, being substantially all the property he possessed, to B., a creditor who was-pressing him for security upon his claim. B. immediately took possession of the stock of goods under his mortgage.</p> <p>A. then of his own volition called together certain other creditors, and voluntarily executed to them chattel mortgages upon his interest in-said stock of goods. Immediately thereafter he executed a deed of assignment to C., one of said mortgagees, of all right, title and interest he had in said stock of goods, in trust for tlie equal benefit of all his unsecured creditors, subject to the aforesaid mortgages. C. in writing accepted the-trust, and the deed of assignment was filed in the probate court of the county, but 0. did not give bond.</p> <p>B. claiming the right to sell the goods under his mortgage without regard to the interests of the other mortgagees, they united and purchased his-mortgage, and then C., by agreement with them, took possession of the stock of goods for them, as he claimed, and not as assignee, under the deed of assignment, and within ten days from date of filing the deed of assignment sold the stock for cash and divided the proceeds with the mortgagees according to the arrangement with them. Upon the expiration of the ten days, the probate court notified C. to file a bond and qualify as assignee, but he declined to do so.</p> <p>Thereupon the unsecured creditors brought an action in the court of common pleas against A. and the mortgagees to have the transaction declared a trust enuring to the benefit of all the creditors.</p> <p>Held: 1. The court^ of common pleas had jurisdiction to entertain and hear the suit.</p> <p>2. That under the facts of the case, as to.the later mortgagees, the mortgages and the deed of assignment are parts of the same transaction, and under section 6343, Revised Statutes, constitute an assignment in trust for the equal benefit of all the creditors.</p> <p>3. That when the trust is so declared by the court of common pleas its judgment should be certified to the probate court, which court should proceed under the statute to administer the trust.</p>

<p>Ebeob to tbe Court of Common Pleas of Hamilton County.</p>

<p>1. If an indictment upon which a defendant has been convicted and sentenced, is fatally defective, and charges no offense, such defendant in a proceeding in error, prosecuted by him to reverse such judgment, may avail himself thereof, though no demurrer was filed to the indictment, and there was no motion in arrest of the judgment.</p> <p>2. In an indictment founded on the first clause of section 6822, Revised Statutes, it is not necessary to aver that the fire-arm, intentionally pointedly the defendant at another person, was loaded, and that the defendant knew that it was loaded. And if it be so averred, it is not necessary to prove the same, it being mere surplusage.</p> <p>3. Nor is it necessary to aver that the fire-arm so intentionally pointed by the defendant, was not being used by him in self-defense, or in the discharge of official duty, or in case.of justifiable homicide.</p>

<p>1. Upon application being made to the court of common pleas under section 5651 of the Revised Statutes of Ohio, for the purpose of dissolving a corporation, the court has no authority in law to appoint a receiver for the corporation until after the order has been made dissolving the corporation.</p> <p>2. Section 5587 of the Revised Statutes of Ohio, providing when and how a receiver may be appointed, does not apply to such a proceeding.</p> <p>3. An order of a judge of the court of common pleas, upon such application being filed, immediately appointing a receiver is a nullity, and the corporation approving or ratifying such proceeding will sustain an allegation in an affidavit for attachment against the corporation.</p> <p>4. “That the corporation has disposed of its property with the intent to defraud its creditors.”</p>

Frances Millett brought suit in the court of common pleas against Valentine Arbaugh, Joseph Begin and Jane Arbaugh, alleging, as a first cause of action, that she was eighteen years of age in July, 1890; that on the twentieth day of March, 1878, said Valentine Arbaugh was duly appointed guardian o'f the person and estate of the plaintiff, executed a bond as such guardian, in the'sum of $1200.00, with said Joseph Begin and one Samuel Arbaugh as his sureties, and thereupon…

Submitted on general demurrers to the petition. The petition alleges that on the 14th day of March, 1857, Ichabod G. Jones died testate, leaving Cynthia K. 'Jones, his widow, and Louise C. Jones and three of the defendants his heirs at law, that Louise C. Jones having intermarried with one Baldwin Gwynne, died, leaving the plaintiffs her children and only heirs. By his last will, Ur.

Q,UO WARRANTO. The petition, in substance, gives the court to understand and be informed that the office of secretary of the Board of Elections, of the city of Columbus, is a public office ; that on the third day of September, 1889, the relator, a duly qualified elector of said city, was, by the governor of Ohio, under the authority of section 29266, Revised Statutes, as amended April 13, 1889, duly appointed secretary of the Board of Elections of said city, for the…

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

Royon, guardian,' etc., brought an action in the court below against Elizabeth C. Lines, now Estabrook, and others, demanding partition of certain real estate and an account of rentó and profits. Estabrook joined issue, denying the plaintiff’s right to partition, and setting up a life estate under the will of her deceased husband in herself, averring said ward to be entitled to an estate in remainder only, upon the termination of the particular estate.

This action comes into the court by appeal from the court of common pleas. The controversy is between two electric street railroad companies, to each of which the city council of the city of Hamilton has granted the right to construct an electric street railroad upon certain streets of the city. The line of the plaintiff is substantially an east and west line, and that of the defendant a north and south line.

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

<p>1. The easement of access from the street to an abutting lot, and from the lot to the street, is property within Art. 5 of the amendments to the constitution of the United States, and within section 19, Art. 1 of the constitution of this state.</p> <p>2. Where a railroad crosses streets within the limits of a municipal corporation, Ihé railroad company is bound to construct and maintain safe and sufficient crossings, and the approaches thereto.</p> <p>3. When the street and railroad track are not upon the same level, and the street crosses the railroad track by means of a bridge, the railroad company is bound to construct the bridge, and the approaches thereto.</p> <p>4. If, in constructing approaches to the bridge, the railroad company is compelled to throw up an embankment in the street to such height as to cause an injury to the easement of access to an abutting lot, the railroad company will be liable to the owner in an action for damages for the injury done; and this, although the council of the municipal corporation has, by ordinance, prescribed the height and dimensions of the bridge, and the height and grade of the approaches thereto.</p>

<p>1. In a proceeding- to locate and establish a township ditch, the trustees should find that the ditch is necessary before they locate and establish it, and the record of the proceedings should show such finding.</p> <p>2. Without making such finding, the trustees cannot lawfully proceed to locate, establish, and apportion a township ditch.</p> <p>3. Where the record in a proceeding to locate and establish a township ditch fails to show that notice was given to a party sought tobe affected, and fails to show a finding by the trustees that the ditch is necessary, but does show that the trustees located, established, and apportioned the ditch, a party against whom an apportionment is made, not shown to have been served with notice, may have the orders locating, establishing, and apportioning the ditch reversed by a proceeding in error in the court of common pleas.</p> <p>4. It is no sufficient answer to a petition in error in such proceeding in error that “ the plaintiff in error had personal knowledge of the pendency of the proceedings before the trustees at the time thereof, -and that he knew of the apportionment, and stood by while the ditch was being constructed, and refused to perform the part apportioned to him, and that he was benefited by the work done.”</p> <p>5. Upon motion such answer should be stricken from the files.</p> <p>6. After striking such answer from the files, the court of common pleas should reverse the order of the trustees locating, establishing and apportioning the ditch.</p> <p>7. Errors in the location and establishment of a township ditch do not fall within the curative provisions of •$} 4559 and 4560, Bevised Statutes, which sections refer only to proceedings “ to reverse or declare void that portion of the proceedings of the trustees by which any taxes or assessments were levied or assessed to pay for the location or construction of a ditch.”</p>

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

Submitted upon demurrer to the second amended answer. The plaintiff for his cause of action avers “ that ever since the year 1880, he has been, and now is, Bishop of the Roman Catholic Church in and for the diocese of Columbus, which includes Franklin County; that by and under the laws of the Church and by virtue of his office all the property of said Church within the diocese, except such as is vested in certain incorporated societies, is held by him in trust for the sole…

<p>1. D., haying by lease from the State Canal Commissioners, the prior right, for the purpose of running his mill, to draw from a certain level of the Miami & Erie Canal, surplus water not necessary for the use of navigation, to the amount of 1600 cubic feet of water per minute, may maintain an injunction against a subsequent lessee of said Commissioners, restraining such subsequent lessee from drawing water from said level at such times or in such manner as to interfere with D.’s prior right thereto, D.’s right to draw some water from said level being admitted, and the controversy between the parties being as to the extent and priority of their respective rights to such surplus water.</p> <p>2. Such action may be maintained without its appearing that D. had, before its corhmencement, unsuccessfully applied to the state authorities to let more water into the higher levels of the canal, or otherwise to obviate the injuries complained of.</p> <p>3. The lessees of water power on levels of said canal lying above the level in question, though proper parties to such proceeding, in order that the rights of all parties claiming the right to use surplus water which might affect the quantity of surplus in the level in question may be determined and defined in one action, are nevertheless, not necessary parties, especially in an action wherein no 'averment is made in the pleadings that such lessees on the superior levels are using such water in excess of the amounts leased to them by contracts prior in date to the plaintiff's lease.</p> <p>4. The State Canal Commissioners, in 1859, leased to M. for a term of thirteen years, with right to renew for thirty additional years, certain lands on the bank of a certain level of Miami & Erie Canal, at Toledo, Ohio> together with the right to draw from said level “ so much surplus water not necessary for the use of navigation as will be sufficient, when applied on the most approved machinery, to propel one saw; also a sufficient quantity of water to propel two pairs of four and one-half foot mill stones for the manufacture of superfine flour, together with all the laborsaving machinery attached, the water to be applied in such manner and upon such kind of wheel as the acting Commissioner, resident Engineer, or other agent of the state may direct.”</p> <p>Held: that it was competent for the Canal Commissioners and the owner of said lease, for the purpose of avoiding disputes, if acting reasonably and in good faith, by a subsequent written instrument, to fix and define the number of cubic feet of water per minute which should be deemed equivalent to the quantity sufficient to propel said several kinds of machinery as provided in said lease.</p> <p>Such subsequent modifying contract made in 1869, when the said owner of the lease was in the actual use and occupancy of said land and water privileges, affords a valid construction of said original lease as against another lessee of water power from said level under an unrecorded lease from said Commissioners, granted in 1866, but under which no possession was taken till after 1869, and of which subsequent lease no actual notice or knowledge came to said original lessee or his assigns till after 1869.</p> <p>5. Held, also: D. is not estopped to maintain his action for an injunction by standing by and seeing defendants’ mill constructed without objection, there being no allegation nor proof that he knew or had notice or knowledge of facts charging him with knowledge that the defendants’ mill would require so much water from said level as to interfere with his rights under said lease.</p> <p>CIRCUIT COURTS OF OHIO. Isaac H. Detwiler v. The City of Toledo et al.</p> <p>6. 'When the court has ascertained and determined the respective rights of owners of water power privileges, and difficulties appear as to the most practicable method of carrying the decree into execution, the court will appoint a commission to investigate and report to the court a practicable plan for effectually securing to the parties concerned their respective rights to the use of the water in question, unless the parties themselves agree upon some satisfactory method.</p>

<p>1. When a jury reports to the trial judge that they are unable to agree upon a verdict in a case submitted to them, it is right and proper that the judge should inquire of them as to the cause of such disagreement, and if in his opinion it is necessary that he should restate his views of the law, or give additional proper charges in the presence of the parties and counsel, it may rightly be done.</p> <p>2. It is not necessary to the validity of an exception taken to the charge of the court to the jury, that it be made in the hearing of the jury.</p> <p>3. Where there is language in a charge given by the court to the jury, which if standing alone would be erroneous, but it further appears from the bill of exceptions that special charges upon the same subject had been given to the jury, and such special charges do not appear therein, and where it appears from other parts of the charges set out, that the law on the same point was correctly stated to the jury, and it was told by the judge that such instruction had before been given to them, the judgment should not be reversed for such apparent error, if it really occurred, (which is doubtful,) as it was cured by the subsequent statements.</p>

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

The plaintiffs say in the petition that they are executors of Michael Cook, deceased. Said Michael Cook, on the 7th of March, 1884, recovered a judgment before a justice of the peace of Allen county, Ohio, against John Stephenson and Charles C. Woodward, for 1257.69 and costs, which judgment was to bear interest at eight per cent.

<p>1. The township trustees will not be enjoined from erecting a building for the use of the township, after the funds for such purpose have been paid into the township treasurer, on the ground that the notice for the election submitting the proposition for the' erection of such building was not given the full time required by statute.</p> <p>2. An election will -not be declared void because the notice required by statute was not given for the full length of time specified, when it appears that the great body of electors had actual notice of and participated in the election.</p>

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

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

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

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

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

Lambright was employed by the railroad company as a switchman and brakeman on the 28th day of May, 1889. ’ In his petition he says the railroad company, regardless of its duty to its servants, carelessly put down for use a guard rail, and carelessly, negligently, and unlawfully failed to adjust, fill, or block the same, so as to protect its employes from having their feet caught therein.

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

<p>1. Under sections 3643 and 3644, of the Revised Statutes, a policy insuring against loss by fire is not necessarily avoided by the recovery of judgments against the assured subsequent to the issuing of the policy, and before the loss, which judgments became statutory liens upon the property covered by the policy, even though it be stipulated in the policy that “ if the assured shall procure, or suffer to accrue any incumbrance covering the property therein specified, or any part thereof,” the insurance thereunder shall immediately cease and determine. In order to have that effect, in the absence of fraud, it must appear that the recovery of the judgments diminished the insurable interest of the owner in the property insured to an extent that materially increased the risk.</p>

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

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

<p>The granting of a motion for a new trial on the ground that the judgment is excessive, is not such a final order as entitles the parly recovering the verdict to go up on error.</p>

<p>L On the facts as found in this case, the Supreme Lodge of the Ancient Order of United Workmen, (a beneficial and fraternal association) among other powers, has original and exclusive jurisdiction over all subjects and matters pertaining to the general welfare of the society, and its enactments and decisions upon all such matters are the supreme law of the order. It was authorized to prescribe and determine the rights, privileges, and duties of the members of the society, and of the beneficiaries of deceased members, and alter, amend, or abrogate the same, and generally to do all things which it might deem right and proper for the promotion of the honor, welfare and perpetuity of the order. It therefore had the right at any time to amend or change the manner in which the fund allowed to the beneficiaries of members should be raised, not in contravention of any contract made by such Supreme Lodge. And when a person becomes a member of such association, he becomes subject to the laws, rules and regulations thereof, and cannot properly apply to the courts for relief or redress on account of some action of such Supreme Lodge, unless there has been an invasion by it of some property rights of hie, as by the breach of some contract made with him, or it is made without authority.</p> <p>2. In this case the appliation for a benefit certificate was made by the plaintiff to the Grand Lodge of Ohio, which was subordinate to the Supreme Lodge. The certificate which was thereupon issued to the plaintiff, a member of the Order, by the Grand Lodge, made such application a part of the contract, by reference thereto, and provided that in consideration of $1.00, and of the payment to said Grand Lodge of all assessments made upon such beneficial certificate, in accordance with the terms subscribed to in the aforesaid application, the plaintiff was insured in the sum of $2,000, etc. The application itself contained an agreement to pay all beneficiary assessments lawfully charged to him by the Grand Lodge. And there was a further subsequent stipulation, that he would accept said certificate “ subject to such laws, rules and regulations as now exist, or may hereafter be adopted by and governing said Grand Lodge, not inconsistent with those that now exist.” At the time of such application and the issue of such certificate, the law, as promulgated by the Supreme Lodge, prescribed a form of application and certificate to be used in all cases, which simply required the applicant to comply on his part “ with all the laws, regulations and requirements which are, or may he, enacted by said Order,” as the express condition upon which he was to have and enjoy all the other privileges of said order.</p> <p>Held: 1st. That if it be conceded that the beneficial certificate issued to the plaintiff in connection with the appliation made part thereof, only bound him to pay the assessments made under the laws then in force, or those not inconsistent therewith, (which, from the form of the contract, and conduct of the parties, was probably not the case, and was not so understood by the parties), yet, such provision being in violation of the laws of the Supreme Lodge, cannot be insisted on by the plaintiff to prevent the Grand Lodge from carrying out a valid law and order of the Supreme Lodge.</p> <p>2nd. The subsequent conduct of the plaintiff in paying assessments made by the Grand Lodge, under the Order of the Supreme Lodge, in a manner wholly different from that in force when the contract wa* made, and which change operated to the benefit of the plaintiff, was not only an admission by him that the contract, as made, was not intended to prevent a change in the manner of assessments made upon him, but was, in effect, a waiver of any such right if it ever existed.</p>

<p>1. An action brought and prosecuted under secs. 6195 and 6199, Rev. Stat., by the distributees of a decedent’s estate, to recover an unpaid balance remaining in the hands of the administrator, is barred by the Statute *f Limitations, unless such action is commenced within six years after the expiration of thirty days from the date of the order of distribution made by the probate court.</p>

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

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

<p>An owner in fee of certain real estate died, leaving the defendant in this proceeding his widow, and several children. By his will he devised his real estate to his widow for life; remainder over upon certain trusts and conditions, the interest of the widow to cease and determine in the event of her second marriage. The widow, without any formal election, continued to occupy the premises with her children for several years after the death of her husband, during which period she contracted a second marriage with the plaintiff in this action, who thereupon took up his abode with the family upon the estate. Certain of the devisees threatening to take steps to enforce their rights under the will, the defendant declared, in the probate court, her election not to take under the will, and the executor, by the procurement of the husband and wife (parties to this action) instituted proceedings in the probate court for the sale of the lands, under which a sale- and conveyance were regularly made to the defendant. There was applied upon the purchase-price the sum of $2,500, made up as follows: $900 allowed for the year’s support of the defendant and her minor children; $1,000 apportioned to the defendant as the present value of her dower interest in the lands, and $000 allowed for improvements made upon the lands after the death of the first husband. For the payment of the balance of the purchase-money the defendant executed a mortgage to the executor, the husband joining therein, but in no manner binding himself personally for the payment thereof. The plaintiff afterwards made some payments on account of the mortgage, but was unable to show with any degree of certainty the amount thereof. The present action was brought by the husband to compel the wife to convey to him a proportionate part of the lands sold and conveyed to her as above mentioned, the petition alleging the payment by him of a certain specific part of the purchase-money under a prior agreement entered Jinto between the parties. Held: That a parol contract between husband and wife, whereby the latter is to purchase and takethelegal title to lands then in their occupancy in right of the wife, and make the first payment on account thereof and hold the same in trust for the husband to the extent that he may thereafter make payment thereon, the husband not binding himself to make any such payment, is not such a contract as will be specifically enforced in equity; especially where there is much doubt and uncertainty as to the payments actually made by the husband.</p>

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

<p>1. Objection to an indictment containing two counts, on the ground that each count charges an offense different and distinct from that charged in the other, is not available for a defendant when made for the first time by a motion in arrest of judgment.</p> <p>2. On the trial upon an indictment for forgery, materia] evidence regarding the defendant’s dealings with notes and documents relevant to the issue, and which are, at the time of the trial, presumably in the , possession of the defendant, and which she has had due previous notice to produce at the trial, will not be excluded-on the ground that the notes and documents themselves have not been produced and offered in evidence.</p> <p>3. The general rule that the evidence must be confined to the issue, and that inquiry into facts entirely collateral and leading to a controversy-over matters altogether foreign to the case before the court cannot be permitted, applied.</p> <p>4. On the trial upon an indictment for forgery, after the state had given evidence tending to show that as the result of the forgery and the uttering by the defendant of the note in question, and of other such notes, she had received large sums of money, the defendant offered evidence tending to prove that about that time and for several months next subsequent thereto, she was in indigent circumstances; that her property was then under chattel mortgages; that she was and had been paying high rates of interest and was, financially distressed: Held, that the evidence thus offered by the defendant was properly excluded.</p> <p>a. Where, on trial of an indictment, the trial court excluded certain evidence offered by the defendant, and which might have been properly admitted, a reviewing court will not disturb the verdict rendered or the sentence pronounced where all the evidence given at the trial, together with the charge of the court and all its proceedings, are before it in the record, and it thereby appears that the jury would have been manifestly unjustified in giving any appreciable weight to the rejected evidence, had it been admitted.</p> <p>G. On the trial of an indictment for forgery, proof of the possession by the defendant of other forged notes about the time of the making and uttering of the note in question, is admissible as bearing upon the question of guilty knowledge or intent, whether such possession be before or after the alleged forgery. And such proof is admissible though several months intervene between the time of the alleged commission of the forgery charged in the indictment, and the possession by the defendant of such other forged notes, in a case where the evidence clearly tends to prove that her possession of and dealing with the several notes were related parts of the execution of a connected scheme or plan of fraud and forgery.</p> <p>7. On the trial of an indictment for forgery by uttering forged paper, testimony of transactions by the defendant with other notes and papers, and which tend to prove her to have been carrying on one connected plan of fraud and forgery, whereof the forgery charged in the indictment was a part, and which testimony tends to connect her with the uttering of the note charged in the indictment, is admissible, although no direct proof is given that such other notes were forged.</p> <p>8. Where the defendant produced to an accomplice in Lucas county, a paper with only the name “ Bichard Brown ” upon it, and then and there caused a promise to pay money in the usual form of a promissory note to be by him written above it, so as to have it appear that the name was the signature to a promissory note, with the criminal intent to utter it as a promissory note of Bichard Brown, she may be convicted of forgery in Lucas county, though no direct proof is offered of the place where said name was written.</p> <p>9. Where on the hearing of the defendant’s motion for a new trial, charging misconduct of jurors, the evidence before the trial court was fairly conflicting, and the trial court overrules the motion, its action thereon will not be disturbed by this court.</p> <p>10. Evidence of what a juror said after the rendition of a verdict as to improper occurrences in the jury room, will not be received to invalidate the verdict.</p> <p>11. Where an indictment contains two distinct counts, the first charging the defendant with the forgery of the note, and the second count charging her with uttering a forged promissory note, and a verdict of guilty is rendered against her on each charge, and it clearly appears from the record, though not charged in the indictment, that both counts relate to one and the same note, a separate sentence on each count is erroneous, and the defendant should be sentenced upon the verdict as for the single crime of forgery.</p>

<p>1. It being the law of this state, when by the evidence offered byjhe prosecution, it is shown that a defendant on trial for murder, killed the deceased, and no excuse therefor appears from such evidence, and the defendant seeks to justify his act by showing that it was done in self-defense while resisting a felonious attack made upon him by such person, the burden is upon him to show by a preponderance of the evidence all the facts necessary to excuse him; and that to entitle him to an acquittal he must make it appear that he did not commit the act in the exercise of a careless and negligent judgment, but rather under such circumstances as would show that he believed, and had reasonable ground to believe, that he was in danger of death or groat bodily harm from his assailant, the court in such case properly refused to charge the jury as requested by counsel for the defendant, “that the burden was on the state to show that the defendant exercised a careless and negligent judgment as to thp appearance of danger to himself, and that unless this was shown by the state, the defendant should be acquitted.”</p> <p>2. "Where in a motion by the defendant for a new trial, it was alleged that there was misconduct on the part of the prosecuting attorney in his argument to the jury, and that the trial judge on the application of the defendant that he would do so, refused to interfere, or prevent such misconduct, to which failure or refusal the defendant excepted, but the bill of exceptions contained no statement as to what occurred at the time, or no exeeption to the action of the court thereon, otherwise than in the affidavits filed by the defendant in support of his motion, which statements were controverted by affidavits on the part of the state; and the trial court' having made no finding as to what took place, or whether any action by the court was had or excepted to, a reviewing court can not say that there was any such misconduct, or any error on the part of the court, or that there was any exeeption thereto, or that for this a new trial should be granted.</p> <p>3. Evidence was offered in the case tending to show that a few minutes before the homicide, the deceased on the premises then controlled by the defendant, had an affray with another person, which defendant had sought to stop, and which the deceased had resented, and in the presence of the defendant, had pursued such other person with a knife in his hand. The evidence also tended to prove that soon after this the deceased made a felonious attack on the defendant with a drawn knife, and was then shot by defendant. The state had offered evidence tending to disprove this, and to show that the deceased did not have any knife. The court refused to receive the evidence that the deceased had, in the presence of defendant, pursued the other person with a knife. The evidence was competent, and should have been received. If not strictly a part of the res gestee, (which it probably was), it ivas admissible to show that the deceased had a knife shortly before his death, and also as tending to show the character of the deceased as a vicious and dangerous man, and that the defendant knew this.</p> <p>4. Even if these facts had been shown by another witness, the defendant</p> <p>was entitled to prove it by another witness, fí. A witness for the state having testified to a criminating statement alleged to have been made by the defendant immediately after the homicide, the making of which was denied by the defendant and other witnesses present at the time the statement was said to have been made. On cross-examination such witness testified that he had been examined as to these matters at the inquest held by the coroner immediately after-wards, and was further asked if he had then testified that defendant had used any such language. The court refused to allow the question to be answered. Held, that such refusal was erroneous.</p>

<p>That part of section 5573 of the Eev. Stat., which provides that “the probate judge of the county may grant injunctions in actions pending in either the court of common pleas, or the circuit court of the county, in the absence from the county of the respective judges of such courts,” is a valid and constitutional enactment.</p>

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

<p>1. When, in an action for an injunction, the answer controverts material allegations in the petition which are necessary to sustain the plaintiff’s case, and the answer also contains affirmative allegations constituting a defense which are denied in the reply, and the cause is submitted to the court, without evidence, upon the plaintiff’s motion for a judgment on the pleadings, the plaintiff may appeal from the judgment entered against him, although it be apparent that such submission of the’case must result in a judgment against him, the said act of the plainti ffnot being equivalent to a voluntary dismissal of his petition.</p> <p>2. On the 5th day of September, 1886, the Common Council of the City of Toledo, passed an ordinance permitting the Toledo Natural Gas Company, on certain conditions named in the ordinance, to lay, maintain and operate gas pipes in the streets of the city for supplying said city and its inhabitants with heat and power by means of natural gas. Among the conditions of the ordinance was the following: “The right to further regulate the furnishing of said natural gas to consumers shall be subject to such terms and conditions as said common council and said company or corporation may hereafter determine.” * * * “ Within thirty days after the passage of this ordinance, the said company shall execute and deliver to the city of Toledo an agreement in such form as shall be approved by the city solicitor, expressing the assent of said company to, and undertaking to perform the terms and requirements of the ordinance on its part, and to furnish gas to all persons requiring it in the city of Toledo, (so far as said company may be able), without preference or favoritism, on equal terms and at reasonable prices, reference being had to the cost of producing and delivering the same, and the prices of like supplies in other cities.”</p> <p>Should the gas company unreasonably refuse to agree with the city upon proper rates for gas for any portion of said term of ten years, a court of equity would administer appropriate relief.</p> <p>The gas company, within the required time and in the required manner accepted and agreed to perform on its part the requirements of the ordinance, and piped gas to the city and provided for its distribution to consumers, including the city itself;</p> <p>-Held, that the ordinance and said acceptance and undertaking on the part of the gas company constituted a valid contract between the city and the gas company.</p> <p>Held also, that, under section 1777 of the Bevised Statutes, the city solicitor may maintain an action to compel the gas company to observe the terms of the contract.</p> <p>3. At the time the ordinance was passed, the city council had power, under Bev. Stat. sec. 2479, with the assent of the gas company, to fix rates to be charged for natural gas for a period of ten years, and its said agreement with the gas company that regulations as to rates and prices should be such as might be agreed upon by the city and gas company, though in terms unlimited as to time, is valid and binding for a period of ten years from the time it was made and for that period only, the right to regulate prices for gas, conferred on the city by the amendment of Bev. Stat.' sec. 2478, adopted March 4, 1887, being subject to the limitations of said agreement for said period of ten years from September 5, 1886.</p> <p>4. *Such agreement for the fixing of prices by consent has a continuing force for the said period of ten years, and ordinances of the city regulating said prices for shorter periods within said ten year term, accepted by the gas company, are to be regarded as executions, pro tanto, of that continuing obligation.</p> <p>5. ’The presumption of the reasonableness of prices to be charged by a gas company, as fixed by an ordinance of the city, adopted without the consent of the gas company, will not be so applied as to require a judgment on the pleadings for the plaintiff in an action by the city, wherein the petition alleges the passage of the ordinance, its terms and their reasonableness, and the answer contains an admission of the passage of the ordinance and a denial that the prices therein fixed are reasonable, and affirmative allegations of the inadequacy and unreasonableness of the prices so fixed, and in which action the pleadings show the existence of a contract between the city and the gas company requiring such prices to be reasonable and to be fixed by agreement between the city and the gas company. State ex rel. Attorney- General v. The Ironton Gas Co., 37 Ohio St. 45, distinguished.</p> <p>6. An ordinance of the city of Toledo, adopted without the consent of a gas company which had acquired the right to furnish gas to the citizens of that city at reasonable prices to be fixed by agreeement between the city and the gas company, contained provisions that said gas company should charge for gas, according to the use to which the heat to be produced by the gas should be applied, and also the following provisions :</p> <p>4 No consumer now receiving natural gas through a mixer shall be compelled, against his desire, to receive and use natural gas by meter measurement ; and no person, company or corporation shall be compelled, against his or its desire, to receive and use natural gas in any other manner than he or it is now receiving and using the same.”</p> <p>Held, that the said provisions of the ordinance are unreasonable, and render the ordinance void.</p>

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

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

<p>The course of the moiety which passes to the brothers and sisters of a former deceased husband or wife under section 4162 of the Bevised Statutes, is controlled by the provisions of the statute to which it is supplementary, and it passes to the brothers and sisters of the whole blood, and if there are no brothers and sisters of the whole blood, then to the brothers and sisters of*the half blood.</p>

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

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

<p>1. If the statute of April 25,1890 (87 Ohio L. 295), amending sec. 1166, Bev. Stat., required the Commissioners of Hamilton County to appoint the surveyor of said county, then in office, to discharge the duties of the office of county engineer of said county, which office had been"" established under the provisions of sec. 1002, Bev. Stat, so much thereof is in violation of Sec. 27, Art. 2, of the Constitution of the state, as being in effect, an appointment by the General Assembly of a particular person to fill such office — the act in question not having abolished the office of county engineer, but only providing that the Commissioners should appoint such person to fill the same, discharge the duties and receive the emoluments thereof.</p> <p>2. If such provision is prospective only, and is not to take effect or be operative until the commencement of a new term of the county surveyor, it would not be open to such objection, and it being “ a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively,” and it being also a rule of the law, that where a statute is open to two constructions, one of which would make it unconstitutional, and the other would not, that it is the duty of the court to. adopt that construction which would uphold the law : Held, That such provision in this statute is prospective only, and cannot operate until there is a new term in the office of county surveyor.</p>

<p>The authority of a tax-payer to institute a suit in his own name on behalf of a municipal corporation, under sec. 1778 Rev. Stat., depends upon the fact whether the solicitor of the corporation has refused, after being requested in writing, to bring the suit, and the fact whether the party is a tax-payer. It is not to protect any right peculiar to-the tax-payer, but to protect a right that belongs to the city.</p> <p>The question whether a valid contract has been made by the city with a party for the construction and operation of a street railroad route under sec. 2502 Rev. Stat., depends upon the fact whether such party in his bid agreed to carry passengers at the lowest rates of fare.</p> <p>The consents of abutting property owners to the construction and operation of a street railroad route required under the statute, by whomsoever obtained, inure to the benefit of the lowest bidder. To permit the abutting owners to dictate to which of the bidders their consents shall inure-would be to permit them to absolutely control the award of the contract which the statute requires shall be settled by competition in rates of fare only. — (Ed. Weekly Law Bulletin.)</p>

<p>1. By sec. 8092 — 18, S. & B’s. Revised Statutes, it is provided that all places where intoxicating liquors are on other days of the week sold or exposed for sale, (except regular drug stores), shall be closed on Sunday, and that who allows any such place to he open, or remain open on Sunday, shall he punished as is therein provided. It is further provided irn the same section, that, “ in regular hotels and eating houses, the words place herein used, shall be held to mean the room or part of the room where such liquors are usually exposed for sale, and the keeping of such room, or part of room securely closed shall he held as-to such hotels and eating houses, as a closing of the place within the meaning of this act.” Held: That the words “ regular hotels and eating houses,” as used in this section, designate places, the principal and and not the subordinate business of which, was the carrying on of a hotel or an eating house; and that the evidence in this ease shows that the main and principal business of the defendant in the house kept by him, was that of a saloon or drinking house, and not an eating house.</p> <p>2. The evidence showed that the place kept by the defendant, and which he allowed to be open on Sunday was a large hall, (not a regular drug store), in which intoxicating liquors on other days of the week were-sold and exposed for sale. The bar and beer counter both stood in such room in the usual way, and many tables stood in such room, at which persons were supplied with such liquors, ordered from the waiters and paid for by them at the bar or beer counter, and supplied to the guests at the tables, who there paid the waiters therefor. Held, that this constituted a sale at the tables where the liquors were furnished and paid for.</p> <p>3. On the Sunday in question a wire screen was placed on the top of the counter, around the bar in such room, four feet high, but not reaching to the ceiling. The beer counter was in no way seperated from the other part of the hall in which it stood, but the beer pumps behind the same were covered by a box, and beer could not be drawn therefrom without removing the box therefrom, which box was kept locked. On this Sunday no person was behind the bar or counter, and no liquors were sold in such room, but-the doors thereof were open to the public, and many persons came into the room and were served with other refreshments at such tables. This was a violation of the law, the room or part of the room in which liquors were on other days of the week sold, not being securely closed, but open.</p>

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

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

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