Volume 5 — Ohio Circuit Court Reports, New Series

<p>AGREEMENTS BY COUNCIL TO EXPEND MONEY WITHIN THE INHIBITION OF THE BURNS LAW.</p> <p>Municipal Corporations — Bilateral Agreements by — Within the Inhibition of the Burns Law — Although Not Enforceable — Section 1536 (205 M. C.).</p> <p>The action of a municipal council purporting to be an agreement involving the future expenditure of money, although admittedly not legally enforceable is nevertheless within the inhibition of the Bums Law, Revised Statutes 1536 (205 M. C.).</p>

<p>THE FELLOW-SERVANT LAW CONSTITUTIONAL.</p> <p>Constitutional Law — A Statute Not Invalid for Laclo of Uniformity of Operation — Because It Applies to Railroads Only — And to a Particular Class of Railroad Employes — Engineer of Goal Tipple and “Hooloer” of Hoisting Apparatus are Fellow-Servants, When.</p> <p>1. The statute known as the fellow-servant law, Section 3365-22, is not invalid under the Ohio Constitution for lack of uniform operation, or for granting special privileges, nor does it contravene the provision of the Constitution of the United States guaranteeing the equal protection of the laws to all.</p> <p>2. A statute does not fail for want of uniform operation because it applies to railroad companies and not to other corporations, where it has a uniform operation upon all railroad companies within the state, and reasonable grounds exist for its application to railroad companies which do not exist as to other corporations.</p> <p>3. A classification of employes, although somewhat arbitrary, is not in violation of either the Constitution of the state or of the United States, where the classification provided for is reasonable and is made with a proper purpose.</p> <p>4. The engineer in control of the machinery of a coal tipple and a “hooker,” who hooks and unhooks the hoisting tackle, are in the same department within the meaning of Section 3365-22, and where the engineer has no control over the hooker they are fellow-servants.</p>

<p>KEEPING ALIVE A JUDGMENT LIEN.</p> <p>Judgment Liens — Priority of — Effect of Dormancy of — In County Where Judgment was Rendered — And to Which It Had Been Extended dy Issuing a Foreign Execution — Effect of Issuing a Second Foreign Execution — Heed not he Entered on the Foreign Execution Docket — Duty of Purchaser to Search the Record of Latter County.</p> <p>1. The satisfaction or dormancy of a judgment are the only contingencies under which a judgment lien created under favor of Section 5375, Revised Statutes, ceases to exist against the real estate of the'debtor. The effect of such satisfaction or dormancy is to relieve the land of the judgment debtor, both in the counties wherein the judgment was rendered and in those into which it has-been extended by the issuing and levying of a foreign execution.</p> <p>2. The issuing of a second execution to and placing it in the hands of the sheriff of a county other than that wherein the judgment was rendered, within five years from the issue and levy of the first execution, will prevent the judgment from becoming dormant as a lien against the real estate of the judgment debtor in such county. Whether issuing the execution to the sheriff of the county wherein the judgment was rendered, and having it there returned, instead of to the sheriff of the county wherein the land was situate, would keep the lien alive — Quaere.</p> <p>3. There is no statutory requirement that an entry be made upon the foreign execution docket of the issuing of a second or subsequent execution from the county wherein the judgment was rendered; and when the record shows that a judgment lien has been acquired, the duty devolves upon a prospective purchaser to search the record of the latter county, and ascertain whether the lien has been kept alive or is dormant.</p>

<p>REFORMATION OF MORTGAGE.</p> <p>Mortgage — Description in, Will Not Be Reformed — If to the Prejudice of Creditors Without Notice — Can he Had on Cross-petition, When.</p> <p>1. A mistake in tbe description of property covered by a mortgage will not be reformed as against innocent creditors without knowledge because as to them such reformation would be the creation of a practically new mortgage, and especially not as against specific property on the faith of which the unsuspecting creditors were induced to extend credit.</p> <p>2. If a revivor be necessary in a case where a court of equity has acquired jurisdiction over property for the purpose of adjusting a lien upon it, it .can be had as well on cross-petition as by an original action for that purpose.</p>

<p>AN UNCONSTITUTIONAL STATUTE.</p> <p>Constitutional Law — Acts Affecting County Officers — Must Save Uniform Operation — Sheriff’s Poundage — Section 12306.</p> <p>Section 1230b, Revised Statutes, providing for the fees of sheriffs, in all countiessd having a population of 22,500 or more at the last federal census, is unconstitutional for lack of uniformity in operation, and in taxing poundage sheriffs must be governed by the general statute, Section 1230.</p>

<p>INJUNCTION WHERE A QUESTION OF TITLE IS INVOLVED.</p> <p>Injunction — Questions of Title — Depending upon Adverse Possession or Abandonment — Are Triable to a Jury — And Appeal Only to the Grace of a Court of Equity — Non-user—Intention—Absence of Physical Action or Formal Steps to Talee Possession — Payment of Nominal Rental — Permanent Obstruction of Access to — Uses of a Fee Inconsistent with a Dominant Easement.</p> <p>1. The issues of “abandonment” and “adverse possession” are peculiarly appropriate to an action at law and triable to a jury, and where questions of title are involved, a court of equity will rarely assume the burden of determining them, even though equitable remedies are necessary.</p> <p>2. Where the intervention of a court of equity is invoked to avoid a multiplicity of suits, it is an appeal to the grace of the court.</p> <p>3. In order to invoke such intervention for the purpose of avoiding a multiplicity of suits, there should be a showing of a probability of a multiplicity of suits. A finding having been made of such a probability, it is for the court to extend its grace or not, as it may deem wise in view of the interest of equity and justice involved.</p> <p>4. In the case at bar, it is held that the acts and declarations of the parties, taken in connection with the surrounding circumstances, constitute an intention to abandon the easement for a right of way, which it is. here sought to protect by injunction; and that the use and dominion exercised by the defendant over the strip made it practically an appurtenance to their foundry, without any respect to the use of the strip as a roadway, and establishes their title thereto by adverse possession.</p>

On the 21st day of June, 1900, the plaintiff in error, Amanda Edwards, plaintiff below, filed her second amended petition in the Court of Common Pleas of Richland County, Ohio, against Peter Rissler and William Stoodt as defendants, and for a cause of action alleged in substance that the defendants, Rissler and Stoodt, at the time of the happening of the grievances complained of, were the owners of a certain brick building, situated at the corner of Main street and Plumb…

It was not error to sustain the demurrer to the supplemental answer or plea in bar. The recovery of damages as for mesne rents and profits in the action for possession and to declare a forfeiture, was no bar to a recovery in this action for rents under the lease.

<p>REQUIREMENTS FOR. THE PRACTICE OF DENTISTRY.</p> <p>Dentistry — Standards Imposed by the Legislature for the Practice of— Tested Rights.</p> <p>1. One who prior to 1902 had not obtained the required certificate for the practice of dentistry is not of the excepted class, but is included in the express terms of the act of that year raising the standard for the granting of a certificate.</p> <p>2. A vested right is not conferred by a statute which merely prescribes a method by which such a right may be obtained; and it is competent for the Legislature to raise the conditions for obtaining such a right both as to those who were and those who were not theretofore competent to acquire it.</p>

This is an application by petition and motion for a writ of mandamus to issue to command the sheriff to levy upon certain property belonging to the Lake Shore Railway Co., which it is said had been pointed out to the sheriff for that purpose by the relator.

<p>EASEMENT FOR A PRIVATE ROAD.</p> <p>, Private Road — Easement for, How Acquired — Conveyance Absolute Notwithstanding Agreement to Reeonvey — Creation of Way of Necessity by Implication.</p> <p>' 1. An easement for a private road is acquired by one who' uses a well defined track across the land of another in reaching land of his own otherwise inaccessible, where such use has been adverse and continuous for more than twenty-one years.</p> <p>2. A deed of conveyance, accompanied by a separate written contract wherein the grantee agrees to reconvey the land to the grartor or to one whom he may name, upon payment within a certain time of a specified sum without interest, is an absolute conveyance and not a mere security.</p> <p>.3. Where a way of necessity has been extinguished by a union of seizin it is not revived by severance, but a new way is granted by implication if the necessity continues.</p>

<p>PROCEEDINGS IN AID OF EXECUTION.</p> <p>Debtor of Judgment Debtor — Having Admitted Ms Indebtedness in. Proceedings in Aid of Execution — Is Estopped from Denying the Debt in a Subsequent Action — Appeal—Justice of the Peace.</p> <p>1. The debtor of a judgment debtor, against whom proceedings in aid of execution have been brought before a justice of the peace, has the right of appeal from the finding of the justice as to the fact of his indebtedness, and therefore can not claim that he has been denied the right of trial by jury upon that question.</p> <p>2. In a subsequent action brought by the judgment creditor in the common pleas court for recovery of the sum ordered by the justice to be paid to him, the debtor against whom the order was directed, and upon whose admission of indebtedness it was made, is es-topped from then denying the indebtedness.</p>

<p>ADVANCEMENTS EVIDENCED BY PROMISSORY NOTES.</p> <p>Advancements — Evidenced by Promissory Notes — Belonging to an Estate which Remained Unadministered for Eighteen Years — Cause of Action Accrued, When — Statute of Limitations — Does not Bar a Claim on a Note as Such, When — Note not Part of the Estate, But an Advancement — And Debtor Heir Must Account to the Estate— Interest not Allowable after Ancestor's Death — Administrators— Jurisdiction — Partition.</p> <p>1. A contention as to the right to recover on a promissory note does not raise a question of jurisdiction but of title to the note.</p> <p>2. A cause of action accrues within the meaning of the statute of limitations when there co-exists a demand capable of present enforcement; a suable party against whom it may be then enforced; and a party who has a present right to enforce it. But the statute having begun to run is not suspended by the subsequent failure of any one of these conditions. It follows, therefore, that when a note becomes due after the death of the payee, the fifteen year ■ limitation begins to run from the administrator’s appointment; but if a cause of action on the note accrues during the lifetime of the holder, the statute of limitations begins to run from that date, and the death of the holder and failure to appoint an administrator of his estate would not suspend it.</p> <p>S. A debtor heir, who makes claim on distribution, is required to account to the estate for- the debt he owes, and the amount he is to receive .will depend upon the result of the accounting; if his debt is evidenced by promissory notes, they may in a suit for partition be regarded as advancements, and interest upon them can only be computed up to the date of the death of the ancestor.</p>

<p>SUBROGATION OF ONE DISCHARGING A MORTGAGE DEBT.</p> <p>Liens — Judgment Lienor May Marshal — Though Prior Liens will Exhaust the Fund — Subrogation as to a Mortgage Debt — Paid to the Administrator of the Mortgagee.</p> <p>1. A judgment lienor may prosecute a suit to marshal liens and for sale of property, although prior liens will exhaust the fund to be derived from the sale.</p> <p>2. Where payment is made of a mortgage to the administrator of the mortgagee, and the one making the payment is a member of the household of the mortgagor, and holds a mortgage upon other real estate of the same mortgagor, and acts upon the advice of counsel, and believes she is obtaining security for the payment, and the administrator acts under the same belief, she is not a volunteer, but is entitled to be protected under the mortgage.</p>

Plaintiff in error was arrested, tried and fined $25 and costs' by the Police Court of the City of Columbus, for running an automobile at unlawful speed within certain city limits, in violation of city ordinance No. 16867, which prohibits aia excess of seven miles per hour.

<p>AN UNCONSTITUTIONAL PROVISION IN THE MUNICIPAL CODE.</p> <p>Constitutional Law — Municipal Code — The Provision Limiting its Operation — With Reference to Market House Commissioners in the City of Cleveland.</p> <p>It is impossible that a law of a general nature having a uniform operation throughout the state should contain a legal provision suspending its operation in a single city of the state for an indefinite time. The provision, therefore, found in Section 216 of the Municipal Code, “that any person or persons hereafter appointed pursuant to the provision of an act entitled, ‘an act relating to market houses in cities of the second grade of the first class,’ passed April 26, 1898, or by whatever authority for the purpose provided herein, shall continue to act for the purposes for which he or they were appointed, with the powers herein granted and no others, until the completion of the improvement in connection with which they were appointed,” is in contravention of the Constitution of the state and invalid.</p>

<p>LIABILITY OF COUNTY COMMISSIONERS FOR. WRONGFUL DEATH.</p> <p>County Commissioners — Liability of — For Failure to Keep County Bridge in Repair.</p> <p>Under favor of Sections 845 and 6134, Revised Statutes of Ohio, an action may be maintained against the county commissioners in their official capacity, by the administrator of one whose death is the result of the negligence of the commissioners in failing to keep a county bridge in repair.</p>

This action is in tbis court by way of appeal. It is in its nature and upon its face an action of injunction to restrain the directors of the so-called Toledo University from exercising certain franchises, from holding and controlling certain property, and from expending for the purposes of the university funds raised hy taxation, and is also to require the board of education of the city of Toledo to do what it is charged the directors of the so-called university are doing…

<p>LEASE.</p> <p>Lease — Privileges of Renewal upon Giving Six; Months Notice — Failure to Give Notice Avoids the Privilege.</p> <p>A privilege in a lease of an additional term upon the giving of notice six months before expiration is not enforceable where there was a failure to give notice within the prescribed time.</p>

<p>CHANGES OF JUDGES DURING TRIAL.</p> <p>Trial — Change of Judge During — In a Trial for Felony Constitutes Reversible Error, When.</p> <p>Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, prepares the charge and delivers it to the jury; passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record.that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with. •</p> <p>Held: That there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed, and a new trial granted.</p>

This is a proceeding in quo warranto, brought to contest the election of the defendant, Conser, as township trustee of Hanover township, in this county.

<p>TERM OF AN OIL LEASE.</p> <p>Oil and Gas — Lease of Lands for the Production of — Term, of the Lease, Oil Being Still Pound in Paying Quantities.</p> <p>A lease of land granting the right to operate for oil and gas, contained among numerous other provisions of the usual character, the phrase, “the terms of this grant shall not exTceed twelve years.”</p> <p>Held: That the word “terms” as there used did not refer to the collateral matters attached to the grant, but to the grant itself, thereby limiting the period for which it is to run to twelve years.</p>

This action is brought to obtain a reversal of the judgment of the court of common pleas of this county.

<p>EJECTION OF PASSENGER FROM TRAIN.</p> <p>Railways — Liability of — For Rejection of Passenger Between ¿Stations in Night Time —Passenger Injured in a Battle Guard.</p> <p>1. Recovery may be had for an injury received by one who was lawfully on a railway train, and was unlawfully ejected therefrom between stations in the night time, and was injured by falling into a cattle guard while making his way to the nearest highway crossing.</p> <p>2. But where one takes passage upon a train which he knews does not stop at his -destination, it is lawful for the company to eject him without unreasonable violence, at any reasonably safe place between stations, upon his refusing to pay fare to the next station at which the train stops.</p>

Error is prosecuted here to the judgment of the court of common pleas. The plaintiff in error was judge of the probate court in and for Lucas county. He presented to the-board of county commissioners accounts and claims for certain fees — in other words, certain fee bills were presented — which he claims should have been allowed by the commissioners and paid to him by the county. The bills were disallowed, and were taken under the statute to the court of common pleas.

The action below was to enforce payment of a vendor’s lien. There was a demurrer to the petition which was sustained on the ground that the claim as shown by the petition was barred by the statute of limitations, and final judgment was rendered, dismissing the petition and for costs.

<p>ATTACHMENT AGAINST FOREIGN CORPORATIONS.</p> <p>Foreign Corporations — Doing Business in this State — But not Established Here — Exempt from Attachment, When.</p> <p>Foreign corporations engaged in interstate commerce business, but not established within the boundaries of this state for the performance generally of their business, when they voluntarily take the benefit of the proviso in Section 148d, Revised Statutes, and comply with the provisions of Section 148c, Revised Statutes, are entitled to exemption from attachment under the, provisions of Section 5521, Revised Statutes, upon the ground that they are foreign corporations.</p>

<p>QUESTIONS OF COMPLIANCE WITH CONDITIONS OF INSURANCE POLICY.</p> <p>Fire Insurance — Failure of Insured to Cause an Appraisement to be Made — Iron Safe Clause — Keeping of an Inventory Made Within Twelve Months — Liberal Construction Should be Given to the Action of the Parties Where no Question of Dishonest Dealing Arises.</p> <p>1. Inferences which may be drawn from a later holding of the Ohio Supreme Court do not warrant an inferior court in going contrary to the declaration in the 60th Ohio State, that the provision in a policy of fire insurance for an ascertainment by appraisers of the amount of the loss, and the furnishing of the award to the company by the insured, imposes no obligation upon the insured to furnish such an award, except where an appraisement has been demanded by the company.</p> <p>2. The requirement of “the iron safe clause” that the insured shall keep a set of books showing a complete record of the business transacted, does not make it necessary that the insured shall keep a scientific set of books, but it is sufficient if he keep such books as made it possible to fairly ascertain the amount of goods on hand at the time of the fire.</p> <p>3. The fact that the cash book of a country store had not been placed in the safe at 10 o’clock at night, and can not be produced because destroyed by a fire occurring at that hour, does not afford a defense under the iron safe clause, where a lunch counter connected with the store was still in operation at that hour.</p>

This case comes into this court on appeal. It is an action brought to compel the defendant to perform several of its obligations assumed by its predecessors, and provided for in the several ordinances of the city granting its predecessors a franchise over and upon the streets of the city named in the petition, to construct and operate a street railway.

On September 1, 1903 a warrant was secured before James S. Ricketts, Mayor of the Village of Marble Cliff, in Franklin township, Franklin county, Ohio, charging Valentine Enappes with having kept open a saloon on Sunday. He was arrested, and the case was set for hearing on September 8 before the mayor of the village.

<p>BEAL LAW PROSECUTIONS.</p> <p>Seal Law — Election Thereunder — Failure of Record to Show that a Legal Election was Held — Proof of Election and Its Results — Authority of Council to Order an Election — Presumption of Regularity — Sufficiency of Affidavit — Where the Charge is Keeping a Place Where Liquor is Sold — First and Second Offense — Sentence Imposed.</p> <p>1. The fact that an election was held under the Beal Local Option Law, and also the result thereof, may he established by evidence 'other than the original entry on the records of the municipal council, or a copy thereof certified by the corporation clerk as provided by Section 4364-20», Revised Statutes, which makes such record or certified copy prima facie evidence of such facts. Hence, the failure of the clerk to record, in the proper way and place, the result as reported to him, does not invalidate the election, if an election and the result thereof can be clearly established by other evidence.</p> <p>2. Where a duly ’ and legally constituted legal body, such as a city or village council, has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and had before it sufficient facts to warrant it in acting. This presumption is in the nature of evidence, and until overcome by other evidence, it stands as proof of the fact in question.</p> <p>3. The presumption, is that a petition for an election under the Beal Local Option Law, in due and legal form and signed by forty per cent, of the qualified electors of the municipality, was presented to council as required by Section 4364-20», Revised Statutes, when it appears from the council record that a petition was presented asking for an election, that it was duly acted upon, and that an election' was ordered on a certain date.</p> <p>4. The names of persons to whom liquors, were sold need not be set forth in an affidavit charging the offense of keeping a place for the sale of intoxicating liquors, in violation of the Beal Local Option Law.</p> <p>5. A fine of $100 on each count of an affidavit charging three separate offenses of keeping a place for the sale of intoxicating liquors, in violation of the Beal Local Option Law, or $300 in the aggregate, is excessive, when there is no charge or claim that defendant had ever been previously convicted of a violation of said law. In such case the entire charge must be treated as charging a first offense, the maximum fine for which is $200.</p> <p>6. Where the judgment of a lower court in a criminal prosecution is reversed on error because of the imposition of an excessive sentence, the case will be remanded for proper sentence only.</p>

<p>ADVERSE POSSESSION OF RAILWAY EASEMENT.</p> <p>Adverse Possession — Parol License Irrevocable — Railroad Easement— Necessities of Company with Reference Thereto — Common User and Mixed Possession — Leeds—Evidence.</p> <p>1. An executed parol license in land is irrevocable when granted for a valuable consideration. Such a license is not affected by reason of not being in writing, provided it is founded upon a definite understanding between competent parties; but where such an understanding is lacking, the claimant must establish his right by showing adverse possession for twenty-one years.</p> <p>2. To acquire title to a railroad right of way by adverse possession,' an abutting owner, whether the owner of the fee or not, must occupy and use the land in a manner inconsistent with the paramount rights of the railroad company. Possession and use of a part -of the easement not in use and not needed for immediate railroad purposes, and consistent with the company’s right to reclaim the property when it is needed for the purposes for which it was acquired, will be held to be permissive only.</p> <p>3. Whether the necessities of a railroad company require exclusive occupancy of its right of way, and what use of the property by an abutting owner is an interference therewith, are questions of fact, and not of law. Evidence of common user is competent to rebut a claim of adverse possession asserted against the railroad company.</p> <p>4. The acts of an abutter in accepting and recording a deed for and in taking possession of disputed land can not be construed as the conduct of a mere licensee, and a title by presumption in favor of such grantee is acquired by continuous, hostile and adverse possession for twenty-one years.</p>

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

The plaintiff in error in this ease was convicted before the Mayor of the City of Bowling Green of the violation of a city ordinance, was fined and assessed the costs, and from this judgment of the mayor he prosecuted error to the court of common pleas, where the judgment of the mayor was affirmed, and error is here prosecuted to reverse both judgments.

<p>CONDITIONAL SALES.</p> <p>Sales Conditional — And Sales Absolute — Statutes Relating Thereto— Chattel Mortgage and Effect of Execution- of — Evidence as to the Character of the Sale — Replevin.</p> <p>1. Where a sale of chattel property is made upon the condition that the title shall be retained by the vendor until payment therefor has been completed, the sale is a conditional sale, notwithstanding the giving of a chattel mortgage in the usual form by the vendee.</p> <p>2. But oral testimony may be introduced to show the character of the contract between the parties, and where the testimony establishes that the sale was absolute, the transaction is taken out of the statute, and replevin of the property can not be resisted by the vendee on the ground that the vendor has not made good the installments paid, less loss or damage to the property from its use by the vendee.</p>

The action in tbe court below was by Charles F. Bowe against David W. Bowe, an action in which he charged the defendant below, as his employer, with negligence in furnishing him with unsafe and improper machinery and appliances to work with, and putting him at a dangerous occupation without warning him of the dangers incident thereto, he, the plaintiff, it is said, being a youth and inexperienced in that kind of work.

A petition in error is filed in this case for the purpose of setting aside the judgment and verdict that was rendered in the case which was tried in the court of common pleas, being the case of Margaret Parker et al v. Hubbard D. Palmer et al. That action was brought for the purpose of setting aside a will.

<p>JURISDICTION OF MAYOR..</p> <p>Criminal Law — Distinction Between Jurisdiction of Mayor and Magistrate — Plea of Guilty — Constitutes a Waiver of a Jury Trial.</p> <p>1. The entering of a plea of guilty is a waiver of a trial by a jury.</p> <p>2. A mayor having complete jurisdiction in cases of misdemeanor, a plea of guilty entered before him is to be given the same effect as in the courts of higher jurisdiction.</p>

<p>Heard on error.</p>

<p>PROOF AS TO BREACH OF EXPRESS GUARANTIES AS TO » MACHINERY SOLD.</p> <p>Pleading — Averments of Gross-Petition as to Guaranties — Good for Purpose of Letting in Proof — Showing Special Damages Sustained-—Evidence—Contracts for Machinery with Express Guaranty.</p> <p>Suit was brought for balance due under a written contract for machinery sold defendant with certain express guaranties.</p> <p>Defendant answered, admitting the contract and delivery of machinery, but denying that it complied with said guaranties.</p> <p>By cross-petition, in addition to averring that the machinery did not comply with the expressed guaranties, defendant averred that being about to engage in a certain business involving a large investment for the purchase of land and the erection of buildings and machinery, and the employment of many operators at large expense, and needing certain machinery without which its business could not be operated, all of which was known to plaintiff, and which machinery plaintiff professed to be able to furnish, it invited plaintiff to furnish the same, and plaintiff professing to comply with said agreement, delivered to defendant certain items of machinery which it represented would comply with said terms, and defendant, relying upon said representations, placed the same in position and expended large sums in its attempt to use it; that by the failure of said machinery as aforesaid, defendant’s plant could not be fully operated, to its damage, etc.</p> <p>Motion was made to strike out said additional averments in the cross-petition, which was overruled.</p> <p>■Held: That while proof could not be received under said averments ' to establish implied guaranties, different from or additional to the guaranties expressed in the contract, the averments were proper for the purpose of letting in proof as to special damages sustained by the defendant by reason of the breach of the expressed guaranties, and the motion being addressed to the sound discretion of the trial court, the judgment will not be reversed for the overruling of said motion.</p>

<p>ORDER. ASSESSING COSTS AGAINST PLAINTIFF’S ATTORNEY NOT APPEALABLE.</p> <p>Appeal — Does not Lie to a Proceeding- — Ancillary to the Main Action— Assessment of Costs Against Attorney for Bringing Unauthorized Suit — Civil Actions.</p> <p>The assessment of the costs against an attorney who had brought the suit without authority is not a civil action, but is ancillary to the main action, and is not appealable. Error only can be prosecuted to such a judgment.</p>

This case comes to this court upon appeal from the judgment •of the court of common pleas. The action was brought by the plaintiff, Meek, to enjoin the defendant from drilling an oil well upon his premises or extracting the oil or gas therefrom.

It is claimed that the court erred in taxing the jury fees as a part of the costs to be paid by the plaintiff in the proceedings to appropriate private property and assess the compensation therefor, for the reason that Section 6451, Revised Statutes, is unconstitutional' and void.

The facts in this case are, that one Matilda Weehtel and her husband were possessed of certain property in the city of Toledo, on Nebraska avenue, and upon Wabash avenue, upon which there were two mortgages, one in favor of the Ohio Savings Bank for about $2,000, which - was afterwards transferred to R. B. Mitchell & Co., and the other to Julia Meister, for about $900. Whitney had certain parcels of land in Miami, in this county.

<p>UNCONSTITUTIONAL FEATURES IN THE AMENDED MUNICIPAL UNIVERSITY STATUTES.</p> <p>Constitutional Law — Schools and Universities — Legislature Without Power — To Change Control of Schools — Founded hy Private Donors —Definition of “University” — Boards of Education — Mandamus.</p> <p>1. Section 4105, Revised Statutes, as amended April 25, 1904, is invalid in so far as it attempts to transfer, from the board in which previously lodged to the board of education, the management and administration of any and all estates or funds given in trust to any municipality for the promotion of education.</p> <p>2. The definition of a “university” given in the latter part of Section 4102, as amended, can have no bearing on the question of control of a school established by a private donor to carry out his purposes in regard to education, and endowed by his property and the property of others given for the same purpose. The denominating of such a school as a “university” does not deprive it of the protection of the Constitution of the state and the guaranty that all private property shall ever be held inviolate, notwithstanding o it has not yet attained to the full scope of a university.</p>

<p>SUPERINTENDENT OF COUNTY CHILDREN’S HOME NOT A PUBLIC OFFICER,</p> <p>Office and Officer — County Children’s Somes — Superintendency of, an Employment — And not a Public Office — Quo Warranto.</p> <p>The position of superintendent of a county children’s home, under Section 930 of the Revised Statutes of Ohio, is a mere employment, and not an office; and a petition in quo warranto by a person claiming to be rightfully appointed to such position can not be maintained.</p>

<p>WARRANTY IN GOOD FAITH BUT WITHOUT KNOWLEDGE.</p> <p>•Warranty — Representation made in Good Faith but without Knowledge — Election of Remedies — By Owner of Goods Fraudulently Talcen from His Possession — Suretyship—Liability Arising Out of Fraud not a Mere Indebtedness, When — Satisfaction of Judgment in Assumpsit — Action for Tort does not Lie Thereafter.</p> <p>1. A material representation made in good faith hy one not acquainted with the facts is in the nature of a warranty, and must be made good to one who has rightfully relied upon it to his injury without knowledge of its falsity.</p> <p>2. The owner of goods wrongfully taken from his possession may proceed in tort to recover damages, or waive the tort and sue for the value of the goods upon the fiction that the property was sold, or replevin the property in case it can be reached. The right of this election being in the owner, the transaction can not be treated as a sale or indebtedness to his prejudice, by the wrongdoer or one in privity with him.</p> <p>3. Where a person who has been defrauded obtains a note of the person defrauding him, for an actual indebtedness, and one signs as surety upon the representation of the payee, made in good faith, that the note covers the whole of the indebtedness of the maker, the fact of an additional liability growing out of a prior fraudulent transaction, not. then known to the payee, affords no ground of defense against the note to .such surety.</p> <p>4. After the satisfaction of a judgment in assumpsit, the owner of property fraudulently obtained from him can not maintain an action in tort against the wrongdoer. Whether he could proceed in tort after judgment but before satisfaction in assumpsit— Quaere.</p>

<p>PROCEEDINGS BEFORE JUSTICES OF THE PEACE.</p> <p>Justice of the Peace — Liberal Buies Should Control — In Reviewing Proceedings Before — Sufficiehcy of Pleading and Presumption of Regularity — Exceptions as to Evidence not Reviewable, When.</p> <p>1. "Where justices of the peace and other inferior tribunals act within their jurisdiction, liberal rules should be adopted in reviewing proceedings before them.</p> <p>2. The bill of particulars is sufficient if it 'states the nature of the claim in general terms or substantially states the facts constituting the cause of action.</p> <p>' 3. The sole object of the bill "of exceptions mentioned in Section 6565 is to provide for a review of questions of law.</p> <p>4. Where the transcript shows that the proceedings were regular, every presumption is in favor of the judgment.</p> <p>- 5. In an action against an administrator, properly summoned as such, who appears and makes a defense, and prosecutes error to the common pleas, there is sufficient evidence by admission of his capacity as administrator without formal proof to that effect.</p>

<p>APPORTIONMENT OF STREET ASSESSMENT.</p> <p>Street — Apportionment of Assessment for — Unauthorized Certification of Assessment.</p> <p>1. An assessment for a street improvement is not rendered invalid by reason of the fact that the amount apportioned to an entire tract was afterwards, with the consent of the owner and no injustice being done thereby, placed upon certain lots forming a part of the tract.</p> <p>2. But where there has been an unauthorized certification of an assessment, a court can not upon the complaint of a lot owner, and without all the lot owners before it who are affected thereby, attempt to properly apportion the assessment over all the lots liable therefor, but will simply decree that the plaintiff pay that proportion of the entire amount of the assessment which the area of his lot or lots bears to the area of the entire tract to be assessed.</p>

<p>CHILD INJURED BY ELECTRIC LIGHT WIRE IN STREET.</p> <p>Negligence — Electric Wires in Street — Duty of Company toward Persons Using Street — Degree of Care Required as to Wires — Degree of Care Expected of Children, a Question for the Jury — Expert Evidence — Opinion of Physician.</p> <p>1. A corporation, permitted to construct and maintain, an electric street railway, with all the electric appliances incident thereto, in the public streets of a city, for the purpose of private gain, owes the duty to persons upon such streets of so conducting its business as not to injure them. It must, therefore, keep its wires out of the way of persons using the streets, so that they will not, by eoming in contact with such wires, receive personal injuries, and the fact that it has not done' so raises a presumption of negligence against it. ,</p> <p>2. An 'electric company, permitted to use the public streets for its own purposes, is required to exercise a high, if not the highest, degree of care in the operation, construction, inspection and repair of its wires and poles, to the end that travelers along the highway may not be injured by its appliances; and, if a wire, charged with a deadly current of electricity, falls from its proper . place of elevation above the street to the surface of the street, and there, by contact with a boy lawfully passing along the highway, injures him with its current, the law raises a prima facie case of negligence. The burden of proving that there was no negligence, in such case, is on the company. The maxim, res ipsa loquitur, applies.</p> <p>3. A child is held to such care and prudence only as are usual among children of his age and capacity. A child of seven years of age is not guilty of negligence if he exercise that degree of care which under like circumstances would reasonably be expected from one of bis years and intelligence. Whether he used such care in a particular case is a question for the jury.</p> <p>4. A practicing physician, familiar with the nature, extent and condition of the injury in question, in its early stage or history, being asked as to tke extent of the injury, or if he could, at the time of trial, determine as to whether or not the injury would he permanent, answers that he could form an opinion, may give it is his opinion that such injury is, or is not, permanent.</p>

<p>JURISDICTION OF PROBATE COURT IN APPROPRIATION PROCEEDINGS.</p> <p>Eminent Domain — Appropriation of Property by a Municipality— Necessity of Passing Resolution — Required by Section 1636-105— Jurisdiction of Probate Court.</p> <p>In a proceeding by the council of a municipal corporation to appropriate property against the will of the owner, for the purpose of extending a street, it is necessary for the council to pass the preliminary resolution, and give notice to the owners of the land as required by Section 1536-105; but the probate court before which application is made 'to assess compensation has no jurisdiction to determine whether or not the preliminary resolution so required was passed, and the notice given; the only remedy of the land owners in such case is an action to restrain the municipality from proceeding to assess compensation, and from taking possession of the property.</p>

<p>TRUST ESTATES AND THE DIRECT INHERITANCE LAW.</p> <p>Direct Inheritance Tax Law — Not Unconstitutional — By Reason of the Provision as to Appraisement without Notice — Application of this Law — To Estates Held in Trust at the Time of its Enactment— “Heirs at Law” in a Will — Mean Heirs at Law at the Time of Distribution.</p> <p>1. The provision of the Ohio Direct Inheritance Tax Law (97 O. L., 398) giving to the probate court power to order an appraisement for the purpose of fixing the tax, without giving notice to the ■executors or next of kin, is not a taking of property without due process of law, and the act is not unconstitutional on that ground.</p> <p>2. Where a will provides that “on final settlement of my estate [which was to be deferred until after the death of the testator’s widow] ■all the rest and residue thereof to he divided and distributed and paid to my heirs at law in the same proportion that the same would have been paid to them if I had died without a will,” the words “heirs at law” mean the heirs at law at the time of the distribution; and where the distribution is thereby delayed for many years, and an inheritance tax law is enacted and becomes a law in the meantime, the shares of the heirs at law are subject to said tax.</p>

<p>PAROL AGREEMENT AS TO LEASE.</p> <p>Lease — Evidence as to Contemporaneous Parol Agreement as to— When Admissible.</p> <p>Upon an action to collect rent, evidence is admissible for the purpose of showing that a contemporaneus parol agreement was made at the time the written lease was executed by which the lease was only to be used in organizing a corporation, and transferring the same to it, and under no circumstances to be a valid lease between the original parties.</p>

In the original action commenced in the court of common pleas of this county, defendant in error was plaintiff and plaintiff in error was defendant.

<p>INJURY TO EMPLOYE OUTSIDE THE LINE OF HIS EMPLOYMENT.</p> <p>’Negligence — Interurban Railways — Volunteer—Fellow-Servant—Injury from Fall of Trolley Pole.</p> <p>One who is employed as a section hand by an electric railway company and is, while riding to his place of work in one of the company’s passenger cars, thrown therefrom and injured while attempting in a proper manner to preserve the company’s property from danger by replacing the trolley-pole wheel on the wires, is not to he considered as a mere volunteer, hut is entitled to protection as an employe against the company’s negligence in the premises, where it also appears that the conductor, whose special duty it was to replace the wheel,, was inside the car taking up tickets at the time, and was unaware of the situation, and that plaintiff was experienced in, and had performed the same service before to the knowledge of the conductor and the superintendent and manager of the company.</p>

The question for consideration in this case is the motion of the defendant in error to dismiss the proceeding in error, for the reason that the petition in error was not filed in time.

<p>INSTRUMENTS OF CONVEYANCE.</p> <p>Deed — Conveyance of a Fee — Reduced to a Life Estate — By a Separate Instrument — Use of the Word “Heirs” — Lands Acquired after Making of Will.</p> <p>1. "Where by deed an estate in fee simple is granted, the same can not be reduced to a life estate by another instrument executed concurrently with such deed, purporting to reserve a fee to the grantor in the deed or to convey a fee to another to vest upon the death of the grantor in the deed, unless such other instrument shall contain appropriate operative words of conveyance of such remainder or reversion.</p> <p>2. In Ohie it is necessary as a general rule to use the word “heirs” in a deed to convey an estate of inheritance.</p> <p>3. The rule in Pruden v. Pruden, 14 O. S., 251, that “lands acquired after the malting of a will disposing of all the testator’s property * * * will pass under its provisions ” applies in a case where at the time of malting such will the testator was interested in the property as the purchaser of a mortgage thereon, of which property he subsequently became the owner in fee by conveyance of the equity of redemption.</p>

<p>MUNICIPAL IMPROVEMENTS AND THE BURNS LAW.</p> <p>Municipal Corporations — Contracts hy, for Municipal Improvements— Wfien Cleric’s Certificate is Required under the Burns Law.</p> <p>In the case of municipal improvements to be let by contract, the clerk’s certificate that the money required for the contract is in the treasury to the credit of the proper fund, and not appropriated for any other purpose, as provided in Section 1536-205 of the Municipal Code, which is a re-enactment with slight modifications, of what was formerly known as the “Burns Law,” is not required until just before the contract is signed.</p>

<p>UNCERTAINTY AS TO NEGLIGENCE CAUSING INJURY TO EMPLOYE.</p> <p>Negligence — Master and Servant — Injury to Employe — Where the Procuring Cause is Uncertain — Instructed Verdict — Error.</p> <p>Where the testimony fails to establish that the lifting of a piece of timber, either by or without the direction of the foreman, was the cause of another piece of timber rolling down .and upon the defendant, to his injury, it is not error to direct a verdict for the defendant.</p>

<p>ELECTION OF WIDOW.</p> <p>Widow — Cancellation of Election of — Under Section 5964, Revised Statutes.</p> <p>A deputy clerk of the probate court has no authority under Section 5964, Revised Statutes, to receive the election of a widow to take under the will of her deceased husband; and when such election is made before . a deputy clerk, the same will he canceled and vacated upon a suit in equity for that purpose.</p>

This action was brought in the court below by Kate Pete,' the beneficiary under a certain certificate of insurance issued to her husband., Joseph Pete, by the Woodmen of the World,, on October 23, 1900, entitling her to recover $500 upon the death of her husband, if certain conditions upon which this certificate was issued were complied with. It appears that her husband came to his death upon February 6, 1903. She applied to the association for payment and it was refused.

<p>DAMAGES FOR PROPERTY TAKEN FOR STREET PURPOSES.</p> <p>Appropriation — For Street Purposes — Damages for, Should he Recovered, When — Established Grade.</p> <p>1. Recovery should be had in the original condemnation suit of all damages resulting from the construction of a street at a reasonable grade on the property taken.</p> <p>2. Error on the part of the trial judge in refusing to admit evidence in the condemnation suit as to resulting damages does not authorize a subsequent action for the recovery of such damages, notwithstanding a serious wrong may thereby result to abutting owners.</p>

<p>FRATERNAL ORDERS AND THE ROYAL ARCANUM.</p> <p>Trial — Motions by Both Parties to Direct Verdict — Fraternal Orders — ■ Royal Arcanum — Exempt from Insurance Laws of the State— Medical Attendance — Section 3631-11.</p> <p>1. Where both parties to a suit move the court for arrest of the cause from the jury and a directed verdict, and the party whose motion is overruled merely excepts thereto, the case is brought within the rule that the verdict should not be set aside unless clearly against the weight of the evidence.</p> <p>2. The Supreme Council of the Royal Arcanum is a fraternal order within the meaning and provisions of Section 3631-11, Revised Statutes, exempting such associations from the insurance laws of the state.</p> <p>5. Attendance upon a patient at the office of the physician is sufficient to constitute medical attendance.</p>

<p>DISMISSAL FOR. FAILURE TO AMEND PLEADING.</p> <p>Pleading — Refusal to Amend Petition — Ground for Dismissal — Averment. as to Proximate Cause Insufficient — Petition Demurrable for Want of Certain Averments, When — Final Order — Negligence —No Presumption of, from Mere Happening of the Accident.</p> <p>1. A refusal to amend a petition upon the order of court is ground for dismissal of the suit, which may be either for disobedience of the order, or for failure to prosecute the action. Such an order of dismissal is reviewable on error.</p> <p>2. An averment that a certain thing was the proximate cause of the injury is not sufficient. The pleading must disclose the facts which constitute the proximate cause. Where these relate to defective tools or appliances, the allegation as to the defects must be distinctly and definitely alleged; and where the fault was that of the master in directing or making it necessary for the employe to follow an unsafe or improper method of work, the respect in which it was unsafe must be alleged with clearness. A court can not infer that appliances were unsafe or that the master was at fault from the mere happening of the accident.</p> <p>3. Where a petition discloses that the. proximate cause of the injury was some fault in the immediate tools used or methods of work employed by plaintiff, but there is no express allegation to the effect that the defendant was at fault in furnishing tools that were improper or unsafe, or in directing plaintiff to proceed by a method that was improper or unsafe, or that plaintiff did not know of the defect, fault and dangers, or that being informed he was excused because of the promise of his employer to remedy the defects or cure the faults, it is in such case demurrable.</p>

<p>EMPLOYE GIVEN DANGEROUS PLACE TO WORK.</p> <p>Master and Servant — Latter Bound to Know the Dangers of the Place in Which He is at Worlc, When — Contributory Negligence — Burden of Proof as to — Presumption of Negligence Arises, When — Evidence — Charge of Court.</p> <p>1. Where the conditions are not complex, and the circumstances such as to be easily comprehended, an employe who know® the facts and conditions and circumstances, is bound and conclusively presumed to know the dangers arising therefrom.</p> <p>2. A presumption of negligence arises which it is the duty of the administrator to rebut, when it appears that the decedent might, by the exercise of ordinary care, have seen the train by which he was struck, or by listening would have heard it, in time to have stepped from his place of danger.</p> <p>3'. When a question and answer do not add anything to the facts of the case, a reviewing ooiurt will not reverse the judgment, notwithstanding the question was incompetent, and a motion to strike it and the answer from the record might well have been granted.</p>

A proceeding was instituted before tbe county commissioners of. this county by George Brossia and other petitioners for a county road under the chapter upon that subject, beginning with Section 4337. The road was established by the county commissioners, and the plaintiff, the railroad company, being dissatisfied and being interested, appealed to the probate court as it might do under the statute.

<p>Error to court of common pleas.</p>

<p>ORDINANCE RELATING TO STORAGE AND TRANSPORTATION OF NITRO-GLYCERINE.</p> <p>Nitro-glycerine — Ordinance Prohibiting Storage and Transportation of —Within Mxmicipal Limits — Authorized by Statute — Reasonable Penalty for Violation of — Hearsay Evidence.</p> <p>1. A municipality bas power under the statutes of this state, not only to regulate, but to prohibit absolutely the transportation of nitroglycerine through its streets; and an ordinance prohibiting such transportation is not inconsistent with the provisions of Section 6953, Revised Statutes.</p> <p>2. An ordinance which prohibits the storage of nitro-glycerine within the corporate limits or its transportation through the streets of a municipality, and imposing a fine of $100 for the first violation thereof, is not unreasonable nor is the fine excessive.</p> <p>3. Information acquired from a police officer from a third person as to the amount of nitro-glyeerine transported over a certain street by the defendant in violation of a municipal ordinance, is hearsay evidence and inadmissible.</p>

<p>THE CRIME OF INCEST INCLUDED IN RAPE.</p> <p>Criminal Law — Incest-—-Rape—Evidence—Expression of Belief by Prosecutor — Communications by Deputy Sheriff to Jury after their Retirement — Corroboration of Testimony of an Accomplice — Victim of Incest not an Ordinary Accomplice.</p> <p>1. A person indicted under Section 7019, Revised Statutes, for incest against his daughter, can not escape conviction by showing that in committing the offense he also committed the crime of rape, in that the daughter was under the age of consent, or was overcome by force and violence.</p> <p>2. Testimony of a witness on her examination in chief, in a criminal prosecution against her father for incest, that the latter had “sexual intercourse” with her, is not incompetent as a mere conclusion, but is simply permitting witness to testify to an act by giving it the ordinary name; and its admission'in evidence is not prejudicial, especially when witness was, on cross-examination, required to relate in full all the facts and circumstances of the transaction.</p> <p>3. The trial court is not guilty of an irregularity, such as will warrant a reversal of a judgment of conviction in a felony prosecution, by instructing the deputy sheriff, in the absence of the defendant, to ask the jury while in the jury room, and after it had retired to deliberate upon the verdict, once at supper time, and again about 11 o’clock the same night, what the prospect was of an agreement — it not appearing that the jury was urged to agree.</p> <p>4. Where the fair conclusion of the evidence admitted at the trial of ■defendant for incest, including that of physicians who examined the female, is that the latter had had sexual intercourse with some one on other occasions, a statement by the prosecuting attorney, in his argument to the jury, that “I believe the defendant is guilty of having sexual intercourse with his daughter on February 2, 1901 (the date alleged in the indictment), and I am warranted from the evidence in saying that Í believe he had . intercourse with her on many other different occasions,” is not of such character as would constitute misconduct) on his part.</p> <p>5. A girl fourteen years of age, with little conception of the enormity of the offense, who is overcome by her father who is occupying the same bed, and submits to incestuous intercourse upon his suggestion, and under his influence, is not such an accomplice in crime as will render her testimony incredible or unworthy of belief unless corroborated by other witnesses.</p> <p>6. There is no rule of law in Ohio preventing a jury from convicting in a felony prosecution upon the uncorroborated testimony of an accomplice.</p>

Plaintiff is a steam railroad company and owns and operates two lines of railway both of which pass through the city of Bellefontaine and cross Columbus avenue, a street of said city, at grade. These crossings of said street and railroad lines are in the immediate vicinity of the passenger and freight stations, the railway yards, the roundhouse and the extensive machine and repair shops of plaintiff.

<p>INJURY RESULTING FROM A DEFECTIVE BOAR.D WALK.</p> <p>Negligence — Charge of Court — Where Testimony Tends to Show Contributory Negligence — Defective Sidewalk.</p> <p>1. In an action for damages on account of an injury resulting from negligence, it is not error to charge the jury that to entitle the plaintiff to- recover the jury must find from, a preponderance of the evidence that the plaintiff was without fault, where evidence has been introduced tending to show contributory negligence.</p> <p>2. A presumption of negligence does not arise under a petition which alleges that the plaintiff was injured while walking upon a sidewalk which was- out of repair.</p> <p>3. The plaintiff, while walking upon a board sidewalk, was tripped and fell and was injured by the flying up of a loose board, upon the opposite end, of which her companion had stepped. Held; That it was not error to charge in such a case, that “if you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe and dangerous, and so appeared to persons of ordinary intelligence passing along or over the same, it was the duty of plaintiff to exercise ordinary care to avoid injury, and in that case the burden is upon her to show by a preponderance of the evidence that she exercised such care.”</p>

<p>PROOF OF INTENT TO KILL.</p> <p>Criminal Law — Trial for Homicide — Proof of Intent to Kill — Necessary to Justify Conviction of Murder in the Second Degree — No Conclusive Presumption from the Striking of the Fatal Blow — Charge of Court — Self-Defense.</p> <p>1. In order to justify a conviction of murder in the second degree it must be affirmatively proved that the accused “purposely” killed the 'deceased; to show that he purposely inflicted the wound that caused the death, or that he purposely struck the deceased, from which stroke the deceased died, is not' sufficient. It follows, therefore, that it is error to charge the jury to the effect that, if the proof shows that defendant “purposely” committed the act, the natural and probable consequence of which was to and did cause the death of the deceased, evidence on behalf of th-e defendant tending to show that he did not in fact intend to lull the deceased is immaterial.</p> <p>2. The presumption that one intended the natural and probable consequences of his own act can not be extended in its application to justify a charge to the jury, under an indictment for murder in the second degree, that defendant is presumed to have intended to kill the deceased because he purposely inflicted the act which caused the death.</p> <p>3. In such a prosecution, where it is claimed that the defendant acted in self-defense and does not admit any intent to kill, a charge that “no other ground of justification or excuse than self-defense is claimed by the defendant, and no other will be considered by you” tends to exclude the right of the defendant to reduce the grade of the offense charged from murder in the second degree to manslaughter, and is prejudicial error.</p>

This suit was brought by Mrs. Isley, as administratix, to recover damages for the death of her husband, caused, as was alleged, by the negligence of the railroad company. The husband, Mr. Isley, was an engineer on the road, and the train on a certain day was derailed and he was killed.