Volume 5 — Ohio Circuit Decisions

<p>MUNICIPAL CORPORATIONS — -DEFECTIVE WATER SUPPLY.</p> <p>1. City not Riabre; eor Damages by Eire by Reason oe Deeectíve WaTE Suppry.</p> <p>Certain municipal corporations in this state are given power by the state to erect and maintain water-works for supplying water, etc., and such power is, Mits nature, legislative and governmental; and a city is not liable to indivffhials for damages to. their property by fire caused by a want of supply of water in the pipes or by reason of too low a pressure.</p> <p>2. Private Consumer Cannot Sue Water Company eor Noncompriance.**®' Contract with City. ■ ■ *</p> <p>When a city contracts with a company to supply the water, there is no contract relation between such company and the private consumer that will enable the consumer to sue the company for a noncompliance with the contract between the city and the company.</p> <p>3. Water. Company Riabre onry to Extent City Wourd be Riabre.</p> <p>Under such a contract the city is acting in its legislative and governmental capacity, and the water-works company is the agent of the city so far as' consumers are concerned, and is liable to the consumer by reason of such contract only to the extent the city would be liable if it furnished the water directly to the consumer.</p> <p>4. Charge to Jury — Abstract Propositions oe Raw.</p> <p>It is misleading for the court to charge abstract propositions of law to!the jury where there are no facts to which such a proposition of law can apply; and if it is apparent from the record that the plaintiff in error was prejudiced by such charge the case will he reversed.</p>

<p>JURISDICTION — ATTORNEYS-AT-LAW.</p> <p>L Common Law Remedy Against Attorneys Who Withhold Money or Papers from Clients.</p> <p>Where an attorney has received, by reason of his employment, money or papers belonging to his client, which, after demand, he wrongfully withholds, courts of common pleas have, independent of statute, the right to compel him to pay over or 'deliver the same to the client, and upon refusal to comply with the order of the court, to punish him for contempt. And such right does not depend upon the fact that the money was collected upon a judgment, or received upon a claim upon which suit has been brought.</p> <p>' 2. Statutory .Remedy is Cumulative.</p> <p>•The right of the court to compel its officers to do their duty has not been taken away by section 564 of the Revised Statutes, providing for summary proceedings against attorneys receiving money for clients and refusing or neglecting to pay the same when demanded.</p>

<p>PLEADING.</p> <p>Sufficiency of Petition — Allegation of Damages.</p> <p>A petition asking damages for tort must contain an averment of fact whick tbe law recognizes as injurious, or there must be a specific averment that damages in that particular case have resulted. — [Editor. Ohio Legal News.</p>

The action below was brought by the Farmers' and Merchants' State Bank of Muscatine, la., v. Samuel M. Gray, upon a transcript of judgment rendered in the local courts of thát state. An attachment, on the ground of the debtor’s non-residence in Ohio, was issued and levied upon certain real estate in the .city of Greenville. Service of process was attempted to be made upon Gray and thereafter judgment was rendered in the action.

<p>ADMINISTRATION OF ESTATES.</p> <p>1. Right op Regatees to Recover Legacy as Against Executor Where There are no Outstanding Debts.</p> <p>Where a person dies testate, seized and possessed of both realty and personalty, and bequeaths his personalty to his daughters, with the provision that in case they both die, leaving such personalty unconsumed.or undisposed of, the same shall go to his grandchildren, and no executor was appointed at the time to administer upon his estate, and such daughters die leaving a portion of such personalty unconsumed and undisposed of: Held, In an action brought by said grandchildren to recover such unconsumed personalty from a third person who held it, that, in the absence of proof that there were any valid debts against said testator’s estate, said grandchildren, and not an executor subsequently appointed, are the proper parties to recover said personalty.</p> <p>2. Necessity op Administering ubon an Estate where add Debts are Paid.</p> <p>Where all the debts of a deceased person have been paid, the courts neither encourage nor tolerate proceedings in the probate court for the administration of his estate, nor do they tolerate the expenditure of money for the mere form of administering upon such estate.</p> <p>8. Power op a Party Other than an Executor or Administrator to Purchase Monument.</p> <p>A party, other than the executor or administrator of a deceased person’s estate cannot, either with or without the authority of the probate court, undertake to purchase a monument for such decedent and charge it upon his estate. — [Ed. Legad News.</p>

<p>MISCONDUCT IN OFFICE.</p> <p>1. Presumption as to Peace Where Oeeense was Committed.</p> <p>When the law directs where an officer shall transact his business and he is indicted for an offense committed as such officer, it will be presumed that the offense'was committed where the law directs the business to be done.</p> <p>2. Repeals by Implication not Favored.</p> <p>An act of the legislature will not be held to have been repealed by implication when another act is passed, if they can be construed to stand together.</p> <p>8. Presumption as to Reasons eor Excusing Juror.</p> <p>It will be presumed, in the' absence of facts appearing to the contrary, that there were proper reasons for excusing a juror and filling his place with another.</p> <p>4. Errors in Charge to Grand Jury.</p> <p>Errors of a court in the charge to a grand jury cannot be reached by a plea in abatement.</p> <p>5. Evidence oe Similar Unlawful Propositions.</p> <p>County commissioners were indicted for wilfully, corruptly and unlawfully entering into a contract with architects for plans and specifications for a court house: Held, it is competent to show that the commissioners on other oocasions prior to entering into the unlawful contract, had made unlawful propositions to other architects for the purpose of showing their corrupt motiv</p> <p>6.' Misconduct in Refusing to Perform Duties.</p> <p>County commissioners charged with specific duties, who wilfully refuse to perform them are guilty of misconduct in office within the meaning of section 6915 of Revised Statutes, although no money consideration is shown.</p>

<p>ACTION FOR PROCURING DISCHARGE OF EMPLOYE,</p> <p>’ 1. Employe Entitled to Action Against Person Maliciously Procuring his Dicsharge from Employment.</p> <p>An action lies in behalf of an employe against a person who has maliciously procured the employer to discharge such employee from employment in which he is engaged under a legal contract, for a certain period, provided damage result to the employe from such discharge.</p> <p>2. Uncertain Term of Service does not Deprive Him of Right of Action.</p> <p>An action will also lie where the period for which the employment is to continue is not certain; if.damage result from the discharge; even though from inability to ascertain'the amount of the damage, a verdict for nominal"damages only should result.</p> <p>8. Action Dies Against Third Person Procuring Discharge, Although None Will be Against Employer.</p> <p>The fact that no contract, nor any legal right of the employee as against the employer is violated by the employer, or that no action can be maintained by the employee against the employer for such discharge, does not prevent a recovery against a third person who has maliciously procured the discharge, and which discharge would not have occurred but for such procurement.</p>

<p>REVIVOR OF ACTIONS.</p> <p> tti*dvor of an action where more than one year has elapsed since the deaths of some of the parties. </p>

<p>CONSTRUCTIVE FRAUD.</p> <p>L H. owned property worth $8,000, upon wbicb there were incumbrances of $6,400, and being indebted to his son $1,200, he deeded the property to the son who assumed the incumbrances, H. retaining a life estate. Held, The reservation of the life estate, under the circumstances, was a constructive fraud upon creditors of H.</p>

<p>FRAUDULENT CONVEYANCE.</p> <p>Priority or Mortgage.</p> <p>E., as the agent of D, purchased property fraudulently, taking the title in his own name, and then gave B. a mortgage, who did not file his mortgage for record till after D. had brought an action to compel E. to convey the property to her. Held: B.'s right in the property is superior to E.’s.</p>

<p>JURISDICTION.</p> <p>Setting Aside Judicial Sale.</p> <p>The probate court acquires exclusive jurisdiction to determine every question in the case by the filing of -a petition to sell real estate, and the .common pleas court has no jurisdiction to set aside a sale made and confirmed by order of the probate court, except when a fraudulent judgment has been procured.</p>

<p>DEPOSITION — ALLOWANCE OF CLAIMS.</p> <p>1. Taking Depositions Anticipating Death oe Witness.</p> <p>It is competent for a party to a suit to protect himself against the contingency of the death or the absence of a witness at the time of trial by taking his deposition at any time, and the reason for so doing need not appear in the deposition itself.</p> <p>2. Appeals — Action to Compee Aeeowance oe Claims.</p> <p>An action under section 6352 against a trustee for allowance of a claim is appeal-able and a jury cannot be demanded.</p> <p>3. Jurisdiction.</p> <p>A majority of the court holds that a suit to compel the allowance oí a claim by a trustee may be brought in other courts than the probate, in which the proceedings under the assignment are pending.</p>

<p>Appear from superior court of Cincinnati.</p>

<p>Error to superior court of Cincinnati.</p>

<p>ADULTERATION OF FOODS.</p> <p>1. “Breakfast Cocoa” not a Violation of Statute.</p> <p>Under the act of March 20,1884, as amended April 22,1890, to provide against the adulteration of foods, “Breakfast Cocoa,” in the preparation of which the manufacturer took 'the cocoa bean and extracted a considerable portion of the oil therefrom, and put the product thus prepared in packages, for sale, is not a violation of the prohibition therein “ that an article of food shall be deemed to be adulterated if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.”</p> <p>2. Abstracting a VaeuabeE Part of the Naturae Fruit.</p> <p>An'article of food, which is produced by abstracting from a natural fruit, a valuable part, is not a compound or mixture.</p>

<p>CONTRACTS — EVIDENCE.</p> <p>1. Right oe Action Accrues when Party to a Contract Repudiates it.</p> <p>A suit brought April 20,1893, on a contract for delivery of stone during the year 1893 is not prematurely brought, where it is alleged that the defendant ^ disregarding its promise and agreement in that behalf * *' * wholly refuses and declines to fulfill and perform its agreement:”</p> <p>2. Power oe an Oeeicer oe a Corporation to Bind it -by Admissions.</p> <p>Admissions made by an officer of a corporation, after a transaction, to one not connected with the transaction, when the corporation is not called upon to say something, will not bind the corporation.</p> <p>3. To Recover Special Damages they must be Plead.</p> <p>There was ho allegation in the pleadings that the plaintiff in error knew that contract sued upon was made in reference to a contract which defendant in error had with the United States government, and the admission of evidence as to what his arrangements with the government were, was erroneous.</p>

<p>NEW TRIAL — EXCEPTIONS—PARTNERSHIP,</p> <p>L New Triad eor Newly Discovered Evidence.</p> <p>Motions for a new trial based upon newly discovered evidence are usually addressed largely to the discretion of the trial court, and that court having passed upon the case in all its aspects, a reviewing court will not interfere with the action of the trial court, especially if it sees no ground for such interference. An exception, in general form, is to be regarded as to the charge as a wholej and not any specified part of a proposition.</p> <p>S. Liability oe One Hedd out as a Partner.</p> <p>Where a person allows his name to appear upon a sign attached to a building in which the alleged partnership was doing business, such person, even if he had permitted his name to be used and so held himself out as a partner, when in fact he was not a partner, would not create a liability as to him as a partner, in a prosecution under sections 4357 and 4358 Revised Statutes agaiusi the alleged partnership.</p>

<p>Error to the court of common pleas of Tucas county.</p>

<p>STREET ASSESSMENTS.</p> <p>1. Two Assessments Aggregating More Than Twenty-eive PER Cent.</p> <p>Where the city authorities have provided for grading a street by a separate ordinance, and that improvement as provided for is completed and the assessment made, which does not exceed the twenty-five per cent, limit to which the authorities are limited, and then that is followed by another ordinance providing for the paving of the street, under such circumstances as to satisfactorily indicate that the second improvement was really a complement of the first improvement and that the council by that method of proceeding had sought to evade the statute; Held, that the city could not, by going on under one ordinance and grading a street, and then afterwards, by another proceeding, providing for the paving of the street, evade the limitation imposed in the statute, but the circumstances must show that the provisions of the statute were sought to be thus evaded.</p> <p>2. Assessments eor Eaying oe Stone Sidewaeks.</p> <p>The laying of a stone sidewalk under an ordinance of the council would not be such an improvement as should be considered in determining that the assessment should not exceed twenty-five per cent, of the value of the property; sidewalks are made under a different statute from that under which streets are improved.</p> <p>8. Making Sidewaek Improvements.</p> <p>Where a city proceeds to lay sidewalks in front of a man’s property and to grade that part of the street upon which the sidewalks are laid so as to properly permit the laying of the sidewalk without having given the due notice required by the statute to the property owner himself to lay them within a stipulated time, the city must bear the expense of it; but if it proceeds under the statute and notifies the owner to lay the sidewalks, and the owner neglects or refuses to lay them, then the city itself may preceed to make the improvements and is authorized by the statute to assess the cost upon the property, and the owner is made personally liable if he was the owner at the time the improvement was completed.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>Error to tbe court of common pleas of Eucas county.</p>

<p>ILLEGAL CONTRACTS.</p> <p>1. Contract Between a Municipality and. Private Parties.</p> <p>Where property and money of a municipality has been diverted under a* igreement between the council and municipal authorities, and private part es, to an unlawful use, and for the benefit of such private parties, the munic pality may recover such money and property back from such private parties.</p> <p>2. Unlawful Diversion oe Municipal Property.</p> <p>Where the authorities of a municipality, under an agreement with private. arties, donate to them a large amount of money of such municipality and i tract of land owned by it, in consideration of such private parties erecting a factory in such municipality, such "transaction is an unlawful diversion of the municipal property, and the same can be recovered back from such private parties at the suit of the municipality.</p> <p>8. Property May be Recovered Back.</p> <p>Where the officers of a municipality enter into an illegal agreement with private parties whereby municipal property is diverted to the use and benefit of such private parties, and such private parties then form a corporation to which such municipal property thus diverted to their benefit is transferred to the knowledge and with the consent of all the stockholders who accept the benefit of such transaction, such stockholders are not innocent parties, and the municipal property thus diverted may be recovered back from such corporation.</p>

<p>NEGLIGENCE.</p> <p>1. Evidence Not Admissible.</p> <p>An ordinance limiting the rate of speed of street cars in running across the public bridges of a city is not admissible in evidence to show negligence in running at a greater rate of speed in approaching a bridge.</p> <p>8. Charges To Jury as to Reasonable Care.</p> <p>In an action brought by a passenger injured while riding with her husband, it is not error to charge that she should exercise reasonable care to learn of tire danger and avoid injury.</p>

<p>Appeal from the court of common pleas of Eucas county.</p>

<p>Error to the court of common pleas of Lucas county.</p>

<p>Error to the court of common pleas of Cuyahoga county.</p>

<p>INDICTMENT-DEMURRER. .</p> <p>1 What Bile of Exceptions Must Show.</p> <p>A bill of exceptions must show that it has been filed, signed and allowed by the court and made a part pf the record before it can receive the consideration of a court on appeal.</p> <p>2. Proof Required Under an Indictment.</p> <p>It is error on the part of a court to require proof of something not alleged in' an indictment or not in issue.</p> <p>3. Effect of a Demurrer Before. Motion.</p> <p>A demurrer filed before motion to quash or a plea in abatement is presumed to admit the facts as stated in an indictment, and such motion of plea will not be allowed thereafter.</p> <p>4. Insufficiency of Aeeegations.</p> <p>An allegation that an explosive was in close proximity to a public highway does not conform to the statute which requires that before the same shall be ordered to be moved it must be within such distance to a residence of dwelling as to cause accident in case of an explosion, and in that case must be removed to a place of safety.</p> <p>5. What Indictment Shoued Contain.</p> <p>Every indictment should contain a complete description of the offense charged, and must in all cases contain the negative averment if the matter of such exception enter into and become a part of the description of the offense.</p>

<p>Decision of Common Pleas, 1 O. D., 190,</p>

<p>SPECIAL LEGISLATION.</p> <p> Gilbert avenue viaduct act held constitutional. </p> <p>The act authorizing “ the county commissioners of Hamilton county to extend Gilbert avenue, in the city of Cincinnati, from its present términus at Court street to Broadway, and to provide a fund therefor,” (88 O. I*> page 815), is unconstitutional. ■</p>

<p>EASEMENTS.</p> <p> Right of one of the owners of a party wall to board up windows in the wall. </p> <p>The plaintiff and defendant are owners of adjoining property on Broadway of this city, separated by a party wall, in which there were windows of opaque glass. These windows were boarded up by the defendant, for the reason that he had been annoyed by persons in the house of the plaintiff looking through them into his rooms.- The plaintiff charged that the boarding up of these windows was malicious, and petitioned for an injunction. The defendant by answer and cross'petition, denied the charge of malicé, and asked for $2,000 damages on account of the annoyance of haying people peeking through these windows into his rooms, which were used by 'him (a physician) as an office, where operations were performed.</p>

<p>FOREIGN CORPORATIONS — PLEADING.</p> <p>1. Pleadings Should be Complete Within Themselves.</p> <p>It is not good pleading to make reference to papers already filed in the case, or to adopt their allegations by makimg them a part of the pleading in hand.</p> <p>2. The Statute Strictly Construed.</p> <p>He who undertakes to apply as a defense to the payment of a debt the statute with reference to foreign corporations doing business with the state of Ohio, must bring his defense fully and plainly within the provisions thereof. Such pleadings should contain averments, to negative exceptions in the statute.</p> <p>3. What Answer Must Show.</p> <p>In order for a party to take advantage of the statute regulating foreign corporations, among other things he must show in his pleadings that the corporation complained of has a place of business within the state; that it is doing business within the state; that it does not come within any of the exceptions provided for in the statute, and that it has not complied with the requirements thereof.</p> <p>4 Interstate Commerce.</p> <p>The courts will not undertake by any interpretation of the statute to prevent a corporation organized and doing business in another state from _selling goods in this state and thereby interfere with inter-state commerce.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Sections 2250 and 2317, R. S., Construed Together.</p> <p>The section of the Revised Statutes which applies to the appropriation of property by a municipal corporation applies also to assessments made upon private property for public improvements.</p> <p>2. Reference in One Section to a Preceding Section.</p> <p>Where no provision is made in a particular section of the statute for the arising of certain contingencies, but a reference is made to the provisions of a preceding section, then upon the arising of those contingencies the provisions of the section referred to will apply.</p> <p>3. Failure to Make Improvement After Assessment of Damages.</p> <p>Where a municipal corporation assesses damages for street improvements and the city afterwards concludes not to proceed with the improvement and six months having elapsed and nothing having been done, parties who have paid attorney’s fees and costs under the provisions of section 2260 of the Revised Statutes, as amended April 20,1893, are entitled to come into court and have the costs and other proper expenses retaxed and included in the bill</p>

<p>INSTRUCTIONS TO THE JURY.</p> <p>1. How Instructions Must be Given.</p> <p>It is the duty of the court to give or refuse the written instructions prepared by counsel before argument is commenced, and without any change or modification.</p>

<p>IDENTITY OF NAME — NEGLIGENCE</p> <p>1. Delivery or Goods by Freight Agent.</p> <p>It is not negligence upon the part of a railroad company to deliver goods to the party who ordered them and to whom they were shipped, even though he be a person other than the one in the mind of the shipper.</p>

<p>PROMISSORY NOTE — MORTGAGE.</p> <p>Insurance oe Mortgaged Premises.</p> <p>An agreement in a mortgage to keep property fully insured in favor of a mortgagee ; or in the event of a failure so to do, then the same may be affected by the grantee, and all expenses arising from premiums or otherwise shall constituté a lien against the mortgaged premises, is not broken until the mortgagee has paid premiums, even though the insurance companies refuse to issue a policy upon the property in his favor.</p>

<p>COUNTY OFFICERS.</p> <p>V Preparation or Commissioners Report by Auditor.</p> <p>A county auditor, by virtue of Ms office, is secretary of the board of county commissioners, and as such, may be required to perform the clerical work _necessary to pr.epare their annual report.__</p> <p>2. Auditor not Entitled to Compensation.</p> <p>The word “secretary,” as used in section 1021, of the Revised Statutes, is synonymous with the term “clerk,” as used in sections 850 and 1078, and hence the auditor cannot charge or receive any compensation for making out such annual report, other than his compensation as expressed in the statute.</p> <p>3. Allowance by Commissioners is Void.</p> <p>The statute nowhere provides compensation for such a service, and an allowance by the board of commissioners for it, is illegal and void.</p> <p>4. May be Recovered if Paid.</p> <p>Where such allowance is made and the amount allowed paid to the auditor, it may be recovered back in an action by the board of commissioners.</p>

<p>STREET IMPROVEMENTS.</p> <p>1. Changes in Method oe Assessment.</p> <p>A municipal corporation having provided, in a general ordinance for the creation of an improvement, that the cost of the >same should be assessed upon the abutting property according to the feet front, cannot, after the construction of the improvement, change the method of assessment, and provide by another ordinance for its assessment upon abutting property, according to the benefits.</p> <p>Assessments upon Public Property.</p> <p>In the construction of street improvement the property of the city, whether public grounds or street intersections, should bear its share of the expense of the improvement.</p>

<p>MORTGAGES.</p> <p>Priority or Lien oe Second Mortgage, where First does not Describe The Property Specifically.</p> <p>S. carrying on the business of contracting for and putting in heating apparatus and being the owner of certain property, gave a mortgage to secure a loan of money to enable him to proceed with his business, which mortgage contained a provision that it should cover the real estate specifically described, owned by S. and also any which he might thereafter acquire, which mortgage was duly recorded. Subsequently S. concluded to manufacture the apparatus he had previously been dealing in, and purchased real estate and erected a foundry and shop and gave another mortgage to secure an additional loan of money, which mortgage described the foundry property specifically. Held, That the owners of the notes secured by the second mortgage had a lien upon the foundry property, prior in order to, and better in right, than the holders of the notes secured by the first mortgage, which did not describe the foundry property.</p>

<p>LANDLORD AND TENANT.</p> <p>Construction of Lease — Rental Under Provision for Reappraisal.</p> <p>A lease of real property for the term of thirty years, provided for the payment of an annual rent quarterly in advance, and also provided that the rental might be changed at the end of each period of five years, by reappraisement of the property, to be called for by either party at any time within one year after the expiration of said period of five years, and that such reappraisement should determine the basis of the rent for the succeeding period of five years. At the expiration of one of the five-year periods and within the year stipulated in the lease, the parties proceeded under the terms of the lease to reappraise the property, by which reappraisement the annual rental was increased for the succeeding period of five years. At the time of such reappraisement the rental for the current year had been paid by the tenant promptly on the first of each quarter and accepted by the landlord. In an action brought for the difference of the rent for that year, held, that the action could be maintained; that under the lease the landlord was entitled to recover the difference of rental as fixed by the reappraisemeht, although the amount as fixed and paid for the previous period oí five years had been paid for that year.</p>

<p>EVIDENCE.</p> <p>Prima facia Case — Confirmatory Evidence.</p> <p>Under section two of tbe Act of April 26,1894, (91 O. L., p. 187), tbe term prima facie evidence defined.</p> <p>A party may rest bis case when be bas made out a prima facie case under tbe terms of tbis statute.</p> <p>He cannot, bowever, withhold evidence confirmatory of such prima facie case and offer it in rebuttal, when it does tend to disprove and answer the evidence given by tbe defense.</p>

<p>RAILROAD LAW.</p> <p>Spark Arrests — Injuries by Fire.</p> <p>The statute passed in 1885 requiring a railroad company to place on its locomotives “ some device or contrivance that will most effectually guard against the emission of fire and sparks” and excepting tliem from suck requirement during the months of December, January and February, does not relieve such companies from the ordinary legal duty to observe proper care to avoid injuring the property of others by fire.</p>

<p>RIGHT OF ACTION ON A LEASE.,</p> <p>' Recovery oe Rent eor Unexpired Portion oe a Lease.</p> <p>In an action upon a lease for years at a rental per month payable monthly in advance, brought before the expiration of the lease, it is error where defendant has repudiated the lease to charge the jury that only the rental which accrued prior to the filing of the petition could be recovered, and that damages could be given only for failure to comply with the covenant concerning repairs. The entire damages sustained by reason of the breach of the lease ' may be recovered.</p>

<p>MECHANICS’ LIEN LAW.</p> <p>1. The DEx Loci as a Part oe Contracts.</p> <p>The law of the land where a contract is made enters into the contract and forms a part of the same; and the scope and effect of the contract is determined by the law; and the parties to a contract are governed in their rights, duties and liabilities under the same by the law, and by their own choice they make the provisions of the law that thus enter into their contract obligatory upon themselves.</p> <p>2. Power oe the Legislature to Attach Obligations to Contracts.</p> <p>“The power of the legislature to attach binding incidents and. obligations to certain contracts, is limited to cases wherein the statute which attaches the obligation at the same time gives or leaves to the party, upon whom ■ it is laid, adequate means of protection against the consequences of it.”</p> <p>3. Law not Unconstitutional.</p> <p>The Mechanic’s lien law, 91 O. L.,- ISfSj' creáfes no obligations against the owner of property on which improvements are made with his consent, nor liens upon the same that can prove unjust to him, except by his own fault and neglect, and said law is constitutional.</p> <p>4. Stipulations in Owner's Contract Depriving others oe Liens.</p> <p>The owner of property and his contractor cannot, by stipulations in their contract, for the erection of a house by the contractor on the owner’s land, deprive those who perform the labor upon the house or furnish materials for the same, of a lien on the property without their assent to such stipulations of the contract.</p>

<p>ENTRY OF JUDGMENT BY JUSTICES.</p> <p>1. Sufficiency of Entry of Judgment.</p> <p>Where a justice of the peace, in entering a finding for plaintiff in an action of replevin, used the language,. “ I do assess his damages in the premises §1.25 and costs,” it will be considered that he intended to render a judgment for that sum and costs, although no statement was made that it was considered or adjudged by him that 'the plaintiff recover these sums. The fact that prescribed forms are not followed in rendering a judgment does not necessarily invalidate the judgment. {</p> <p>2. Proceedings in Common Pdeas on Petition in Error.</p> <p>A petition in error to reverse such a judgment should not be dismissed, on the ground that no judgment was entered. The judgment should have been reversed and the cause retained for trial, or it should have been affirmed»</p> <p>3. Surety on Rededivery Bond not Released by Such Judgment.</p> <p>In an action brought against the surety on .the redelive^ bond given in this case, it was error for the trial judge to hold there was no judgment by the justice in the replevin case upon which to predicate the right of the plaintiff to recover, and direct the jury to find for the defendant.</p>

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

<p>VILLAGE IMPROVEMENTS.</p> <p>Money Must Be In Treasury Before Contract Awarded.</p> <p>Section 2702, Rev. Statutes (Worthington Daw), applies to villages making improvements under authority of a special act of the legislature, unless there is some clear exception contained in the áct.</p>

<p>Heard on Error.</p>

<p>PRINCIPAL AND SURETY.</p> <p>1. When Payee May Treat Signers as Principals.</p> <p>Where the payee of a joint and several note made by two persons has no knowledge that one of the signers is a surety only, he may treat them both as principals.</p> <p>2. Consideration for Extension of Time for Paying a Note.</p> <p>An agreement between the payee and principal of a note for the extension of the time of its payment for a fixed and definite period, in consideration of the same rate of interest, is valid without the payment of the interest in advance, and if made without the knowledge of the sureties will discharge them. But the payment alone of interest due is not such a sufficient consideration for extension as to discharge the surety.</p>

<p>Heard on Error.</p>

<p>INSOLVENT ESTATES.</p> <p>t Dividends to Secured Claimants.</p> <p>The owner of an admitted claim against an insolvent estate, who has security which is insufficient to satisfy the claim, is entitled to a dividend on the whole amount of the claim.</p> <p>What Constitutes a Partial Allowance.</p> <p>The allowance by commissioners in insolvency of a claim after deducting , amount to be thereafter received from the sale of securities, is not an allowance of the whole claim.</p>

<p>SEWER ASSESSMENTS.</p> <p>1. Assessments Against Abutting Property.</p> <p>The question of whether abutting property will be benefited by a sewer, will not affect the.right of a city .to enforce an assessment.</p> <p>2. Limited by Statute.</p> <p>Section 2271, Rev. Stat., which limits the assessment for any improvement to twenty-five per cent, of the value of the lot after the improvement is made, applies to sewer assessments.</p>

<p>TRUSTS — EVIDENCE.</p> <p>Failure oe Proof.</p> <p>In order that the judgment creditors can establish a trust for their benefit, in property standing in the name of the wife of the judgment debtor, they must clearly show by proof that the money which was paid for the property was given or furnished by tho judgment debtor to his wife and was by her actually applied for that purpose.</p>

<p>BILL OF EXCEPTIONS.</p> <p>Failure oe Jurv to Answer Certain Questions.</p> <p>On the trial of an action certain questions having been submitted to the jury for answer, they answered by saying that they could not answer from the evidence. Such answers will not be held to invalidate the verdict, where the evidence in full is not set forth by a bill of exceptions bearing upon the questions submitted to the jury, or where the facts necessary to answer the questions devolved upon the excepting party to show by a preponderance of evidence, and the bill of exceptions does not disclose that he made out the facts by a preponderance of the evidence, necessary to enable the jury to answer correctly.</p>

<p>EVIDENCE.</p> <p>1. Admissions op Party.</p> <p>The admissions of a party are competent to be given in evidence against him, but when offered as such they must bo direct admissions and not hearsay.</p> <p>2. Hearsay Evidence.</p> <p>The testimony of a witness on trial in behalf of the plaintiff that at some time prior he had told the plaintiff what the defendant had told him, or the testimony of the plaintiff that the witness in question had told him what the witness had said to the witness on some previous occasion, is hearsay.</p>

<p>FIRE INSURANCE POLICY.</p> <p>X. What Constitutes a Structure Under Section 3643, revised Statutes.</p> <p>Under the terms of an insurance policy describing “ one boiler, engine, and apparatus pertaining thereto, contained in the five-story and basement brick metal roof Musee theater building, No. 240 Summit street, Toledo,” which boiler and engine were in fact built in the basement of said building and constructed upon permanent foundations, the boiler being inclosed by a brick wall, the court would be justified in instructing the jury that the same constituted a structure within the meaning of section 3643, Revised Statutes, under which in case of a total loss, the insurer is bound to pay the full insured value of the property.</p> <p>2. A Boiler, and Engine Constitute a Structure.</p> <p>The court in fact submited the question whether this was a structure to the jury under appropriate instructions and definitions, the jury having found under the charge of the court that the boiler and engine in question was a structure, their verdict upon the facts presented will not be disturbed.</p> <p>3. Waiver oe Insurer to Insist on Payment oe Eull Value.</p> <p>The parties, by voluntarily submitting the value of the property destroyed to arbitration, did not waive the right to insist upon the payment by the insurer of the full insured value of the property, since the provisions of the statute in question upon that subject cannot be waived or contracted away by the parties.</p>

<p>FEES OF SPECIAL CONSTABLE.</p> <p>Authority op Auditor to Pay Fees op a Special Constable.</p> <p>The auditor of Hamilton county is not authorized by the statutes of the State, on receiving from the coroner of said county a certificate, that certain services were rendered by a special constablein serving subpoenas on witnesses to appear and testify at an inquest to be held by him, to issue a warrant upon the county treasury for the payment of the fees so certified. All such and ' like bills must be presented to the county commissioners for examination and allowance, and if not allowed by them, or by some other tribunal on appeal from such decision, cannot be paid by the auditor.</p>

Frror to the Court of Common Pleas of Rucas county. This action was brought in the common pleas court by plaintiffs in error to recover $18,000 as commissions for the sale of real estate, based upon a written contract made between the parties, wherein the defendants in error gave the plaintiffs in error (real estate dealers in Toledo, Ohio), the right to sell for them 864 acres of oil land in Wood county, the ■ plain tiffs to have all realized thereon over and above the sum…

<p>JURISDICTION OF PROBATE COURT — INSOLVENT ESTATES.</p> <p>In Determining The Priorities or Riens.</p> <p>In an action by a creditor against an administrator de bonis non on a promissory note given by the decedent and which note was secured by a deposit as collateral security with the creditor, certain life insurance policies on the life of the decedent,which on his death were delivered to the administrator for the purpose of obtaining a settlement from the Insurance Co., the creditor’s claim on the note was then presented to the administrator, and was by him rejected. Whereupon the creditor recovered judgment for the same in the court of common pleas. Decedent’s estate was subsequently declared insolvent by proceedings in the probate court. The creditor again presented his claim within the statutory limit, and asked that his claim be found to be superior to that of all other creditors of the estate, so far as the insurance money was concerned. On motion by the administrator to dismiss this application for want of jurisdiction in the probate court: Held, that the probate court under section 6351, R. S., has jurisdiction to hear and determine whether a part of the fund in the hands of the administrator shall he used to pay a particular debt. (Clapp et al. v. Banking Co. et al. 50 O. S. 528, cited and followed.)</p>

<p>JUDGMENT — ALIMONY.</p> <p>Modieicatioítü <cüE a Decree Granting Aeimony,</p> <p>Whew a definite sum as alim«ny to be pcid in installments, has been decreed in a divorce petition, the defendant cannot on death of the plaintiff, ask the court which rendered the decree, to modify it, so that the amount of alimony still due be cancelled and set aside. This cannot be done, because the amount rendered was an absolute judgment, a sum total, and was not an unreasonable amount.</p>

<p>CONTRACT.</p> <p>1. Changing An Existing Contract.</p> <p>Where a contract exists for personal services at a fixed salary for a term of years, and on account of hard times the employer makes a proposition to his employee requesting him to voluntarily reduce his salary, but which is not accepted; but a counter proposition is made by the employee, which was not accepted in terms. It is not error for the court to leave the question to the jury, whether, under all the circumstances there had been a new agreement made and acquiesced in by the parties.</p>

<p>ASSESSMENTS.</p> <p>Corner Lot assessment.</p> <p>In determining the assessment of a corner lot which lies lengthwise on the, proposed improvement, the assessment on such lot should he made on its depth, where the lot is a parallelogram.</p>

<p>FORECLOSURE OF MORTGAGE — DOWER.</p> <p>1. Relinquishment oe Dower.</p> <p>A relinquishment of dower by tbe wife in accordance with the requirements of the statute, joining in a mortgage with her husband, which mortgage is supported by a consideration valid between the husband and the grantee, operates as a complete relinquishment of dower by the wife, and such premises may on foreclosure proceedings be ordered sold free from any sight of dower that the wife had.</p> <p>2. What Consideration Will Support a Mortgage.</p> <p>A mortgage given to secure an existing indebtedness, in which the considera» tion is past, is as good and valid as if executed upon a_ present consideration A prior or subsequent consideration is all that is requisite</p>

<p>EVIDENCE.</p> <p>1. Statement Made by Accused.</p> <p>It is not error to allow evidence to be introduced concerning a statement or expression alleged to have been made by tbe accused when charged with the commission of the crime, at a time when several persons were present, hut testified to by only one, while the others did not hear it. Such testimony is clearly competent, the weight is to be considered by the jury.</p> <p>2. Order oe Testimony.</p> <p>The order in which testimony goes to the jury does not affect its competency, if it all finally gets to the jury.</p> <p>8. Evidence Regarding Subject Matter which is Crearry Incompetent.</p> <p>It is not error to allow a preliminary question which is itself competent.to he asked and answered, when the court and prosecuting attorney both knew that the subject matter to which such question related was clearly incompetent.</p> <p>4. Evidence oe the Description oe the Accused.</p> <p>Where the counsel for accused on cross-examination of the officer making the arrest, attempts^ to show that he acted recklessly and without any reliable information, it is competent on re-examination to let him state that before starting out to make the arrest that the wife of the deceased gave him a description of the man who made the assault, and also to state what the description was. This evidence being competent on the ground that it io an explanation of the evidence given in the cross-examination.</p> <p>5. Eeeect oe Arrowing Incompetent Evidence to be Introduced.</p> <p>Before a judgment will he reversed for allowing incompetent evidence to be introduced, such evidence must be both erroneous and prejudicial to the accused.</p> <p>6. Instruction oe Good Character.</p> <p>It is not error for the court to refuse in giving certain instructions of good character regarding the accused, in which the court is asked to determine the weight of the testimony offered, instead of a request to state to the jury the effect and purposes of the testimony referred to and the proper use to be made of it by the jury.</p> <p>7. Verdict Contrary to Evidence.</p> <p>A judgment will not he reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so when the doubts of its propriety arises out of a conflict in oral testimony.</p>

<p>LIMITATIONS OF ACTIONS.</p> <p>Statutes oe Limitation in Contracts.</p> <p>An action to enforce a lien upon the property of a consolidated railroad company, based upon an amount alleged to be due on equipment bonds issued by a constituent company, is an action founded on a written contract, and would be governed by the fifteen years’ statute of limitation. The statute of limitations ought to be uniform and should be based upon the longest term given to bring the suit.</p> <p>(For a full decision of this case by the common pleas see Vol. 5, Ohio Dec.</p>

<p>NOT-NAVIGABLE INLAND LAKE.</p> <p>1. Dedication Underdying Lands to Pubdic Use.</p> <p>A non-navigable inland lake, with an inlet and outlet stream, is the private property of the owners of the lands underlying its waters, and is a subject of common law dedication to public use; but the acts and declarations of such owners, indicating the intent to dedicate the same to the public use, must be unmistakable in their purpose and decisive in their character to have that effect.</p> <p>2. Lease of Underdying Lands, with Resertation oe Fishing Rights.</p> <p>An owner may lease his interest in such lake for a term of years, and reserve to himself the right of fishing therein during such term. Such right of free fishery is a profit a pendre and ordinarily is inheritable and assignable; but will be neither, if inconsistent with the terms of such reservation and lease and the object of the demise. If possession, such as is contemplated by the lease, is taken by such lessee, such lease, although not acknowledged, will be good as against subsequent purchasers who have actual knowledge thereof and of such possession.</p> <p>3. Right of Lessee to Divide his Estate and Sedd the Parceds.</p> <p>If an owner leases for ninety-nine years his lands covered by the waters of such lake, together with a strip along its border two rods wide, and reserves to himself, his neirs and assigns the right to cultivate or use said strip for agricultural purposes, and to pass over the same to and from the lake at will from his remaining lands, and to fish with hook and line in the waters over the lands leased, the right of such lessor to divide such dominant estate, including said strip, into parcels, and such free fishery into distinct interests, and sell the same, and thus distribute such right of way and free fishery, is limited not only by the character of such lands and the uses to which they were devoted at the time of the making of such lease, but, more especially, by the purpose of such grant, as found in the terms thereof, when read in the light of surrounding circumstances referred to therein.</p>

<p>CONDITIONAL SALES.</p> <p>1. Replevy of Property Under Contract of Sale Made in Another State*.</p> <p>Where J., under the laws of Virginia executes a valid conditional contract of sale to P., which is duly recorded, and P., subsequently removes to Ohid and with the knowledge and consent of J., takes the piano with her under an agreement with J.. to execute a new contract or lease under the laws of Ohio, but which P., fails to execute and dies insolvent: Held, that J., not having taken the necessary steps required by the statutes of Ohio to make such contract a valid lien upon the piano as against creditors, mortgagees and purchasers’in good faith, and, therefore, he could not successfully maintain an action of replevin for the recovery of the piano, though he could have replevied the piano from P., during her life time, which upon her death descended to her personal representatives and became assets in the hands of the administrator, to be administered for the sole benefit of P.’s creditors, and disbursed ratably among them.</p> <p>2. Comity Between States Regarding Enforcement of Contracts.</p> <p>If a contract is not contrary to the law of the state where it is sought to be enforced, then, as a matter of comity, if valid where made, it will be enforced by the courts of this state.</p>

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

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

<p>MASTER OR FELLOW SERVANT.</p> <p>1. Superintendent oe Repairs a Feeeow Servant.</p> <p>In an action to recover of a dock company for injuries received by an ore handler, while in the service of the company, by reason of the falling of a piece of iron, from machinery which had gotten out of repair while in use, Held,: That if the machinery got out of repair through the negligence of another of the company’s employees, supposed to be competent and careful, whose duty it was to superintend repairs and to inspect said machinery and keep it in repair, and who had no control over the person injured, he is a . fellow servant of the latter for whose negligence the person injured cannot recover from the company.</p> <p>2. Contractor’s Empeoyees Heed to be Feeeow Servants.</p> <p>Where the dock company, for the loading of ore from its dock into cars at a specified price per ton, has entered into contract, for a definite time, with certain persons, whereby the company is to furnish and operate the hoisting machinery, and the contractors are to furnish men to handle the ore, and, by the terms of the contract, the contractors and their men are to be subject generally to the directions of the company, and the contractors agree to promptly discharge on the company’s request, any men in their employ not satisfactory to the company, an employee of such contractors is a fellow servant with an employee of the company, where no relation of subordination or subjection exists between them.</p> <p>3. Question as to Nature oe Empeoyment Submitted to Jury.</p> <p>Where the facts in relation to contract to perform certain work and to furnish men to do it, are defined entirely by a written agreement, which is put in evidence and undisputed, it is error to submit to the jury the question whether or not a servant of one of the parties to the "contract is a co-employee with a servant of the other party, engaged in the same common employment, where no question of subordination between such servants is involved, for it is merely a matter of construction of the contract.</p>

<p>MANDAMUS — AWARDING OF CONTRACT.</p> <p>1. Change erom Sample Brick not Authorized. '</p> <p>Where the hoard of administration advertises for bids to pave a street with brick, all bids to be accompanied with samples of the brick proposed to be used by the bidder which must be found acceptable by the city engineer, and the sample brick furnished by the lowest bidder is not found acceptable, the board has no power to award the contract to such bidder at the amount of his bid, on his agreement to use a certain other kind of brick which comes up to the requirements. The next lowest bidder would be entitled to the contract, if the sample brick furnished by him with his bid answered to the requirements, and if he was diligent in asserting his claim. But where the bids were opened on August 7, and a petition for mandamus was filed October 25, held that the delay defeated his right.</p> <p>2. No Change in Test Authorized.</p> <p>Where the test of sample brick accompanying the bids was to be made by the city engineer, a test by another engineer is not sufficient.</p>

<p>REFORMATION OF DEED.</p> <p>1. Non-joinder oe One oe Two Distinct Parties.</p> <p>Where, in an action for the possession of land against two distinct defendants, each having a distinct and independent claim to the property, one of the defendants is in default for plea or answer, and the case was tried on the • claims of the plaintiff and the second defendant, in proceedings in error being instituted, such party in default is not a necessary party to and need not be joined in such error proceedings.</p> <p>2. Omission from Deed oe One oe Two Dots Purchased.</p> <p>Where the purchase of two lots is negotiated and agreed upon, but by a mistake of the conveyancer one of the lots is omitted in the description of the property in the deed of conveyance, which is not discovered for several years, ■when proceedings are instituted for the reformation of the deed, a court of equity will correct the mistake on the ground that it was a mutual one. And as between the parties, no claim of innocent third parties intervening, such correction of the mistake will not be refused on the ground of negligence on the part of the grantee when it is more than likely that negligence lies at the bottom of most of such mistakes. The theory of equity is that the thing which the parties themselves intended to do, shall by the court be ordered done.</p>

The plaintiff in an action before a justice of the peace recovered a judgment against the defendant for the amount due on a promissory note, and the justice of the peace in entering the judgment in favor of the plaintiff for all the costs of the suit, in which judgment for'costs was included the costs incurred by the defendant as well as those made by the plaintiff. The costs of both the plaintiff and defendant were separately taxed in the margin as required by law.

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

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

<p>ATTACHMENT OF BOOK ACCOUNTS.</p> <p>1. Lien Obtained by Attachment oe Books oe Account — Statutory Remedy Cumulative.</p> <p>Under Sections of Revised Statutes 5524, 5539, 5540, a creditor who levies attachments upon hooks of account, thereby obtains a priority upon the credits contained in the hooks. In cases where the provisions of the statutes for appointing a receiver and notifying the debtors have been complied with, such proceedings are cumulative upon the right to proceed by garnishment against the debtors.</p> <p>2. Receiver Appointed eor attachment Debtor, is Receiver in Attachment Case.</p> <p>Where subsequent to a levy of attachment the debtor corporation applies for and obtains a receiver to wind up its affairs, and the books of account taken in attachment, are turned over to the receiver of the corporation, under an order to collect the accounts and bring the proceeds into court, the order is equivalent to appointing a receiver in the attachment case, and the attaching creditor may preserve his priority, and work out his rights through the receiver of the corporation.</p> <p>3. Effect of Appraisers Baiting to Inventory Vatue of Books.</p> <p>The attaching creditor is not deprived of the benefits of his attachment, because the appraisers place no value opposite the same of the items in the inventory of property taken in attachment. Where books of account and other property are taken in attachment, and the sheriff’s return shows no value placed upon the books, the attachment upon the books of account is not thereby invalidated.</p>

<p>PERSONAL INJURY — NEGLIGENCE.</p> <p>l; Liability or Company, where Employee Disregards Its Rules.</p> <p>Where a company adopts certain rules for the protection of their employees, and an employee disregards them and adopts rules of his own, which failed and by reason of that failure he is injured, such company is relieved from responsibility for such injury.</p> <p>2t Doctrine oe Respondeat Superior.</p> <p>A repairer of cars who arranges with the conductor of a train to watch his car, instead of using the signals provided for in such cases by the company, such conductor cannot be held to be a superior to the car repairer, and the doctrine of respondeat superior does not apply.</p>

<p>EASEMENTS.</p> <p> An easement for a drain cannot be enlarged by putting the drain to new uses. </p>

<p>ADMINISTRATION OF ESTATES.</p> <p>What Share Constitute a Sufficient Arrowance of a Craim.</p> <p>An action by a creditor to compel an administrator to allow a certain claim will be dismissed, when it is shown that the administrator had, at various times, assured the creditor that his account would be paid the same as that of other creditors, and that the administrator had filed a petition in probate court for the sale of land, and that the petition included the creditor’s claim along with the rest of the creditors.</p>

<p>EVIDENCE.</p> <p> The right of a married woman to bind herself as a feme sole under the law of1884. </p>

<p>WZLL.S.</p> <p>1. How a Wiw, is to be Construed.</p> <p>In construing a will> the language used by the testator must be examined to ascertain what was really the will of the testator, and what was the thing that he meant to do. This intention of the testator is determined by the words used, if they are plain so that there can be no mistake about them; but if there is any doubt in the words used, the court may look to the surroundings, and see wh'at the circumstances were, and what the testator would naturally do.</p> <p>2. Jurisdiction of the Probate Court over an Kxecutor.</p> <p>It is for the probate court to determine whether or not an executor has exercised his discretion properly, or whether he has abused it, and it is for that court to make all proper corrections regarding the discretionary acts of the executor.</p>

<p>LIENS — RELEASE.</p> <p>In order to Constitute a Good Redease oe a Lien, a Consideration is Necessary.</p> <p>The plaintiff in this case sought to have an annuity, payable in equal oharco, by the heirs of Jacob Yanney, Sr., declared to be a lien on premises devised to said heirs (five grandchildren). The answer set up a paper signed by the an- , nuitant which it was claimed was a release of the specific lien charged by the will upon the property. To this defense the plaintiff demurred.</p>

This was an action to enjoin that part of the improvement assessment upon the property on McMillan street, between Highland avenue and Kibby street, there being included in the same ordinance an item of damages for land condemned to support sloping fills.

<p>Appear from the Court of Common Pleas of Lucas county.</p>

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

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

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

<p>DEED-FORFEITURE.</p> <p>1. Grant oe Lands to a Church, Coupled with a Condition.</p> <p>Where a grantor by deed conveys certain property to the trustees of ascertain church for church purposes, with the stipulation that “should the said land cease to be occupied for church purposes and as aplace of divine worship, the grant will cease and determine,” and subsequently he conveyed _ all his interest in said land to a certain cemetery association, subject to this previous grant to the church, and after the death of the grantor the church, which had been erected upon this land, burned down and has never been rebuilt and no building of any kind erected on said land: Held, that the deed from the original grantor to the church vests in it an estate in fee, subject only to be divested by breach of condition; this is a mere possibility which may never occur, and the presumption of law would be that the grant being favorable to the church, it would not forfeit it.</p> <p>2. Expectation oe an Heir Presumptive, is not a Vested Right.</p> <p>There is no principle better settled than that the expectation of an heir presumptive is not a vested right, but a mere possibility; it is . not an estate in lands, andean neither be transferred, nor released.</p> <p>8. REVERTER OE TITLE.</p> <p>If the conditions subsequent were broken, that did not also ipso facto produce a reverter of title; the estate continued in full force until the proper steps were taken to consummate the forfeiture, and this could be done only by the grantor during his lifetime, and after his death by those in privity of blood with him, and in the meantime only a right of action subsisted, and that could not be conveyed so as to invest the right to sue in a stranger.</p>

<p>INSOLVENCY OF A FOREIGN CORPORATION.</p> <p>Rights of Creditors to Property of an Insolvent Corporation.</p> <p>A foreign corporation doing business in Ohio, becoming insolvent, makes a conveyance of all its property in this state to one person, who takes the property subject to the trust placed upon it by law, and subject to the right of the creditors to have such property subjected to the equal payment of all the creditors of the firm, and such person has the right to hold such property as against a judgment creditor.</p>

<p>CONDITIONAL SALES — INSTALLMENT PLAN.</p> <p>Purchase oe Goods on the Installment Plan.</p> <p>One purchasing goods on the installment plan, executing a mortgage thereon and subsequently defaults as to succeeding payments, and in consequence of such default, the seller takes possession of the goods under his mortgage, h« must restore a portion of the purchase money paid by the buyer.</p>

<p>CORRECTION OF JUDGMENT.</p> <p>Irregularities in Motion Tiled under Section 5354, Revised Statutes.</p> <p>Where, by a motion filed under section 5354, Revised Statutes, a journal entry of a judgment is corrected and made to conform to the judgment actually pronounced, the circuit court can not revise such judgment, when the entry, as corrected, shows on its face that the plaintiff in error was present in court on the hearing of such motion, although the motion was not made to conform to the provisions of the statutes.</p>

<p>HUSBAND AND WIFE.</p> <p>Diabirity or a Married Woman eor Repairs on Her Property.</p> <p>A wife is held to be personally liable for repairs to a building ou her land, made under contract with her husband, but with her knowledge and without any protest from her.</p>

<p>BILL OF EXCEPTIONS.</p> <p>1. Construction or Statutes Redating to Bide oe Exceptions.</p> <p>The statutes relating to a bill of exceptions are to be strictly construed, and a bill when presented must be complete and proper in form.</p> <p>2. Biee When Presented Must be Compeete.</p> <p>The presentation of a bill of exceptions to opposing counsel containing all of the evidence, but with the exhibits unattached and enclosed in a separate envelope, is not a compliance with the statute, and need not be accepted by opposing counsel.</p>

<p>CONSTRUCTION OF RECEIPT.</p> <p>A Receipt on its Face, Heed to Contain a' Contract.</p> <p>Where plaintiff delivered wheat at defendants’ elevator and in return received a receipt acknowledging its receipt, to be held in .storage, “ to be sold not later than the middle of July, without insurance:” Heldt that this receipt on its face contained a contract and that it was the duty of the court to have instructed the jury as to its effect and duty of parties under it.</p>

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

<p>FORECLOSURE OF MORTGAGE.</p> <p>Action it? ■recover on certain notes, and for the foreclosure of a mortgage given for the secu,rity of the debt.</p>

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

This was an action to construe the will and codicils thereto of William E Marsh, who died in August, 1879. The will was dated May 20, 1863, and there were appended five codicils of dates from 1865 to Í877.

<p>RAILROAD LAW.</p> <p>1. Effect of an Accident Resulting From a Failure to Provide Necessary Appliances.</p> <p>Where an accident occurs to an employee of a railroad company, as a result of the absence of an appliance upon the locomotive which it is customary to provide, the company is placed^in the same position under the act of 189® (87 O. I*, 149), as though the appliance had been furnished and the accident had re suited as aconsequence of its defective condition.</p> <p>2. Lack of a Company to Supply Necessary Appliances, is Negligence on its Part.</p> <p>Independently of the act of 1890 (87 O. D., 149), it would be negligence on the part of a railroad company not to provide such appliances as it is necessary for railroad companies to provide for work of the same character.</p> <p>3. Want of Necessary Appliances, the Proximate Cause of Accident.</p> <p>Where a locomotive is not provided with a “ pole ” for use in switching, and as a consequence a train crew resort to the “ flying switch ” method, and one of . their number, while acting under instructions and not himself negligent is injured, the absence of the pole will be regarded as the proximate cause of the injury.</p> <p>4. A Court is not Warranted in Directing a Verdict for Defendant, Whew.</p> <p>An appeal cannot be permitted from our knowledge of a fact to onr ignorance, by claiming that the evidence does not show that one run over by a train, while in the discharge of his duty under such circumstances, did not purposely throw himself under the wheels, and a case presenting such facts as these should be submitted to the jury, and a court is not warranted in directing a verdict for the defendant.</p>

<p>CONSTITUTIONAL, LAW.</p> <p>L Constitutionality of the Cincinnati Water-works Law.</p> <p>The act passed by the legislature April 24,1896 (936, L., 666), and generally known as the water-works bill, applying to the city of Cincinnati, is constitutional.</p> <p>2. When Laws are Classified as of a General Nature.</p> <p>Whenever a law relates to the government of cities and to the doing of corporate acts by said cities, and only indirectly affects the citizen, it is not a general law within the meaning of section 26, article 2, of the state constitution, although the subject matter, if applied to any portion of the state, other than classified cities and incorporated villages, would be a law of a general nature.</p>

Appear from the Court of Common Pleas of Hamilton county. The late Herman Muller recovered a judgment against the P., C., C. & St. E. Ry. Co. in a suit for damages brought by Frederick Quatkemeyer. For his services he was assigned one-half of the judgment, the understanding being that he should conduct the case in the circuit and supreme courts, if necessary.

<p>EXECUTION.</p> <p>Apprication op Money Made on Execution.</p> <p>A sheriff having in his hands money made on execution, has the right to apply-it in whole or in part in satisfying an execution in his hands against the person, for whom the money was collected.</p>

<p>NEGOTIABLE INSTRUMENT — INDORSER.</p> <p>1. Duty op East Indorser to Maid Notices to Prior Indorsers. -</p> <p>Where a notary public in sending notice of dishonor to the last indorser encloses notices to all the prior indorsers who are non-residents of the placa where demand is made, it is the duty of the last indorser to forward the enclosed notices to the person to whom they are addressed, and if such indorser fails or neglects to so forward such notices', and a prior indorser receives no notice in any other way he cannot be held.</p> <p>'2. Indorser to Become Eiabeb Must Have Notice op Dishonor.</p> <p>In an action against an indorser of a note upon which his name appears, such indorser cannot be held liable where there is no evidence given to show that he had received any notice whatever of the dishonor of the note.</p>

<p>SURETY — PRACTICE.</p> <p>1. Discharge ob Surety erom Liability.</p> <p>A material alteration of a note made without any fraudulent design by the maker, and without the knowledge or consent of the surety after he had signed the note, will release such surety from liability, and such liability will not be restored by subsequently erasing the alteration and thereby reducing the note to its original form in which it originally stood.</p> <p>2. Error in Refusing the Surety to prove that she was a mere Accommodation Maker.</p> <p>Where a surety on a note has been sued, and alleges in her answer that she was amere accommodation maker, and the plaintiff denies this by a reply, it is error for the court in refusing to permit the surety to show, as she offered and sought to do, that she was a mere surety or accommodation maker of the note sued on, and that she had never received any part of the money for which it was given, because the issue was thus directly made and the evidence offered was clearly competent. •</p>

<p>PERSONAL INJURIES — DAMAGES—PRACTICE.</p> <p>L Pact Admissible in Evidence Without Amending Petition.</p> <p>Where, in an action to recover damages for personal injury, the petition alleges an injury to the hand “necessitating the amputation of three fingers,” it is competent upon the trial, without amending the petition or filing a supplemental petition, to prove that since the commencement of the case it has become necessary to amputate the remainder of the hand at the wrist, as a direct result of the injury complained of.</p> <p>2. Conductor Getting ore Train While in Motion, is Evidence oe Contributory Negligence.</p> <p>If the plaintiff, the conductor of a freight train, by his own testimony shows that he received such injury by a car wheel running over his hand, by reason of a fall from a defective car stirrup, in attempting to get off his train while it was going at the rate of four or five miles an hour, in the middle of the night, with a lantern on his left arm, and his left hand partially disabled, at a station where he was required to register the time of passage of his train; and that the rules of the company did not require him to get off while the train was in motion, but authorized him to cause the engineer . to bring the train to a stand-still, such testimony raises a presumption of negligence on his part, and the burden is upon him to rebut such presumption, and the court should so instruct the jury, if attention is called to the matter at any time before the jury retires.</p> <p>3. Jurisdiction oe Ohio Court Where Contract oe Service and Injury Occur in Another State.</p> <p>Where an action for personal injury, resulting from a defect in appliances or machinery, against a railroad company operating by lease or otherwise a line of railroad partly within the state of Ohio and partly within the state of-Pennsylvania, and where it appears that the plaintiff’s contract of employment with the railroad company was made in the state of Pennsylvania, and his services under that contract were to be and were actually performed on said road wholly within the limits of the .state of Pennsylvania, and that Said accident occurred within said state, whether the second section of the statute of Ohio, volume 87, page 149, relating to the presumption of knowledge and of negligence in such cases, applies when it would change the legal effect of such contract under the law of the state of Pennsylvania, queery ?</p> <p>4. Excessive Verdict.</p> <p>Wliere tlie plaintiff, a freiglit conductor, lias Bis left hand crushed in an accident necessitating first, the amputation of three fingers, and afterwards, the amputation of the balance of the hand at the wrist, and where it appears that prior to the- accident one of the bones of the plaintiffs left hand had been broken in the palm of the hand which had resulted in at least one and probably two fingers of that hand becoming stiffened and withered, but which prior accident did not incapacitate him from performing his duties as freight conductor: Held, That a verdict of eight thousand ('$8,000.00) dollars was excessive, but the plaintiff below having voluntarily entered a sufficient remittitur, that error is cured.</p>

<p>WATER WORKS.</p> <p>Powers of the Board of Administrators of Cincinnati.</p> <p>Under the law of 1892 [89 O. E. 299], the Board of Administrators of Cincinnati, has the power to appoint expert engineers to investigate the condition of the water supply, the sufficiency of the present water works, and to submit plans for new water works.</p>

<p>BOARDS OF EDUCATION — BIDS.</p> <p>Right To Reject Lowest Bid.</p> <p>Where a board of education advertises for bids and reserves the right “to reject any and all bids,” an alternative writ of mandamus to compel it to execute a contract to the lowest bidder, will not be granted by the court.</p>

<p>Error to the Circuit Court of Nucas County.</p>

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

<p>CORPORATIONS — CHATTEL MORTGAGE.</p> <p>1. Effect of Agreement to Execute Chatter Mortgage when Creditor Deems it Necessary.</p> <p>An agreement by a bank and a business corporation, that it would advance the latter money to a certain extent to enable them to carry on their business, provided that the corporation, at any time the bank deemed it necessary to protect itself, should execute to it a mortgage upon the personal property of the corporation : Held, that an agreement of that kind will be upheld and aided by a court of equity, and is not a preference of such bank in fraud of other creditors of the corporation.</p> <p>2. De Facto Director of a Private Coreoration, When Recognized.</p> <p>A mortgage made by directors of a corporation of its personal property, one of the directors acting in the transaction, having ceased to own stock in the corporation: Held., that he will be recognized as a de dado director and the transaction held valid.</p> <p>S. Directors Ceasing to Own Stock Cannot Act as Such.</p> <p>When a director of a private corporation ceases to own stock therein, and the question is made directly by quo warranto, he will not be permitted to act as Such director.</p>

<p>ASSIGNEE — ATTORNEY FEES — PRACTICE,</p> <p>1. Adverse Decision of Superior Court no Bar to Action Subsequently Brought in Probate Court.</p> <p>An adverse decision by the superior court on demurrer to a petition against an assignee for recovery of compensation for securing a fund for the trust estate in a proceeding not yet terminated, is not a bar to a subsequent suit begun in the probate court; and the superior court cannot fix the amount to be paid for such services, or determine whether payment shall be made out of the trust fund,-and is without jurisdiction to hear such a case.</p> <p>2. Construction of Provision as Provided for in Section 6352, Revised Statutes.</p> <p>The thirty days’ time, section 6352, Revised Statutes, within which to bring suit on a claim rejected by an assignee probably relates only to claims against the assignor, and not to claims arising during the settlement of a trust; the thirty days is not a period of limitation, but a period after which distribution may be made.</p> <p>3. Failure to Bring Suit, Not a Bar, When.</p> <p>Failure by the plaintiff to bring the present suit within six years after the services were rendered is not a bar under the general statutes of limitations, in view of the previous suit which passed through the superior and supreme courts.</p> <p>4. Counsel for Assignee to be Paid out of the Trust Funds.</p> <p>An assignee is authorized to employ counsel to aid in the administration of the trust, and such counsel is entitled tp be paid out of the trust fund, and the fact that his fees have not been actually paid is not ground for refusal by the court to order payment.</p> <p>5. Authority of Probate Court Under Section 5205 to make Findings of Law and Fact.</p> <p>Error as well as appeal may be prosecuted from a judgment by the probate court, and the probate court has authority under section 5205, Revised Statutes, to make a finding of facts separately from its conclusions of law.</p>

<p>GAS AND OIL LEASE.</p> <p>Temporary Suspension oe Operation oe Lease by Lessee is not an Abandonment.</p> <p>Where the provisions of a gas and oil lease provide that the lessee shall sink one well within a certain time, in a territory that is new, the lessor to receive a certain royalty on the products of such well, and such well is sunk and no oil is discovered, the lessee is not bound to go forward and sink other wells, as the parties in such case have a right to abide at least a reasonable time to see what developments are made in the surrounding vicinity, unless there are express stipulations to the contrary in the lease, and such temporary suspension of operation will not be considered as an abandonment of the lease by the lessee.</p>

<p>MORTGAGE — FRAUD.</p> <p>Action to Set Aside the Brauduxent Cancexxation oe a Mortgage.</p> <p>In an action brought by H. against E. and'a building association, to set aside the cancellation of a mortgage which had been executed to him on a certain tract of land owned by E. and which cancellation was alleged to have been ob« tained by the fraudulent conduct of E. andthe building association; to this action P. was also made a defendant, it being averred that he claimed some interest in the property, but that it was subject to plaintiff’s rights. The defendants, E. and the building associations, by their answers denied all fraud charged, and P. by his answer averred that after the cancellation of the mortgage of H. he, in good faith had bought the land in question, from B. subject to the mortgage of the building association, for full value, and claimed to be an absolute owner of the property subject to the mortgage of the building association: Held, that if the cancellation of the mortgage had been fraudulently obtained by the building association and B, as against them H. would have been entitled to have his mortgage take precedence of that of the building association, or he might have been subrogated perhaps to so much of the building association claim as would equal his debt, or be placed in its position with his claim; but his mortgage,' unless this was done, could not be good,as against P. if he bought in good faith without notice of the fraud.</p>

Plaintiffs in error, A. B. Marshall and H. B. Van Cleve, were the owners of a vacant lot upon which they desired to place a house. A house having been offered to them, they, in conjunction with defendant in error, F. H. Ames, a house mover, examined the house in question, Ames assured them that he could move the house to their lot and place it upon foundation without injury.

<p>CONTEMPT OF COURT — ALIMONY.</p> <p>1. Right oe Accused in Proceedings Under Section 5644, Revised Statutes.</p> <p>Proceedings in contempt under our code are not provisional remedies, but are special proceedings. Section 5644, Revised Statutes, contemplates a trial on such evidence as is competent in ordinary trials before the court. The party accused has the right to meet the witnesses for the prosecution face to face and the opportunity to cross-examipe, and affidavits can therefore not be used</p> <p>2. Court Must Find That Accused is Abbe to Perform its Order.</p> <p>In such proceedings under section 5644, Revised Statutes, the court before imprisoning for failure to perform, should find the accused capable of performing, unless the court should find that the' accused fraudulently put it out of his power to perform.</p> <p>8. Power oe Court to Imprison Accused eor Faibure to Pav Auimony.</p> <p>Upon sufficient evidence the court has the power to imprison for contempt on failure to pay alimony. It is not a debt, and an imprisonment for failure to perform is not against the provisions of our constitution or our statutes.</p>

<p>LIEN.</p> <p>A Rivery Stable Keeper’s Ríen Superior to that oe a Chattee Mortgage,</p> <p>Under the provisions of section 3212, Revised Statutes, as amended April 18, 1890 (87 O. R., 222), which provide that a person who feeds or furnishes food and care, or either, for any horse, by virtue of any contract or agreement, express or implied, with the owner or person having possession thereof, shall have a lien therefor to secure the payment of the same upon said animal: Held, that the lien of a livery stable keeper, as provided for in the statute, is superior to that of a chattel mortgage.</p>

<p>LIABILITY OF SURETIES ON BOND.</p> <p>Official Misconduct of a Marshai,.</p> <p>A marshal, who in the performance of his duty as marshal, arrested the plaintiff for the commission of a misdemeanor, and plaintiff attempted to escape, from the custody of said marshal, who attempted to re-arrest him and for the purpose of accomplishing such re-arrest shot and wounded the plaintiff : Held, that the act of the marshal in shooting and thereby wounding .plaintiff amounted to an official misconduct on his part, for which the sureties on the official bond of such marshal are to beheld responsible.</p>

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

<p>Lrror to the Court of Common Pleas of Belmont County.</p>

<p>TENDER.</p> <p>What Shaee Constitute a Vaeid Tender.</p> <p>A tender to be effectual and binding must be free from any condition to which the creditor may rightfully object, therefore, where a debtor tendered the amount of one of several notes, which were not all held by the creditor, but all of which were secured by one mortgage, with the unqualified demand for ' the release of the note and mortgage for the entire debt, such tender is invalid and the creditor is not bound to accept it.</p>

<p>LEASE.</p> <p>Construction op an Oie and Gas Lease. •</p> <p>Where plaintiff has leased his lands, giving the lessee the privilege and rignt to mine for gas and oil, which lease provides that should gas bo found in sufficient quantities to justify marketing, then the lessor is to receive $100 per annum for the gas from each well so long as sold therefrom; therefore, where the lessee has taken gas from other land and used it upon lands of lessor as fuel, and marketed the gas from the lands of the lessor, he would, under the terms of the lease, be required to pay at the rate of $100 per annum for each well for the gas thus marketed, upon the theory that the wells were producing gas in paying quantities.</p>

<p>INTOXICATING LIQUORS.</p> <p>1. Sales Made After Service of Notice Deemed Unlawful.</p> <p>In an action for damages resulting from injury to plaintiff’s means of support, caused by the intoxication of plaintiff’s husband by the sale of intoxicating liquors by defendant after having been served with notice, as provided for in section 4358, Revised Statutes; it is the duty of the court, in such case, to charge the jury that any sale made after service of the notice was unlawful.</p> <p>2. Averment of a Legal Conclusion is Not Sufficient.</p> <p>In an action founded on sections 4357-8, Revised Statutes, an averment that the sales were unlawfully made is not sufficient, as this is a legal conclusion; it is necessary to aver in the petition and prove on the trial, facts showing that the sales were made in contravention of the penal provisions of the statuté.</p> <p>3. Construction of Statute Relating to Sale of Intoxicating Liquors.</p> <p>It was not the object of the amendment to the original provisions of the statute relating to the sale of intoxicating liquors, by the incorporation of the provision relating to notice, to define a new crime, that upon service of a written notice the sales thereby became illegal; but rather, it was the object t® provide a measure of precaution and warning to the seller from the party injured, bringing to his knowledge the fact that he must not sell liquor to tho person named in the notice.</p> <p>4. Proof of Notice Being.Served as Provided for in Section 4358, Revised Statutes.</p> <p>In order to show that notice was given as provided in section 4858, Revised Statutes, it is not necessary to produce on the trial the witness who was present when the notice was served, as the testimony of the party who served the notice or of any person who knew of it would be competent to show that the notice was served.</p>

<p>TAXES — SCHOOL HOUSE — INJUNCTION.</p> <p>1. Appication of Money by Board of Education to Buied a School House.</p> <p>An injunction will not be granted to prevent a board of education from applying money in its treasury from taxes levied to build a school house to the refunding of money by it borrowed in anticipation of such taxes and used for such purpose, and in the mode which it lawfully might -have used the money arising from such taxes.</p> <p>2. Authority of Prosecuting Attorney to Bring Suit for Injunction. The prosecuting attorney, in his official capacity, has no authority to bring suit for such injunction.</p>

<p>RAILROAD LAW — NEW TRIAL.</p> <p>1. Striking prom Petition Certain Aeeegations.</p> <p>It is not error for a court to strike from tbe petition allegations amounting to a mere legal conclusion; also an immaterial allegation.</p> <p>21 Receiving Testimony oe One’s Experience and Observation.</p> <p>A person wbo has been employed and working as an engineer on a locomotive engine for several years, is sufficiently qualified to testify as to his experience and. observation as to the escape of sparks from locomotives.</p> <p>3. Evidence oe a Generae Nature.</p> <p>In an action for damages caused by fire, alleged to have been caused by sparks •which were emitted from defendant’s locomotive, the plaintiff may offer testimony showing the condition of the locomotives on defendant’s road, and he may show that the engines of the company generally emitted sparks as they passed along the line of the railroad company near the vicinity where the fire in question was started.</p> <p>4 Reeusae oe Court To Give a Certain Charge:</p> <p>In an action arising from fire alleged to have been caused by the emitting of sparks from a railroad locomotive, it is error for the court to refuse and charge the jury, requested by plaintiff, that if the jury found that the property of the plaintiff was ignited from a fire originating upon the lands of the railroad company, which according to 91 O. I*, 187, make it prima facie evidence that such fire was caused by operating such railroad.</p> <p>5. Verdict Against the Weight oe Evidence.</p> <p>Where the evidence of plaintiff goes to show that the fire originated upon the lands of the railroad company, which the statute makes prima facie evidence in that it was caused by the operation of the railroad, and is not disproved by the company, should have entitled the plaintiff to recover for his damage.</p>

<p>GAS AND OIL LEASE.</p> <p>Construction or Erase.</p> <p>A gas and- oil lease in which the lessor grants to the lessee the right to enter upon certain lands, for the purpose and with the exclusive right-to drill and develop oil and gas and other valuable substances, said rights to continue and be in force for five years from date of lease ; held, that the lessee should have proceeded to drill such wells upon the lands in question within the time fixed in the agreement, and that the lessee had not the right to commence to drill such wells after the expiration of the five years, and that an attempt to do' ■ sc would be restrained by injunction.</p>

<p>SUB-CONTRACTOR’S LIEN — EVIDENCE.</p> <p>' 1. Mode of Establishing the Lay/o of Another State.</p> <p>Where a party in an action offers to put in evidence the laws of another state, in order to bo entitled to offer such laws in evidence he must have pleaded the existence of ouch laws.</p> <p>2. Proof of Subcontractor’s Lien.</p> <p>S. carrying on the business of manufacturing and setting up heating furnaces, incorporated the same into two companies, one company tó do foundry work and the other to do the general business; the companies became insolvent and a receiver was appointed for each, the receiver of the foundry company undertook to subject moneys arising on certain contracts to the payment of alleged subcontractor’s liens in favor of the foundry, held, under the facts of the case that no subcontractor’s lien existed.</p>

<p>FORCIBLE DETAINER.</p> <p>Eviction or Lessee Holding Under a Parol Lease.</p> <p>The executors of a deceased lessor cannot, in a forcible aetainer action, evict a lessee before the expiration of his term, who, under a verbal lease for a period of five years, has entered into possession of and enjoyed the premises, and paid the annual rentals agreed upon with his lessor.</p>

<p>ERROR — EVIDENCE—CHARGE TO JURY.</p> <p>1. Mc-Tion To Require Prosecuting Attorney to Erect on Certain Count in Indictment.</p> <p>The indictment contained four counts, all descriptive of the same transaction. Held, it was not error for the trial court to overrule the motion by which it was sought to require the prosecuting attorney to elect upon which count of the indictment he would proceed to trial.</p> <p>2. Introduction of Confession.</p> <p>The overruling of an objection by the trial court to the introduction of a confession of the accused on the ground that it was not voluntarily made, should not be reversed by a reviewing court unless clearly satisfied that the trial court erred in finding as a fact from the testimony produced, that such confession was voluntarily made.__</p> <p>3. Charge of Court on Questions oe Manslaughter, i</p> <p>In a case of homicide, in which the jury convict the accused of murder Is» the first degree, the fact that the trial court, in the charge of the jury, did not in. all respects correctly define the crime of manslaughter, was not a prejudicial error for which the conviction should be set aside.</p> <p>4. Proof of Purpose or Intent to Kill.</p> <p>The purpose or intent to kill, in general, is proved by the circumstances by what a party does and says, the manner of inflicting wounds, the instrument used and its tendency to destroy life; if palpably calculated to take life, it may be presumed to be so intended.</p> <p>5. Evidence and Proof Regarding the Question of Insanity.</p> <p>The law presumes every person who has reached the age of discretion, to bo of sufficient capacity as to be responsible for crime, and therefore the barden of proof to establish the defense of insanity in a criminal case, rests upon the defendant asserting it, but a preponderance of the testimony is all that is necessary for that purpose.</p>

<p>EVIDENCE.</p> <p>Introduction oe a Book oe Accounts.</p> <p>In order that an account book may be introduced in evidence as being competent, the party or any competent witness must testify that it is a book of original entries; that the entries therein were made by him or by a person now deceased, or by a disinterested person now non-resident of the county, and until such facts are shown such book is incompetent and cannot be introduced as evidence. ”</p>

<p>ANIMALS — FENCES.</p> <p>Liability or Owner por Trespassing or his Camxe.</p> <p>Where the owner of certain cattle — cows—does not allow them to run at large, but has them in a pasture that is properly fenced, such owner, upon the breaking out of his cattle and trespassing upon the lands of a neighbor, is not liable for any penalty, by way of damages as provided for in sections 4202 and 4251 Revised Statutes, and his cattle cannot be detained by the neighbor as" against the right of the owner.</p>

<p>MUNICIPAL CORPORATIONS — SIDEWALKS.</p> <p>A City is Bound to Keep the Grades oe its Sidewalks Unieorm.</p> <p>Where a city has established the grade of a street, it is bound to see that the sidewalks on such street conform to that grade, and if a person receives an injury on account of the grade of the sidewalk on such street not being uniform, such omission on the part of the city amounts to negligence and renders it liable in damages to the person injured.</p>

<p>APPEALS.</p> <p>Action When Not AppEaeabeE.</p> <p>Where an action is brought by petition upon an account and a mechanic’s lien set up, and an issue is taken upon the question as to the amount due upon the account and as to whether the lien was filed in time, held, that such case is one triable by a jury and is therefore not appealable, and the question as to whether the lien was filed in time, is one that may be and should be submitted to a jury upon the issues joined, unless the parties waive a jury.</p>

<p>BIGAMY — EVIDENCE.</p> <p>1. State not Bound to Prove a Divorce.</p> <p>In a prosecution for bigamy, the state is not bound to prove that the defendant and his first wife were not divorced.</p> <p>2. Admission op Letters Written to First Wipe.</p> <p>Letters written to his first wife, by a person prosecuted for bigamy, which contain expressions indicating that the marriage relation existed between them, which letters came into the hands of an officer of the law having been voluntarily delivered to him by the woman who claimed to be the first wife of the accused; held, that such letters are competent and may be given in evidence as they do not come within the prohibition of section 7284 of our Revised Statutes.</p> <p>3. Admission op an Alleged Certificate op Marriage.</p> <p>It is error, prejudicial to the defendant in a case of bigamy, for the .court to admit in evidence a certain paper writing purporting to be a certificate of marriage of the defendant with his first wife, but which does not show when it was written or when it was delivered by the person by whom written.</p>

<p>MUNICIPAL CORPORATIONS — SEWERS—DAMAGES.</p> <p>1. Liability or Municipal Corporation ror Negligent Construction or ’ts Sewers.</p> <p>A municipal corporation is liable to an owner of property for damages suffered by him, which have resulted from the negligent construction of its sewers.</p> <p>2. Method or Ascertaining The Measure or Damages.</p> <p>Where damages have been eaused to real property by the negligent construction of the sewers of a municipal corporation, the measure of damages to be. determined by the jury, would be the difference in the value of the property before and immediately after the injury occurred.</p>

<p>DITCHES AND DRAINAGE.</p> <p>1. Appointment and Notifying Committee as to Assessing the Cost on Upper County.</p> <p>Where a proposed improvement of a ditch which has its outlet in another county is contemplated, and upon failure of the commissioners of the respective counties to agree upon the amount which the upper county is to pay the lower county for the proposed outlet of the ditch and a committee is properly appointed, during the pendency of the proceedings, by the probate j udge of each county, who are to assess this amount upon the upper county, such committee may be properly notified as to their duties, by mail by the probate judge, and it is unneccessary to have the committee at his office for the purpose of notifying them.</p> <p>2. Power of Probate Court to Modify Return of Committee.</p> <p>Where a committee is appointed by the probate judge to assess the amount which the upper county is obliged to pay the lower county for the proposed outlet of ditch, and such committee make a return of the amount to the court, it is within the jurisdiction of the probate court to modify such report, as justice may require, either by increasing or decreasing the amount stipulated in it.</p>

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

<p>PRACTICE — BILL, OF EXCEPTIONS.</p> <p>1. Suit on Rejected Claim.</p> <p>Where suit upon a claim rejected hy the administrator is brought in the U. S. court within the statutory limit as provided for by section 6097, R. 8., and there dismissed; otherwise than on its merits, such suit is barred by the statute of limitation, but under the provisions of section 4991, R. S., another suit may be commenced by the plaintiff within one year after its dismissal in the U. S. court.</p> <p>2. Failure oe Bill oe Exceptions to Contain all the. Evidence.</p> <p>Where the bill of exceptions does not contain all the evidence which was submitted to the trial court and the jury, the reviewing court will not disturb the ruling of the trial court in its refusing to grant a nonsuit or to sustain a motion for a new trial.</p>

<p>JUSTICE OF THE PEACE.</p> <p>Jurisdiction or, in Township Other than one Beecteí» in.</p> <p>Where one is usurping the duties of a justice of the peace in a township is which he has not been elected to that office, an action in quo warranto will lie against him.</p>

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

<p>CONSTITUTIONAL LAW — TAXES AND TAXATION.</p> <p>1. Law Creating Cleveland’s Board oe Equalization is Constitutional.</p> <p>. he act passed by the legislature April T3, 1892 (89 O. S., 283), which provides for the appointment of a board of equalization and assessment in cities of the second grade, first class, is constitutional, and where such board acts within its prescribed powers, such acts are valid.</p> <p>2. All Acts oe the Legislature are Presumed to’be Valid.</p> <p>In determining whether an act of the legislature is or is not in conflict with the constitution, it is a settled rule that the presumption is in favor of the validity of the law.</p>

<p>INSOLVENT CORPORATION — STOCKHOLDER’S LIABILITY.</p> <p>Effect of Compromise between Creditors and Stockhoeders of Insoevent Corporations,</p> <p>Where, by the statutory liability of the solvent stockholders of a corporation, it appeared that the creditors would receive seventy-five cents on a dollar, but all the creditors with the exception of the plaintiff agreed on a compromise for a less amount the plaintiff is not entitled to the full amount of his claim, but only to such amount as he would have received had there been no compromise agreement between the creditors, which in this case he would be entitled to receive seventy-five cents on the dollar.</p>

<p>EXTRADITION.</p> <p>1. Effect of Technical Defect in Indictment in Case of Extradition.</p> <p>If a felony is substantially charged in an indictment, the fact that it may be in-artificially drafted, or that there is some technical defect in the form of the indictment ought not avail and defeat extradition,</p> <p>2, Evidence Showing That a Person is not a Fugitive From Justice.</p> <p>On the hearing of an extradition case by any court in this state, the parties, may offer testimony to show that in fact they were never in and are not a fugitive from another state.</p>

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

<p>WILLS.</p> <p>1. Construing a Will.</p> <p>In construing a will for tbe purpose of discovering tbe intention of tbe testator, tbe court will look at tbe circumstances under wbicb tbe will was made and tbe subject to wbicb it relates, as tbe state of bis property, bis family and tbe like. .</p> <p>2. Disposition or Property Contrary to Testator’s Directions.</p> <p>Where a testator leaves all bis property to bis wife, empowering ber to dispose of all tbe property remaining at her death, by devise or bequest, held, that such power of disposition was limited and confined to tbe testator’s own children, and any attempt to divert such part of the estate to her children, by a second husband, she acts without power or right and such devise is invalid and confers no right in such devisees.</p>

<p>MORTGAGES.</p> <p>Conveyance oe Encumbered Premises by Mortgagor to the Mortgagee.</p> <p>Where a mother owns lands in fee and executes a mortgage on the same to her son and subsequently conveys the encumbered lands to him, this would, as between the parties operate as a cancellation of the mortgage without any express agreement that it should do so, because the son would then be the owner and holder of the mortgage on his own lands; but if the note and mortgage securing it has been assigned to a third person, the rights of such third person would not be affected by the conveyance from the mortgagor to the mortgagee and such third person would be entitled to his lien on the property.</p>

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

<p>PARTNERSHIP.</p> <p>*ViThdrawae of a Dormant Partner.</p> <p>*Vhere a creditor of a partnership began to deal with it after the withdrawal of a dormant partner, such creditor never having dealt with the partnership while such dormant partner was a member of it; tho fact that no notice of the withdrawal had been advertised would not make the partner liable to the creditor, even if the creditor believed, when he sold the goods to the partnership that such dormant partner was a member of the firm, unless such partner had held himself out to be a member of the firm.</p>

<p>APPEALS.</p> <p>1. What Considered SueeiciEnt Notice oe Appeal,.</p> <p>A trustee having given notice of his intention to appeal by an entry upon the journal of the court, is a substantial compliance with the provisions of section 6408, Revised Statutes.</p> <p>2. FaieurE oe CeERk to FieE Papers within the Prescribed Time.</p> <p>A party having given notice of appeal to the circuit court in proper time, it then becomes the duty of the clerk, unless otherwise directed, to make a transcript and file it with the proper papers in the circuit court, after the expiration of thirty days from the entry of the judgment sought to be appealed from, and any failure of the clerk to so file the papers within the prescribed time can in no way prejudice the plaintiff in securing his appeal.</p>

<p>ASSIGNEE — CREDITORS.</p> <p>Assignee for Benefit of Creditors not Entitled to Poundage.</p> <p>An assignee for benefit of creditor;; is not entitled to poundage on the purchase price of mortgaged land sold by him and bought in by the mortgagees.</p>

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

<p>RAILROADS — PRACTICE — SPARK ARRESTERS — EVIDENCE-DAMAGES.</p> <p>1. Allowing a Reply to :be Filed After the Testimony was Substantially Closed.</p> <p>It is not a reversible error to allow a reply to be filed by a defendant after the testimony is substantially closed, or where plaintiff was introducing testimony in rebuttal, where the case was tried precisely as it would have been tried had a reply been filed before the trial commenced, but which was in fact tried in ignorance, on both sides, of the omission to file such reply.</p> <p>2. Evidence Showing Different Kinds of Spark Arresters.</p> <p>In an action against a railroad company for setting fire through defective or insufficient spark arresters on its engine, it is incompetent to charge such com pany with negligence by allowing evidence to be given which shows that another company used a different appliance; but evidence of expert witnesses showing different kinds of netting used by different railroads to guard against the emission of sparks, is competent.</p> <p>8. Competency of Evidence Regarding the Market Value of Destroyed Property.</p> <p>Questions only leading, up to show that property which has been destroyed had a market value are competent, as well as questions which show that the property had a market value.</p> <p>4. Proof of Actual Value.</p> <p>It is competent to show, as bearing upon the actual value of property destroyed, what its actual value was as a whole before and after its destruction.</p> <p>5. Measure of Damages.</p> <p>The measure of damages in cases where the property of one has been unintentionally destroyed by the negligence of another is the actual value of the property, and not what it would have cost to reconstruct or replace the same, allowing deductions for wear and tear; and where property totally destroyed has a market value, that market value is the measure of compensation for the loss.</p> <p>6. Admissibility of Sparks.</p> <p>Where it is clearly established that certain sparks which have been picked up along the track of the railroad company came from the engine of such company, then such sparks are competent and may be admitted in evidence.</p>

<p>FEES AND COSTS.</p> <p>Fees Recoverable by Clerk oe Courts.</p> <p>Except as specifically provided for by statute, the clerk of court is not entitled to receive any compensation from the county treasury for any services rendered for the benefit of the county or the public, however valuable and necessary such services may be, and although the law absolutely requires him tp perform the same; if so required for the public, and no provision is made for its payment from the treasury, it must be regarded as gratuitous.</p>

The petition of plaintiff below, who is plaintiff in error here, is as follows: The plaintiff, John C. Engel, says that he is the duly appointed, qualified and acting guardian of Andrew T. Engel, who is a minor, and as such guardian he brings this suit. He says that the defendant, The Standard Fighting company, is a corporation duly organized under the laws of Ohio, and at all times hereinafter mentioned, it was such corporation.

<p>ADMINISTRATION OF EST TES.</p> <p>1. Subjecting Property to the Payment oee oe the Indebtedness oe the Estate.</p> <p>An administrator of an estate is not entitled to the proceeds of certain property devised in the will that was sold on partition sale, for the purpose of paying off the indebtedness of the estate.</p> <p>2. Devise oe Mortgaged Premises.</p> <p>A Devisee of a mortgaged estate cannot claim exoneration as against a pecuniary legatee.</p>

<p>MECHANIC’S LIEN.</p> <p>Eien, When Not to Attach.</p> <p>Where the promoters of a certain enterprise, that of erecting butter factories, secure the signatures of a required number of persons who are willing to take an interest in the enterprise and subscribe for a certain amount of stock, and subsequently, after the completion of the factory, certain of the stockholders formed a corporation and the premises were deeded to such corporation, and shares conveyed in proportion to the amount paid upon the subscription of the parties, but it turned out that the amount of stock that was subscribed for was not all paid; held, that the promoters of such enterprise are not entitled to a mechanic’s lien upon the whole premises, or upon a pro rata share of the premises, equal to the amount of stock tha< is still unpaid.</p>

Drror to the Court of Common Pleas of Paulding county. In an action in the common pleas court, by Solomon Albright, plaintiff, against William Albright and others, defendants, there was a contest as to the validity and priority of liens.

<p>HOMESTEAD — OWNER—WRIT OF EXECUTION.</p> <p>1. Homestead and Dower Rights of Wife in Insolvent Husband’s Inheritance.</p> <p>A wife, living with her husband, neither husband nor wife owning a homestead, is entitled to select and receive $500.00 in lieu of c, homestead out of a fund arising from a sale in partition of an undivided interest in real estate inherited by the husband while insolvent.</p> <p>2. Inchoate Dower.</p> <p>The wife is entitled to he paid, out of funds arising from a sale in partition of an undivided interest in real estate inherited oy her husband, the present worth of her inchoate right of dower in the husband’s undivided interest in said real estate.</p> <p>3. Action for Money Only.</p> <p>It is error to render judgment, on default, on a petition for money only, where the amount claimed to he due is not endorsed on the- summons served, fot which the judgment may be reversed by proceeding in error; such judgment is not void, but voidable only at tbe instance of tbe party in interest who is prejudiced by it. -</p> <p>4. Effect of Voidable Judgment.</p> <p>Judgment on a petition for money only and rendered on default, in the absence of a proper proceeding to reverse it, is subsisting and valid, and supplies a basis for a writ of execution, which, when levied on an undivided interest in real estate, accomplishes a lien on such undivided interest from the date of the levy.</p> <p>5. What Sufficient Description of Interest in Land Levied Upon.</p> <p>A levy of a writ of execution is not void for uncertainty in the description of the land or of the judgment debtor’s interest in it; where the entire tract is correctly described and the undivided interest is stated to be: “All the interest of C. M.,” in such land.</p> <p>6. Effect of Failure to Appraise and Sell After Levy.</p> <p>A failure to appraise the undivided interest of land levied on, or to make an effort to sell it, is not an abandonment of the levy; such proceedings are not necessary in order to create a lien and the judgment creditor may reasonably ' await other processes in motion to realize his claim.</p>

<p>TRANSCRIPTS.</p> <p>Amendment of Defective Transcript.</p> <p>An accurate copy of the recorder a justice of the peace, properly signed hut not certified- may be amended under section 5114 Revised Statutes, on proper motion to the court, and under section 6731 Revised Statutes, the court has power to require a complete transcript to he furnished.</p>

<p>APPEALS — AMENDMENTS.</p> <p>Firing Amended Peeadings in Appear Cases in the Circuit Court.</p> <p>Amendments, in furtherance of justice, maybe permitted in the circuit court in appeal cases, under the provisions of section 5225 Revised Statutes, and where such amendments are properly made in the circuit couit, requiring new parties to be made, such new parties may be brought in and their rights ajudicated as effectually as if they had been parties to the action ia the court of common pleas.</p>

<p>APPEALS — PARTITION.</p> <p>J. Suit for EorECROSUR'-. and Personae, Judgment,</p> <p>Where the pl&intiff h petition asks for the foreclosure of n mortgage and for a personal judgment against the mortgagor on notes given by him, the case is triable by jury, and therefore is not appealable; but where other lien holders or persons claiming the property or fund are made parties against whom no personal claim is made, and who setup their rights thereto, such parties have a right to appeal from a decree affecting their iñteresto.</p> <p>2. Suits in Partition AppEarabdE.</p> <p>All partition cases are appealable since the revision of 1880, which brought partition, dower, mandamus and other causes of action under the form of proceedings in civil actions.</p>

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

<p>BILL OF EXCEPTIONS.</p> <p>Motion to Dismiss Birr of Exceptions, when Arrowed.</p> <p>A bill of exceptions not having been signed, allowed and filed within fifty days from and after the day the judgment in the case was made, must show the reasons why the same was not duly signed by the trial judge, otherwise it will, on motion, be dismissed together with the petition in error.</p>

<p>DEEDS.</p> <p>Ommission of Word Heirs in a Deed, Effect.</p> <p>Where land is conveyed by deed and the word “ heirs ” is omitted such grantees will only take a life estate, and upon their death, the grantor if liv- • ing, or his heirs, devisees or assigns in case of his death would be the owners in fee of the whole estate, free and discharged from any claim arising under such deed, saving of course, any legal demand against the grantor arising out of any lease executed to and by him.</p>

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

<p>GAS AND OIL LEASE.</p> <p>Construction or a Gas and Oil Lease,</p> <p>Where a gas and oil lease was made for a term of five years “and as much longer as oil or gas is found in paying quantities,” and a well had been drilled which produced gas in paying quantities for a number of years, and for which the annual rental had been promptly paid, the lesee, having performed all the conditions incumbent to be performed by him, is entitled to a reasonable time after such well is exhausted, to drill at other locations on the premises to find oil or gas in paying quantities, and for that purpose and during such time, the lease continues in full force.</p>

<p>GAS AND OIL LEASE</p>

<p>MASTER COMMISSIONER — FEES AND COSTS — CREDITOR’S BILL.</p> <p>2. A Master Commissioner’s Fees are Part oe the Costs oe the Case.</p> <p>Where the matter in controversy in a court of equity has been referred to a special master commissioner, it has always been the practice to tax his fees and .costs in the case.</p> <p>3'Power oe Courts oe Equity to tax Costs.</p> <p>Courts of equity have always recognized the right and exercised the power, when funds derived from litigation are brought into court, to order the fees and costs of their officers paid out of the funds realized by their exertions, before making destribution thereof to the litigant or litigants entitled thereto.</p> <p>3 Effect of Filing Report by the Master Before his Fees are Paid.</p> <p>Where the Master Commissioner files his report before his fees are paid, he does • not, by so filing it, waive his right to invoke the power of the court of equity to order it paid out of the funds in court, nor does he by such action, elect to look to the personal responsibility of the party against whom the court may, in its discretion, on the final determination of the case tax such costs.</p> <p>4 Power of a Court of Equity in Marshaling Liens.</p> <p>A court of equity in marshaling liens may compel a party who has two funds, to resort to the one on which the others have and can assert no claim, but this power will only be exercised by the court, when it will work no injustice to any party connected with the litigation.</p> <p>5 Fees of Special Master Constitute a Prior Lien on Funds Realized by his Services.</p> <p>A judgment creditor of an insolvent debtor, who has in a suit in equity, recovered a judgment for money against the adverse party — part of the costs of which suit is taxed against such insolvent debtor and remains unpaid — cannot, when the proceeds of such judgment have been paid in court, by filing a creditor’s bill under section 5464 Revised Statutes, subject such funds to the payment Of his judgment claim to the exclusion of the equitable claim of a special master commissioner against such funds, for fees, for services rendered as master in the suit in which such judgment was rendered and the funds realized.</p>

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

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

<p>STREET RAILWAYS — APPROPRIATING LANDS— EVIDENCE.</p> <p>1. Appropriating the use oe Street Railway Tracks.</p> <p>Where_ the common council of a municipal corporation has granted by ordinance, and in conformity with thepowor conferred uponit by the legislature, the right to a certain street railway to appropriate the use of certain existing tracks of another street railway in certain designated streets, and such company by virtue of such ordinance appropriate the tracks in a particular street, it will not be precluded from subsequently appropriating more of the tracks in the remaining streets without having first obtained an additional ordinance granting it the right to appropriate such additional tracks.</p> <p>2. SUEEICIENCY OE PETITION OE J-PPROPRIATING COMPANY.</p> <p>Where one street railway company seeks to apropriate the tracks of another company, the petition of such appropriating company will be considered sufficient, if it substantially shows, or necessary facts sufficiently appear, that it constructed and has in operation eight times the length of track that is sought to be appropriated.</p> <p>3. Allegations oe Time in Appropriating Proceedings.</p> <p>Ih an ordinary proceeding of condemnation of property, it is not usual or necessary for the appropriating company to state for what length of time it proposes to use the property appropriated.</p> <p>4. Proof of the Passage of an Ordinance.</p> <p>The passage of an ordinance by the city council and which ordinance has been duly recorded, may be proved by a transcript of the same, duly certified to by the city clerk.</p> <p>5. Cross-Examination of the Contents of Seared Pages of a Record Book.</p> <p>Where a corporation in order to show its due organization and the right to make a certain appropriation, offered in evidence certain pages of its record, with the remaining pages of such book being sealed or fastened up, and upon cross-examination it was sought to show what the contents of the sealed pages were: Held, that the parties seeking such cross-examination would have to proceed under the provisions of sections 5290 and 5291, Revised Statutes, when the opposing counsel state that such sealed pages have no relevancy to the case.</p> <p>6. Evidence of Varue of Property Sought to be Appropiated.</p> <p>Tax returns of property are competent as evidence and may be allowed to go to the jury and considered by them in arriving at the value of the property sought to be appropriated.</p> <p>7. A Juror Serving Without Having Been Properly Summoned.</p> <p>Where a juror not drawn upon the panel regularly, but an interloper, answered to the name of a juror regularly upon the panel, and both parties to the action supposed all the while that such juror was really the juror drawn: Held, that this would not invalidate the verdict rendered, if the juror so serving was in all other respects legally qualified to serve as a juror, had he been properly summoned.</p>

<p>RAILROADS — NEGLIGENCE—DAMAGES.</p> <p>1. Acts which Amount to Gross Negligence.</p> <p>Where the crew of a railroad train receive notice of an impending danger, and having the ability to stop the train and avoid the injury, they must do so, and failing to do this they are guilty of gross negligence amounting to wilfulness.</p> <p>2. Defendant Liable Regardless of Plaintiff’s Negligence.</p> <p>Where the act of defendant was so grossly negligent as to amount to wilfulness, and the injury might have been avoided by the defendant notwithstanding the negligence of plaintiff’s servants, the defendant would still be liable.</p> <p>3. Measure of Damages.</p> <p>Where a team of horses were, injured through the negligence of a railroad company, the proper measure of damages is the expense of restoration of the horses to health or soundness, compensation for the loss of their use ' during the period of their disability, and the amount of the difference, if any, between their value before- the injury and after restoration to health.</p>

<p>PERSONAL INJURY — CHARGE TO JURY — PLEADING»</p> <p>1. Certain Practices oe Pleading to be Condemned.</p> <p>In personal injury cases against corporations, the answer of defendant, where a real denial of many of the allegations of the petition cannot be made, but which simply admits its corporate character, and denying each and every allegation of the petition, is a practice altogether too common in such cases and greatly to be condemned.</p> <p>2. Liability oe Street Railway eor Injuries Sustained by a Lady Passenger.</p> <p>Where the dress of a lady passenger, who is about to leave a street car, becomes fastened in some way to the car and before she unfastens it, the conductor starts the car, by reason of which plaintiff was thrown to the ground^ and - sustained certain bodily injuries: Held, that the defendant would be liable if the jury found that plaintiff was exercising ordinary care when she was leaving the car and had no reason to apprehend danger in permitting her ■ dress to trail, and that plaintiff was entirely free from any negligence or fault, but that defendant was negligent in starting the car and thereby causing the injuries complained of.</p>

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

<p>APPEALS.</p> <p>Appear Not Cut Oee by Sare Pendente Lite.</p> <p>The conveyance of real property, the title of which is in dispute in the action, by a defendant to his wife, during the pendency of the suit, does not deprive him of his right to appeal from a decree that he has no title.</p>

<p>MUNICIPAL CORPORATIONS — SEWERS.</p> <p>Construction of Public Sewer Across Private Property.</p> <p>Where a public sewer is constructed by a municipal corporation, across apiece of farming land, the fee of such land remaining in the farmer; held, that thecity in such case owes no duty to the owner of the fee, with reference to the maintenance of the surface over the sewer and is not liable in damages to an employee of the owner of such lands for any injury that he may suffer such injury not resulting from any defect in the construction nor in the maintenance of such sewer.</p>

<p>ADVERSE POSSESSION — STREETS.</p> <p>1. Title to Property in Public Streets.</p> <p>Where a certain tract of land was laid out in lots and streets and a map of the same made, but which was not duly recorded in the county records, but was acknowledged by the owners of such lands after the execution of certain mortgages upon the property, the owners of such lands are bound by such map, and any streets that have been laid out and dedicated thereon and if the city in turn had done everything the law required it to do to accept the dedication of such streets, the title to the property in such streets will be held to remain in the city, unless lost by adverse possession.</p> <p>2. Alleged Conveyance of Title to Property in a Street.</p> <p>A grantor of a certain lot, who at the same time conveys all his right and title-to a certain street adjoining such lot, such a conveyance would absolutely convey nothing whatever, unless the grantor owned the prop erty in such street,</p> <p>3. Acquiring Title by Adverse Possession.</p> <p>Where certain lands have been laid out in lots and streets, the streets having been dedicated and accepted by the city, and the owner of one of the lots has fenced it up together with one of the streets, but has allowed the fence to decay and become out of repair, and the public travel through such lot along the line of such street, back and forth at will, such owner of the lot will not be field to have acquired title in the street by adverse possession as against the city, even though such fence has been allowed to remain for a period of twenty-five years or over.</p>

<p>ADMINISTRATION OF ESTATES — JURISDICTION.</p> <p>1. Voluntary Conveyance of Property.</p> <p>Where a party conveys his property by his own voluntary act, he passes by such conveyance the full and complete title to that property wherever it may be.</p> <p>2. Jurisdiction of United States Court.</p> <p>Where a United States court gets jurisdiction in a case arising out of the insolvency of a corporation and the appointment of a receiver, such jurisdiction is exclusive of the state courts only within fhe jurisdiction of such United States court.</p> <p>3- Protection of Resident Creditors.</p> <p>A resident creditor of Ohio, will be protected as to the assets in this state of an insolvent corporation having its existence in another state, as against a receiver, or an involuntary bankruptcy, a receiver being appointed in another .state.</p> <p>4. Situs of a Debt due a Non-resident Corporation.</p> <p>A corporation having its existence in Illinois, having a debtor residing in Ohio, the debt being evidenced by a promissory note made payable in Illinois, and upon the insolvency of such corporation its creditors proceed against it and have a receiver appointed, who seizes all its property, held, that where a state has given a right to a. creditor living within its boundaries to attach a debt, although the evidence of that debt may be held in another state, it has so far given a right by law that the situs of that' property is changed, and is in the state where the attachment is given, and the creditor residing in this state has a right to the money due, from the debtor of the insolvent corporation, as, against the right of the receiver of such corporation.</p>

- On March 17,1896, the defendant in error, Fischer, administrator, obtained a judgment against Josephine Bechtold, plaintiff in error, by the consideration of the court of common pleas of Defiance county. On June 6, 1896, Bechtold filed a petition in error in the circuit court of said county to obtain a reversal of the judgment and caused a summons in error to be issued and dated the same day, directed to the sheriff of the county.

<p>BILL OF EXCEPTIONS — JUDGMENT.</p> <p>Failure oe Bii* oe Exceptions to Contain ai/l the Evidence.</p> <p>A reviewing court will be warranted in reversing tbe judgment of the lower court when the bill of exceptions fails to contain all the evidence and when it appears that the verdict, so far as the amount of the judgment is concerned, is not supported by the evidence appearing in such bill of exceptions.</p>

<p>APPEAL.</p> <p>When Case comes to Circuit Court by Appear, How Tried—</p> <p>When a case comes to the circuit court by appeal it must be tried upon the pleadings as they stood when the trial was had and judgment rendered in the court below, unless the court permits or orders other pleadings or amendments to be filed. Hence when an answer was filed containing four defenses, to three of which a general demurrer was sustained and the parties after-wards went to trial upon the issues made by the remaining defense and the reply thereto, and a decree was rendered in favor of the plaintiff, and defendant appealed, the appeal must be conducted upon the latter issue.</p>

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

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

<p>In Quo Warranto.</p>

<p>CONSTITUTIONAL LAW.</p> <p>The Tayeor Avenue Act is Unconstitutionae.</p> <p>The Taylor avenue act passed February 18, 1891 (88 O. L.,_ 658), authorizing the commissioners of Hamilton county to construct certain avenues in said county and to issue bonds to pay for the same and then to assess a tax_ to redeem the bonds, is repugnant to section 26 of article 2 of the constitution and is therefore unconstitutional.</p>