Volume 50 — Ohio State Reports, New Series

The original action was commenced in the court of common pleas of Cuyahoga county, on the 16th day of January, 1886, by the American Bible Societjq against Horace P. Weddell, administrator with the will annexed, of the estate of Peter M. Weddell, deceased, and John H. Webster, assignee for the benefit of the creditors of Horace P. Weddell, to compel the assignee to allow, and pay out of the assets in his hands, in preference to other creditors, a legacj'-- of one thousand…

Error, to the Circuit Court of Butler county. January 25, 1888, the plaintiffs, partners under the firm-name of John S. Voss & Son, commenced an action in the court of common pleas of Butler county against Dan I. Murray, upon thirteen several causes of action—one upon an account stated, for the sum of $227.89, the other twelve' being upon promissory notes, a part of which were due and a part not, each being for the sum of $75.00, and dated January 5, 1888; and at the same…

<p>Error to the Circuit Court of Wayne county.</p> <p>The facts are stated in the opinion.</p>

The plaintiff in error began an action in the court of common pleas of Franklin county, and judgment in that court being rendered against him, he appealed the cause to the circuit court, where, upon motion by the defendant, it was dismissed on the ground that the action being one in which either party had a right to demand a jury trial, it was not appealable.

<p>justices of the Peace—Charges to jury, by—Reviewable on error— Statute of Frauds—Sale of standing timber within the.</p> <p>1. Instructions given to the jury by a justice of the peace, in the course of the trial of an action before him, are reviewable on . error.</p> <p>2. A sale of standing timber, whether or not the parties contemplate its immediate severance and removal by the vendee, is a contract , concerning an interest in lands, within the meaning of the Statute of frauds, and is voidable by either paity if not in writing.</p>

<p>Municipal corporations—Power and authority over streets—Gas companies, laying pipes therein, under grant from city, do so subject to power of city to change grades—No action for damages will lie, unless wantonness or negligence intervenes.</p> <p>1. The power to grade and improve streets is conferred upon municipal authorities for the public benefit. It is a continuing power, and is not exhausted bj’ the first exercise of it; nor 'can it, in the absence of statutory authority, be ceded nor bargained away; nor can one council, by its exercise, abridge the capacity of its successors to perform their duties in that behalf as the public interest may demand.’</p> <p>2. A gas company laying its pipes in the streets of a city, under a grant from the city, in conformity with an established grade, does so Subject to the right of the city to change the grade of the street whenever the necessities of the public require it, and, in the absence of wantonness or negligence on the part of the city, the company cannot maintain an action for damage occasioned by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade.</p>

<p>Libel— What is—Privileged publications— What are—Public officers.</p> <p>1. To print and publish of a person, that he “is said to have been in the work-house, and to have had a criminal record,” is libelous per se.</p> <p>2. Where the defense to an action for libel is, that the publication was privileged, and issue is joined upon the allegations of fact on which the alleged privilege depends, the issue is for the jury, and a refusal to instruct them that the publication was privileged, is not error.</p> <p>3. A report of a judicial proceeding, to be privileged, must be an accurate and impartial account of what actually occurred in the proceeding.</p> <p>4. While it is the right of the press, as it is of individuals, to freely criticize, and comment upon, the official action and conduct of a public officer, false and defamatory words spoken or published of him as an individual, are not privileged on the ground that they related to a matter of public interest, and were spoken or published in good faith.</p>

<p>Error, to the Circuit Court of Seneca county.</p> <p>The original action was commenced in May, 1887, in the Court of Common Pleas of Seneca county, bjr The National Exchange Bank, of Tiffin, Ohio, one of the defendants in error, against The Ohio Shoe Company, Elizabeth O. Sneath, administratrix of Alfred G. Sneath, deceased, Rezin W. Sha whan, and Anson C. Barbour, receiver of The Ohio Shoe Company, the plaintiff in error.</p> <p>The record discloses the following state of facts:</p> <p>“On the 8th day of June, 1878, The Ohio Shoe Company, a manufacturing corporation organized under the laws of Ohio, having become insolvent, the plaintiffm error, Anson C. Barbour, wras appointed as receiver of the property of the corporation in an action brought against it by Alfred G. Sneath to subject its property to the payment of its debts; Sneath being liable as its surety upon a large part of its indebtedness then past due.</p> <p>“Immediately upon his appointment, Barbour, as such receiver, took charge and possession of all the property and assets of the corporation, and under the orders of the court, has been converting the same into money, and still holds the same, and the fund now in his hands is the only property or fund applicable to the payment of the debts of the corporation, and the same is insufficient to pay the debts in full; and the corporation is wholly insolvent; has long since abandoned its organization, and its stockholders are also insolvent.</p> <p>“ On the 8th day of June, 1881, Barbour, as such receiver, recovered a judgment against The National Exchange Bank of Tiffin, Ohio, for the sum of $6,655.80, in the Court of Common Pleas of Seneca county, Ohio, as and for the penalty against the bank, prescribed by section 5198 of the Revised Statutes of the United States, for taking interest in excess of the rate prescribed by law, from The Ohio Shoe Company. That judgment was reversed by the District Court of Seneca county, on the petition in error, filed therein by the bank, and upon petition in error to the judgment of reversal, filed in the Supreme Court by the receiver, against the bank, the judgment of the district court was reversed and the judgment of the common pleas in favor of the receiver was affirmed by the Supreme Court on the 26th da}^ of April, 1887. (Barbour v. National Exchange Bank, 45 Ohio St. 133). At the. time Barbour was so appointed receiver of The Ohio Shoe Company it was indebted to the bank in the sum of $5,000.00, which indebtedness was then evidenced by a promissory note for $5,000.00 dated April 17, 1878, payable ninety days after date, and signed by The Ohio Shoe Company, and Alfred G. Sneath and R. W. Shawhan, as its sureties. Said note was taken up at maturity and a new note for $5,000.00 dated July 20, 1878, payable ninety days after date, and signed by The Ohio Shoe Company and its said sureties, given in its stead. At the maturity of the last mentioned note, $2,500.00 was paid thereon, and a new note for $2,500.00, dated October 20, 1878, payable ninety days after date, and signed by The Ohio Shoe Company, and its sureties, was given in the renewal of the amount unpaid on said $5,000.00 note so lastly taken up, and on the 21st da}*- of Januar}-, 1879, said $2,500.00 note was taken up and the note for $2,500.00 dated January 21, 1879, paj^able ninet3r da3^s after date, and signed by The Ohio Shoe Company,-and Alfred G. Sneath and R. W. Shawhan, as its sureties, was given.</p> <p>“On the 25th day of June, 1881, the bank obtained a judgment for the sum of $2,857.38, in the common pleas of Seneca county, against The Ohio Shoe Company, and Alfred G. Sneath, and Rezin W. Shawhan, as its sureties, upon said note dated Januar3r 21, 1879, the judgment to bear interest at eight per cent, per annum. No execution was ever issued on the last named judgment, and at the time of the commencement of the action below, that judgment appeared to have been satisfied of record, said satisfaction having been entered by mistake, March 25, 1884.</p> <p>“On the 5th áscy of February, 1883, the bank, in the court of common pleas of Seneca couut3^, recovered another judgment against The Ohio Shoe Company, for the sum of $2,200.98, upon the liability of the corporation as indorser upon certain promisso^ notes, discounted by the bank prior to the appointment of the receiver, but upon ■which no cause of action accrued to the bank against The Ohio Shoe Company, as such indorser, until after the appointment of the receiver. A part of this judgment bore interest at eight per cent., and a part at six per cent, per annum.</p> <p>“After the judgment in favor of the receiver was affirmed by the Supreme Court, the bank filed a motion in the court of common pleas, in the action in which said judgment was rendered against it, to have said $2,200.98 judgment in its favor against The Ohio Shoe Company set off against the iudgment in favor of the receiver. The motion was heard in said court on the 6th of May, 1887, upon the evidence offered in support thereof, and the same was overruled and refused, and thereupon said court rendered final judgment upon the merits upon the question thus presented, in favor of the receiver and against the bank, refusing to allow the set-off. The bank excepted to the decision of the court on said motion, and took a bill of exceptions embodying all the evidence, and it is now prosecuting a petition in error in this court, (No. 2244 General Docket) to reverse the judgment so rendered against it on said motion.</p> <p>“Thereupon on the 18th dajr of May, 1887, the bank paid to the sheriff on the execution held by him on the judgment against it in favor of the receiver, the sum of $1,975.53, being the excess due on said judgment over the amount due to the bank from The Ohio Shoe Company, on both of said judgments in its favor, computing interest to that date on each of said judgments, and thereupon brought the action below in this case to enjoin the collection of the balance of the judgment in favor of the receiver against it; and praying that the erroneous entry of satisfaction of said judgment in favor of the bank, might be set aside and held for naught; and praying to have both of said judgments in its favor against The Ohio Shoe Company set off against the balance due to the receiver on said judgment against the bank.</p> <p>“The receiver demurred to the petition, and his demurrer being overruled, he answered, and as a second ground of defense, he- pleaded the judgment, refusing to allow the set-off in the original case, in bar, so far as the action related to the judgment for $2,200.98; and as a third ground of defense, set forth the fact that the $2,857.98 judgment was dormant at the time the action was brought.</p> <p>“The court of common pleas held that the second ground of defense was good and refused to allow the $2,200.98 judgment to be set off for that reason, but allowed the judgment for $2,857.98 as a set-off against the judgment in favor of the receiver. The case was appealed by both parties to the circuit court, and the circuit court set aside the erroneous satisfaction of said judgment in favor of the bank and against The Ohio Shoe Company, and rendered judgment in favor of the bank, and allowed both of the judgments in its favor against The Ohio Shoe Company, as a set-off against the judgment in favor of the receiver, and enjoined the collection of the judgment in favor of the receiver against the bank as prayed for.”</p> <p>A motion for a new trial was made by the receiver, and was overruled. The receiver excepted to the ruling, and prosecutes this proceeding to reverse the judgment of the circuit court.</p>

<p> Taxation—Constitutional law. </p> <p>The act entitled “an act to provide for refunding of taxes erroneously paid under section 2742, Revised Statutes of Ohio, in counties containing a city of the first grade of the first class,” passed April 16,1890 ( 87 Ohio Taws, 212), in so far as it imposes an obligation on the county of Hamilton, on account of past transactions, is retroactive and in conflict with section 28, of Article II> of the constitution of this state.</p> <p>The subject of the act is in no respect local, but is of general interest to all the inhabitants of this state, and special legislation thereon is prohibited by section 26, article II, of the constitution of this state, which requires all laws of a general nature to have “a uniform operation throughout the state.”</p>

<p>Error to the Circuit Court of Seneca county.</p> <p>The facts are stated in the opinion.</p>

<p>Quo warranto— When pj'ivate individual map bring— When not— When Attorney General or Prosecuting Attorney may bring.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>'The original action was commenced in the Court of Common Pleas of Hamilton county by Israel H. Pendery against A. C. Allen, E. P. Allen, Eowe Emerson and others, under section 6344, Revised Statutes, to set aside certain conveyances, alleged to be fraudulent, made by the Allens to certain of their creditors. Judgment was rendered for the defendants, dismissing the petition, and an appeal was taken to the circuit court; where the case was again heard upon the merits and the petition dismissed.</p> <p>Among the conveyances claimed to be fraudulent, was a mortgage that had been executed by E. P. Allen on certain real estate to Eowe Emerson to secure two notes amounting to $18,500, which it was alleged was without adequate consideration, and therefore fraudulent as to other creditors. During the progress of the trial, leave was given to amend the petition by adding an averment, that this mortgage was made in contemplation of insolvency by E. P. Allen “for the purpose of securing a debt upon which he, Emerson, was surety to J. and G-. N. Rowe for $8,000.00, and to secure a debt of said Edward P. Allen to The Merchants’ National Bank for $10,500.00, on which Emerson was not surety, and that Emerson thereby became a trustee for all the creditors of said Edward P. Allen.”</p> <p>With respect to this mortgage, the court found the facts as follows:</p> <p>“Said mortgage described in said petition was executed by said Edward P. Allen to said Rowe Emerson; at the time it was executed said Edward P. Allen and Albert C. Allen were insolvent, and were 'jointly indebted to C. J. Rowe in the sum of $6,000 on a note dated May 18, 1885, due in six months, and to Geo. N. Rowe on a note dated May 18, 1885, for $2,000, due in six months, in all to the Rowes in the sum of $8,000, for the payment of which sum Rowe Emerson was a surety.</p> <p>“Said E. P. Allen and A. C. Allen were also indebted to The Merchants’ National Bank on notes as follows;</p> <p>“ May 1st, ninety days................................... $1,500 00</p> <p>“ 12th, three months.............................. 2,000 00</p> <p>“ 19th, sixty days................................... 2,000 00</p> <p>“ 19th, ninety days................................ 2,000 00</p> <p>“ 19th, four months................................ 1,500 00</p> <p>“ 23rd, three months.............................. 1,500 00</p> <p>In all the sum of $10,500.00, for the payment of which notes Rowe Emerson was in no way liable.</p> <p>“Said mortgage was to secure two notes •</p> <p>The first for..................................................$ 8,000 00</p> <p>The second for............................................ 10,500 00</p> <p>“The purpose in the execution of said two notes and mortgage was to provide for the payment of said debts to said Rowes and to said Merchants’ National Bank. Both were executed by Edward P. Allen to said Rowe Emerson, dated July 16, 1885, and due in six months from date.</p> <p>‘‘The consideration of the $8,000 note was the assuming by Emerson and his agreement to pay the above two notes aggregating $8,000 owing by E. P. Allen and A. C. Allen to Geo. N. Rowe and C. J. Rowe, on which Emerson was a surety.</p> <p>“The consideration of the $10,500 was the assuming by Emerson, and his agreement to pay the above six notes of E. P. Allen and A. C. Allen to The Merchants’ National Bank, aggregating $10,500, on which Emerson was in no way liable.</p> <p>“Emerson did pay to Rowe said $8,000.00, and to The Merchants’ National Bank said $10,500.00 on the above several notes as they matured.</p> <p>“The court also finds that at the time said mortgage to Emerson was executed, said Edward P. Allen .was indebted to said plaintiff and to said defendants who filed cross-petitions, and is still indebted to them in the amounts claimed by them respectively , as follows:</p> <p>Israel H. Pendery..........................................$1,000 00</p> <p>R. H. Andrews, (guardian).............................. 500 00</p> <p>Gideon G. Palmer......................................... 600 00</p> <p>Conrad Jacoby............................................... 2,000 00</p> <p>H. Vorhees................................................. 1,500 00</p> <p>Remus Gilliard............................................. 400 00</p> <p>C. Wolf........................................................ 2,000 00</p> <p>with interest on all of said claims as claimed in the pleading.</p> <p>“The court, therefore, as a conclusion of law, finds that said mortgage was not given to hinder, delay or defraud said creditors of Edward P. Allen, nor did said Emerson thereby become a trustee for said creditors, and that said creditors are not entitled to the relief prayed for by them in their pleadings; and that said petition and amendment thereto, and said cross-petition should be dismissed.”</p> <p>The agreement between the parties touching the mortgage of Allen to Emerson, is in writing, and is here inserted, though not incorporated in the finding of the court beyond its legal effect, since it has been inserted in the briefs on both sides, and commented on by the attorneys.</p> <p>It is as follows:</p> <p>“ Whereas, B. P. Allen is jointly indebted with A. C. Allen, in the sum of eight thousand dollars ($8,000) to C. J. Rowe and G. N. Rowe, of Cincinnati, Ohio, and is liable also upon six certain promissory notes held and owned by The Merchants’' National Bank, in amounts and maturing as follows: (Six notes amounting to $10,500 in the aggre-</p> <p>gate). And is wholly unable to pay any of the said notes or indebtedness as the same shall become due.</p> <p>“ And whereas, for the purpose of making some arrangement by which said indebtedness may be provided for and secured, the said E. P. Allen has this day executed and delivered his two promissory notes to Rowe Emerson, one in the sum of $8,000 and the other in the sum of $10,500, dated July 16th, 1885, and maturing six months after date, and has also executed a mortgage to said Emerson, in which his wife, Sarah S. Allen has joined, to secure the payment of said notes, wherein and whereby said E. P. Allen conveyed all his real estate.</p> <p>“Now, therefore, be it known, that in consideration of the premises, and the execution of said promissory notes in the sum of $8,000 and $10,500, and the execution and delivery of said mortgage to said Rowe Emerson, as aforesaid, the said Rowe Emerson does now hereby promise and agree with said E. P. Allen, that he will hold said E. P. Allen free and discharged from further liability upon said indebtedness to said Rowe and to the said Merchants’ National Bank of Cincinnati, and from all further liability upon the notes representing such indebtedness, and said Emerson will provide for the payment or settlement of said indebtedness, as far as E. P. Allen is concerned, at the maturity of the notes representing said indebtedness.</p> <p>“In witness whereof, the said Rowe Emerson has hereunto set his hand this 16th day of July, 1885.</p> <p>“ Rowe Emerson.”</p>

<p>Error to the Circuit Court of Erie county.</p> <p>. Action below was against The Take Shore & Michigan Southern Railway Company for the killing of Anthony Murphy, whose death occurred while working for the company, as a track repairer, near Sandusky, Ohio, August 3, 1888, by being struck by the pilot beam of a locomotive drawing a freight train. The negligence alleged was the failure to give warning, and for not providing a proper rule requiring -warning to those at work on the track, of the approach of trains. The suit was brought for the benefit of the widow and children.</p> <p>The answer admitted Murphy was in the company’s employ, and struck by a locomotive pulling a freight train, and so injured that he died. It denied the other allegations of the petition, and averred that the deceased caused the injury by his own want of care.' This latter averment was denied by the reply.</p> <p>At the trial the defendant asked the court to charge the jury that “upon the undisputed facts in this case it appears that the defendant Railway Company was not guilty of actionable negligence, an'd that the deceased was guilty of contributory negligence which brought about his dea-th, and the verdict of the jury should be for the defendant.” This request the court refused to give, and to this refusal the defendant excepted.</p> <p>The defendant also excepted to the following parts of the charge as given, viz.:</p> <p>1. “The defendant admits that no means were especially employed by it to give signals to those who were engaged in repairing the track of approaching trains, and whether the defendant was guilty of negligence in this respect, is a question which it is for the jury to determine. It was the duty of the defendant to employ and use ordinary care to prevent injury to its employes, but railroad companies are not insurers against accidents and injuries to their employes. As a matter of law they are only required to use ordinary care and exercise ordinary precaution and prudence, and adopt ordinary agencies and means to prevent injuries to their employes. They are not bound to employ the highest degree of care to that end.”</p> <p>2. “The question of ordinary care is to be determined by the jury from a consideration of all the evidence in the case. No general rule can be given as to what in law constitutes ordinary care; it depends upon the circumstances of each particular case. * * *</p> <p>3. “Whether before the injury complained of, the defendant in this case, had adopted such rules, and whether the deceased had knowledge of such rules, and whether he was violating the same when he received the injuries which caused his death, and whether if he was so violating them, such violation contributed to the injuries, are questions of fact to be determined by the jury from the evidence.”</p> <p>4. “If.the jury should find from the evidence that the defendant is guilty of ordinary negligence and that the same resulted in the death of Anthony Murphy, and also that the deceased was without fault in the premises, then the plaintiff is entitled to such damages as the jury may deem, from the evidence and proofs, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death, to the widow and next of kin, not exceeding the amount claimed in the petition.”</p> <p>A verdict for $1,600 was rendered. Motion for a new trial was overruled, and judgment entered, which was affirmed by the circuit court.</p>

<p>Mutual Fire Insurance Associations— Who may become members— Who may be directors of—Manner in which may insure property —Sections 3686, 3687, 3688, 3689 and 3690, Revised Statutes, construed.</p> <p>1. Assocations organized under sections 3686, 3687, 3688, 3689 and 3690, Revised Statutes, are not authorized to receive into their membership, persons who are non-residents of this state.</p> <p>2. Persons who are not members of such association, can not lawfully fill the office of director thereof.</p> <p>3. Such association is not authorized to do insurance business on what is known as the “joint stock” plan, nor on the “contingent liability” plan, as defined in - section 3634 of the statutes; but it is confined to insurance business in which its members insure each other against loss by fire and other casualties, and agree to-be assessed specifically, for payment of losses, and for incidental purposes.</p>

<p>Error, to the Circuit Court of Union county.</p> <p>The case is stated in the opinion.</p>

The suit below was an action brought in the court of common pleas by one of the heirs against the others, of A. Cordelia Powell, deceased, to compel partition of certain real estate of which she died seized.

<p> Bona fide purchaser for a vahcable consideration without notice, from a fraudulent mortgagee. </p> <p>1. Where a debtor executes a mortgage on real estate with intent to defraud his creditors, a bona fide purchaser for a valuable consideration without notice, from the fraudulent mortgagee, of a part of the pretended mortgage debt, will be protected against the claims of the general creditors of such mortgagor.</p> <p>2. Where such pretended mortgage debt is evidenced by a single promissory note for a gross and entire sum, such purchaser of a fractional part of the debt will be protected, on a pro rata basis, in his equitable interest so acquired.</p>

<p>Illegal arrest— When officer may arrest without warrant— When not:</p> <p>Where a -breach of tbe peace is committed in the presence of a marshal of an incorporated village or city, he may, without warrant, arrest the persons who participate therein. If, however, the officer was absent when such offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray and of the parties to it, was the statements of b3>--standers who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a legal warrant therefor.</p>

On May 26,1882, Edward D. Beaver executed his certain promissory notes amounting to $2,100.00, payable to the plaintiff, Amos S. Evans, at The Hamilton National Bank, Ft. Wayne, Indiana.

<p>Exceptions by the prosecuting attorney, to the judgment of the Court of Common Pleas of Brown county.</p>

Suit was brought in the common pleas of Franklin county by the defendant in error, against John B. Neil, upon a promissory note fcr $1,000, bearing interest at the rate of 18 per cent, per annum, executed in the state of Idaho, and where, by the laws of that state, 18 per cent, may be taken and reserved. Judgment was rendered for the amount of the note, with interest at the rate stipulated, 'amounting to $2,612.24, “to bear interest at the rate of 18 per cent, per annum.”

<p>Contempt— When Judges withoutjurisdictiou to punish—Mandamus —Circuit Court.</p> <p>Where a Circuit Court has awarded a peremptory writ of mandamus which the defendant neglects or refuses to obey, proceedings instituted to compel obedience to the writ and to punish him as for contempt, on account of such neglect or refusal, should be had before the court, the judges thereof, sitting at chambers, having no jurisdiction to hear and determine the matter.</p>

<p> Alimony—Appeal—Jurisdiction of Circuit Court. </p>

On the 26th day of April, 1882, the plaintiff in error filed a petition in the Court of Common Pleas of Brown county, to enforce the collection of an assessment of $328.12, with interest from December 20, 1881, made by the county commissioners for the construction of the Ripley and Arnheim free turnpike road, upon 220 acres of land of the defendant. By supplemental petition like relief was sought as to another assessment of $221.61, which had then become due.

<p>Statute of Limitations—Frauds—Pleadings—When an action is commenced—Receivers— When may be appointed—Powers of— Stockholders' liabilities—Evidence.</p> <p>1. When it appears from plaintiff’s petition, in an action for relief on the ground of fraud, that the cause of action accrued more than four years before the action was commenced, a general averment in the petition, that the fraud was not discovered by plaintiff until a time within four years before the action was brought, is sufficient to bring the case within the saving clause of the statute of limitations for such actions, without specifically setting out when the discovery was made, or how it was made,, or why it was not made sooner.</p> <p>2. An action is deemed commenced at the date of the summons. which is served on the defendant, and although a demurrer is sustained to the petition and leave given to amend, the action remains “ commenced ”; and the averment as to the discovery of the fraud within four years before the action was brought, may be supplied in a subsequent amendment to the petition.</p> <p>3. In an action to enforce payment of the statutory liability of stockholders in an Ohio corporation, a receiver may be appointed by the court to collect and distribute the fund, and such receiver may, by authority of the court appointing him, prosecute actions in his own name as such receiver to enforce payment of judgments rendered for such.statutory liability.</p> <p>1 When a judgment in a former action exists against a party to another action in the same court, and upon the trial of such other action reference is made to such former judgment, admissions are made as evidence on the trial by counsel on both sides that such judgment shows certain facts, and witnesses testify as to facts said to be shown by such judgment, all without objection by either side, it is not error for the court hearing the case, to regard such judgment as in evidence, although not formally offered or read by either party. Bevington v. State, 2 Ohio St. 160, followed and approved.</p>

<p> Equitable set-off—Insolvent debtor can not defeat by assignment of his claim—Stockholders in National Banks—Rights and liabilities of. </p> <p>1. When a person entitled to share in the distribution of a trust fund, is also indebted to the fund, and is insolvent, his indebtedness may, in equity, be set off against his distributive share; and the right of set-off will not be defeated by the assignment of his claim, though made before the amount of his indebtedness or distributive share is ascertained.</p> <p>2. Bach shareholder of a national banking association is individually liable for its debts, to the extent of the amount of his stock, at its par value, in addition to the amount invested in the shares held by him; and a receiver appointed to wind up the affairs of such an association that has become insolvent, is authorized, untier the direction of the comptroller of the currency, to enforce the liability of its stockholders, and collect from each of them the necessary amount, up to the extent of his liability, for the payment of the creditors.</p> <p>3. The indebtedness of the stockholders on their individual liability, together with the other assets of the insolvent bank, constitute a trust fund for the benefit of its creditors; and in equity, such indebtedness of a stockholder who is insolvent, may be set off against a dividend, payable out of the trust fund, on a balance due him on his deposit account with the bank at the time of its failure.</p> <p>4. An assignment by the-stockholder of his claim against the bank, before the direction of the comptroller to enforce his liability, but after the insolvency of the bank, does not affect the right to set off his liability against the dividend due on his claim; nor, does the fact that the comptroller, at the time of the assignment, had not determined the amount necessary to be collected from the stockholders for the payment of the creditors; it is sufficient that such direction has been given, and amount so determined, when the set-off is made.</p>

<p> Qtio warranto—Object of, against a corporation—Statute of limitations. </p> <p>3. The object of a proceeding in quo warranto against a corporation, is to determine its right to the exercise of any or all of the franchises it may claim the right to use and possess, not to divest it of the ownership of property unless acquired by a usurpation of the proprietary rights of the state.</p> <p>2 A prayer that the defendant, a corporation, be ousted from the right to use the lands of the relator for a private purpose, is, in effect, a prayer that the company be ousted from the possession of the lands, and not within the purpose of a proceeding in quo warranto.</p> <p>3. The ouster of a company from the right to be a corporation, for the misuse of a franchise, is limited to five years from the commission of the offense. § 6789 Revised Statutes; State ex rel. v. Standard Oil Co. 49 Ohio St., 137.</p>

<p> Constitutional law—Impairing the obligation of contract—Res judicata. </p> <p>1. A fire insurance company organized under a special charter before the adoption of the present constitution, is subject to such reasonable regulations as the legislature may p! escribe by general law, and the public good may require—such regulations serving to secure the ends for which the company was created, and not being repugnant to the franchises and privileges granted in its charter.</p> <p>2. A fire insurance company thus incorporated, will not be exempt from a compliance with the requirements of sections 3654 and 3655 of the Revised Statutes, to prepare and deposit annually in the office of the superintendent of insurance, a statement of its condition, unless such exemption appear to have been clearly granted by its charter.</p> <p>3. Where a judgment has been rendered by a court of competent jurisdiction, in favor of one of the parties to an action, for the reason that, otherwise, under' an existing law, a chartered right of such successful party might be involved in danger, the judgment should not be conclusive in a subsequent action between the same parties, when the law has been so amended that such right is thereby assured.</p>

<p>Homicide— What constitutes an aider and abettor.</p> <p>1. A person who becomes involved in a fight with one or more antagonists, should not, upon that ground only, be held an aider and abettor of another, who may be present, and incited by the struggle commits an independent act of - violence, that causes the death of the antagonist, or one of them, if there were more than one.</p> <p>2. In such case, to constitute the person engaged in the fight, an aider or abettor of the homicide, it should appear, either, that there was a prior conspiracy, or that he purposely incited or encouraged the slayer, or did some overt act himself, with an intent to cause the death of his antagonist.</p>

The original suit was commenced in the common pleas of Cuyahoga county, and appealed to the circuit court. It ■was brought by the trustees under the will of Thomas Bolton, deceased, against the beneficiaries and those claiming under them for a construction of the instrument. The testator died in 1871, and his estate was settled by his executors.

<p> Statute of limitations—Dismissal of action. </p> <p>Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of section 4991, of the Revised Statutes.</p>

<p>Error to the Circuit Court of Rucas county.</p> <p>On the 7th day of December, 1887, the council of the village of Maumee, Rucas county, duly passed an ordinance to provide for the annexation of certain territory to the village, and therein directed, and empowered A. W. Eckert and Albert Alius, to make proper application to the commissioners of Eucas county, and to prosecute all necessary proceedings to effect annexation of said territory. On the. 4th day of January, 1888, the agents named filed with the board of commissioners a petition in behalf of the village, setting forth the ordinance, a description of the territory sought to be annexed, with a plat, and praying an order of annexation. Notice of the time and place of hearing was ' duly given, and the meeting of the board for this purpose was adjourned from time to time. On the 8th day of May, by leave of the board,, the agents, in the name of the village, presented an amendment to the petition and map, changing some of the lines and leaving out a portion of the territory described in the original petition, but not adding any additional territory, which was taken under advisement, and the further hearing adjourned until June 5. On the last named day the hearing was again adjourned until June 12. On that day the board again met, and a resolution was passed reciting among other things, that the application, and as amended, contained a correct description of the territory sought to be annexed, granting the prayer, and ordering the annexation of the territory therein described. No ordinance had been passed by the council authorizing the amendment. A certified transcript of the journal of the board, together with the original and amended petitions, and the plat attached to the same, was thereafter filed, by order of the board, with the plaintiff in error, the clerk of the village of Maumee. Within sixty days thereafter the defendants in error, owners of property lying within the territory ordered to be annexed, filed a petition in the court of common pleas praying for an order restraining the clerk from reporting the proceedings to the village council. The common pleas refused the prayer, and dismissed the petition. This judgment was reversed by the circuit court, and the case is here on a petition in error, asking a reversal of the judgment of the last named court.</p>

Error, to the Circuit Court of Wayne county. On the 30th day of September, 1886, George A. Adams was married to Amelia Heckman, he daughter of Andrew G. Heckman, and they resided together as man and wife in Medina county until March 29, 1887, when she was adjudged insane by the probate court of that county, and on April 4 of the same year she was committed to the asylum for the insane at Cleveland, by her husband, on the warrant of said court, where she remained until about…

The original action was brought' in the Court of Common Pleas of Meigs county, by Simon Curtis, against The Standard Nail & Iron Company, and others.

<p>Error to the Circuit Court of Summit county.</p> <p>The facts are stated in the opinion.</p>

<p> Perpetual lease—Option of purchase—Equitable conversion. </p> <p>1. Upon exercising the option, the equitable doctrine of constructive conversion of real into personal property, is applicable to leases in which an option to purchase the demised premises is granted to the lessee.</p> <p>2. Where a lessee of a perpetual lease, with the privilege of purchasing the land at any time, duly exercises the option of purchase after the death of the lessor who is the owner in fee, the conversion of the realty into personalty will take place at the time of exercising the option, and will not relate back to the time of the execution of the lease; and the purchase money, if not required to pay debts or legacies of the lessor, will go to the heirs of the lessor, as between the heirs on the one side and the personal representatives of the lessor on the other.</p> <p>3. In the year 1848, W., then a resident of the state of Ohio, and seized in fee simple of a parcel of land situated in that state, leased the same to B. for the term of ninety-nine years, renewable forever. The lease contained a covenant, that upon the payment of the sum of eight hundred- dollars, and all accrued rents, to the lessor, her heirs or assigns, the lessor, her heirs or assigns, would convey the premises in fee simple to the lessee, his heirs or assigns. All the interest of the lessee, thereafter, became vested in B. by mesne conveyances. The-lessor in 1854 married T., and thereafter resided with him in the state of New York until 1861, when she died intestate, leaving her husband and B., a son, her only child and issue, surviving her. Her son died unmarried and intestate in 1872, and her husband died in 1884. The husband and son lived and died residents of the state of New York. In April, 1886, L., desiring to exercise the option of purchase, filed a bill of interpleader, making the administrator of the lessor and of her husband, and also the heirs-at-law of E., the son, and others, parties in the action, as being claimants of the fund. There was no claim made upon the fund for the payment of any debts of the lessor.</p> <p>Held: 1st. That the demised premises were not converted into personalty until the exercise by L. of the option of purchase.</p> <p>2d. That upon the death of the lessor, the premises were inherited by her son, and upon his death passed by inheritance to his heir-at-law, as real estate, under the Ohio statute of descent, subject to the lease, and to the husband’s estate by the curtesy.</p> <p>3d. That upon the husband’s death, the heirs at-law of the son became the sole owners of the premises, subject only to the lease, with the right to the accrued rents and the purchase money.</p>

In the year 1854, the city of Toledo established a grade for Erie street of said city at its intersection with Jefferson street. The defendant in error was, at that time, or after-wards became, the owner of certain real estate located on one of the corners formed by the intersection of said streets, and improved the same with reference to said grade.

The plaintiffs action was commenced by the filing of a petition in the court of common pleas, as follows: “Charles E. Niles, plaintiff above named, says that Oliver P. Shaw, defendant above named, is the county treasurer of said Plancock county, duly elected and qualified and acting as such, and as such treasurer charged with the collection of the taxes upon the grand duplicate of said county. “Plaintiff, complaining of said defendant; says that on and before the month of…

In the petition the plaintiff in error, who was plaintiff below, set out an agreement in writing, of which the following is a copy: “ Van Wert, Ohio, May 26, 1877. “ One day after date, I promise to pay to Mrs. Elizabeth E. Bonewitz, or her heirs or assigns, thirteen hundred dollars ($1,300.00), for value received.

On June 30, 1887, plaintiff in error, also plaintiff below, filed his petition in the Superior Court of Cincinnati against the defendant in error, also defendant below, as auditor of Hamilton county, seeking to enjoin said auditor from placing upon the tax duplicate, for taxation for the year 1887, the sum of one hundred thousand dollars of the stocks of the state, issued under the act of April 8,1856, held by plaintiff, for the years 1881 to 1886, both inclusive, which…

Margie Coss, an unmarried woman, made complaint in writing, under oath, before F. C. Robiqson, a justice of the peace of Pease township, Belmont county, charging Ado Kyne with the paternity of her illegitimate child.

<p>Error to the Circuit Court of Franklin county.</p> <p>The facts are stated in the opinion.</p>

In the year 1886, the plaintiff in error, The Card Fabrique Company, was a firm located at Middletown, Ohio, engaged in the manufacture and sale of playing cards; and the defendants in error, John E. Stanage and Emma Stanage, who are husband and wife, were then, and at the time of commencing the original action, residents of the state of Missouri.

At the May term, A. D. 1890, of the Court of Common Pleas of Montgomery county, the following indictment was found by the grand jury against the plaintiff in error: “State of Ohio, Montgomery county: The court of common pleas, May term, in the year eighteen hundred and ninety.

<p> Pubhc schools—Tuition of non-resident pupils—How payment of provided for—Section 4022, Revised Statutes, construed. </p>

Plaintiff in each of these cases filed a petition in the court, of common pleas to enjoin the treasurer from collecting an assessment of what is known as the Dow tax 'on traffic in spirituous liquors under section 8092-8, Revised Statutes. Plaintiff was successful in each case in the common pleas court, and each case was appealed to the circuit court, and tried in that court, and a finding of facts made in each case.

The action below was brought December 22, 1887, by Wm. J. Coppock, as administrator of Charles A. Kebler, deceased, against Henrietta D. Eeonard, Adolf Hartdegen, and Mary S. Russell, plaintiffs in error, and Frederick G. Roelker and others, as creditors of the deceased, and the firm of S. Kuhn & Sons, to determine adverse claims of the plaintiff and the said creditors, to certain notes, bonds, and other securities described in the petition, in the possession of S. Kuhn &…

<p>ERRor to the Circuit Court, of Franklin county.</p> <p>The facts are stated in the opinion.</p>

Error, to Circuit Court, Franklin county. This case was argued and submitted with that of Parsons v. City of Columbus, and a number of others, on the questions made as to the validity of the statute known as the “ Taylor Law; ” and these questions, having been considered and determined in the report of that case, will not be further considered here. The facts distinguishing it from that of Parsons, and requiring a separate report, are stated in the opinion.

<p> Assessments for public improvements. </p> <p>Section 2283, Rev. St., is not applicable to assessments for improvements made under the Taylor law, as amended March 21, 1887 (84 Ohio Laws, 176).</p>

<p>Error to the Circuit Court of Muskingum county.</p> <p>The facts are stated in the opinion.</p>

Defendant in error brought an action in the Court of Common Pleas of Wayne county, on' a promissory note, against The Sterling Wrench Company, the maker, and a number of its stockholders, as guarantors thereof.

The plaintiff in error brought an action in the court of common pleas of Defiance county to recover damages for an alleged libelous article that the defendants in error caused to be published in a newspaper reflecting on his character for honesty and veracity. The defendants filed separate answers in the action, setting up the circumstances of a transaction which they claimed established the substantial truth of the publication.

The defendant below, George Schuck, was indicted in the court of common pleas of Wayne county, under section 6948, Revised Statutes, for failing to keep his bar-room, where he sold intoxicating liquors, closed on election day, the 8th of November, 1892. A plea of not guilty was entered by him. Upon the trial of the case he was found guilty, and adjudged to pay a fine of twenty-five dollars, and be imprisoned one day.

The case of Stembel et al. v. Martin et al., is on error to the Circuit Court of Franklin county, and that of Stone et al. v. Doster et al., is on error to the Circuit Court of Cuyahoga county. The cases were argued and submitted together, and will be reported together. A statement of the facts of each case, so far as they are necessary to a proper understanding of the questions presented, will be found in the opinion.

The action below was by a wife under §4357, Revised Statutes, to recover damages for an injury to her means of support, caused by the unlawful sale of intoxicating liquors to her husband by the defendant below.

Prior to December 15,1884, William T. Bowen and Joel M. Tuttle had been doing business as partners. On the above-named date two deeds of assignment in trust for the benefit of creditors were executed to Walter W. Bowen and George W. Suhr, pne jointly (though not in the firm name), by William T. Bowen and Joel M. Tuttle, and the' other by William T. Bowen alone.. Tuttle had no property or means but such as he had invested and held in the firm.

The plantiff in error is a fire insurance company, incorporated under the laws of this state, having its principal office at Cincinnati. On the 2d day of June, 1884, said insurance company issued and delivered its policy of insurance of that date to Jacob Brecheisen, then in full life.

The action below was brought by The Newark Machine Company, against The Kenton Insurance Company of Kentucky, to recover the amount of a policy of fire insurance. The issue tried was whether the contract of insurance had been consummated by the parties. The plaintiff prevailed in the court of common pleas; but the judgment there obtained was reversed by the circuit court, and error is prosecuted here to the judgment of that court.

<p> Evidence—Collateral facts—When admissible—Instructions to the jury in relation thereto. </p> <p>1. Any fact is admissible in evidence, though collateral to the main issues, which tends to prove or disprove the matter or fact in dispute.</p> <p>2. In an action by an employe against his employer for damages. resulting from an injury received in operating a machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on a former occasion, while it was being operated by another, the machine worked in a manner similar to when the plaintiff was injured. But such evidence is only competent to prove the defective character of the machine and the employer’s knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintiff was injured ; and the jury should be so instructed at the time it is received..</p>

<p> Non-repair of road—Extinguishment of right to take toll—Constittitional law—Trial by jury—Due process of law. </p> <p>Sections 4914, 4916 and 4918 of the Revised Statutes, so far as they authorize the probate court to declare a turnpike road abandoned and vacated as a toll road, and thereby to become a free road, without the intervention of a jury, or the right of appeal whereby such jury could be had to determine whether the road or a part thereof has been out of repair for the preceding six months within the statutory meaning, are in conflict with:</p> <p>1. Section 5, Article 1 of the Constitution: “ The right of trial by jury shall be inviolate: ”</p> <p>2. Section 16, Article 1 of the Constitution : “ Every person, for an injury done him in his land and goods, shall have remedy by due course of law.”</p> <p>S. The provision in Section 1, Article 14 of the amendments of the Constitution of the United States, that no person shall be deprived of property without due process of law.</p>

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

The plaintiff in error was indicted, tried and convicted of burglary in the Court of Common Pleas of Fairfield county. During his trial his council excepted to certain rulings of that court, which, being embodied in a bill of exceptions, he asks this court to review. The facts necessary to disclose the questions considered by this court will be stated in the opinion.

Minnie Brennan brought her action against her husband, Edgar H. Brennan, for divorce and alimony, in the court of common pleas of Erie county, and made The Eakeside & Marblehead Railroad Company a defendant, alleging in her petition that the railroad company was indebted to-her husband in the sum of $1,126.37, for which the husband had recovered a judgment against the railroad company-in the court of common pleas of Ottawa county; and she asked and obtained a temporary…

On the 11th day of April, 1887, George F. Eberhard executed and delivered to the plaintiff in error a mortgage on certain real estate owned by him to secure the payment of thirty-five hundred dollars on April 1, 1890, with interest at six and one-half (6J) per cent., payable semi-annually.

The action below was brought by the defendant in error against the plaintiff in error, before a justice of the peace, to recover $73.11, with interest, for cash had and received by defendant, being balance due of proceeds of real estate of her father Calvin Moore, her interest being $292.46, of which defendant had paid her only $219.35.

On the 19th day of March, 1864, The Home Rife Insurance Company executed its policy of that date, and thereby insured the life of Charles C. Helwig in the sum of two thousand dollars in consideration of a premium of $72.20 to be paid on Or before the 19th day of March of each year during the life of said Charles C. Helwig.

<p>There are four cases between these parties, bearing the above title, here on error to the Circuit Court of Lucas county, and an action in Quo Warranto brought in this court on the relation of the Attorney-General against The Toledo Electric Street Railway Company, which were heard together.</p> <p>The cases are sufficiently stated in the opinion, which is intended to apply to all of them.</p>

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

<p> Action to recover damages by reason of a change in the grade of a public road. </p> <p>Where the grade of a public road has been established, and the owner of abutting land has improved the same by erecting and maintaining buildings thereon with reference to such established grade, and with reasonable reference to the prospective improvement of the road and its future enjoyment by the public; and where the board of county commissioners has improved the road by changing such established grade, an action for damages will lie in favor of the owner against the board of county commissioners, where, by such change of grade, the owner’s free and safe passage from the road to and from his land and buildings thereon has been obstructed or impaired.</p>

<p>Exceptions to the Court of Common Pleas of Rucas county.</p>

Action in replevin was brought by defendants in error against plaintiff in error, as administrator of Michael Earnest, deceased, to recover possession of a quantity of boots and shoes. At the trial the plaintiff offered one W. S. Freeman as a witness, and proposed to prove the sale of the goods by him to the deceased and certain representations made by the deceased at the time as to his financial standing.

Habeas Corpus. In the return to the writ issued in the case, the warden of the penitentiary, where the petitioners are imprisoned, shows they are held under sentence of the court of common pleas of Eawrence county for the crime of burglarju It appears from the authenticated copy of the record attached to the return, that on the 12th day of June, 1893, the petitioners, after trial and conviction, were each sentenced to imprisonment in the penitentiary at hard labor for the…

Error, to the Circuit Court of Crawford county. The action below was brought by the plaintiff to recover damages for injuries caused by the negligence of the defendant.

The action below was brought by Christian E. Brockman, a taxpayer and owner of real estate abutting on the Montgomery road, in the county of Hamilton, in the circuit court, against the board of commissioners of that county, praying that a writ of mandamus issue commanding the board to forthwith appoint three freeholders of the county, to act as trustees under an act of February 9,1893, entitled “An act to authorize and direct the commissioners of Hamilton county to widen and…

On the third day of August, 1889, William B. Eee, John W. Barger, James D. Corwine, Margaret H. Corwine and Keziah D. Barger, as partners under the name and style of Pee Pee Milling Company, doing business at Waverly, in Pike county, plaintiffs below, began an action against James Emmitt, defendant below, to recover possession of a small tract of land included in the lease of the surplus water of the Ohio Canal, at or near lock 44, in Pike county.

The plaintiff below, as administrator of Anna Eoftus, deceased, commenced an action November 22, 1887, in the court of common pleas of the county to recover damages for the wrongful appropriation by The Eawrence Railroad Company of part of a highway of which the decedent was owner of the fee simple at the time, and of which she died seized; for the injury to her easement of ingress and egress to certain of her lands abutting on the highway; and, also, for consequential…

The defendant in error, Frank J. Jerome, as guardian of Jane A. Dobbs, an insane person, commenced the original action in the Court of Common Pleas of Rake county, against J. R. Eddy and the plaintiff in error, Abel R. Baker.

The defendant in error recovered against the plaintiff in error, in the Court of Common Pleas of Mahoning county, a judgment for damages caused to her property by an explosion of natural gas while the same was being conducted by plaintiff in error along one of the streets of the city of Youngstown. The judgment was affirmed by the circuit court. The facts necessary to understand the decision will be stated in the opinion.

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

On the 2d of January, 1892, the following petition was filed in the Court of Common Pleas of Allen county: “Thomas C. Platt, president and stockholder of The United States Express Company, plaintiff, v. William R. Colvin and Harmon Colvin, defendants. “The said plaintiff says that The United States Express Company is a joint stock association, duly organized in the year A. D. 1851, under the laws of the state of New York, and ever since existing and doing business as such,…

The relator, The Penn Mutual Life Insurance Company, of Philadelphia, is a corporation organized under the laws of the state of Pennsylvania, having its principal office at the city of Philadelphia, and having complied with the laws of Ohio, has been permitted by the superintendent of insurance to do business in this state.

Error, to the Circuit Court of Hamilton countj^. On August 20, 1888, a judgment was rendered in favor of one Metier, for $224, against T. J. Biddinger. An execution issued to Jeremiah Pratt, constable, who levied upon certain goods. Biddinger brought replevin against Pratt before a justice of the peace of Cincinnati township, claiming that he was not the owner of a homestead, and was entitled to the goods in lieu thereof.

The defendant in error began an action before a justice of the peace of Morrow county to recover of the plaintiff in error a sum of money which, with the costs of the proceedings had before them, the trustees of Eincoln township of said county had assessed against him as the just proportion of the expense of a partition fence that the defendant in error had built separating the adjoining lands of the parties.

The suit below was an action brought by Raura Ann Wood, then living, to recover dower in certain lands, owned by the defendant, and particularly described in the petition.