Volume 53 — Ohio State Reports, New Series

The plaintiffs in error, who are partners, brought suit in the common pleas court of Hancock county, against the Chamber of Commerce of Find-lay, O., a corporation under the laws of the state of Ohio, and twenty-five ojbher defendants, who were joined as trustees of the Chamber of Commerce which was alleged to be a corporation not for profit, to recover the. amount due on a bill for fireworks sold to the board of trade.

On August 22, 1893, the defendant in error commenced an action before a justice of the peace of Athens county, to recover against the plaintiff in error $6.82, upon a claim for work and labor, and also an attorney fee of five dollars, demanded by virtue of section 6563a, Revised Statutes, because the plaintiff in error failed to pay the sum claimed as wages within three days after payment thereof had been demanded in writing.

Action was brought against E. G. Krause and others, partners (plaintiffs in error), by David L. Morgan (defendant in error), to recover for injuries received by reason of alleged negligence of Krause & Co., and for a violation of statutory duty, by reason of which Morgan, a coal miner, was injured by an explosion of fire damp in a coal mine at the time being operated by Krause & Co. At the trial a verdict was rendered for the defend ants, which was reversed by the circuit…

The plaintiff below, Gustave Estievenard, avers in his petition that he was working in the employ of the Coal company, defendant below, digging coal in its mine, by its command and direction, in room number one, and while so working near quitting time in the evening- of August 29, 1892, a large mass of soap stone fell upon him from the roof of said room, that the fall of said stone was caused by the dangerous and insecure condition of the roof of said room at said point, by…

The original action was brought in the court of common pleas of Wood county, by Ross Wetzell, against Homer L. Huddle, Jefferson Richcreek and Lewis P. Fertig.

On the sworn complaint of George A. Root, made April 28, 1894, to E. J. Tyrrell, a justice of the peace of Hamilton county, Cincinnati township, Jacob Weller, the plaintiff in error, was arrested on the charge, that on December 11, 1893, at the county of Hamilton, he, the said Jacob Weller, did knowingly have in his possession with intent to sell, a quantity of vinegar, found upon proper test, containing artificial coloring’ matter, contrary to the statute in such case made…

Henry Bancroft brought an action against Addison Lewis and Mary Lewis for the recovery of fifty dollars before a justice of the peace. Trial was had and„ the justice instructed the jury to bring in a verdict for the defendants, which was done. After the entry of judgment on the docket on the second day of October, 1891, the docket entries are as follows: “Plaintiff gives notice to file bill of exceptions ; no time agreed upon.

Mandamus. The relators are the qualified aud acting- infirmary directors of Huron county, and the defendants are the commissioners of said county. The petition alleges the refusal of the defendants to perform certain duties enjoined upon them by the general statute, and admits that they are not required to perform such duties if “An act to amend section 957 of the Revised Statutes as amended May 1, 1894,” passed May 14, 1894, is valid.

The plaintiff in error brought an action before a justice of the peace of Knox county, to recover the value of twenty bushels of oats that had been delivered by her to the defendant in error, to be by him consumed and shortly thereafter returned in kind to her.

The action below was a proceeding in the probate court of Hamilton county for the sale of lands of Gano Martin, deceased, to pay debts, in which the plaintiff in error and the defendants in error were cross-petitioners, each claiming to hold a lien prior to that of the other upon the lands in question. That court found in favor of John and Louis Manss, from which Kernohan appealed.

The controversy between the parties arose out of a duly acknowledged written instrument, which was recorded in the records of Wood county in the words and figures following: “contract. “Executed this 15th day of December, A. D. 1886, by and between Arie E. Stahl, of Wood county, Ohio, as first party, and C. W. Manahan, Jr., and A. K. Detwiler of Toledo, Ohio, witT nesseth: That the said first party for the consideration hereinafter stipulated and agreed upon, does hereby…

On the 20th day of May, 1889, Charles H. Stewart, as the-administrator of the estate of Hugh B. Wilson deceased, commenced his action in the court of common pleas of Huron county, against the Wheeling and Lake Erie Railroad Company, The Wheeling and Lake Erie Railway Company, The Central Trust Company of New York, The Mercantile Trust Company of New York, as trustee, John W. Cassell, William S. Fox and Cyrus McNeely.

George H. Eversmann, receiver of the New Ohio Building Association, an insolvent corporation, on March 10, 1890, brought suit in the Hamilton common pleas to foreclose a mortgage that had been given it by the defendant below, Maria T. Schmitt. The defendant being a member of the association, and the owner of twelve shares of the aggregate value of $3,000, when paid up, on May 1, 1880, had received an advanced loan of that amount, bidding therefor $240.00.

Quo Warranto. The attorney general, for the purpose of testing the right of the defendant to occupy that part of the Miami and Erie Canal which lies between Broadway street in the city of Cincinnati and the Ohio River, filed in the court the following petition: “Petition in quo warranto. Now comes John K. Richards, attorney general of the state of Ohio, by direction of the general assembly of the state of Ohio, and gives the court to un derstand and be informed: “1.

The petition in the common pleas averred that on May 19, 1891, Philip Allen, who is made a defendant, was duly appointed and qualified as guardian of said Ellen Row, that on the 18th day of January, 1890, said Jerome Row and Lucy Row his wife, obtained from said Ellen Row, aged 80 years, a large part of her property without consideration and in fraud of her rights; that on other days named, other property was fraudulently obtained; that she is an imbecile and was so at the…

<p>Conveyance to defraud creditors — Suit to set aside conveyance — Judgment against defendant does not preclude his participation as creditor, if one — Application of provisions of section 6344, Revised Statutes.</p> <p>1. Where notice is given of the pendency and object of a suit to set aside a conveyance, claimed to have been made to defraud creditors, or, to declare an assignment, giving preferences, a trust for the benefit of all the creditors of the assignor, and judgment is rendered against the defendant, he is not precluded by such notice from participating as a creditor, if one, in the distribution of the fund, though other creditors came in and complied with the provisions of the statute, section 6344, Revised Statutes, giving to such creditors with the plaintiff a priority in its distribution. .</p> <p>2. The provisions of section 6344, Revised Statutes, as to giving notice of the pendency and object of a suit to set aside a conveyance, applies to a suit under the previous section to declare an assignment, giving preferences, a trust for the benefit of all creditors of the assignor.</p>

<p>Error to the Circuit Court of Lucas county.</p> <p>January 17, 1876, Platt et al. brought ejectment in the common pleas court of Lucas county to recover the subaqueous ground lying between the former and present dock lines along the Maumee river and in front of a part of lot 11 in the city of Toledo. Each party asserts title in fee to such ground, and their rights depend upon the following material facts as shown by the pleadings and the stipulations upon which, the cause was submitted in the common pleas:</p> <p>In 1852, Harriet O. Hall was the owner in fee of lot 11 which included the premises in controversy. August 9, 1852, the Lake Shore company (its predecessor) commenced proceedings in the probate court to appropriate lands for railroad purposes The appropriation by metes and bounds carried the line of the company’s property thus acquired to the former dock line which was approximately parallel with the shore line and where there was available, for purposes of navigation, a depth of water somewhat exceeding nine feet. The company at once took possession of the lands acquired for landing, dock and terminal purposes (for which purposes they had been acquired), and built its dock upon the line established.</p> <p>June 21, 1855, Mrs. Hall executed to the company a deed for the same property for the express purpose of assuring its title. The description in this deed also carried the line to the former dock line, and granted the premises described “with all privileges and appurtenances to the same belonging.”</p> <p>The company took possession and constructed the docks necessary for traffic in connection with boats navigating the river and lakes, upon the dock line, which was established by authority.</p> <p>September 10, 1869, Mrs. Hall conveyed to Platt et al. a number of tracts of land, including lot 11, but expressly “reserving that portion of tract 11 which lies northwesterly of the center of the river road, the same being now in possession of the railroad company, ’ ’ such reservation including the premises now in controversy.</p> <p>Thereafter the dock line was changed for the purpose of accommodating vessels of greater draught, and the railroad company docked out to the new line thus established, completing the reconstruction of its dock in July, 1873.</p> <p>April 13, 1874, Mrs. Hall, by quit claim, granted to Platt et al. all her interest in lot 11.</p> <p>In the court of common pleas, Platt et al. recovered, and that judgment was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Perry county.</p> <p>On July 10, 1889, the defendant in error filed a petition against the plaintiffs in error in the probate court of Perry county, under section 6448, Revised Statutes, to compel the appropriation of a strip of land described as being seventy feet in width and about one-half mile in length, extending through the farm of the petitioner, and such proceedings were had thereafter that a verdict and judgment thereon were rendered in favor of the petitioner. On error the judgment was affirmed by the common pleas and circuit courts, and to reverse those judgments this proceeding is brought.</p>

The Cincinnati Gas Light and Coke Company brought its action in the court of common pleas of Hamilton county against the city of Cincinnati, to recover for gas furnished to the city for the months of May and June, 1890, amounting to over $23,000. The city in the answer avers that the bills for gas for said two months are incorrect and grossly excessive, and therefore payment is refused.

<p>Error to the Circuit Court of Fairfield county.</p> <p>On the 29th day of April, 1892, the defendants in error, Theodore Shallenberger and Lorenzo Bechtel, obtained a general verdict for a specific sum of money, against the plaintiff in error, in an action brought in the court of common pleas of Fairfield county, and on the same day judgment was rendered on the verdict and entered of record. On the 2d day of May, 1892, the defendant in the action filed his motion for a new trial, which, on the 20th day of June following, was heard and overruled, and on motion of the defendant, forty days was “allowed for the signing and sealing of a bill of exceptions as provided by law, and the clerk ordered to keep the journal open forty days for that purpose. ” All these proceedings occurred at the April term of the court, which finally adjourned July 7, 1892. A bill of exceptions was allowed and signed on the 6th day of August, 1892, and filed on the 9th day of the same month. A petition in error was filed in the circuit court by Young, on the 19th day of November, 1892, upon which a summons was issued December 10, 1892, and served on one of the defendants in error on the 20th day of that month, and on the other defendant on the 27th day thereof. The circuit court, on motion of the defendants in error, struck the bill of exceptions from the flies, on the ground that it had not been filed within the time allowed by law, and dismissed the petition in error because it was not filed in time, and rendered judgment for costs against the plaintiff in error, who brings the case here.</p>

<p>Object oj section 6846, Rev. Stat. — Punishment jor diversion oj municipal funds — Conversion of money by officer to own use— Embezzlement — Section 6841, Rev. Slat.</p> <p>The object of section .6846, Rev. Stat., is to punish as an offense the diversion, appropriation or application of the funds of a municipal corporation, or of a board of education, by an officer or agent there named, to'a use other than that for which the funds were raised; a conversion of the money to his own use by such officer or agent is an offense under section 6841, punishing the embezzlement of public money, and is not within the language or spirit of the above section.</p>

<p>Dow law — Distribution of revenues and fines resulting therefrom.</p>

<p>Nunc pro tunc order — Action of cottrt allowing ccmnot be reviewed,, when,</p>

For injuries claimed to have been caused by the negligence of the Ohio and Pennsylvania Coal Company and its agents, Henry Davidson, then in life, commenced an action against the company to recover damages. On a trial had a judgment was rendered in his favor, which was afterward set aside on error by the circuit court, and a new trial awarded.

<p>Taxation — Direct inheritance tax — Laws of general nature — Constitutional law — Invalidity of act of April SO, 1894 (91 O. L., 166).</p> <p>1. Funds raised by the taxation of franchises, rights and privileges, may be applied to purposes of general revenue, or any other purpose authorized by statute.</p> <p>2. A law of a general nature, which is in full force in every part of the state, complies with section 26 of article 2 of the constitution, requiring laws of a general nature to have a uniform operation throughout the state.</p> <p>3. The act of April20, 1894, entitled: “An act to impose a direct inheritance tax, ” 910. L., 166, by its exemption from taxation of the right to receive or succeed to estates not exceeding twenty thousand dollars in value, and taxing the whole right of receiving or succeeding to estates which exceed that sum in value, and in taxing at a higher rate per centum the right to receive or succeed to estates of larger value than to estates of smaller value, is in conflict with section 2 of the bill of rights of the constitution of this state, which declares that: ‘ ‘All political power is inherent in the people. Government is instituted for their equal protection and benefit; ’ ’ and the whole act is therefore unconstitutional and void.</p> <p>4. The first section of the fourteenth amendment to the constitution of the United States, which provides that no state shall ‘ ‘deny to any person within its jurisdiction the equal protection of the laws,” is not, as to the question in this oase, broader than the second section of our bill of rights.</p>

On May 11, 1893, the defendant in error commenced an action in the court of common pleas of Licking- county to recover upon six promissory notes, and for a seventh cause of action, to foreclose a mortgage on land in that county given to secure payment of the notes, against Robert Meridith, maker- and mortgagor, and George W. Havens, assignee.

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

The petition of plaintiff below, plaintiff in error here, is as follows: “The defendant is a corporation duly incorporated under the laws of the state of Ohio. “The defendant for several years last past has been the operator of a certain well, constructed for the purpose of producing petroleum oil, and natural gas, the same being- situated upon the parcel of land described as follows, to-wit: The east half of the southwest quarter of section three, Salem township, Ottawa…

In the court of common pleas of Hamilton county, the plaintiff in error, William S. Stearns, filed a petition in error against the village of Wyoming and the members of its common council named in the petition. He claimed that at an election held in the village on April 2, 1894, he was duly elected to the common council as one of its members, and certified as such.

. On the 9th day of April, 1890, Mrs. Cunningham filed in the court of common pleas her petition, of which the following is a copy. “The plaintiff says that on or about the 30th day of March, A. D. 1888, she was the owner of a stock of g’roceries of the value of $750.00, situate in a room in New Comerstown, in the county of Tuscarawas, in the state of Ohio, a few household goods, exempt to her by law, and some book accounts, amounting to the sum of about $350.00, a large…

<p>Issue joinea on material fact — Judgment concludes parties — Fact thus established cannot be retried by same parties.</p> <p>Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contra.ctu and the other ex delicto.</p>

<p>Depositions attached to bill not marked as exhibit — Reviewing court may refuse to treat such as part of bill — Action against railway for personal injury — Contributory negligence — Degree of care expected from child, question jor jury — Section 6980, Rev. Stat.</p> <p>1. It is not error for a reviewing court to refuse to treat as part of a bill of exceptions a deposition claimed to be the identical deposition given in evidence at the trial, where such deposition is attached to the bill only by being placed between the pasteboard back and the stenographer’s report (although held with sufficient tenacity-to retain its place), and not marked as an exhibit, nor identified by either the trial judge, nor the stenographer, nor by any one.</p> <p>2. Where a petition in an action against a railroad company for personal injuries charges that defendant negligently and unlawfully stopped a freight train across a public highway for a period of more than five minutes, and that while plaintiff, after the expiration of that period, was attempting to cross the street between the cars, defendant without warning, wrongfully and negligently backed the train, causing plaintiff’s injuries, such two charges of negligence are not separable in the sense that one only would be the proximate cause • of the injury; taken together they constitute a sufficient allegation of negligence as against a general demurrer.</p> <p>3. A child of nine years of age is not guilty of negligence if he exercises that degree of care which under like circumstances would reasonably be expected from one of his years and intelligence. Whether he used such care in a particular case is a question for the jury. And even though the petition might, if the plaintiff were an adult, be construed as disclosing contributory negligence; an averment that the plaintiff was at the time a child of nine years of age, and of immature experience and judgment, is sufficient to rebut the presumption of contributory negligence.</p> <p>4. Where, in such case, the evidence at the trial tends to show that a freight train has been permitted to stand across a pub- ' lie street beyond the period of 'five minutes, to the hindrance or inconvenience of travel thereon, in violation of section 6980, Revised Statutes, and persons, rightfully on the street are passing between the cars of the train, it becomes a question for the jury whether or not it is negligence for the company’s servants to move the train without giving timely warning of their intention to do so.</p> <p>5. Whether, under such circumstances, a child of nine years who attempts to cross and in doing so climbs upon the coupling of a car, is a trespasser or not, is a question for the jury.</p> <p>6. It is also a question for the jury whether or not the mere presence of the train is to be taken as notice to such child that the train is likely to be moved at any time.</p>

The body of the petition in the court below is as follows: “Plaintiff says that it is a corporation duly organized and existing, and that under the laws of the state of Ohio it is authorized to own and operate a railroad through, or within said state; that it is the owner of a continuous line of railway and right of way, extending from Pittsburgh, in the state of Pennsylvania, through the state of Ohio, to Chicago, in the state of Illinois; that said railway passes through…

<p>Appeal from interlocutory order — Does not.transfer case to appellate court for trial of issues — Jurisdiction of appellate court— Dismissal of plaintiffs action in common pleas court leaves nothing for appellate court.</p> <p>1. An appeal from an interlocutory order of the court of common pleas, or a judge thereof, dissolving a provisional injunction allowed in an action, does not transfer the case to the appellate court for trial of the issues joined by the pleadings; the jurisdiction of the appellate court, on such appeal, is limited to the hearing and decision of the motion to dissolve, although the ultimate relief demanded in the action is a permanent injunction of like purport with the provisional one which was dissolved.</p> <p>2. Where, after such appeal, the plaintiff dismisses his action in the court of common pleas, the provisional injunction and motion to dissolve go with it, and nothing remains for the appellate court to hear and determine.</p>

The action below was upon a policy of insurance in the sum of $2,000, made and delivered by the Sun Fire Office of London to Ida A. Clark, to indemnify her against loss by fire on her dwelling house, and payable to George W. Pringle as his interest might appear, his interest being that of a mortgagee. The first defense of the answer admitted certain allegations, and then denied all the other averments of the petition.

<p>Bill of exceptions — Time for signing — Record conclusive as to judgment.</p> <p>For the purpose of fixing the time for the allowance and signing of-a bill of exceptions, the record is conclusive as to the date of the judgment.</p>

<p>Negligence — Damages—Injury to feelings not cause far recovery.</p> <p>The negligent failure of a telegraph company to deliver a message does not authorize an action by him to whom it is addressed to recover for resulting injury to Ms feelings and affections when no other injury results.</p>

<p>Conviction before mayor under ordinance — Not bar to prosecution for same act under statute.</p> <p>A former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging- the same act as a violation of a statute.</p>

<p>Partnership — One member of firm may bind co-partners by contract of 'rescission.</p> <p>One member of a firm of real estate brokers may bind his co-partners by a revocation of a contract previously entered into by him with the owners of lands whereby, for a time agreed upon, such firm had acquired an exclusive right to sell such lands.</p>

<p>Error to the Circuit Court of Crawford county.</p> <p>. The plaintiff in error filed his petition in the probate court, alleging in substance that the defendant is a corporation owning a line of railway which extends through the city of Bucyrus; that on or about February 9, 1890, it laid upon South Railroad street in said city a track for the carriage of freight from its main line to certain shops in said city, and changed the grade of the street; that the plaintiff is the owner of a tract of land lying along said street, and fronting the portion thereof so occupied and embracing the street itself subject only to the right of the public to the use of the street; that his dwelling house and other structures are upon said lands; that the defendant so took possession of said street and laid its track thereon without appropriation or compensation and without his consent; that more than ten days before the filing of said petition he served notice in writing on the company to proceed under the statute to appropriate said lands and street, and that it failed to comply with such notice; and praying that such proceedings might be taken as are authorized by law to appropriate said lands and street and to compensate him therefor. A summons issued upon the petition was duly served upon the company. The defendant answered denying the plaintiff’s title, and alleging that the title to the street was in the city of Buey rus, and that the occupation of the street for the purpose complained of was pursuant to an agreement between the city and the company. The following entry was made in the probate court: “Thiscause now coming on further to be heard, and being submitted to the court upon the evidence produced, the court find that the defendant has been duly served with process and is properly before the court, and further find that said defendant is a corporation, as averred in the petition herein, and that it has the legal right to make the appropriation prayed for in the petition, and that the same is necessary, and that the said defendant is unable to agree with the plaintiff as to the compensation to be paid for the property sought to be appropriated herein. It is therefore ordered that to assess compensation for said property herein sought to-be appropriated, a jury be impanelled according to law, and that said jury convene the 5th day of June, 1890, at 9 o’clock A. M., which time is hereby-fixed for the impanelling of the same.”</p> <p>A jury was impanelled and a trial had, resulting in a verdict for the plaintiff. A motion for a new trial was overruled, and judgment entered upon the verdict.</p> <p>Upon the trial numerous exceptions were taken by the defendant to the admission and exclusion of evidence, to the instructions given and to the refusal of the court to give instructions requested; and, grounds stated in the motion for a new trial were, that the verdict was contrary to the weight of the evidence, that the damages were excessive, and that the court was without jurisdiction. A bill of exceptions was taken containing all the evidence offered.</p> <p>A petition in error was filed in the court of common pleas, alleging as errors the several rulings to which exceptions were so taken, and the overruling of the motion for a new trial.</p> <p>A judgment of affirmance being entered in the court of common pleas, the same errors were assigned in the circuit court, where the judgment of the court of common pleas was reversed ; the portion of the entry of its judgment following such reversal being:</p> <p>“And this court proceeding to render the judgment the court of common pleas should have rendered, find there is manifest error in the record and judgment of the probate court in this, to-wit:</p> <p>“Said probate court erred in proceeding to impanel a jury and to try said case without first finding- the facts required under section 6448, Rev. Stat.j to confer jurisdiction on said probate court to impanel a jury and to try said cause.</p> <p>“And this court reverses said judgment of the probate court at the costs in error of said Henry Kramer, and sets aside the verdict therein rendered for the want of jurisdiction in said probate court to render said judgment under the facts as to jurisdiction apparent from the record of said probate court, and adjudges the costs of the proceedings in error, in common pleas and circuit court against said Henry Kramer. And this court passes upon no other of the assignments of alleged error in this case.</p> <p>“It is therefore ordered that this case be remanded to the probate court for further proceedings in accordance with law, and to the court of common pleas for execution of the judgment for costs, and that special mandates be sent to each of said courts to carry these orders into effect.”</p>

<p>ERROR to the Circuit Court of Lucas county.</p>

<p>Term “substantial right" defined — Section 6767, Rev. Stat. — Corporation cannot refuse disclosure of condition, when — Sections 5652 and 5673, Rev. Stat.</p> <p>1. The term “ substantial right, ” as used in section 6707, Revised Statutes, involves the idea of a legal right.</p> <p>2. Such right is one which is enforced and protected by law.</p> <p>3. An Ohio corporation has not the right to refuse to make true disclosure of its condition in an action by stockholders brought under chapter 5, of title 1, division 7, Revised Statutes, to obtain a judgment of dissolution. Hence, an order upon officers of a corporation requiring them to file in court an inventory, etc., made in conformity to sections 5652 and 5673, is not an order affecting a substantial right, and is not reviewable on error.</p>

The action in the common pleas was brought by W. II. Garrett, plaintiff, against W. S. Hanshue and Barbara Hanshue, his wife, defendants, to recover damages for breach of covenants of title to certain lands in Iowa, conveyed by them to one Mattie Shephard by deed of general warranty, and by her conveyed to the plaintiff by like deed.

William Burgett, who was the owner of a valuable farm in Ashtabula county, and of a considerable amount of personal property, together estimated to be worth about $10,000, being of advanced years, and his wife an invalid, conveyed his farm, his wife joining in the conveyance, and transferred his personal property to his son-in-law, Philander W. H. Tuttle, upon the consideration that he would support Burgett and his wife during life, furnish them with comfortable rooms, food,…

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

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

Frances Snook, the general assembly having authorized the joining of the state as a party defendant, brought suit against the state and Jackson; as its lessee, to recover possession of real estate described, in her petition,-it being a portion of lots 233 and 234 on the plat of Akron, lying- between the navigable portion of the canal and a portion of said lots which, as the parties agree, she owns and occupies.

On the. 23d day of January, A. D. 1890, the plaintiff, in error, William Peter, together with Sarah E. -Peter, Horace S. Walbridge, S.'… Held: in trust for his benefit. “Said defendant corporation, in the respective months of April and August, 1883, executed two trust deeds in the pature of mortgages to plaintiff, Horace S. Walbridge, as trustee, conveying to him the real estate upon which the factories of said de-. fendant are located, to wit: the westerly- twenty feet of…

Action on policy of fire insurance issued to Julia L. Webster and'James E. Webster, wife and husband, for $2,000 on dwelling house and $250 on farm implements. Defense of forfeiture: First —That representation and warranty made by insured was that property was owned jointly by them while in fact the house was owned wholly by the wife, and personal property wholly by the husband.

This action was brought in the superior court of Cincinnati, by Alta G. Murray, administratrix, on the estate of John L. Murray, deceased, against the Cincinnati Street Railway Company, and the Baltimore and Ohio Southwestern Railroad Company, under sections 6134 and 6135, Revised Statutes, seeking’ to recover the pecuniary injury resulting from his death by the alleged negligence of said two companies.

<p>Collateral security — Pledge of property — Pledgee cannot become purchaser, when — Express agreement as to sale — Respective rights of pledgor and pledgee — What a conversion of property by pledgee.</p> <p>1. In the absence of express agreement authorizing it, a pledgee cannot become the purchaser of the pledged property at his own sale; and if the property be bid off by him the contract of pledge is not hereby terminated’, nor the relations of the parties changed, unless the pledgor elects to treat the transaction as a valid sale, in which event the pledgee will be accountable for the net proceeds of the sale.</p> <p>• 2. If the pledgor do not so elect, the pledgee, while he retains the possession and control of the property with the ability . to perform his part of the contract by restoring the property to the pledgor, cannot be held for its conversion, without demand for its return accompanied with an offer by the pledgor to perform his part of the agreement.</p> <p>3. When, however, the pledgee puts it out of his power to perform his part of the agreement, by an unauthorized disposition of the property, he will be liable for its conversion without demand and offer of performance by the pledgor; and when he has so disposed of a part of the property, he may be held for the conversion of all of it, as of the time of such disposition.</p>

<p>Municipal corporations — Power and duty as to streets under their control — Sections 1878 and 2640, Rev. Stat. — Statute creating new right — Remedy exclusive or cumulative, when — Railway tracks in public street — Obstruction to drainage — Respective liabilities of municipality and railway company — Section 3283, Rev. Stat.</p> <p>1. Municipal corporations are invested with the power and charged with the duty of keeping the streets and highways under their control free from nuisance; (Revised Statutes, sections 1878, 2640), and a liability arises from the omission to perform that duty, for damages resulting from such nuisance after notice to the municipal authorities of its existence; and, though the person who caused the nuisance inay be also liable, and responsible over to the corporation for whatever damages it is compelled to pay in consequence of it, that does not affect the liability of the municipality to the party injured.</p> <p>2. Where a statute which creates a new right, prescribes the remedy for its violation, the remedy is exclusive; but when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option.</p> <p>3. Railroad companies which had obtained permission from a municipal corporation to lay their tracks in a public street, so constructed them as to obstruct the drainage provided for the street, in consequence of which water from rainfalls was accumulated and forced on to and over the plaintiff’s lot abutting on the street, flooding the cellar of his dwelling house thereon situate, and otherwise injuring his premises. The municipal authorities being notified of the situation and requested to remove the obstruction, declined to act. Held, in an action against the municipal corporation: '</p> <p>1. The obstruction constituted a nuisance, and the municipality is liable for the damages occurring from it after the notice and refusal to act.</p> <p>2. That its liability is not affected, nor the remedy against it taken away, by section 3283, of the Revised Statutes, which gives the party injured a remedy against the railroad companies.</p> <p>3. But in the action against the municipal corporation, the plaintiff is not entitled to recover damages which are in the nature of compensation for the additional burden in the street arising from the location and construction of the railroad tracks therein; for damages of that character the municipal corporation is not liable. Steubenville v. McGill, 41 Ohio St., 235, approved. Dillenback v. Xenia, 41 Ohio St., 207, distinguished.</p>

<p>Petition in replevin — Sufficient averment — Representations of purchaser as to pecuniary circumstances — Sufficient consideration— Right of transferee.</p> <p>1. A petition in replevin, in which it is averred, that the defendant wrongfully detains certain goods of the plaintiff, describing them, is sufficient, without an averment that the plaintiff is entitled to the possession: A wrongful detention by the defendant necessarily implies a right to the possession in the plaintiff; and wrongful detention is the gist of the action.</p> <p>2. Whether representations as to his pecuniary circumstances, made by the purchaser to the seller of goods, at one time in order to obtain credit, influenced the seller in making a like sale to the same party at a subsequent time, is a question of fact; and, in such case, it is competent for the seller to testify that they did. But the fact is to be determined by.the jury in view of all the circumstances; as, also, whether there was such fraud in the subsequent sale as to entitle the seller to recover the property, on the grounds that the information given in the first instance was false.</p> <p>3. A pre-existing debt is not a sufficient consideration for the transfer of property, to warrant the transferee to hold it as against the right of one, from whom the transferrer had obtained it by fraud in the purchase. Eaton <Sf Co. v. Davidson, 46 Ohio St., 355.</p>

The action below was brought by the defendants in error, Krauss et al., against the plaintiff sin error, to restrain the collection of certain ditch assessments that had been made on their lands. The assessments were restrained in-the common pleas, .and the defendants in that court appealed to the circuit court. The case was there first heard on a demurrer to the petition as- amended in the common pleas.

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

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

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

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

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

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

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

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

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