Volume 54 — Ohio State Reports, New Series

The plaintiff in error was tried in Wayne county common pleas and found guilty upon the following count: That he “being then and there a male person of the age of eighteen years and upward, did unlawfully and carnally know and abuse one Mary W. with her consent, she, the said Mary W., then and there being a female child under the age of fourteen years, to-wit: of the age of' thirteen years, contrary to the form of the statute in such ease made and provided and against the…

On the 7th day of May, 1890, the defendant in error, who was a brakeman in the service of the plaintiff in error, in attempting, in the state of Pennsylvania, to board one of its moving cars, put his foot in a stirrup that was suspended from the sill of the ear, and used as a step in' mounting the car; the stirrup, or step, yielded to the pressure of his foot, causing him to be thrown under the car, whereby a wheel of the locomotive, which was backing, ran over one of bis…

<p>Official acts of public officers — Performed before statute creating office has been declared unconstitutional — Collateral attack-Constitutional law.</p> <p>In a prosecution for offering a bribe to an officer, who is acting' as such under a statute providing for the government of a municipal corporation, the defendant cannot question the constitutionality of such statute.</p>

The action below was by the plaintiff in error against the defendant in error to recover on a bank check. The petition was in words and figures following: “The plaintiff is a corporation duly organized and existing under the laws of the state of Ohio.

■ Error to the Circuit Court of Cuyahoga county. The plaintiff below, defendant in error here, filed her petition in the court of common pleas against defendant below, plaintiff in error here, averringthat she was the owner by purchase under a land contract of certain premises in the city of Cleveland, that defendant owned and occupied the lot on the east side thereof, that she used her premises as a hotel and boarding house, that he was erecting a high board fence on his…

The action below was commenced in the court of common pleas of Lucas county upon two injunction undertakings. The undertakings were given in a suit brought by the Columbus, Hocking Valley & Toledo Railway Company against Stevenson Burke et al., in the court of common pleas of Franklin county, claiming to be the owner of certain stocks and' bonds as against the defendants; and asking that the defendants be restrained from disposing of them until the further order of the court.

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

<p>Proceedings in error — Time of commencing action — Section 4988, Rev. Stat.</p> <p>Section 4988, of the Revised Statutes, is applicable, by analogy to proceedings in error.</p>

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

<p>Error to the Circuit Court of Hancock county</p>

<p>Practice — Pleading—Statement of facts in petition — Claim for amount due as wages instead of as damages — Not material as to right of recovery — Liability of corporation in damages to agent — Section 5684, Revised Statutes.</p> <p>1. Where, on the facts stated in a petition, a plaintiff is entitled to a judgment for money, the fact that in his petition he claims the amount to be due him as wages on a contract of employment, instead of as damages for the breach of it, is not material, to his right of recovery. A misconception of this kind must be disregarded in passing judgment upon the pleading.</p> <p>2. Where a corporation is liable in damages to an agent for having wrongfully discharged him from- its service under a contract for a definite period, and is subsequently dissolved by the judgment of a court on the petition of its stockholders, it remains liable to the party injured notwithstanding the dissolution. ■ Section 5084, Revised Statutes.</p>

<p>Adulteration of food and drugs — Defense of ignorance by vendor— Act of March SO, 1884 {81 Ohio Laws, 6y).</p> <p>1. An aflicl avit to charge a violation of the act of March 20, 1884 (sec. 8805, Giauque’s Revised Statutes), “to provide against the adulteration of food and drugs,” need not charge that an adulterated article of food is sold to be used as human food.</p> <p>2. In a prosecution under said act it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.</p>

This action was brought in the superior court of Cincinnati by the defendant in error to recover damages sustained by reason of the death of his intéstate, which death, he alleged, was caused by the negligence of plaintiff in error. The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff in error, defendant below.

Action below was by Snell against The Cincinnati Street Railway Co. to recover for personal injuries received by being struck by a moving car of the company. In the common pleas, at the conclusion of the plaintiff’s testimony, a motion by the company to direct a verdict in its favor was sustained, and a judgment on the verdict so rendered was entered. This judgment was reversed by the circuit court. The company asks a reversal of that judgment.

<p>Error to the Circuit Court of Richland county.</p> <p>The said parties entered into the following written contract, at the time of the date thereof.</p> <p>“Shelby, Ohio, March 2d, 1886.</p> <p>Memorandum of agreement entered into this -day by and between David L. Coekley of the first part, and Francis Brucker of the second part, witnesseth:</p> <p>i That whereas the said David L. Coekley is now the owner of a stave and heading factory, located at Agosta, Ohio, he hereby agrees to furnish the use of the same and all of the capital necessary to successfully carry on said stave and heading business for the joint profits of both parties, and whenever the profits of said business shall be sufficient to remunerate the said Cockley for his entire investment in said business, then a deed for' the undivided one-half interest shall be made by him to the said Brucker. Said Francis Brucker of the second party agrees to devote his entire time, ability and energy to the successful prosecution of the business, and well and faithfully render an account of the same at least once per month to the said D. L. Cockley.</p> <p>It is understood that said parties have this day entered into a copartnership to run for the term of five years under the name and style of Cockley & Brucker for the purpose of running said stave and heading factory at Agosta, Ohio.</p> <p>Said Brucker does not have the authority or power to sign the firm name to any negotiable note or paper of any kind.</p> <p>David L. Cockley,</p> <p>Francis Brucker.”</p> <p>The parties ran the stave factory under this contract from the first of April, 1886 to the sixth of January, 1887, when they disagreed, and Mr. Cockley, defendant below, drove Mr. Brucker, plaintiff below, out of the factory, and excluded him therefrom. Thereupon plaintiff below commenced an action in Marion county against his partner upon his contract, setting out a copy thereof in his petition, and in connection with other averments, alleged that his partner had taken exclusive possession and custody of all the partnership property and books, and had'excluded him from access to the same; and' prayed that the partnership be adjudged dissolved, a receiver be appointed for the property and good will of the partnership, that the same be sold and claims collected, an account of the business betaken, the debts paid and the balance divided according to rights of the parties, and for all proper relief.</p> <p>Upon a hearing, the praj^er of the petition was granted by the court, a receiver was appointed, the property sold, and the business wound up under the orders and directions of the court.</p> <p>■ Afterward the plaintiff below commenced this action against the defendant below, in the court of common pleas of Richland county on the same contract, alleging the same breach of the cod tract, but with more particularity, and with the addition of some aggravations, seeking in this last action to recover ten thousand dollars damages because the defendant below so conducted himself as to cause a dissolution of the partnership before the expiration of the five years.</p> <p>An answer was filed to the second amended petition, admitting the copy of the contract attached to the petition to be a true copy, denying that the defendant violated the contract, averring that the plaintiff below wilfully violated the same, that a receiver was appointed by the court of common pleas of Marion county who wound up said business, and further averred that in said action in Marion county between the same parties, the property rights in every way growing out of said partnership, were fully determined and adjudicated by said court. The reply is substantially a general denial of the answer.</p> <p>On the trial of the case in the common pleas of Richland county, the counsel for the defendant below introduced in evidence the record of the case in Marion county, and the court directed a verdict for the defendant.</p> <p>The circuit court reversed the judgment, and remanded the case for a new trial. . On petition in error this court affirmed the judgment of the circuit court, one judge dissenting. On a new trial in the common pleas, the plaintiff below recovered a judgment against the defendant for $6,960.00. The circuit court affirmed the judgment. On petition in error in this court, the case was orally argued, and upon looking into the record, sufficient errors appeared to warrant a reversal of the judgment ; and then looking back into the record when the case was here before, some doubts arose as to the correctness of the judgment of affirmance by the court at that time. Thereupon a rehearing was requested by one of the members of this court who had concurred in the affirmance, which rehearing was granted by the court, and the attorneys notified. They prepared additional briefs, and the case was again submitted aud considered by the whole court upon the briefs and both records.</p>

<p>Practice — Right of Appeal — Determined by nature of action — Section 6226 Revised Statutes — Action to enforce specific performance, is not an action to recover specific property — Section 5130 Re-' vised Statutes — Different judgment against several defendants, either has right to appeal — Judgment of appellate court super-cedes judgment appealed from — Errors committed in lower court immaterial.</p> <p>1. The right of appeal to the circuit court from a final judgment of the court of common pleas, under the provisions of section 5226, of the Revised Statutes, is determined by the nature of the action, and not by the form of the judgment rendered.</p> <p>2. An action to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property, nor for money only, within the purview of section 5130, of the Revised Statutes, and neither f>arty is entitled to demand a trial thereof by jury.</p> <p>3. When such action is brought against several defendants-who entered into the contract, and judgment is rendered against some of them for the conveyance of the land, and against the others for a specific sum of money, either party has the right of appeal.</p> <p>4. While an appellant may prosecute error to the judgment appealed from, before the determination of his appeal, the proceeding will avail nothing if the appeal be sustained, for then the cause stands for a new trial of the issues of fact, the judgment is superceded by that of the appellate court, and the errors occurring in the court below, if any were committed, become immaterial; nor can the affirmance of the judgment before the trial of the appeal give it any additional or different effect.</p>

<p>'Sale of adulterated wine — Vendor subject to fine, although agent — • Principal residing without the state.</p> <p>1. One who sells impure and adulterated wine is subject to fine, although at the time of the sale he is the agent of a principal who resides without the state.</p> <p>2. The manager -of a mercantile corporation is subject to a fine under the provisions of the “act to provide against the adulteration of food and drugs,” when the adulterated article is sold or offered for sale by an agent of such corporation acting. within the scope of his authority, and the offense is triable in the county in which such article is sold or offered for sale by such agent.</p>

<p>Unlawful sale of intoxicating liquors within two miles of agricultural fair — Rev. Slat., 6946 ( 88 Ohio Laws, 60S).-</p> <p>By the provisions of section 6946, Revised Statutes (88 O. L., 603), it is made unlawful to sell intoxicating liquors “within two miles of the place where any agricultural fair is being held,” not only during the hours within which the gates of the grounds ,are open for the admission of the public, but during the entire time from the opening of the fair until its close.</p>

<p>Error to the Circuit Court of Wyandot county.</p> <p>The action below was brought to enjoin certain assessments made on the respective lands of .the plaintiffs to pay for the improvement, of a ditch. The suit was against the petitioners for the improvement and the proper county officers. On issues made up and tried,, judgment, was rendered in favor of the plaintiffs, granting the relief. The case was appealed to the circuit court, where, on leave given, the defendants demurred to the petition, and the demurrer was sustained. On leave given, the plaintiffs filed an amended petition; and to this a demurrer was also sustained. The plaintiffs, electing to abide by their amended petition, the court rendered judgment dismissing it. The only question in the ease before us is as to the sufficiency of the petition, to entitle the plaintiffs to relief.</p> <p>Omitting the description of the lands and that of the ditch, as well as some immaterial averments, the petition is as follows:</p> <p>The plaintiffs say: “They are the owners in severalty of the tracts of and parcels of land in Wyandot county, described as follows : * * *</p> <p>In the year 1873, upon petition duly filed and bond given by David Morrison and others, the board of commissioners of said county caused to be located, established and constructed a county ditch, known as the Morrison ditch, number 14, on the following route: * * *</p> <p>“Said ditch was established and constructed at a total cost of about five thousand dollars, for the purpose of draining a large swamp or marsh, which to that time had been wholly worthless, and thereby reclaiming and rendering valuable and capable of cultivation a large body of land covered by the waters of said swamp, and therefore utterly incapable of being cultivated, pastured or put tó any profitable use.</p> <p>“The lands of plaintiffs, or any part thereof, were not benefited by said ditch in any manner, and, accordingly, when the cost and expenses of the construction of said ditch came to be assessed upon the lands benefited thereby, no part of said cost or expenses was apportioned or assessed upon the -aforesaid lands of the plaintiffs, but said entire cost and expense was apportioned to and assessed upon the lands' which the drainage of said swamp would render not only productive but peculiarly valuable, the actual value of a large portion of said lands having been increased tenfold.</p> <p>“And the plaintiffs now complain and say that on the 17th day of February, 1891, a petition signed by the defendants, Emanuel Wentz, Amos Schoenberger, W. W. Duffield and David Kauble was filed with the auditor of said county, praying the defendants, the board of commissioners of said county, to cause said Morrison ditch to be deepened and widened from its original point of commencement to its intersection with what is known as the Hart ditch, on land then owned by one M. D. Phillips, also for the widening and deepening of a certain branch ditch entering said main ditch from the west, near its intersection with said Hart ditch, and that such proceedings were had by said commissioners on said petition; that on the 10th day of March an order was made by them granting the prayer of the petition, and directing the county surveyor to go upon the line of said ditch therein. described and perform such duties and make such reports and apportionments as are contemplated and specified in sections 4454, 4455 and 4456 of the Revised Statutes of Ohio.</p> <p>“And afterwards, on or about, the 10th day of April, 1891, said surveyor filed his report, showing the general character of the improvement, with an estimate of the total cost thereof and an apportionment of the same. - By said report and apportionment over sixty per cent, of the total estimated cost of the proposed enlargement of said ditch is assessed against the lands of plaintiffs, heretofore described.</p> <p>“And plaintiffs say that said apportionment is unjust and unfair, and that had it been made according to benefits, no part of the cost of said ditch would have been apportioned against them, or either of them.</p> <p>“Upon receiving notice thereof, and that the same would be for hearing before said board of commissioners on the 23d day of April, 1891, plaintiffs appeared and filed their exceptions to said apportionment, but the same were disregarded by said board of commissioners, and with the following trivial alterations, by them made, said report and apportionment were approved by them, and an order made for the sale by said surveyor of the construction of the work of enlarging said ditch, as proposed in his said report.</p> <p>“At the time of approving and confirming said report and apportionment, the said commissioners ordered the auditor to put the assessments so made and charged upon the said lands of the plaintiffs upon the proper duplicate for collection.</p> <p>“The said commissioners and auditor are threatening to take all the steps necessary to make said apportionments liens upon the plaintiffs’said lands, and to collect the same by legal proceedings, to the great and irreparable damag’e of the plaintiffs.</p> <p>“And plaintiffs say that although no benefit whatever would accrue to their aforesaid lands by reason of the construction, cleaning out, deepening or widening of said ditch, although none of said lands were assessed for the original location, establishment or construction of the same, the said defendants are insisting that the plaintiffs should bear a large part of the expenses of cleaning out, widening- and deepening of said ditch, because the aforesaid lands of plaintiffs naturally drained their waters into said swamp, and the same are carried off through said ditch; and the said defendants, the board of commissioners, and their engineer, have made the apportionment for the cost and construction of said ditch not according to benefits which would accrue to the lands of the plaintiffs, but according to the quantity of rainfall or quantity of water which fell upon the lands of the plaintiffs and would be carried off through said ditch.</p> <p>“But the plaintiffs say that whatever benefit might accrue to any lands assessed for the location and construction of said ditch would accrue to the defendants alone, and that all the benefits therefrom would accrue to the lands of the said defendants.</p> <p>“The plaintiffs therefore say that said proposed assessments upon their lands are unauthorized, illegal- and oppressive; that they, the said plaintiffs, are united in interest in resisting the collection of any sum whatever, for the purpose contemplated in the aforesaid proceedings of the commissioners, and that the plaintiffs and defendants are the only parties affected by said proceeding;</p> <p>“The plaintiffs say that the location and construction of said proposed improvement is not conducive to the public health, convenience or welfare, but was specially located and apportioned for the private benefit of the petitioners for said improvement; nor did said commissioners proceed to view the line of the proposed improvement, and to determine by actual view of the premises along and adjacent to the line of said ditch whether the said improvement was necessary or would be conducive to the public health, convenience or welfare, as is required by section 4452 of the Revised Statutes of this state; nor did the surveyor go upon the line of said ditch, described in the petition therefor, and survey and levy the same, and apportion the cost of location and labor of construction of said improvement, as is required by sections 4454 and 4455 of the Revised Statutes of Ohio, but the location and construction and apportionment thereof was done by the direction and at the suggestion of the defendants herein.</p> <p>“And plaintiffs further say, that the said county-commissioners, and the county surveyor have colluded and conspired together for the purpose of promoting the construction of ditches, and to that end have agreed to put such a wrongful construction upon the law as enables them to assess a large portion of the costs and expenses of making ditches upon lands not benefited by their construction, and in pursuance of such collusion the said surveyor made, and the said commissioners confirmed the assessments herein complained of, upon plaintiff’s lands aforesaid and ordered the same to be levied thereon, for the avowed reason that the surface water from said lands runs through said ditch, and for no other reason whatever. And plaintiffs say that the said surface waters have been running through depression in which said ditch is constructed ever since the “flood,” to the same extent that they now do; that said depression was the natural drain and outlet for said waters, and plaintiffs’ said lands were naturally and sufficiently drained thereby, and were as well drained, and as thoroughly, before said ditch was constructed as they have been since, or will be when said ditch has been deepened and widened, the first or, the fiftieth time.</p> <p>“The plaintiffs therefore ask that the said proceedings of the said commissioners in said matter of deepening and widening said ditch may be reviewed by this court, that the gross injustice in the said apportionment of the costs and expenses of said improvement may be corrected; that said commissioners and said auditor may be enjoined from levying the said assessments or any part thereof, upon any of the said lands belonging to either of the plaintiffs, and that said auditor be enjoined from placing upon the tax duplicate any of the assessments for said improvement, ordered to be levied upon the lands of the plaintiffs, as aforesaid, and that the plaintiffs- may have all other proper relief.”</p>

<p>Street improvement — Owner of property represents in petition certain number of feet — Estopped after improvement from claiming less number of feet.</p> <p>Where an owner of property on a street unites with others in a petition for its improvement, stating therein the number of feet his property abuts on the street, that the council may be informed as to the interest of the petitioners, he thereby represents to the council that he has the number of assessable feet stated in the petition; and, after the improvement has been ordered and the work done, he is estopped to say that he has a less number of feet subject to assessment.</p>

In these eases the treasurer of Hamilton county brought suit to charge different parcels of wharf property belonging to the city of Cincinnati, but leased to other defendants with taxes, in one case for the years 1881 to 1887, inclusive, and in the other for the years 1883 to 1887, inclusive, which had been accidentally omitted from the tax duplicate.

- This action was brought in the court of common pleas of Morgan county by the defendant in error, Charles J. King, as the indorsee of a promissory note, against the makers thereof, Ida Newman, Martha Martin and George Martin. The verdict and judgment of the court of common pleas was for the makers of the note. The cause was taken on error to the circuit court, where the judgment of the court of common pleas was reversed.

Plaintiff’s action was commenced in the superior court of Cincinnati, for the purpose of compelling the erection, by defendant, of fire escapes upon certain buildings in that city, owned by defendant as trustee. Issue being joined, on trial the court found the equities with the plaintiff, and ordered and adjudged that defendant be perpetually enjoined from using the building without fire escapes-being placed thereon, and adjudged costs against defendant.

At the time of the date thereof, Stanley Clark signed and delivered to J. M. Sirrine the follow ing written instrument: “Cherry Valley, O., January 1, 1890. “I, Stanley Clark, having bought a farm of J. M. Sirrine, have agreed that he shall have all the saw timber suitable for lumber, except the hard maple, to be cut and taken off before the first day of April 1891.

Action of replevin by mortgagee of chattels, against officer who levied an attachment on the mortgaged property after the mortgagee had taken possession, and the attaching creditors. Judgment for plaintiff! affirmed by circuit court. Case stated in opinion.

<p>Keeping saloon open on Sunday — Section 8902, Rev. Stat.</p> <p>It is an offense against the provisions of section 11, of the act of May 14, 1886, as amended April 14, 1888 (G. Rev. Stat., 8902), to keep a saloon open on Sunday so that patrons may enter, although business be not carried on as on other days of the week.</p>

<p>Error to the Circuit Court of Crawford county;</p>

Proceeding before township trustees to vacate portion of a township road. Vacation ordered. Appeal by remonstrants to probate court. Finding that proceeding before trustees were erroneous; order setting the same aside, and appointing viewers and surveyor, whose report, adverse to the vacation of the road, was approved and confirmed, and an order entered that the road be not vacated. Also adjudging costs against the petitioners.

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

Exceptions to ruling of Courtof Common Pleas of Wood county. Held: that as the bribe was solicited in Summit county the indictment should have been found in that county, and the defendants could not be indicted and tried in Wood county.

This was a suit brought in Hamilton county common pleas by the state on the relation of Frederick Broerman against the commissioners of the county to enjoin them from widening, extending and improving Paddock road, as provided in a special act of the legislature passed April 25, 1893, and found in 90 Ohio Local Laws, 238, on the - ground that the act is unconstitutional.

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The plaintiff brought suit in the court of common pleas alleging that she and the defendant are owners of adjoining’ lots in the city of Cleveland, that he had committed the various acts of trespass upon her premises set out in the petition, to her damage in the sum of $800.00 for which she prayed judgment.</p> <p>The answer denied the alleged trespasses and the allegations of damage.</p> <p>On the trial the jury, by direction of the court, visited and viewed the premises.</p> <p>After the court had given its general instructions to the jury, counsel for the plaintiff requested the court to instruct the jury that in connection with the evidence they should take into consideration their view of the premises as to changes of grade alleged to have been made. This instruction the court refused to give, and in lieu of it instructed that their view of the premises was merely to aid them in applying the testimony that had been introduced in the case. To this refusal and instruction the plaintiff’s counsel excepted.</p> <p>The jury returned a verdict in favor of the plaintiff for $25. Her motion for a new trial was overruled, and judgment rendered on the verdict. That judgment was affirmed by the circuit court, and the reversal of both judgments is sought here, the only assignment of error relied on being said refusal and instruction.</p>

This action was .brought in the court of common pleas of Belmont county by the plaintiffs in error, to recover of defendants in error the possession of a certain parcel of real estate. The plaintiffs were successful in the court of common pleas, whereupon the cause was taken to the circuit court by appeal, where the defendants prevailed. The cause was then brought to this court on error to obtain a reversal of the judgment of the circuit court.

At the February term, 1891, of the common pleas of Wood county, an indictment was presented against the plaintiffs in error, Samuel Knight and James Gibson, and one Jacob Stahl, containing two counts, the first of which is as follows: “The State of Ohio, Wood county, ss.- “In the court of common pleas, Wood county, Ohio, of the term of February, in the year of our Lord one thousand eight hundred and ninety-five. “The jurors of the grand jury of the state of Ohio, within and…

The case in the court of common pleas was a petition in mandamus, by the state on the relation of August Pirsig, against the mayor and other persons, constituting the board of trustees for the distribution of the fireman’s pension fund of the city of Columbus.

Action was brought in the court of common pleas of Wood county, by Peter Hosier against George- Beard and the guardian of his estate, upon a negotiable promissory note signed by Beard on the 13th day of May, -1879, and payable six months after its date.

On February 11, 1882, John A. King, then an attorney at law in this state, was disbarred by the judgment of the court of common pleas of Henry county. The charges had been duly filed and a hearing had on the evidence. There were two charges supported by specifications: One that he had been convicted of an offense involving moral turpitude; the other that he had been guilty of unprofessional conduct.

The cause was tried in the circuit court on appeal from the court of common pleas. The city of Toledo sought a perpetual injunction against the defendant to restrain him from collecting a tax upon so much of its pipe lines, gas wells, pumping stations, telephone line and fixtures as are in Hancock county, the same being used as alleged in the petition, for heating and lighting the city.

The plaintiff in error having obtained a judgment against the defendant in error, in the court of common pleas of Huron county, for 1385.47, the proceeds of sales of fertilizer sold by him as the ag’ent of the company, and which amount he had converted to his own use, the company applied to the judge of the court of common pleas for an order for execution against the person of Mr. Ronk, on the ground that the judgment was for the payment of money, and that he fraudulently…

<p>Error to the Superior Court of Cincinnati.</p> <p>The Tiffin National Bank, plaintiff below, brought suit in the superior court of Cincinnati ag’ainst E. L. Harper and Hiram P. Lloyd, his trustee in insolvency, for the allowance of a claim against the estate in the settlement of his trust. The court, in special term, sustained a demurrer to the petition, based on the ground that it did not state facts sufficient to entitle the plaintiff to relief. -On error, this judgment was reversed by the general term, and the cause remanded to the special term for further proceedings. The only question presented here arises upon the sufficiency of the petition. It contains two causes of action; but as the second, except as to the maker of the paper, is substantially the same as the first, for the purpose of understanding the objection made on demurrer, it is sufficient to set forth the first. It is as follows: “On May 3, 1887, defendant, E. L. Harper, procured J. H. Matthews to execute and indorse in blank a note, a copy of which is as follows :</p> <p>“$6,000.00. Cincinnati, May 31, 1887.</p> <p>“On demand, after date, I promise to pay myself, or order, six thousand dollars, for value received, payable at H. B. Morehead & Co’s office, with interest at five per cent., having deposited or pledged as collateral security for the payment of this note, certificate No.-, for fifty (50) shares of the capital stock of the Fidelity National Bank of Cincinnati.</p> <p>“And I hereby give to the holder hereof full power and authority to sell or .collect, at my expense, all or any part or portion thereof, at any place, either in Cincinnati or elsewhere, at public or private sale, at holder’s option, on the non-performance of the above promise, and at any time thereafter, and without advertising the same, or otherwise giving to me any notice.</p> <p>“In case of public sale, the holder may purchase, without being liable to account for more than the net proceeds of such sale.</p> <p>(Signed and indorsed) “J. H. Matthews.”</p> <p>“The stock evidenced by said certificate was the property of said Harper, who caused the certificate to be issued in the name of said Matthews to enable the latter more easily to negotiate said note for his benefit.</p> <p>“Said note, with the certificate of stock: therein mentioned, was thereupon delivered to H. B. More-head & Co., to be by them sold as brokers and agents for said Harper, and was bought by plaintiff from said Morehead & Co:, agents for defendant, plaintiff paying therefor the sum of six thousand dollars, which said sum was by said Morehead & Co. turned over to said E. L. Harper. Said Matthews acted in the premises, not on his own behalf, but simply as agent for said Harper, and made and indorsed said note without consideration and for accommodation of said Harper. Said note is wholly unpaid. Plaintiff was unaware at the time of the transaction aforesaid, and, until a short time ago, that said Matthews was acting as agent for any one or otherwise than on his own behalf. Plaintiff made due demand for the payment of said note on June 23, 1887, but payment was then refused and plaintiff still holds said note and owns the same. On said date said stock was worthless and said Matthews irresponsible financially. Harlan P. Lloyd is the trustee in insolvency of the estate of E. L. Harper by the appointment of the probate court of Hamilton county, Ohio, in a proceeding wherein said E. L. Harper had made an assignment for the benefit of his creditors under the insolvent laws of Ohio, and the claim herein set forth, duly verified, was presented to said trustee for allowance less than thirty days prior to the filing of this petition, who declined to allow the same'.</p> <p>“And the .plaintiff further says that it is, and was at the times hereinbefore named, a corporation by the laws of the United States.”</p> <p>The prayer is, that the trustee be ordered to allow the claim as a valid one against the estate of Harper.</p>

Simmons filed his petition in the court of common pleas, the first cause of action being as follows: First cause of action.

<p>Error to the Circuit Court of Franklin county.</p> <p>The plaintiffs in error brought in the court of common pleas of Franklin county, an action against defendant in error to recover on a contract for grading and paving Livingston avenue, a street of said city. The plaintiffs prevailed in the court of common pleas and the circuit, court reversed the judgment. Whereupon the cause was brought to this court by the plaintiffs in error, to reverse the judgment of the latter court.</p>

<p>Error to the Circuit Court of Hamilton County.</p> <p>Action to enjoin the defendant company from laying an additional track in front of the premises of plaintiff on Lebanon street, in the village of Carthage. On trial in the common pleas plaintiff’s action was dismissed and costs awarded against him, and a like judgment was rendered, on appeal, by the circuit court. Facts sufficient to an understanding of the points decided are stated in the opinion.</p>

<p>Error to the Circuit Court of Athens county.</p> <p>The action was commenced in the court of common pleas by plaintiff in error, who is a tax payer of said county, against the commissioners of Athens county to enjoin them from making and executing a contract for the sale of certain road improvement bonds, and from levying a tax to pay interest on such bonds, under an act of the general assembly, passed May 16, 1894, 91 O. L., 759. The first and second sections of the act are as follows:</p> <p>“Section 1. Be it enacted by the Genmxil Assembly of the State of Ohio, That the county commissioners of any county which by the last federal census had, or which at any subsequent federal census may have a population of not less than thirty-five thousand one hundred and ninety (35,190) and not to exceed thirty-five thousand and two hundred (35,200) when they become satisfied that the public interest of their county demands and justifies special action for the improvement of the roads therein, are hereby authorized and empowered to construct free turnpike roads over the principal thoroughfares of such county, beginning at and leading from such eligible points as may by them be deemed proper, and running by such direct and eligible route as they may find best for the public convenience, and terminating at any point within or at the county line; but they are not authorized or required to construct any such road within the corporate limits of the town or city where the county seat is located, when according to the last federal census, more than one thousand (1,000) inhabitants are contained in such corporate limits.</p> <p>“Section 2. Said county commissioners are hereby authorized and empowered to call to their assistance a competent surveyor or civil engineer, or both, at their discretion, with the necessary proper assistance, and to lay out, survey and locate such turnpike road or roads through or upon any improved or unimproved lands on the best route between the points of beginning and termination, and to obtain the right of way by grant, or take propositions for the purpose from the owners of land over which the road will pass.”</p> <p>The act required the question of constructing such roads to be submitted to a vote at any general or special election, and provides that if a majority of the votes be against the policy of constructing such roads, the commissioners shall not assess any tax for that purpose, but that if a majority be found in favor of such construction, the commissioners may proceed to levy taxes, issue bonds, and make said improvement of roads. By the sixth section, the amount of bonds to be issued is limited to three hundred thousand dollars.</p> <p>The vote was taken at 'the general election in November, 1894, a separate ballot box being- provided for that purpose, and a majority of the votes cast upon the subject of pikes, was in favor of the construction of such free turnpikes, but the votes cast in favor of such free turnpikes, was not a majority of the votes cast at that election for secretary of state.</p> <p>The commissioners regarded a majority of the votes cast upon the turnpike, question as sufficient, and proceeded to advertise for bids for the purchase of one' hundred thousand dollars of bonds under said act.</p> <p>The prosecuting- attorney having refused, upon request by a tax payer, to bring an action to enjoin the sale of such bonds, this action was' brought'by such tax payer, before the date fixed for the sale of the bonds, and a temporary injunction was allowed. The petition sets out the number of votes for and against such free turnpikes, and the number of votes cast at that election in said county for secretary of state, and claims that as the votes cast in favor of such pikes. was less than, a majority of all the votes cast at that election for secretary of state, that the proposition for such free turnpikes was not carried, and also claims that the act is not constitutional.</p> <p>The defendants below, also defendants in error here, demurred to the petition, and the demurrer was sustained, and plaintiff not desiring to further plead, the action was dismissed by the court, and judgment rendered against the plaintiff for costs.</p> <p>Upon petition in error, the circuit court affirmed the judgment of the common pleas.</p> <p>Thereupon a petition in error was filed in this court, seeking to reverse the judgments of both courts below.</p>

The plaintiff in error . commenced his action against the defendants in error, and one M. J. Russell, in the court of common pleas of Stark county, by the filing of the following petition; “The plaintiff avers that about 1880, one James Jacoby died in said county of Stark, leaving a last will and testament which was thereafter probated and admitted to record in the probate court of said county.

The plaintiffs in error constitute the board of administration of the city of Cincinnati. In the court of common pleas a peremptory writ of mandamus was awarded on the petition of Cooper against the board, commanding them to permit him to tap the sewer in Ashland street, upon which his residence fronts, on payment by him of the usual license fee of five dollars, but without payment of any portion of the cost of constructing the sewer.

Harriet A. Clark, plaintiff below, brought an action against the N. Y. P. & O. Railroad Company and the N. Y. L. E. & W. Railroad Company, for damages for personal injuries. Issue being joined between the parties, the N. Y. L. E. & W. company before the trial, served upon the plaintiff below an offer in writing to allow judgment to be taken against said company for the sum of fifteen hundred dollars, which offer was not accepted by her.

<p>Attachment — Levy on property by mistake — Title of owner not affected, when — Property destroyed by fire — Loss of owner, not of officer or attaching creditor.</p> <p>1. Where an attachment is levied on the property of a third person under the mistaken belief that it belongs to the defendant in the attachment suit, the title of the owner is not thereby changed, unless he treat the property as abandoned to the officer or attaching creditor and sue for its conversion.</p> <p>2. Where, in such case, no such custody is taken of the property by the officer as deprives the owner of his control over it, and it is lost by fire before the commencement of a suit for the conversion — the fire being in no way attributable to the fault of the office^ or the levy of the attachment — the loss is that of the owner and not that of the officer or attaching creditor.</p>

<p>Right of parties as to instructions to jury — Section 6190 Rev. Siat.— Act of March 8,189% (89 Ohio Laws, 60) — What constitutes er~ rors.</p> <p>1. Section 5190, Revised Statutes, as amended March 3, 1892 (89 Ohio Laws 60),confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.</p> <p>2. To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that.its refusal to do so was the subject of an exception.</p>

Naef brought a suit in the court of common pleas to recover from the village on account of personal injuries by him sustained, from falling on a sidewalk of the village, his fall being due to an’ accumulation of ice on the sidewalk. The injury occurred on the 11th of January.

Almeda Olinger, defendant in error, brought an action in the court of common pleas of Defiance county, against the Defiance Water Company, plaintiff in error, to recover on account of injuries she claims to have received by reason of the negligent manner in which the Water Company stored water on its own premises.

<p>Delivery of deed of gift — To stranger for -use of grantee — Grant.or may resume possession of\ when — Grantor's intent — ■Grantees title — Delivery during grantor's life of deed intended to be effective after grantor's death.</p> <p>1. The rule that delivery of a deed of gift may be to a stranger for the use of the grantee implies that the instrument truly expresses the intention of the grantor. But where the instrument so delivered does not express the real intent of the grantor, and has not been recorded nor actually delivered to the grantee, the grantor may lawfully resume possession of the instrument and correct it so that it will conform to the , real intent.</p> <p>2. If, after such correction, there is a valid delivery, the grantee’s title will be such as is given by the corrected instrument.</p> <p>3. Equity will not reform a deed of gift so as to give it an effect contrary to the intention of the grantor.</p> <p>4. Where husband and wife, being in possession of a homestead) the title to which is in the wife, join in a deed of gift intending that it shall not be delivered until after the decease of both, and the wife attempts to deliver such deed during the life of the husband without his knowledge and consent, the right of the husband in the homestead will not be affected by the deed. ■</p>

The Greenville Gas company, plaintiff in error, is a corporation under the statutes of this state, and at a meeting of its board of directors, on the fifth day of December, 1887, the following preamble and resolution was unanimously adopted: “That whereas, the bonds of said gas company issued January 1, 1882, and running five years from date, calling for the sum of $15,000.00, and secured by the first mortgage on the real and personal property of said company, will fall due…

Action was brought in the court of common pleas of Licking county, on the 22d day of December, 1881, by James H. Smith, in behalf of himself and all other creditors of the Newark, Somerset & Straitsville Railroad Company, against the stockholders of that company to enforce their statutory liability.

<p>Ministerial officer not obliged to serve process issued by court without jurisdiction — May safely do so if process regulo.r in form.</p> <p>While a ministerial officer is not obliged to seirve process in Ms bands, when he has knowledge from other sources that the court or officer issuing it was without jurisdiction of the person against whom it is directed, he will, nevertheless, be justified in executing it according to its command, if regular in form, and the want of jurisdiction does not appear upon its face.</p>

<p>Practice — Suit on surety bond in appellate court — Competent to identify name omitted on bond — Failure to state sum does not relieve surety.</p> <p>1. In a suit to recover against the surety on an appeal bond the amount of the judgment rendered in the appellate court, it is competent by averment in the petition to identify the appellant whose name was omitted from such bond.</p> <p>2. The failure to state in such bond a sum which the surety’s liability shall not exceed will not relieve him from the stipulation that the appellant shall satisfy the judgment which may be rendered against him by the appellate court.</p>

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

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

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

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

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

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

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