Volume 55 — Ohio State Reports, New Series

<p>Classification of cities — Conforms to requirement of constitution— Act conferring corporate powers — Section 1, article IS of constitution — ■Invalid exception does not invalidate class — ■ Constitutional law.</p> <p>1. A classification of cities for the purpose of legislation based on population, and so that other cities may enter and become members of a particular class without the aid of additional legislation, conforms to the requirement of the constitution, that the general assembly shall provide for the organization of cities and villages by general laws, as determined by a long line of the decisions of this court, and on the ground of stare decisis, should not be disturbed.</p> <p>2. A statute made applicable to a particular class so formed, though it confer corporate powers, is not a special act, within the meaning of section one, article thirteen of the constitution.</p> <p>3. All doubts should be resolved in favor of a statute, classifying cities, that has stood for a number of years without challenge, and cities have confonned their government to it ; and where to declare it invalid, would necessarily result in great public inconvenience.</p> <p>4. If, in the formation of a class, an exception is made that is invalid, because the legislature had no power to make it, the exception alone will be treated as invalid, and the class sustained, where that will most likely give effeetto.the prevailing purpose of the legislature.</p>

<p>Highway bridges general subjects of legislation — Invalidity of acts of April 28, 1891, and April 24, 1896 — Section 26 of article 2 of co7istitution — Constitutional law.</p> <p>1. Highway bridges, as well as the highways of which they are a part, are general subjects of legislation within the meaning of the constitution.</p> <p>2. The act of April 23, 1891 (88 Ohio Laws, 825), entitled “An act to authorize the commissioners of Mahoning county to repair, extend, reconstruct and rebuild one or more bridges across the Mahoning river in the city of Youngstown, in said county,” and the act of April 24, 1896, entitled ‘.‘An act to authorize the commissioners of Mahoning county to build two overhead bridges across the Mahoning river, ” are repugnant to section 26 of article 2 of the constitution, which ordains that ‘ ‘ all laws of a general nature shall have a uniform operation throughout the state.1 ’</p>

This action was brought in the court of common pleas of Franklin county by defendant in error, Charles Lynde, against the Pittsburg, Cincinnati, Chicago, & St. Louis Railway Co., plaintiff: in error and others, to recover upon thirty-six bonds of one thousand dollars each, made in 1864, by the Columbus and Indianapolis Central Railway Company, which bonds were a part of a series of one thousand bonds, secured by a mortgage on the roadway and other property of the company by…

<p>Duty of Secretary of State — Controlled by statute, not discretion of officer — Issuing articles of incorporation — Authority to amend so as to change character — Section 3238a, Rev. Stat.</p> <p>1. The duty of the Secretary of State, on presentation of articles of incorporation and tender of proper fees, to file and record such articles, and upon request issue a duly certified copy thereof, is controlled by the statutes of the state, and not by the discretion of the officer.</p> <p>2. The authority to amend articles of a corporation given by section3238«, Revised Statutes, is controlled by the proviso which denies the right to change substantially the original purpose of the organization.</p> <p>3 To change, by amendment,. a company incorporated under articles which specify that it is organized “for the purpose of forming and organizing a manufacturing company under the laws of the state of Ohio, to engage in the business of manufacturing gas, electricity, and furnishing gas for light, heat, power, and for such and other purposes as may be used by the citizens and corporations in Steubenville, Jefferson county Ohio, and its vicinity,” to a gas, electric and traction company, with power “to acquire, own, operate, lease and maintain a street railway in the city of Steubenville, Ohio, to be operated by electricity or other motive power, 'for the conveyance of passengers, freight, express and mail matter, ’ ’ over a described route, and extending to such other points, within or without, or partly within and partly without that city, asmay hereafter be selected, would change, substantially, the original purpose for which the company was organized, and is not authorized by the statutes of the State.</p>

<p>Error to the Circuit Court of Franklin county. The action below was brought by the state against the express company to recover an excise tax and penalty assessed against the company under the act of May 14th, 1894, 91 O. L., 237. In the court of common pleas judgment was rendered against the company for the full amount of the tax and penalty. This judgment was affirmed by the circuit court. Thereupon the Express Company filed its petition in error in this court, to reverse both judgments below.</p>

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

The action below was brought by the corporation counsel of the city of Cincinnati, in its name, against Julius Dexter and others constituting the board of trustees of the sinking fund of that city, to restrain the taking of steps toward a proposed sale of The Cincinnati Southern Railway. The prospective purchasers are also parties defendant.

On exceptions of the Prosecuting Attorney to the rulings .of the court of common pleas of Cuyahoga county.

On an agreed case filed in the court of common pleas of Cuyahoga county, in which W. J. Hayes & Sons were plaintiffs and the city of Cleveland was defendant, the court rendered judgment in favor of the defendant. On error the judgment was affirmed by the circuit court; and this proceeding is prosecuted to reverse the judgment of both courts.

The object of this proceeding is to obtain the reversal of an order and judgment of the circuit court in a partition proceeding, making an allowance of $2,500 to L. A. Russell for services as an attorney under section 5778, Revised Statutes.

Exceptions of the plaintiffs in error to the final account of theassignee and to the inventory were determined in the probate court against the assignee, who tookan appeal tothe court of common pleas. The exceptions challenged the right of the assignors to an allowance in lieu of homestead which had been made to them.

<p>Mtirder — Defense 0† insanity — Accused held to. preponderance of evidence — Instructions to jury.</p> <p>1. Where, in a trial for murder, the accused sets up his insanity, a s a defense, he is bound to establish it by a preponderance of the evidence, but should be held to no higher degree of proof.</p> <p>2. The proof should be deemed to preponderate in favor of this, as of any other disputed fact, whenever its existence is made probable upon a full and fair consideration of all the evi" dence adduced for and against it.</p> <p>3. An instruction given to the jury in such case to the effect that the evidence introduced to establish insanity is not “sufficient if it merely show it to have been probable. The proof must be such as to overcome the legal presumption of sanity; it must satisfy you he is insane, ’ ’ requires of the defendant more than a preponderance of the evidence to maintain this defense, and is therefore erroneous.</p>

<p>Liability of railway company — Animals on track — Contract by owner to maintain fence to protect animals — Ordinary care by railroad — Contributory negligence of owner of animals.</p> <p>1. Where domestic animals are injured by a railroad train while trespassing- upon the track of the company, and the owner of the animals is free from negligence contributing to their injury, the company will be liable for a failure on the part of those operating the train to exercise ordinary care to avoid injury.</p> <p>2. But, where in a case of like injury, it is shown that the owner was bound, by contract with the company, to maintain a gate placed by him for his convenience in the fence dividing-his land from that of the company’s right of way, and the animals get upon the track by reason of the neglect of the owner to perform that duty, liability on the part of the company arises only when it is shown that the injury resulted from the intentional act, or gross carelessness of those operating the train. Railway Co. v. Smith, 26 Ohio St., 124, approved and followed.</p>

<p>Error to the Circuit Court of Monroe county.</p> <p>On the 23d day of March, 1889, Thomas J. Crawford, defendant in error, his wife joining to release dower, entered into a contract in the nature of an oil lease with one Cyrus Underwood, which lease, omitting the acknowledgement, is as follows:</p> <p>“This agreement, made the 23rd day of March, A. D. 1889, by and between Thomas J. Crawford and Mary A. Crawford, his wife, of the township of Perry, county of. Monroe, and state of Ohio, of the first part, and Cyrus Underwood of Jamestown, state of New York, the second part.</p> <p>“Witnesseth, that the said parties of the first part for and in consideration of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and of the agreements hereinafter mentioned, have granted, demised and let unto the party of the second part, all the petroleum and gas in or under that certain tract of land hereinafter described and also all the said tract of land for the purpose and with the exclusive right of drilling and operating upon said premises for said petroleum and gas.</p> <p>“The said tract of land being situated in the township of Perry, county of Monroe and state of Ohio, and is bounded and described as follows, to-wit: North by lands of John T. Duvall and David G. Crawford; east by lands of Peter Eddy and David G. Crawford; south by lands of Chas. Biggie and Fanny Scales; west by lands of Fanny Scales and Wm. Robinson; containing one hundred and twenty-eight (128) acres, be the same more or less. Together with the right of way over said premises to the places of operating, the right to lay pipes to convey water, oil and gas, also to use water from said premises, and to remove any machinery or fixtures placed on said premises by the party of the second part.</p> <p>“To have and to hold the same unto the said party of the second part, his heirs and assigns for the term, and period of five years from the date hereof, and as much longer as oil or gas is found in paying quantities thereon.</p> <p>“In consideration thereof, the said party of the second part agrees to give or pay to the parties of the first part the full equal one-eighth part of the petroleum produced and saved by the party of the second part from the premises, and to deliver the same, free of expense into tanks or pipe lines to the first party’s credit. And should gas be found in any well in sufficient quantities to justify marketing the same, the party of the second part shall pay to the parties of the first part at the rate of two hundred ($200.00) dollars per annum for each of such wells so long as the gas shall be sold therefrom.</p> <p>“It is also agreed, that no wells shall be drilled within three hundred feet of the buildings now on the premises without the consent of both parties.</p> <p>‘ ‘It is further agreed, that the party of the second part shall complete a test well in the township of Perry, county and state aforesaid, or within two (2) miles of the above described premises, within one year from the date hereof, or in default thereof, pay to the parties of the first part for further delay, a yearly rental of one hundred and twenty-eight dollars for the above described premises from the said time for completing the said test well until such well be completed, and in case oil is found in paying quantities in said test well, the party of the second part agrees to complete a well on the above described premises, within one year from the comple-. tionof said test well, or in default thereof, pay to the parties of the first part for further delay, a yearly rental of thirty-two ($32) dollars for the above described premises from the time set for completing a well thereon until such well shall be completed. The rentals, as they become due under this contract, shall be deposited to the credit of the parties of the first part in the Monroe Bank of Woods-field, Ohio, or paid direct to the said first parties. And a .failure on the part of the second party to complete such well or wells as above specified, or instead thereof, to pay the rental as above provided, shall render this lease and agreement null and void, together with all rights and claims, and not binding on either party, and not to be revived without the consent of both parties hereto, in writing.</p> <p>“The parties of the first part reserve a sufficiency of water for the use of the stock kept on the premises, and also for household use.</p> <p>“It is understood that all the conditions between the parties hereto shall extend and apply to their respective heirs, executors, administrators and assigns.</p> <p>‘ ‘In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.</p> <p>T. G. Crawford, (Seal.)</p> <p>Mary A. (her mark) Crawford, (Seal.)</p> <p>Cyrus Underwood, (Seal.)”</p> <p>Sealed and delivered in the presence of</p> <p>George Neff,</p> <p>D. Crawford.</p> <p>Six other parties entered into the same kind of contracts with Mr. Underwood as to lands owned by them, all of which contracts were duly recorded.</p> <p>Ón the 10th day of April, 1889," Mr Underwood made an assignment of said seven contracts to the Woodland Oil Company, and which assignment, with a description only of the lands of defendant in error, is as follows:</p> <p>“assignment op leases.”</p> <p>“Know all men by these presents that Cyrus Underwood, of Jamestown, New York, for and in consideration of the sum of one dollar to me in hand paid by Woodland Oil Company at and before the ensealing and delivery of these presents the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned and transferred and by these presents doth grant, bargain, sell, assign and transfer unto the said Woodland Oil Company, its successors and assigns, all the whole of the grantees or lessees interest and estate of, in and to the following mentioned indentures of lease, grants and conveyances, and the lands and premises therein granted, leased and demised and intended so to be, situate in the county of Monroe and state of Ohio, to wit: Thomas J. Crawford and wife to C. Underwood, dated March 23, 1889, 128 acres in Perry township, recorded June 27, 1889, in book 4, page 22.</p> <p>“With the appurtenances together with the same interest of in and to all the tubing, easing, build-ding’s, improvements, rigs, machinery, boilers, engines, oil and gas well supplies, connections and fixtures upon the said premises or any part thereof and to the grantees or lessees interest be-' longing and appertaining’. And also all my estate, rig’hts title, interest, claim and demand whatsoever of, in, to and out of the said leases, grants or conveyances, lands and premises and other property hereby conveyed or intended so to be. To have and to hold the said interests in the said leases, grants, conveyances, lands and premises unto the said Woodland Oil Company, its successors and assigms, to the use of the said Woodland Oil Company, its successors and assigns, for and under the terms, limitations and conditions and reservations of the said leases or grants respectively and under and subject to the rents, royalties and covenants in the said lease or conveyances respectively reserved and contained on the part of the grantees or lessees thereof to be paid, kept, done and performed and to have and to hold the said interests in the remaining property hereby conveyed unto the said Woodland Oil Company, its successors and assigns, forever. In witness whereof I have hereunto set my hand and seal the 10th day *of April, 1891.</p> <p>Cyrus UnderwooI), (Seal.)</p> <p>Signed, sealed and delivered in presence of</p> <p>H. S. Grayson,</p> <p>H. J. O’Donnell.”</p> <p>Afterward Thomas J. Crawford commenced an action against the Woodland Oil Company for breach of said contracts and to recover the rental therein agreed to be paid. The first cause of action in his amended petition is as follows :</p> <p>“Por a first cause of action, the plaintiff, Thomas J. Crawford, says that the defendant, The Woodland Oil Company, is a corporation organized and doing business under the laws of the state of Pennsylvania, and owning real estate and personal property in Monroe county, Ohio; that on the 23d day of March, 1889, said plaintiff and Mary A. Crawford, his wife, who has since died, entered into a certain indenture of lease (of which reference is hereto made, marked exhibit ‘A’ in the petition herein filed and which exhibit is made a part of this amended petition as if hereto annexed or attached as an exhibit), with one Cyrus Underwood for the consideration of one dollar, paid said plaintiff by said Cyrus Underwood; that in said indenture of lease said plaintiff and his said wife, granted, demised and let unto the said Cyrus Underwood, his heirs and assigns all petroleum in or under a certain tract of land hereinafter described and also said tract of land for the purpose and with the exclusive right of drilling and operating upon said premises for said petroleum and gas, together with the right of way over said tract of land to the place of operating, the right to lay pipe lines to convey water, oil and gas, also to use water from said premises, and.also to remove any machinery or fixtures placed on said premises. The said tract of land or premises being situated in the township of Perry, county of Monroe and state of Ohio, and is bounded and described as follows, to-wit: North by the lands of John T. Devaul and David G. Crawford; east by the lands of Peter Eddy and David G. Crawford; south by the lands of Charles Biggie and Fannie Seales; west by the lands of Fannie Scales and William Robinson, containing one hundred and twenty-eight (128) acres, be the same more or less, for the term and period of five years and as much longer as oil and gas is found in paying quantities thereon.</p> <p>‘ ‘Plaintiff says, that in said indenture of lease said Cyrus Underwood agreed to give or pay to said plaintiff the full equal one-eighth (£) part of the petroleum produced and saved by the said Cyrus Underwood from the said premises and deliver the same, free of expense into tanks or pipe lines to the credit of the plaintiff. And should gas be found in any well in sufficient quantities to justify marketing the same, the said Cyrus Underwood shall pay plaintiff at the rate of $200.00 per annum for each of such wells as long as the gas shall be sold therefrom; and said plaintiff further says, that said Cyrus Underwood covenanted and agreed therein to complete a test well in the township of Perry, in the county of Monroe, and state of Ohio, or within two miles of the above described premises within one year from the 23d day of March, 1889, or in default thereof pay to the said plaintiff for further delay a yearly rental of one hundred and twenty-eight (128) dollars for the above described premises from the said time for completing the said test well until such well shall be completed. The rentals as they become due under this indenture of lease shall be deposited to the credit of the plaintiff in the Monroe Bank, of Woodsfield, Ohio, or paid direct to said plaintiff.</p> <p>“Plaintiff says that on the 10th day of April, 1891, said Cyrus Underwood assigned and transferred all his rights, title and interest in and under said indenture of lease to the defendant. The Woodland Oil Company, said defendant, assuming as a part of the consideration all his (Underwood’s) liabilities thereunder; that „ neither said Cyrus Underwood nor said defendant has ever drilled, put down, begun or completed a test well or any other well as prescribed in said indenture of lease in said township of Perry, county of Mohroe and state of Ohio, or within two miles of said premises, or paid to plaintiff or deposited in the Monroe Bank aforesaid to plaintiff’s credit any rentals or money-in default stipulated under said indenture of lease although, often requested so to do. Plaintiff says, that he has duly performed all the conditions on his part to be performed under said indenture of lease, and that said Mary A. Crawford joinedin said indenture of lease merely to release her inchoate right of dower, and had and claimed no interest in said rentals, the same being the sole property of plaintiff, and that said plaintiff on the 23d day of March, 1889, owned and still owns said premises described in said indenture of lease.</p> <p>“Wherefore plaintiff prays for judgment against said defendant for the sum of $384.00, with interest on $128.00 from March 23, 1891, on $128.00 from March 23, 1892, on $128.00 from March 23, 1893.”</p> <p>There were eight other causes of action, two of which were abandoned, and the other six were each like the first, except that they were on other contracts which had been assigned to defendant in error, after a failure to drill or pay rental, and. a total recovery of over two thousand dollars was asked for a breach of the seven contracts.</p> <p>The oil company demurred to each cause of action of the amended petition upon the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was overruled and exceptions taken. The oil company then answered, and as a first defense stated that two other named persons had an interest in the subject of the action and in obtaining the relief demanded. The second, third and fourth defenses to the whole of the amended petition are as follows:</p> <p>“Defendant, for a second defense to the amended petition and to each cause of action thereof, admits that it is a corporation, and it admits that all the leases named in the petition were made to Cyrus Underwood at the time stated; and it admits that said Underwood assigned the same (except No. 9, Exhibit ‘I’) to defendant about the time stated therein; it admits that no well was completed in one year and no rental has been paid by defendant, but it denies that it assumed or agreed to assume any of the liabilities of said Underwood to plaintiff under said leases, or to any one of the lessors under whom Underwood held; and it denies 'that the acceptance of the assignments of said leases from said Underwood created any liability or in any way obligated this defendant to pay to said lessors, or either of them, or to plaintiff any yearly rental then due, or hereafter to become due on any of said leases; and it denies that it is indebted to plaintiff in any sum, on either cause of action of his petition; and it denies each and every allegation of the petition not herein admitted.</p> <p>“Defendant says, for a third defense to the amended petition and to each cause of action thereof, that each and every lease described in the several causes of action in said petition contained among other provisions, the following” ‘And a failure on the part of the second party to complete a well or wells as above specified, or instead thereof, to pay rental as above provided, shall render this lease and agreement null and void, together with all the rights and claims, and not binding on either party, and not to be revived without the consent of both parties hereto, in writing;’ and defendant avers that before the assignment by Cyrus Underwood to it of the leases described in the petition, the time for completing a test well according to the terms of each and all of said leases had expired, and one yearly rental was overdue, yet no test well was completed and no rental has been paid,which rendered said leases and. each of them null and void ; and neither of said leases was revived by said Cyrus Underwood and plaintiff or the other lessors, or by any other person'or persons, and defendant says that each and all of the leases described in the petition were null and void when the same were assigned to it, and that neither of them has since been revived.</p> <p>‘ ‘Defendant, for a fourth defense to the amended petition and to each cause of action thereof, says, that the sums of money to be paid for delay in completing wells called yearly rental in each of said leases, was intended and understood by the parties thereto to be a penalty, and was intended to indemnify plaintiff and the other lessors for all damages actually sustained by delay or failure to complete a test well, and other wells on the lands leased; and it avers that neither plaintiff or any of the lessors under whom he claims have sustained damages by reason of defendant having failed to complete a test well, or other wells on said lands for at the time of the execution of said leases and at the commencement of this action there was neither oil nor gas in paying quantities under the land described in said lease or either of them. ’ ’ The oil company also filed three separate defenses to the first cause of action of the amended petition, the first of which is as follows:</p> <p>“Defendant, without waiving any of its defenses to the amended petition, but insisting on each of them the same as if this separate answer were not made, answers the first cause of action as follows:</p> <p>“Defendant says, that the lease described in the first cause of action was executed March 23rd,-1889, and the first yearly rental claimed by plaintiff thereunder became due March 23rd, 1891, as stated in the -amended petition; and defendant avers that it is not liable under the assignment of the lease for yearly rental which accrued before said assignment, and it denies that it is liable for any subsequently accrued rental.”</p> <p>The second and third defenses to the first cause of action are not material here.</p> <p>The plaintiff below demurred to the third defense in the general answer to the amended petition, and also to the first special answer to the first cause of action in the same petition, both of which demurrers were sustained, and exceptions taken.</p> <p>The reply of the plaintiff below as to what was left of the answers after sustaining these two demurrers, was a general denial.</p> <p>The case was tried to a jury, and verdict returned for plaintiff below for $463.07, and motion made for a new trial, which was overruled and judgment entered on the verdict, to all of which defendant below excepted. The circuit court affirmed the judgment, and thereupon a petition in error was filed here to reverse both judgments.</p>

The plaintiffs below, defendants in error here, own two lots in the city of Cincinnati, one of which fronts thirty-five feet on Eighth street, and abuts lengthwise 105 90-100 feet on Baymiller street; the other lot fronts thirty-five feet on seventh street, and abuts lengthwise 105 90-100 feet on Baymiller street.

<p>Death of one elected to office before term begins — Procedure in such case — Section 11 Rev. Stat.</p> <p>Where one, elected to an office, dies before his term begins, no vacancy is thereby created in the office until the end of the term of the existing incumbent; and if this falls within thirty days of the next proper election, (Section 11, Revised Statutes); the vacancy cannot be filled by an election thereat.</p>

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

<p>Will — Bequest of income to trustee for life of certain person — Bequest absolute and subject to creditors,</p> <p>Where a testator bequeathed all the net income of his estate to a trustee in trust for the education and support of a certain person for life, without other limitation: Held, that the bequest so made is an absolute one, and is subject to the claim ' of creditors.</p>

The plaintiff in error seeks a reversal of the judgment of the circuit court affirming a judgment of the common pleas court of Jackson county, finding him guilty upon an information for contempt of court, and adjudging him to pay a fine of five hundred dollars and the costs of prosecution.

The petition declared upon an account for two bills of paper sold by the Manufacturing Company, a Massachusetts corporation, having its home office and principal place of business at Boston, to the Commercial Company, .an Ohio corporation. By its answer the defendant company set up that the paper was sold and delivered at Toledo, Ohio, and that all transactions and negotiations respecting the matter were carried on at that place.

Mandamus. The defendants constitute the Board of Elections of Hamilton county, and are ex-officio deputy state supervisors of elections in said county. The proceeding is a petition in mandamus to compel said board to place the names of Alexander B. Huston and Alfred B. Benedict upon both the “Democratic Judicial Ticket,” and upon the “Lawyers’ Judicial Ticket,” said two persons having been duly nominated by the parties representing both 'of said tickets.

<p>Sale of property on writ of execution — Statutory provisions— Validity of levy as against subsequent creditors — Foreign execution — Extent of judgment lien — Constructive notice of lien.</p> <p>1. Statutory provisions prescribing the order to be observed by an officer in subjecting the debtor’s property to sale on a writ of execution, are directory in their nature, and for the benefit of the debtor, who may waive strict compliance therewith; and such waiver will be presumed unless he assert his right by a direct proceeding to set aside the action of the officer.</p> <p>2. As against subsequent purchasers and creditors, it is not essential to the validity of a levy of an execution on land, that the debtor be without chattel property on which to levy ; nor will the levy be rendered invalid, or ineffectual to create a lien, by the omission pf the officer to indorse on the writ, no goods.</p> <p>3. A valid levy of a foreign execution on land of the debtor has the effect of extending the lien of the judgment to the land seized ; and the lien is not limited in duration to the time the writ has to run, but may be preserved and continued in force as long as the judgment remains unsatisfied and is not allowed to become dormant, in like manner that the lien of the judgment on land in the county where rendered, may be.</p> <p>4. Return of the writ by direction of the creditor, without a sale of the property, is not a discharge of the lien.</p> <p>5. The entries on the foreign execution docket, which the sheriff is required to make, of the date and amount-of the judgment, with a copy of the levy, and description of the land, are constructive notice of the lien, binding upon subsequent purchasers and creditors, while the lien remains in force.</p>

This case was argued and submitted with the preceding one, Coal Comrpany v. Bank, ante, page 233. The report of that case disposes of some of the questions involved in this one. A statement of the facts that are material in the consideration of other questions here presented, will be found' in the opinion.

The original suit was commenced by Oliver. C. Schurtz as administrator of Lewis Schurtz, deceased, against James Colvin, for the foreclosure of a mortgage given by the latter to the decedent to secure a loan of $6,500.00. James E. Colvin, who had a subsequent mortgage on the same land, was made a party. James Colvin made no defense. James E.. Colvin filed an answer and cross petition. He claimed priority over the mortgage of the plaintiff on two grounds.

Clark, as administrator of William A. Dunnick, tiled his petition in the court of common pleas to recover from Doney the value of real estate described in the petition.

She prevailed in the court of common pleas ; the judgment there rendered in her favor was affirmed by the circuit court. Whereupon the present proceedings were brought in this court to reverse both judgments. The facts will be stated in the opinion of the court.

Upon a complaint before the mayor of Bellefontaine, the defendant was convicted of keeping a room at that place where intoxicating liquors were sold in violation of an ordinance of the village, and sentenced to fine and costs. Error was prosecuted to the common pleas where the judgment of the mayor was affirmed. On error the circuit court reversed both judgments. The village brings the ease here to obtain a reversal of the latter judgment. Facts are stated in the opinion.

The Merchant’s Oil Company, a corporation, in the year 1891, employed Kennedy, DePorrest, Parsons & Company, a copartnership, to construct certain tanks in the refinery of the Oil company, and upon completion of the tanks, not having ready cash to. make payment, gave its three promissory notes for the amount due, at sixty, seventy-five and ninety days, which notes were accepted by the partnership, not as payment of the debt, but to give further time to the Oil company, and…

The original action was brought by the defendant in error, Jesse Snyder, against the Pennsylvania Railroad Company, plaintiff in error, and the Lake Shore & Miehigan'Southern Railway Company, in the court of common pleas of Lucas county.

Exceptions by the prosecuting attorney to the ruling of the Court of Common Pleas of Lucas county.

The action below was a suit brought by the plaintiff to recover damages of the defendant for wrongfully ejecting him from one of its trains. The issues having been made up, the case was tried to the court on an agreed statement of the facts.

In Mandamus. This application for a writ of mandamus was made before the election of November 3, 1896, and the writ was refused. It was submitted on the petition with the stipulation that its allegations should be taken as true, for the purposes of final-judgment.

<p>Error to the Circuit Court of Crawford county.</p> <p>This action was brought by the defendant in error in the court of common pleas of Crawford county, to recover of plaintiff in error on account of injuries received by him by reason of a defective sidewalk. He recovered a judgment in the. court of common pleas, which the circuit court affirmed, on error. The facts will appear in the opinion of the court.</p>

<p>Error to the Circuit Court of Portage county.</p> <p>The plaintiffs action was brought upon a petition of which the following is a copy:</p> <p>“Petition. Plaintiff is a corporation duly organized and doing business, with its principle office in Cleveland, Ohio; that said plaintiff is engaged in the business of bakers and general caterers in the city of Cleveland, Ohio, and also in the manufacture of butter, cheese and candies, and other confectionery; that in said business and each of its branches it requires, .needs and uses large quantities of pure milk and cream, butter and cheese, and ships large quantities of butter and cheese into the general market. That as a part of its said business it runs a butter and cheese factory at Mantua, Ohio, where it purchases from its patrons, and receives a large amount of milk to be in part manufactured into butter and cheese, and in part shipped to principal places of business, and in part skimmed and the cream therefrom sent to it at its said place of business in. Cleveland, to be used in its said business as aforesaid.</p> <p>“That defendant, Prank R. Coit, was one of plaintiff’s patrons, and furnished large quantities of milk delivered at its factory at Mantua, Ohio. That said defendant promised and agreed at the time of bringing first, his milk to plaintiff’s said factory, to bring nothing but milk of first class or superior quality; that he brought milk to said factory from December 14, 1891 to November 21, 1892, and in all about 120,000 pounds, and received therefor the price of a superior quality of milk, to-wit: about $1,150; but that said defendant, Coit, instead of bringing first class milk, or milk of a superior quality, during all of said time furnished plaintiff at its said factory, milk adulterated with water, only about two thirds of which was milk and one third water, and made foul by stale, filthy and impure water, well knowing at said time it was to be placed with and mixed with the other milk of said factory, and knowing it was to be used in plaintiff’s business as aforesaid. That the entire amount of milk received and used at said factory, as said defendant well knew, amounted to about 7,000 pounds daily, upon the average.</p> <p>“By reason of said adulterated milk furnished by said defendant, the product of said factory was greatly lessened and damaged; that the ’butter and cheese manufactured therefrom, and the milk with which said adulterated milk furnished by defendant was mixed were poor and of an inferior quality, and soon became unfit for use, or for the trade, except as second or third class, or very inferior quality, and many times became wholly worthless. That large quantities of cream from said factory, which otherwise would have remained good, sweet and wholesome, became thereby sour, tainted and unfit for use, and entirely worthless, and the business of plaintiff greatly injured thereby, the said defendant well knowing the uses to which the milk and cream from said factory would be put, and that plaintiff’s business, in a great measure, depended thereon; and defendant knew that plaintiff’s said business depended upon the absolute purity of the milk from said factory.</p> <p>Yet defendant continued to thus send impure, unwholesome, foul and adulterated milk ■ to said factory, knowing’ the same to be adulterated, and palming off upon plaintiff for pure milk, milk that had been watered and adulterated, and to the damage of plaintiff as set forth herein, in the sum and to the amount of ($4,000) four thousand dollars,</p> <p>“Wherefore plaintiff prays judgment against said defendant for said sum of $4,000 with interest thereon from November 21, 1892.”</p> <p>’ Defendant, by answer, admitted the corporate character of plaintiff, and that it was doing business at Cleveland and denied all other averments. By cross-petition he alleged “that on the 21st day of November, 1892, the said plaintiff was indebted to him fox- milk before that time .furnished it in the sum of $219; that the same is now-due and xxot paid;” and prayed judgment for that sum and interest.</p> <p>At the trial, as appears by the bill of exceptions, “the plaixxtiff, to maintain the issues on its part, ixxtroduced evidence tending to sustain the allegations of the petition; and the defendant offered evidence texxding to show that he, said defexxdant, did xxot water the milk or know that it had been or was watered, and that he had in his employ one Ed. Miller, who assisted in milking the cows, and part of the time delivered the milk to the factory of plaixxtiff, and that the said Miller, withoxxt his (defendant’s) knowledge, for the purpose of injuring the defendant, maliciously watered the milk which was delivered to plaintiff’s factory by defendant or his employe, but without any knowledge or suspicion on defendant’s part, that it had been watered. That while 'said milk may have been watered by said Miller durixxg the period he, said Miller, was in the employ of defendant, yet it was no part of his duty nor was he in any way authorized to water said milk; and that in doing it said Miller acted not for defendant but to injure defendant. But it was the duty of said Miller to milk the cows of defendant in his absexxce and to assist defendant when at home and in his (defendant’s) absence, to deliver the milk to plaintiff’s factory, and that other times he was to deliver milk at the factory of plaintiff as a part of his employment a part of the time at least, but that it was no part of his duty, nor was he directed or in any way authorized to water the milk; and that in so doing he was not acting for defendant but solely out of malice and for the purpose of injuring defendant and to gratify a feeling of ill will toward defendant of which defendant at the time was entirely ignorant.</p> <p>“The plaintiff upon this question requested the court to charge the jury as follows:</p> <p>“If - the jury shall find that the milk of defendant was delivered at its factory watered then the defendant would he liable for the damages that necessarily and directly -resulted' therefrom, even though the defendant did not water such milk, or authorize it to be done or know the same was or had been watered, if the jury shall find it was watered by one Ed. Miller, the employe of defendant.</p> <p>“But the court refused to charge the jury as requested but did charge the jury upon this question as follows:</p> <p>“If it appears to you that the milk was adulterated by Miller maliciously to injure Coit, and was without Coit’s knowledge so delivered to the factory adulterated, then Mr. Coit is not liable to defendant for any damage resulting to them from such adulterated milk. Mr. Coit, however, would remain liable for the amount of water delivered, but only because it was not milk.</p> <p>“No other or further charge upon this subject was given to the jury, nor was the above charge in any way modified, changed or withdrawn, but was without change or modification given by the court to the jury as the law by which they were to be governed in arriving at a verdict in the case.”</p> <p>Exceptions to the refusal to charge as requested, were duly entered by plaintiff. Verdict for $185.00 for defendant and against plaintiff, was rendered, and to the charge as given, and a judgment thereon, and for costs, entered, which was affirmed by the circuit court. The plaintiff asks reversal of these judgments.</p>

<p>Error to the Circuit Court of Putnam county.</p> <p>Error to the Circuit Court of Clark county.</p> <p>These two eases were heard and determined together. Both eases involve the constitutionality of the mechanic’s lien statute as amended April 13th, 1894. In the Putnam county case the contract was made on the 23d day of April, 1894, and was for' the repair of Mr. Tingle’s house at the agreed price of five hundred dollars, which was to be paid by the owner of the house to the contract- or,' a Mr. McComb, by endorsing and delivering to him two notes held by Mr. Tingle against a man by the name of Vale, and Mr. Tingle did endorse and deliver the two notes each for the sum of two hundred and fifty dollars, to Mr. McComb, and he received the notes in full payment and satisfaction of the agreed repairs.' Mr. McComb purchased materials from Palmer & Crawford, a co-partnership, for the purpose of making the repairs, and the materials were in fact used in the making of said repairs. Mr. McComb fully performed his contract, but failed to pay for the materials in the sum of $214.87, and thereupon the partnership, within four months, filed an affidavit, in all respects as required by statute, in the office of the recorder of the county, seeking to perfect a lien upon Mr. Tingle’s house and the land upon which it stands.</p> <p>The. circuit court upon appeal held the statute unconstitutional, and rendered judgment in favor of Mr. Tingle. The partnership filed its petition in error in this court seeking to reverse the judgment of the circuit court.</p> <p>In the Clark county case, Mr. Young made a contract with a Mr. Hollenback on the 29th day of June, 1894, by the terms of which Mr. Hollenback was to furnish the materials and labor and erect for Mr. Young upon premises owned by him, a dwelling house on or before the first day of October, 1894, except the foundation., painting and chimneys, for the sum of $1,925.00. The payments were to be $300.00 upon completion of the roof; $300.00 when ready for plastering; $400.00 when the plastering should be completed, and the remainder, $925.00 within thirty days after the completion and acceptance of the house. Mr. Hollenback performed his part of the contract and Mr. Young accepted the house and paid therefor according to the contract. Mr. Hollenback purchased from the hardware company materials for the completion of the house to the amount of $215.97, which materials were of that value, and were used in the completion of the house. After payment had been made in full for the completion of the house, and within four months after the materials were furnished, the hardware company filed its affidavit in due form in the office of the recorder of the county to perfect a lien upon the house of 'Mr. Young for the materials so furnished to Mr. Hollenback for the completion of said house. Mr. Young had no notice of the claim for said materials until after the house was completed, accepted and paid for in full.</p> <p>Upon appeal to the circuit court it made a finding of facts and rendered a decree in favor of the hardware company. Thereupon Mr. Young filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and asking that judgment be rendered in his favor upon the findings of fact.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>The controversy in the courts below was over a fund arising from sales on executions of the property of George P. Stiles and Abram Stiles, brothers, who were clothing merchants, having a store in the village of Ashley, in Delaware county, where they carried on business as partners under the name of the “Ashley Clothing Company,” and another store in the village of Cardington, in Morrow county, where they carried on a like business under the partnership name of “The Carding-ton Clothing Company. ” Becoming involved and unable to meet their debts, judgments were obtained against them by a large number of their creditors, executions were issued on these judgments, and the fund in question is the proceeds of the sale of the property in the two stores, seized on these writs. The controversy relates to the order in which distribution shall be made of the fund among the creditors.- The first judgments obtained, were two recovered by the First National Bank of Cardington, in the court of common pleas of Ashland county, at its September term, 1893. They were so obtained on the 20th day of September, 1893, on notes signed by George P. Stiles, and Abram Stiles, with warrants of attorney attached, upon which the judgments were taken by confession. On the same day that these two judgments were recovered, executions were. issued on them to the sheriffs of Delaware and Morrow counties, respectively, who, on the same day, levied the writs on the stock of goods in their respective counties. These were the first levies on the property. On the next day, September 21, 1893, the same bank obtained two judgments in the court of common pleas of Franklin comrty, upon notes executed by George P. Stiles and Abram Stiles, and on that day caused executions issued on them to be levied on the same property; and on that day, Sperry & Wormstaff also recovered a judgment in the same court, against the /same defendants, on notes executed in the same way, and caused an execution issued thereon to be levied on the same property, on the same day. These three levies were the next in point of time. All of these judgments weie rendered against George P. Stiles and Abram Stiles, without any mention of a partnership existing between them, but upon indebtedness contracted in the business and for the benefit of the firm, and on its credit.</p> <p>On the 23rd day of September, 1893, in the court of common pleas of Ashland county, which was during its' September term of that year, other creditors who are plaintiffs in error here, recovered judgments against George P. Stiles and Abram Stiles, described as partners, and on the same day caused executions issued on their respective judgments to be levied on the same property that was taken on the executions issued on the judgments recovered in that court by the bank; and these levies were the next or third in point of time. These judgments of the plaintiffs in error exceed in the aggregate the sum of $7,000.00.</p> <p>Afterward, but still at the Septemer term, 1893, of the court of common pleas of Franklin county, others of the plaintiffs in error, creditors of the Stiles Brothers, recovered judgments in that court, and caused executions to be issued thereon and levied on the same property, during that term of the court. These were fourth in point of time, and amount to a large sum.</p> <p>The property was sold, producing a fund amounting to $6,996.27, which, by agreement of all parties, was paid over to the clerk of Franklin county for distribution, as might be ordered by the court. Whereupon the First National Bank of Cardington filed its petition in the court of common pleas of Franklin county, to marshal the liens, and bring about a distribution of the fund according to the rights of the parties, making all the creditors who caused executions to be levied on the property, parties to the action. The case went to the circuit court on appeal, and was there submitted upon an agreed statement of facts, which, so far as they are deemed material, are substantially as above set forth; and upon these facts that court ordered distribution to be made of the fund as follows:</p> <p>“First — To the payment of the costs of this suit, and the costs on the order of sale in the case of Oppenheimer, Strauss &Co., amounting to the sum of §372.46.</p> <p>“Second — To the plaintiff, the amount of its said four several judgments and • costs, amounting in the aggregate to the sum of $3,895.00.</p> <p>“TImxl — To Sperry & Wormstaff, the amount of their said judgment and costs, $566.50.</p> <p>“Fourth — That the balance of said fund, being found insufficient to pay the remaining judgments in full, be distributed pro rata among the defendants who recovered judgments in the Ashland common pleas, on the 22nd day of September, 1893, the said pro rata amounts being as follows, to wit: To Lewis Meier & Co., the sum of $66.26; E. B. Robbins & Co., $122.51; Garson, Meier & Co., $253.20; L. C. Wachsmuth & Co., $140.05; The Gem Shirt Co., $262.05; Bergunder Bros. & Co., $363.90; Legler, Barlow & Co., $68.94; Levy, Price & Co., $190.73; Michaels, Stern & Co., $315.26; Kahn Bros. & Fellheimer, $65.17; G. Sturm & Sons, $284.”</p> <p>The creditors who were given a pro rata share of only what remained after deducting the judgments of the Bank and of Sperry & Wormstaff, and the creditors who recovered judgments in the Franklin county common pleas and levied their executions at the same term, but on a day subsequent to the judgments recovered in that court by the Bank and Sperry & Wormstaff, being dissatisfied with the distribution as ordered by the circuit court, have brought the case on error to this court.</p>

The suit below was commenced in the court of common pleas by Mary O. Adair against Filmore Musser, auditor of Scioto county, and.Mark Wells its treasurer. It purports to be a petition in error by the plaintiff to the auditor and treasurer of the county.

This suit concerns real estate only, and involves the right and duty of the trustees under the will of Thomas Phillips, deceased, to carry out all of its terms, including the following: “3d. My said trustees shall, from time to time, pay over one-third of the net income arising from the said two-thirds of my estate to my son George during his natural life, and at his death to his children, or the survivors of them, in equal shares during the natural life of each of them.

<p>Trial of action — Case arrested and discharged by defendant's motion — Subject of motion for new trial — Bill of exceptions may be taken, when — Court procedure.</p> <p>1. Where on the trial of an action in a court of common pleas, the court, upon the motion of the defendant, arrests the evidence of plaintiff from the jury, discharges the jury and renders judgment for the defendant, the plaintiff may make such action of the court the subject of a motion for a new trial.</p> <p>2. If, in such case, the motion for a new trial should be overruled, the period of time within which a bill of exceptions may be taken should be computed from the day that the motion for a new trial was overruled.</p>

<p>Error to the Circuit Court of Warren county.</p> <p>The action of the defendant in error against the company was to recover for injuries by reason of the alleged negligence of the company. By its first defense the company denied negligence on its part and alleged that the accident was caused by the negligence of a fellow servant for which the company was not liable. The second defense was as follows:</p> <p>2. For a second defense to the plaintiff’s petition, the defendant says that if it is chargeable with the negligent acts complained of therein (a fact which this defendant wholly denies), nevertheless the said plaintiff, ought not to maintain this, his action, for that, on or about the 16th day of April, 1889, the Pennsylvania Company, a railroad corporation of the state of Pennsylvania, owning and operating- railroads in and through the states of Pennsylvania, Ohio and Indiana; the Chicago, St., Louis & Pittsburg Railroad Company, a railroad corporation of the states of Indiana and Illinois, owning and operating a railroad in the said states of Indiana, Illinois, and also in the state of Ohio, and the Pittsburg, Cincinnati & St. Louis Railway Company, a railroad corporation of the state of Ohio, owning and operating certain railroads in the states of Pennsylvania, Ohio and in the state of West Virginia, having formed each respectively a relief department for the benefit of its service and employes, and in order to secure uniformity and economy in the managementthereof, on the 1st day of July, 1889, associated themselves together' for the purpose of a joint administration and regulation of the said respective relief departments under one common organization known as “The Voluntary Relief Department of the Pennsylvania Lines West of Pittsburg.”</p> <p>That on the 1st day of October, 1890, the said The Chicago, St. Louis & Pittsburg Railroad Company and the Pittsburg, Cincinnati and St. Louis Railway Company were consolidated under the corporate name of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, which company succeeded to all of the rights and assumed all the liabilities of said constituent companies in said relief department.</p> <p>That the object of said voluntary relief department was, and is the establishment and management of a fund known as “The Relief Fund,” and which has been established in accordance therewith for the payment of definite sums to employes contributing to the fund, who, under the regulations of said relief department, shall be entitled thereto when they are disabled by accident or sickness, and in the event of their death to the relatives or other beneficiary specified in the application of such employe for the membership in said relief fund and department.</p> <p>• That said relief fund from which benefits are paid is formed by voluntary contributions from employes, and appropriations, when necessary, to make up any deficiency, by the several companies respectively, for the benefit of the employes of each who may be members thereof, and income or profit derived from investments of the moneys of the fund, and such gifts or legacies as may be made for the use of the fund.</p> <p>That those participating in the benefits of the relief fund must be employes in the service of at least one of said associated companies; are known as “Members of the Relief Fund,” and are classified according to the amount of their regular pay per month, the first class consisting of those employes who receive not more than forty dollars per month.</p> <p>Under the regulations of said, relief department no employe is required to become a member of said relief fund, and his membership therein is purely voluntary, and he may withdraw there-' from at pleasure upon giving notice, but when he does become a member thereof he authorizes his employer company to withhold from his monthly wages, contributions for said relief fund, and which in the first class thereof is seventy-five cents per month, and which contribution entitles him during membership to benefits for disablement by accident, sickness or death.</p> <p>That to entitle an employe to participate in the benefits of said relief fund he must not be over forty-five years of age, pass a satisfactory medical examination, and make an application in the form prescribed by the regulations of said department, addressed to the superintendent of the relief department, and containing, amongst other things, the following stipulations, to wit:</p> <p>“I also agree that the said company” (being his employer company) “by its proper agent and in the manner provided in said regulations, shall apply as a voluntary contribution from any wages earned by me under said employment, or from benefits that may hereafter become payable to me, at the rate of--per month, for the purpose of securing the benefits provided for in the regulations for a member of the relief fund of the class, and additional death benefit equal to--the death benefit of the first class. The death benefit shall be payable to — (here designate the beneficiary or beneficiaries).</p> <p>“And I agree that the acceptance of benefits from the said relief fund for injury or death shall operate as a release of all claims for damages against said company,” (being his employer company) “arising from such injury or death, which could be made by or through me and that I, or my legal representatives, will execute such further instrument as may be necessary formally to evidence such acquittance.</p> <p>“I also agree that this application, when approved by the superintendent of the relief department, shall make me a member of the relief fund and constitute a contract between myself and the said company,” (being his employer company) “or with any other company that is now, or may be hereafter associated with said company in the management of the relief department, in case of a transfer of my services to any such other company during membership in the relief fund.”</p> <p>That said applicant, if he passes the necessary medical examination and is approved by the superintendent of the relief department, becomes a member of said relief fund contributing as aforesaid and receiving benefits in the manner as aforesaid.</p> <p>That the said associated companies in addition to the guaranty as aforesaid, supply all necessary facilities for conducting the business of said relief department, at their own expense, pay all of the operating expenses thereof, take charge of the funds thereof, pay interest thereon, and are responsible for their safe keeping.</p> <p>That said relief department is managed by a superintendent subject to the control of the general manager of the said Pennsylvania lines west of Pittsburg; medical examiners and necessary clerical force.</p> <p>That in addition there is an advisory committee, consisting of said general manager as aforesaid, who is ex officio a member and chairman of said committee, and twelve members, one-half of whom are chosen by said companies and the other half by the employes of said companies who are members of said relief fund. • -</p> <p>That said advisory committee has general supervision of the operations of said relief department and hold stated meetings once in three months at such time and. place as they shall determine, and shall meet at other times at the call of the general manager as chairman.</p> <p>That if during the period prior to the 1st of July, 1892, or during any one of the successive periods of three years thereafter, the amount contributed by the members of the fund and received from other sources should not be sufficient to meet the liabilities incurred for such period, the proper company or companies in whose account the same occurs will pay the deficiency, and if at the end of any such period there should be a surplus after making due allowance for liabilities incurred and not paid, such surplus shall not be used to make up any deficiency in any other such period, but shall be used in the promotion of a fund for the benefit of superannuated members, or in some other manner for the sole benefit of the relief fund, as shall be determined by a vote of two-thirds of the advisory committee, and approved by the board of directors of the associated companies.</p> <p>That during the last five years immediately preceding the filing of this petition, this defendant, under its guaranty as aforesaid, has paid into said fund for the benefit of plaintiff and other employes of the defendant, the sum of twenty-one thousand dollars in addition to its share of operating expenses of said department and interest upon the fund.</p> <p>That on the 25th day of October, 1892, the said plaintiff, with full knowledge of all the foregoing, except that he may not have had actual knowledge of the payment of said $21,000, made his voluntary written application containing the stipulations as aforesaid, to the superintendent of said relief department for membership in the first class of said relief fund, agreeing in said application that the defendant should apply, as a voluntary contribution from his wages, seventy-five cents per month for the purpose of securing to him the benefits provided for in the regulations for a member of the relief fund of the first class, and further agreeing therein that the acceptance of benefits from said relief fund for injury or death should operate as a release of all claims for damages against said defendant arising from said injury or death, which could be made by or through him, and that he or his legal representatives would execute such further instrument as might be necessary formally to evidence such acquittance.</p> <p>That having passed the medical examiner’s examination, and said application having been approved by the superintendent of said relief department, the said plaintiff, on the 1st day of November, 1892, became a member of said relief fund, contributing as aforesaid, and entitled to the benefits provided by the regulations of said relief department for members of the first class.</p> <p>That after the injuries received by the said plaintiff, and for a period from the 6th day of May, 1893, to June 30, 1894, he received as a member of said relief fund, the benefits to which he was entitled for his injuries amounting to one hundred and ninety-six dollars and twenty-five cents ($196.25), with full knowledge upon his part that he was not bound to accept the same, but that in so doing he released the said defendant company from any claim for damages against it arising from the injuries received by him on or about the sixth day of May, 1893, and of which he complains in his petition in this action; that he has never been dismissed from said fund • although he has received no benefits since the 30th day of June, 1894, pursuant to a regulation of said department which provides that if the member injured, brings suit against his employer company to recover damages for the injuries on account of which benefits are paid, the said benefits cease until such time as said suit is discontinued by said injured member when payment of benefits will be resumed.</p> <p>Reply to the first defense was interposed, and a demurrer to the second. This was overruled by the common pleas, and, upon trial on the pleadings, issue was found for defendant and a judgment for it rendered. The circuit court reversed that judgment, for error in overruling the demurrer and the company now seeks a reversal of the latter judgment.</p>

The deceased, Tony Meyer, aged fourteen months, the son of George Meyer and Viola V. Meyer, was killed by a train bn the Lake Erie & Western Railroad on the 9th day of September, 1893. Thereupon Amos Wolf was appointed administrator of his estate, and brought an action against the railroad company seeking to recover the sum of $1,999.00 damages for the negligent killing of said Tony Meyer.

<p>Mortgage incumbered land — Right of person having interest in same — May pay or purchase incumbrance and be subrogated to rights of incumbrancer.</p> <p>1. As a general rule, any person having an interest in property subject to an incumbrance which may defeat or impair his title, has a right to disengage the property by payment of the incumbrance, and when he does so, if the debt is not one for which he is personally liable, he is entitled to be subrogated to the rights of the incuinbrancer against the property; and, subrogation arises by operation of law, whenever a mort. gage debt is extinguished by one entitled to redeem, other than the mortgagor or person ultimately liable for the mortgage debt.</p> <p>2. Where land incumbered by mortgage has been sold by the mortgagor for its full value, and the purchase money applied in satisfaction of the mortgage debt, equity will keep the mortgage security alive for the benefit of the purchaser, and enforce it forhis protection as against incumbrances subsequent thereto ; and where the purchase money so appilied is but a partial payment on the mortgage debt, the purchaser will be entitled to enforce the lien to the extent necessary for his reimbursement, when that will not interfere with the mortgagee’s security for the unpaid balance.</p> <p>3. The right of the purchaser to subrogation in such case is not affected by notice of the incumbrances when he bought and paid for the land ; nor is it necessary to his right that he show an, intention was then present to keep the mortgage on foot for his protection, for that being to his advantage, the intention will be presumed.</p>

The plaintiff in error filed its petition in error and precipe for summons in error in the circuit court within six months after the rendition of the judgment in the court of common pleas, but the clerk did not issue the summons in error until some days after the expiration of the six months.

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

<p>In Error.</p> <p>Motion to dismiss the ease.</p>

<p>Mortgage in trust for preferred creditors — Respective rights op . other creditors and mortgagor — Section 6344, Revised Statutes.</p> <p>Where one, in embarrassed circumstances, makes and delivers a chattel mortgage to a third person, in trust for certain of his creditors, with the requirement that he shall sell the property at retail and apply the proceeds, to the claims of the preferred creditors until paid in full; and afterwards, with the consent of his other creditors, to continue to sell and apply the proceeds to their claims pro tata, and the property so mortgaged is largely in excess of the amount of the claims of the preferred creditors, the legal effect of such mortgage is to hinder and delay his other creditors within the meaning of section 6344, Revised Statutes, and no action for damages can be maintained by the mortgagor against the trustee for a failure to execute the trust.</p>

<p>Pure food laib — Act of April 22,1890 — Application of, to whole law —Action under — Form of averment — Definition of adulteration —Construction of statute.</p> <p>1. The proviso contained in section 3, of pure food laws of the state, as amended April 22, 1890 (87 Laws, 248), applies to the whole act, and is not descriptive of any particular offense therein defined; and, for such reason, a negative averment of the facts within the proviso, is not required in an affidavit charging an offense against the act; but the facts may be offered in evidence as a'defense under the plea of not guilty.</p> <p>2. A charge to a jury that would preclude it from considering “ evidence tending to show that the defendant, in making a particular sale, complied with the requirements of the proviso, is erroneous.</p> <p>3. A sale of beer as food, containing salicylic acid in any quantity, without a lebel on the package notifying the purchaser that it contains such an ingredient, is, when found to be poisonous or deleterious to health by its continuous or indiscriminate use, an offense against the pure food laws of the state, under the definition of an adulteration contained in clause 7, paragraph “b," section, 3, of the act as amended April 22, 1890.</p>

<p>Suit to compel accounting of trustee — Action appealable.</p> <p>A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.</p>

<p>Fire insurance policy — Exemption in favor of company covering loss by explosion — Construction of contract — Remote and proximate causes.</p> <p>1. The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.</p> <p>2. A special provision will'be held to:override a general provision only where the two cannot stand together. If reasonable effect can be given to both, each is to be retained.</p> <p>3. A fire insurance policy on a house and contents contained, in the printed portion, a provision that “this insurance does not apply to or cover any loss by explosion, unless fire ensues, and then the loss or damage by fire only,” and had attached thereto a special clause providing “that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy.” There was stored in a certain powder house situate across the street from the buildinginsured and seventy-one feet distant therefrom, over which house neither party had any control, two tons of powder. The powder house was struck by lightning causing an explosion of the powder, by force of which explosion the insured house and contents were totally destroyed.</p> <p>Held, That within the meaning of the clause recited, the loss was occasioned by explosion which was not included in the risk, and that the company is not liable.</p>

<p>Damages — Liability for, by railroad — Ejectment from train for refusal to pay fare — Rights of passenger on ticket — Corporation law.</p> <p>1. When a person having in charge a child of sufficient age to require payment of fare, takes passage on a railroad, such person becomes liable for the payment of the child’s fare, and upon refusal to pay, both may be ejected from the train at the next station. '</p> <p>2. When such person has paid fare, or purchased a ticket which is taken up by the conductor, such conductor must, before ejecting such person and child, return or offer to return to such person, the unused value of such ticket or fare over and above the fares of both for the distance already traveled.</p> <p>3. If the ticket is such that a stop-over may be had thereon, the conductor may tender a stop-over check instead of money, but to retain the ticket and expel the parties from the train, renders the company liable in damages.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The original action was brought by Emma V. Ewan, against George W. Cox and The BrooksWaterfield Company in the Superior Court of Cincinnati, in which she filed the following petition:</p> <p>“The defendants, George W. Cox, and The Brooks-Waterfield Company which is a corporation under the laws of the state of Kentucky, are indebted to plaintiff on a promissory note, of which the following is a copy, with all the credits and indorsements thereon:</p> <p>“ ‘$3,500. Cincinnati, O., Jan. 25, 1889.</p> <p>“On or before May 1st, 1889, after date, I promise to pay to the order of myself thirty-five hundred dollars, at the office of the Globe Tobacco Warehouse. ■</p> <p>“ ‘Value received, with interest from date until paid — interest payable every 30 days. Geo. W. Cox.5</p> <p>On the back thereof: “ ‘Geo. W. Cox, The Brooks-Water field Co., L. H. Brooks, President.</p> <p>“ ‘$700.00. May 17th, 1889. Received on the within note the sum of seven hundred dollars.</p> <p>“ ‘$500.00. Sept. 17th, 1889. Received on the within note five hundred dollars.</p> <p>“ ‘$300.00 Dec. 21st, 1889. Received three hundred dollars on the within note.5</p> <p>“Plaintiff says that the name of The BrooksWaterfield Company was so signed on the back of said note at the time of its execution by said George W. Cox, and said note was delivered to her at the date thereof by said George W. Cox for a valuable consideration, the name of The BrooksWaterfield Company then being thereon.</p> <p>“There is due plaintiff from defendants on said note the sum of twenty-one hundred ■ and sixty-one and twenty-five hundredths dollars, with interest thereon from the 21st day of December, 1889, for which she prays judgment.55</p> <p>Judgment was rendered against Cox on default, leaving the action to proceed against the company, which answered as follows:</p> <p>“Now comes the defendant, The Brooks-Water-field Company, and for answer to the petition admits that it is a corporation under the laws of the state of Kentucky ; but it denies that it was a joint maker with George W. Cox of the note set forth in the petition, and alleges that it distinctly assumed the position of indorser upon said note. It denies that its name was upon the back of said note at the time of its execution by said Cox. It does not know the correctness of the statement of said petition as to indorsements on said note, and denies the same for the want of knowledge, and denies all other allegations in the petition not herein expressly admitted. This defendant denies that it received any notice of the maturity and nonpayment of said note.</p> <p>“Wherefore this defendant prays to be hence dismissed with its costs in this behalf expended.” ■ A reply was filed which avers that the company was a joint maker of the note, and denies it assumed the position of indorser.</p> <p>On the trial of the issues, the plaintiff put in evidence the note with the indorsements thereon, which are correctly copied in the petition, and testified in her own behalf to the following facts, namely: That she purchased and received the note from Cox on the day of its date, and either paid him its face value in money, or received it for that amount in payment of a previous note then held by her against Cox, which had been given for money she had loaned him ; that the name of The BrooksWaterfield Company was indorsed on the back of the note when she received it, and that she had no conversation with any representative of the company, nor with Cox, concerning the company’s signature, or the agreement under which it was placed on the back of the note; and further, that the credit of $500.00 indorsed on the note as shown by the petition, was paid by the check of the company, made payable to her. The plaintiff gave no further evidence. The defendants offered none, but moved for judgment in its favor upon the plaintiff’s evidence; whereupon, as the record shows, the cause was reserved to the general term for decision on the motion, where the motion was sustained and judgment rendered for the defendant. To -reverse that judgment the case is brought here on error.</p>

<p>Taxation — Collateral inheritance tax — Validity of act of April SO, 1894 — Constitutional law.</p> <p>1. The act of April 20, 1894 (Ohio Laws, 91, p. 169), amending “An act imposing a collateral inheritance tax,” is not repugnant to any provision of the constitution, because of- its discriminations among collateral kindred,</p> <p>2. The property ‘which shall pass by sale”' within the meaning of the act is such only as passes in transactions which are in fact gifts, though m form saies, and the act does not restrict the right to dispose of property by sale for a valuably consideration, which the parties, in good faith, deem adequate.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>Suit was brought in the court of common pleas of Cuyahoga county, by Farley, as executor of the estate of Mary A. Montpelier, against Isaac Lisey, to recover rent alleged to be due under a lease made by the plaintiff’s testator to the defendant, of premises in the city of Cleveland. The petition sets up the lease, and alleges that a certain modification of it, by which the rent was reduced, and an additional covenant entered into by the lessor, was without consideration; and seeks to recover according to the original lease. That allegation was denied by answer, and a breach of the additional covenant averred by reason of which the lessee was discharged from the payment of the rent sought to be recovered. Before the trial, the lessee died, and the executrix of his estate was made the party defendant, and the suit thereafter prosecuted against her. At the trial, the plaintiff was called as a witness in his own behalf to testify to conversations which it was claimed had occurred between him and the lessee, and between the parties to the lease in his presence, touching the consideration for the modification of the lease; and for the purpose of showing it was without consideration. The proposed testimony was objected to by the defendant, as incompetent, and the objection was sustained. Judgment having been rendered for the defendant, which was affirmed by the circuit court, the plaintiff prosecutes error here, assigning the exclusion of the testimony referred to as a ground of reversal, with others.</p>

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

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

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

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

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

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