Volume 58 — Ohio State Reports, New Series

<p>Insurance laws — Powers of superintendent of insurance — May revoke or decline license to company, when — Section 8745, Revised Statutes — Lije insurance companies on mutual or stock plan— Companies on assessment plan — Sections 8587 to 3596 'and section 36S0e, Revised Statutes — Interpretation of statute.</p> <p>1. By virtue of the provisions of section 2745, Revised Statutes, the superintendent of insurance of -this state may revoke, or decline to renew, a license to transact business in this state to a life insurance company created under the laws of another state, if, “ after demand therefor has been made, ” such, company refuses to pay the taxes assessed against it, which are payable to him according to the terms of said sections. This power of the superintendent continues and may be exercised notwithstanding the commencement and pendency of an action brought by him against such company to recover the taxes thus assessed.</p> <p>2. Although sections SSSl to 3596, inclusive, Revised Statutes, under which life insurance companies intended to transact business on the mutual or stock plan, are organized, require such companies to have capital stock and stockholders ; and although when thus organized they have no authority to transact business on the assessment plan,.the want of such authority is not a consequence of their having capital stock and stockholders, nor of want of power in the legislature to confer it, but results solely from an omission of the legislature to clothe them with such power.</p> <p>Notwithstanding the want of such authority in an Ohio corporation, created under those sections, yet, as the powers of a corporation depend on its charter and the laws of the state where it is organized, if the charter of an insurance company created in another state, together with the laws of such state, authorize it to transact business on the assessment plan, it should be admitted under section 3630i, to transact business on that plan within this state, upon its complying with this section in other respects, although it may have capital stock, and stockholders, for whose benefit it was created.</p> <p>3. However, what constitutes the transaction of the business of life insurance on the assessment plan within the meaning of that term as used in said section 3630<?, should be determined by the laws of this state ; and according to those laws, that phrase should be held to contemplate a scheme of insurance conducted for the sole benefit of the policy holders of a concern, the principal source of revenue of which must arise from post-mortem assessments intended to liquidate specific losses.</p> <p>[The claims made by the counsel in oral argument and briefs and the citations noted, are sufficiently indicated in the opinion. — Reporter.]</p>

The action below was in quo %oarranto, brought in the circuit court by C. F. McCoy, prosecuting attorney of Adams county, at the instance of the attorney-general of the state, against the plaintiff in error, John W. Mason, for the purpose of inquiring into his title to the office of probate judge of that county, upon divers charges respecting his conduct in procuring an election to said office. A number of the charges were stricken out on motion of defendant.

The city of Defiance filed its petition against Wilhelm in the court of common pleas alleging in substance that he was the owner of lot one abutting on Clinton street in said city; that an ordinance of the city required the owners of lots abutting upon the streets of said city to construct and maintain in front thereof good and sufficient sidewalks, when constructed of wood, to be six feet in width and laid with good sound pine board planks not less than six nor more than…

On the 11th day of September, 1838, a conveyance was made by deed, the material part of which, so far as this case is concerned, is as follows: “To all persons to whom these presents shall come, greeting: Know ye that we, Martin Greiner and Elizabeth Greiner, of the county of Richland in the state of Ohio, for the consideration of twenty dollars, received to our- full satisfaction of Christopher Mykrantz and John Keller, of the county aforesaid, trustees of the German…

When counsel comment on matter not in evidence nor relevant to the issue, a new trial will be granted. Union OenUal Life Insurance Co. v. Cheeve/r, 36 Ohio St., 201. A new trial will be granted where counsel appeal to the prejudice of the jury.

This is a proceeding in error to reverse a judgment of the circuit court directing the distribution of a fund arising from the sale of the homestead property of Mary A. Woodworth, on Price Hill in Cincinnati. The controversy here is between Marion L. Amick and William R. Amick on one side, and Albert Hughes on the other, concerning the priority of their respective claims to the fund; it being insufficient to satisfy all of them.

The plaintiff in error, clerk of courts of Lucas county, presented a claim for making indexes to the board of county commissioners; and this claim not being allowed, an appeal was taken to the court… Held: that each separate suit should be considered as one cause and a fee of eight cents chargeable therefor, regardless of the number of parties to the suit.

The original action was brought by Sarah S. Barr, doing business as The Buffalo Rubber Company, against Hiram Doll, sheriff of Stark county. The petition filed by the plaintiff in the court of common pleas is as follows: 1. “The plaintiff, Sarah S. Barr, doing business as The Buffalo Rubber Company, for her cause of action against the defendant, Hiram Doll, sheriff of Stark county, Ohio, says: 2.

Error in such, case, to the Circuit Court of Franklin County. The above cases have been heard and submitted together, because the principal question, the validity of the act whereby the state, through its legislature, abandoned the Hocking Canal for canal purposes and leased it to the Columbus, Hocking Valley and Athens R. R. Co., is common to all of them. The questions arise upon a demurrer to the petition in each case.

Mrs. Hesse filed her petition in the court of common pleas alleging in substance that she is the qualified administratrix of the estate of Neil Hesse, deceased; that on the 4th of January, 1896, and prior thereto, he was employed as a fireman on the defendant’s locomotive No. 35, that said company in violation of its duty negligently and carelessly provided said Neil Hesse with a defective and unsafe locomotive, which while being so used by him, in consequence of its weak…

Cynthia B. Culver, as administratrix of her deceased husband, L. H. Culver, defendant in error began these proceedings in the probate court of Hocking county by filing a petition therein to obtain a citation against Lawrence A. Culver, as executor of Reuben Culver, deceased, requiring him to file an account as such executor. He was ordered to and did file an account in the probate, to which exceptions were taken by the defendants in error.

The action below was in replevin brought by George W. Meredith, defendant in error, against E. A. Albright, constable, plaintiff in error, before a justice of the peace, to recover possession of a cash register. Judgment was given for Meredith. On appeal, a like judgment was rendered by the court of common pleas, which was affirmed by the circuit court.

The plaintiff sued the defendants in the court of common pleas, to recover under that section of the gambling act which gives to the wife a cause of action for money lost by her husband at gaming. Her petition was filed December 23, 1893. January 20, 1894, a demurrer was filed by defendants, on the ground that it appeared on tbe face of the petition that the alleged causes of action were barred by the statute of limitations.

A jury was waived, and the case submitted to the court upon the amended petition and answer thereto in the court of common pleas. Disregarding technicalities, the amended petition and answer concede the facts to be as follows: On the 19th day of June, 1893, during banking hours, Elwood Horner presented to the First National Bank of Belmont a check for one hundred and five dollars purporting to be drawn by J. W. Horner on the First National Bank of Barnesville.

<p>Gift — Delivery to donee of bank deposit book — Is valid gift of the deposits, when.</p> <p>A delivery to a donee, of a deposit book issued by a savings bank containing entries of deposits to tbe credit of tbe donor, witb the intention to give tbe donee tbe deposits represented by the book, and accompanied with appropriate words of gift, is a sufficient delivery to constitute a valid gift of such deposits, without assignment or transfer in writing.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The proceedings of the boards and officers of the city in passing, the resolution and ordinance for this improvement were regular and valid. This act does not, by implication, abridge the power of the board of legislation.</p> <p>Instances are not wanting of different acts for the attainment of the same end, with the option reserved to the legal authorities to determine under which they will proceed. Endlich on Inter, of Stat., section 220; Durby v. Bury GommrsL. R. 4 Ex., 222; Erie v. Bootz, 72 Pa. St., 196; McPate’s App., 105 Pa. St., 323, 326; Maple Lake v. Wright Co., 12 Minn., 403.</p> <p>Not as authority for this court, but as indicating the trend of Ohio decisions, we refer to the case of Quigly v. State, 5 C. C., 638 ; 3 Giro. Dec., 310.</p> <p>A question as to the jurisdiction of courts in settlement of estates arose in the case of the Heirs of Biodlow v. Johnson, 3 Ohio, 541; Dodge v. Gridley, 10 Ohio, 174; Badabaugh v. Shelley, 6 Ohio St., 307; Buckingham v. B. B. Company, 10 Ohio St., 25.</p> <p>It is submitted that in the absence of express intention upon the part of the legislature there can be, in the case at bar, no repeal by implication of the jurisdiction of the board of legislation in che making of these improvements; that the purpose of the legislature was to provide an additional mode of procedure alone.</p> <p>'There were no irregularities such as should reduce the amount of the assessment. The owners of property abutting a thoroughfare, in making improvements, must use every effort to ascertain the established grade, or use caution to make their improvements in reasonable anticipation of what the grade may be. They assume the risk of all damages which may result from the subsequent establishment of a grade and the improvement of a street, if reasonably and properly done. City of Cincinnati v. Penny, 21 Ohio St., 499; City of Akron v. The Chamberlain Co., 34 Ohio St., 328; Hickox v. City of Cleveland, 8 Ohio, 543; Scovill v. Geddinqs, 7 Ohio, 562; Crawford v. Delaw cure, 7 Ohio St., 459.</p> <p>On behalf of defendants in error, who were plaintiffs below, it is contended:</p> <p>1. That the proceedings for said improvement are invalid because the authority to pass the necessary legislation was, by reason of the amendment of the law, (90 O. L., 258) vested in the board of administration, and not in the board of legislation.</p> <p>2. If the proceedings were valid, the assessment is excessive, because it includes an item of three hundred dollars for advertising, whereas the actual cost for advertising, was only one hundred and seventy-one dollars; and, further, that the actual cost of advertising is not a valid charge in so far as it includes any charge for German advertisement, or for advertising in more than the number of newspapers authorized by law.</p> <p>An omission to pass the resolution declaring it necessary to improve, has been fatal to an assessment. Walker v. Potter, 18 Ohio St., 85; Stephen, Treas., v. Daniel, 27 Ohio St., 527.</p> <p>The rights and liabilities of the parties are fixed by the ordinance to improve. Cincinnati v. Season-good, 46 Ohio St., 296; Shehan v. Cincinnati, 21 Bull..,' 212.</p> <p>Ordinances being among the most important and solemn acts of a corporation, it is essential to their validity that they shall be adopted by the proper body, duly assembled, and in the manner prescribed by the charter. Dillon Mun. Corp., 309; Tiedeman Mun. Corp., 148.</p> <p>• A general act will be repealed pro tanto by a subsequent special act when the two acts cannot stand together. 23 Encyclopedia of Law, 430.</p> <p>If the special statute is later, the enactment operates necessarily, to restrict the effect of the general act from which it differs. Sutherland Statutory Construction, section 158.</p> <p>Where there has been a general enactment covering any subject in general terms which included a particular case, and a subsequent enactment makes a rule for that particular case, the latter is deemed to be all that the legislature finally intended for the regulation of that case. Excelsior Petroleum Co. v. Lacey, 63 N. Y., 422; Isham v. Pennington Lis. Co., 19 Vt., 240.</p> <p>When all the essential provisions of a general act of the assembly are supplied by a later special act, the former will be deemed to have been repealed by implication, although there be no repealing clause. In re Martz Election, 110 Pa. St., 502.</p> <p>We contend that the “Alley Act,” applying to Cincinnati alone, by implication, and also by express language as to the “exclusive” authority, repeals general law, and that the assessment must therefore fail. The Alley Act “revises the whole subject of the improvement of alleys under the general law, and is intended as a substitution for it, and not as furnishing an additional or cumulative remedy.” Lorain, Plank Road Co. v. Cotton, 12 Ohio St., 263; Shelby Co. v. Fregó, 26 Ohio St., 488; Moore v. Vance, 1 Ohio, 1.</p> <p>A statute, general in its terms, and without negative words, will not be construed to repeal by implication the particular provisions of a former one, which are special in their application to a particular case, or class of eases, unless the repugnancy be so glaring and irreconcilable, that the legislative intention to repeal is evident. Robbins v. State, 8 Ohio St., 131; Seifried v. Com., 101 Pa. St., 200.</p> <p>Rarely, if ever, does a case arise when it can justly be held that a general statute repeals a local act by mere implication. Malloy v. Reinhard, 115 Pa. St., 25.</p> <p>The repeal of a special statute must be either express, or the manifestation of the legislative intent to repeal must be so clear as to be equivalent to an express direction. Coni’’rs v, Richmond, etc., R. Co., 81 Va., 355.</p> <p>The rule is different where the special act is later.</p>

The original cause was taken by appeal from the common pleas to the circuit court where it was heard and determined on the pleadings and the evidence. Held: that it will not be presumed without evidence that a person intends to abandon anything valuable. Peckser v. Warner, 22 Ohio St., 275.

<p>Cotenancy — Coal lands owned in common — Contract between cotenant and father of infant co-owners — Cotenant mines on common estate — Action by guardian of infants against cotenant — Measure of damages.</p> <p>1. Where coal lands are owned by tenants in common, one of which being engaged in mining coal under adjoining lands, nis cotenants being infants, and the former enters into a contract with the father of the infants for purchasing the interest of the latter in the common estate; and the purchaser, acting in good faith under a belief that the title will be perfected by proceedings instituted in the probate court for that purpose, or by the infants when they arrive at full age, enters upon the common estate, mines and sells coal therefrom, the measure of damages in an action brought against him on that account by a guardian of the infants is the value of the coal in place at the time it was mined.</p> <p>2. If, in such case, the purchaser in the course of operating coal mines on his own lands that surround or abut on the common estate, has constructed entries, tramways, etc., conveniently located for removing from the common estate coal that may be mined there, that circumstance as well as every other one, natural or artificial, which tends to enhance or diminish the value of the coal in place should be considered by the jury in fixing such value.</p>

<p>Error to the Circuit Court of Mercer county.</p> <p>The plaintiff’s action was commenced May 11, 1894, by the filing of a petition in the court of common pleas of which the following is a copy, to-wit:</p> <p>“The plaintiff says:</p> <p>“(1.) That Cynthia Allen and the defendant Jeremiah Allen were united in marriage on or about the 30th day of December, 1877, and lived together as husband and wife continuously within the said state of Ohio, up to on or about the 12th day of February, 1889, at which time the said Cynthia Allen died intestate.</p> <p>(2.) That on or about the 19th day of February, 1894, he was duly appointed and qualified administrator of the estate of said Cynthia Allen, and is now acting as such administrator.</p> <p>“The said defendant is indebted to the estate of said Cynthia Allen, for money had and received from said Cynthia Allen on or about the 11th day of January, 1879, in the sum of eleven hundred and nineteen dollars ($1,119.00), with interest thereon from the said 11th day of January, 1879, for which sum the plaintiff as such administrator asks judgment and for costs of suit.”</p> <p>A general demurrer was interposed by defendant, which being overruled, defendant excepted. Then an answer was filed admitting certain allegations of the petition, and averring: “That the said sum of money so by him received and here claimed and sued on by the administrator as assets of the estate of the said Cynthia Allen, deceased, was a free and voluntary gift to this plaintiff from his said wife; and by him so received and used with the express assent and acquiescence of the said Cynthia Allen; and without any promise on his part to repay her, or any intention on her part to charge him with the said sum of money or any part thereof; that such gift of said money was not only then voluntarily and expressly made, but was thereafter at divers times in her lifetime, acknowledged and reaffirmed by the said Cynthia Allen; and no claim was ever made by her against him at any time for such money so by him received from her.”</p> <p>A reply denying the new matter, was filed and the cause tried to a jury. A verdict for plaintiff having been rendered, and motion for new trial overruled, a judgment was entered on the verdict. This judgment the circuit court reversed on the sole ground that the petition does not state facts sufficient to constitute a cause of action.</p> <p>The theory of the unity of the husband and wife known to the common law has not been abrogated in Ohio. While the rights of the wife are very much greater under our present statutes than formerly, yet there is no statute that divorces the dependence of the wife upon her husband while the relation of husband and wife continues. Second National Bank v. Merrill, 81 Wis., 151; 29 American State Report, pages 77-880; Barnett v. Harshbarger, 105 Ind., 410; Dice v. Irwin, 110 Ind., 561.</p> <p>In the absence of clear and positive statutory declaration extending the statutory limitation to actions between husband and wife, we maintain that the common law rules as to legal remedies between husband and wife are still in force. Angel on Limitations, section 60; Towers v. Ilagner, 3 Wharton, 48; Yoemans v. Petley, N. J. E., 495; 4 Atlantic Reports, 631-634; Alspaugh v. Wilson N. J. Ch., 28 Atl., 722; Yeoman v. Petty N. J. Ch., 4 Atl., 613; Burnheim v. Me Michael (Tex.), 26 S. W., 887.</p> <p>So our conclusion is that the statute of limitations did not run against plaintiff in error’s dece dent during the time of her marriage to and cohabitation with her husband, and that such period is to be excluded from calculation in determining’ whether the claim is barred. Fourth-man v. Fourthman, 43 N. E., 965.</p> <p>The statutes of limitation does not run between husband and wife during coverture. Lahrs Appeals, 90 Penn. St., 507.</p> <p>Counsel for plaintiff in error insists that notwithstanding the repeal of the saving clause as to married women, the court must save her rights.</p> <p>This would be substituting the will of the judiciary for that of the legislature, and a violation of the well established rule that courts shall refrain from putting on statutes of limitations any other construction than that which their words import. Buswell on Limitations and Adverse Possession, sections 16 and 127; Pearson et al. v. Stephens, 56 Ohio St., 126.</p> <p>Whittaker, in his annotations on sections 4978 and 4986, and Yaple in his note to the same sections say, that “a married woman is not now within the saving clause of the statutes.” Neither of them refers to any exception in her favor even by implication.</p> <p>Since the act of 1883 until 1886 then, as to separate estates, and since the act of 1886 as to all estates, married women are not protected by any saving clause in the statutes, and the statute will run against them the same as if sole.</p> <p>A person claiming the .benefit of the saving clause of a statute must show that he is entitled to it by express enactment, because his claim to exemption is against the current of the law, and founded on exceptions by no means coextensive with its effective provisions. Ola/rke v. Bank of Miss., 52 Am. Dec., 249; 8 Wait’s Actions and Defenses, page 577, section 5; Bus well, Limitations and Adverse Possession, sections 16, 104 and 106; Bartol v. Eckert, 50 Ohio St., 43.</p> <p>The exemptions from the operation of the statutes of limitations usually accorded to infants and married women, depend upon the express language of the statute. Vance v. Vance, 108 U. S., 521; Bemarest v. Wynkoop, 3 Johnson’s Chancery, 146.</p> <p>A number of courts have held that the enabling acts did repeal by implication the saving clause. Ashley v. Rockwell, 43 Ohio St., 386.</p> <p>The language of these statutes is clear and unambiguous. It has been held in Ohio that if the language by the legislature in a statute is precise and unambiguous, it is the duty of the court to interpret the words in their natural and ordinary sense, although the result may conflict with its idea of public policy. Smith Bridqe Oo. v. Bowman, 41 Ohio St., 52.</p> <p>The court will refuse to supply words it is convinced were omitted by mistake, its function being “to interpret legislation, not to supply omissions. ” Bruner v. Briggs, 39 Ohio St., 484.</p> <p>It is urged that to permit the statute of limitations to run against the wife in an action by her against her husband would be “to overthrow the settled policy of the common law.” To this it is sufficient to reply that the common law must give way to the statute. The statutes invade and abrogate the common law to the extent of their provisions.</p> <p>I. In a suit for money had and received, the mere allegation that one person, “is indebted to another for money had and received,” and without stating to whose use it was received, does not disclose a legal liability and is bad on demurrer. Rolden et al. v. Power et al., 35 N. Y. Supp., 697; 14 Mise. Rep. (N. Y.), 480.</p> <p>II. “Indebted,” will not answer for “due” and is bad on demurrer. “Due,” implies a breach of contract. “Indebted” does not imply a breach of contract; or, that claim has matured, or, that right of action has accrued. Arch&r v. Moore Combination Desk Co., 11 Bulletin, 224. And such allegation of indebtedness, without the further statement of the same “being due,” or, “not paid” is neither within the short form at common law, or, under the Code of Ohio, Rev. Stat., 5086. An answer “that defendant is indebted” is bad in a suit on a money contract. It must be alleged that the amount is due, or, that defendant has not paid. Roberts v. Treadwell, 50 Cal., 520; Francis v. Williams, 15 Minn., 288; McKyning v. Bull, 16 N. Y., 297; Holgate v. Brown, 8 Minn., 243.</p> <p>III. Where personal property or money is delivered to the defendant voluntarily, by the plaintiff, and the rightful possession not denied,- the general rule is, that a demand is necessary before suit. And in a case of mutuum, a demand should be alleged in the petition. The possession of money in this case is as reasonably regarded, as that of the husband for the wife, as regarded for his use with an obligation to repay with interest. The petition avers neither demand for return or demand for payment; or, .“for whose use the money was received,” and for omission of the last, if not the first, is had on demurrer.</p> <p>IV. At common law, there was no implied promise to restore or repay money of the wife, by the husband reduced to his possession. No implied obligation of the kind as between husband and wife. And very much doubted that a complaint expressly averring a promise to restore or repay by the husband would save such a complaint by the wife or her representative against her husband, from a demurrer. The relationship of husband and wife is not favorable to any implied obligations as' to their dealing with personal property passed from one to the other.</p> <p>A plaintiff cannot recover on the common count, where there is an outstanding or unperformed condition, or, where the claim is not due. Holloway v. Davis, Wright’s Ohio Rep., 129.</p> <p>And assumpsit would not lie by one partner against another, unless, their partnership account had been adjusted and a balance struck. And no promise to pay would be implied. Emric v. Gilbert, Wright’s Ohio Rep., 764. Hence, a petition by one partner against another would require an averment by the plaintiff that a balance had been struck, and further facts alleging that the balance was due the plaintiff and unpaid. Analogous principles present in the relationship of husband and wife, in case of suits between them.</p> <p>The circumstances attending a contract need not be set out, but the facts constituting its breach must be alleged. Brown v. Chaplin et al., 62 Ind., 259; and in an action for money due upon a contract, express or implied, the petition must in some way aver a breach of contract, or show that the sum of money is due and unpaid. 87 Ind., 126; Ohio Code, 5086.</p> <p>A line of authorities have given to the word “due” a legal intendment and justified liberal interpretation,. which never has been allowed to “indebted” which uniformly has been regarded as a conclusion of law, and whose broadest meaning does not include “due” or indicate any breach of contract. McNutt v. Boss <& Kaufman, 26 Ohio St., 127; 32 Cal., 172; Mr. Bates on Pleading, 121. Hence, it is held that “an allegation of non-payment, even if not traversable, had better be made, otherwise, no breach is averred.” Downey v. Whittenberger, 60 Ind., 188.</p> <p>A failure to state a cause of action, is not cured by any subsequent proof. The objection that a petition does not state facts constituting a cause of action, may be made at any time, before hearing on error in a reviewing court. And such a defect is as fatal as want of jurisdiction. Weil v. Green Go., 69 Mo., 281.</p>

<p>Reversal of original judgment of circuit court — Petition for new trial dismissed at cost of plaintiff, when.</p> <p>An original judgment of the circuit court having been reversed by this court, a petition in error filed here for the reversal of an order of the circuit court dismissing a petition for a new trial of the cause in which such original judgment was rendered, will be dismissed at the costs of the plaintiff in error.</p>

<p>Action by corporation creditor — Enforcement of statutory liability —Other creditors not necessary parties — Liability of those named in stock book — Corporation law.</p> <p>1. In an action by a creditor Of a corporation in his own behalf, and in behalf of all other creditors, against the stockholders to collect the statutory liability, it is not necessary to make the other creditors parties to the action, either in the court of common pleas, or in a higher court on appeal, or on error. In such cases the action is prosecuted by the plaintiff for the common benefit of all creditors, for the creation of a fund for pro rata distribution among them, and whatever the plaintiff does in good faith in that behalf, inures to the common benefit of all, and binds all.</p> <p>2. N. entered into a written contract with a corporation to the effect following : N. agreed to sell to the corporation all the milk produced by him and amounting to twenty gallons or more per day, for a period of one year, to be delivered in cans each day at the nearest milk station 'for shipment; and the corporation agreed to pay 1ST. nine cents per gallon for all milk shipped, payments to be made once each month. N. shipped to the corporation, under the contract, all the milk produced by him, for eight and one-half months, when the corporation became insolvent, and made an assignment for the benefit of its creditors, still owing for the milk received during the last one and a half months: Held: — that at the date the contract was entered into, the corporation incurred a liability to pay for all the milk that N. should thereafter deliver to it under the contract; that after delivery of the milk by N. the corporation could not defend against its liability^on the ground that the contract created no obligation, or was void for uncertainty, or want of mutuality; and that the debt arising from the delivery of the milk under such contract, is a liability against stockholders who assigned and transferred their stock to insolvent parties before such delivery.</p> <p>3. The stockholders of a corporation whose names appear on the stock book, or in the absence of such book, on stubs of stock certificates, as holders of stock, are subject to a stockholder’s liability for debts incurred by the corporation while such names are allowed to so remain. To avoid such liability, it must appear on the stock book in the one case, or on the stub of the stock certificate in the other that the stock has been transferred to some one else.</p>

<p>Quo Warranto action against civil officer — Section 6760, Revised Statutes — Removal of sheriff or mayor for failure of duty.</p> <p>1. In order to maintain an action in quo warranto against a civil officer under the second clause of section 6760, of the Revised Statutes, the act complained of must be one which is made by statute a ground of forfeiture of his office.</p> <p>2. Where the causes of removal from office are prescribed by statute which also provides a special mode of procedure for such removal, the statutory remedy is the exclusive one, and quo warranto will not lie.</p> <p>3. Quo warranto is not the proper remedy for the removal of.a sheriff or mayor from office for failure to perform official duties required in the suppression of mobs and riots and the arrest of the offenders.</p>

<p>Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Cuyahoga county.</p> <p>I. The power of the legislature in Ohio in the enactment of laws is unlimited, except as limits are to be found in the constitution of the state or of the United States.</p> <p>The present constitution, which was adopted in 1851, defines the domain of legislative power and authority in language which is very broad and comprehensive. Article 2, section 1, Baker v. City of Cincinnati, 11 Ohio St., 534.</p> <p>Since the adoption of the present constitution containing the same grant of legislative power, interpretations to the same effect are contained in Lehman v. McBride, 15 Ohio St., 591; State ex rel. Games v. McCann, 21 Ohio St., 207; Bloom v. Xenia, 32 Ohio St., 464; Me Gill v. State, 34 Ohio St., 244; Peters v. McWilliams, 36 Ohio St., 161; Bronson v. Oberlin 41 Ohio St., 480; Sharpless v. The Mayor of Philadelphia, 21 Pa. St., 147.</p> <p>II. When the present constitution was adopted, the power to enact laws enforcing the observance of Sunday as a day of rest, had been fully recog*nized by both the legislature and the judiciary as a constitutional exercise of legislative power, and in adopting the present constitution the people adopted with it such interpretation.</p> <p>In Swan’s Statutes, p. 255; 29 O. L., (1831) p. 161, was a statute embracing substantially the same matters prohibited to be done on Sunday as are now contained, in Revised Statutes, sections 7032 and 7033.</p> <p>Section 7032 embraces those acts ending with the word ‘ ‘ shooting, ” while section 7033 embraces substantially the remainder of the statute of 1831 above quoted.</p> <p>We make this quotation as showing- that the legislature in its exercise of legislative power, preceding and at the time of the adoption of our present constitution, was assuming jurisdiction over the subject of enforcing Sunday rest upon the citizens of the state.</p> <p>The Supreme Court up to that time upheld such exercise of legislative power as being plainly within its legitimate province.</p> <p>Wright’s Rep., p. 754, Swisher's Lessee v. Williams' Sews, (decided in 1834) is the first recorded opinion of the Supreme Court regarding the law of Sunday observances, which was the law of 1831.</p> <p>The next utterance of the Supreme Court involving this law of 1831 is found in Cincinnati v. Bice, 15 Ohio St., 225.</p> <p>So that the chief contention in the Supreme Court came to be whether or not the words which by the ordinance had been added to the statute were embraced in the words “common labor,” which the statute contained; for if they were so embraced, then the second section of the ordinance, which contained the same provision of exemption from its punitive power to all who conscientiously observe the seventh day of the week as the Sabbath, would sustain the judgment of the common pleas and warrant the discharge of the defendant.</p> <p>We will very briefly ask the attention of the court to the next case in the Supreme Court involving the subject of Sunday observance, determined prior to the adoption of the present constitution.</p> <p>In Sellers v. Dugan, 18 Ohio, 489, the statute of 1831 came before the Supreme Court of Ohio for construction upon the point whether or not a single act of contracting for the purchase of corn was included within the words “common labor.”</p> <p>The next case in order before the Supreme Court of Ohio, in 2 Ohio St., 387, was decided after the adoption of the present constitution, to-wit: at December Term, 1853; Specht v. Commonwealth,, 8 Pa. St., 312; City Council of Charleston v. Benjamin, 2 Strobh, S. C. Law Rep., 508; Cooley’s Constitutional Limitations, p. 67; Wolfv. State, 19 Ohio St., 255.</p> <p>III. The bill of rights in our present constitution, especially in the guaranty of liberty of conscience and freedom from religious tests, does not impose such restraint upon the legislative power as to prohibit the enactment of the law in question: Article 1, section 7.</p> <p>Statutes designed to secure rest from labor, on grounds of pure political economy, were in force in most of the states when this constitution was adopted. This statute under discussion does not forbid or interfere with any one in the “worship of Almighty God according to the dictates of his own conscience.”</p> <p>We have never heard the contention, and do not expect to hear it, that playing base ball is an act of worship, which the conscience of any one requires to be performed on Sunday; and until such senseless contention is made, there is no ground for the further contention that a law forbidding the playing on Sunday is an interference with the rights of conscience in worship. In McGatrick v. Wason, 4 Ohio St., 566, the Supreme Court had occasion to pronounce the validity of the Sunday law, the .same law of 1831 given above.</p> <p>These doctrines are affirmed by the Supreme Court in Canton City v. Christ, 9 Ohio St., 439; Board of Education v. Minor, 23 Ohio St., 211; Biligheimer v. State, 32 Ohio St., 435; Hastings v. Columbus, 42 Ohio St., 585.</p> <p>IV. There is no rational or legal ground for objection to the statute in question in the contention by defendant that it is in conflict with the spiritand genius of our free institutions. 20 Ohio Appendix, 8; Griffith v. Comrs. of Crawford Co., 20 Ohio, 609; Walkers. Cincinnati, 21 Ohio St., 14; The Btateexrel, Herrons. Smith, 44 Ohio St., 374; Probascos. Panne, AudÁtor, 50 Ohio St., 390.</p> <p>The authorities are numerous in the reports of other states supporting this principle of construction. States. Wheeler, 29 Conn., 297; Sharpless s. Mayor, etc., 8 Pa., St., 160 ; State s. Blotter, 33Ind., 410; Borman s. State, 34 Ala., 235; Sioan s. Swan, 21 Fed. Rep., 299 ; Tiedeman’s Lim’s of Police Powers, section 2; Cooley’s Cons. Lim’s, p. *72; Vol..21 Am. & Eng’. Ene., p. 530.</p> <p>V. The statute in question, prohibiting the playing of base ball upon Sunday, lies plainly within that domain of legislative power commonly called the police power. 18 Am. & Eng. Enc., 739 ; Tiedeman’s Lim’s of Police Power, section 1; Stone v. Mississippi, 101 U. S., 818; Mayor of N. Y. s. Miln, 11 Peters, 139; Railroad Co. s.Husen, 95 U. S., 470; Beer Co. s. Massachusetts, 97 U. S., 25; States. Hoyes, 47 Me., 211; Lakeview s. Rosehill Cemetery Co., 70 111., 192; Commonwealths. Alger, 7 Cush., 85; People s. King, 110 N. Y., 423.</p> <p>VI. We advance from the principles previously contended for, to another principle which is properly a corollary to the proposition last above argued; viz. :</p> <p>The police power can only be exercised by legislative enactment, and it rests solely within legislative discretion to determine when the public welfare or safety requires its exercise. Tiedeman Lim. of Police Power, section 2.</p> <p>It is not essential to the exercise of the police power by the legislature, that the matter in respect to which it is exercised must be in its nature injurious ; or as the court below is reported to have expressed it, a matter malum in se.</p> <p>The cases reported as court decisions are numerous in which the courts sustain the exercise of the police power by legislatures in restraint of natural right, when the object to be gained concerns the protection of the public or security of its welfare.</p> <p>In cases of wager upon the result of an election.</p> <p>See numerous cases cited in notes on p. 996 of 8 Am. & Eng. Encyclopedia.</p> <p>In cases of contract for sale of grain or other personal property when the intent exists not to deliver the property. 8 Am. & Eng Encyc., 997, and cases cited in note 2; 8 Am. & Eng. Encyc., p. 1006 and cases cited in note 1 and p. 1015, note 1.</p> <p>In cases of adulteration of food or drugs': Oleomargarine, for butter. 1 Am. & Eng. Encyc., p. 740, note 1.</p> <p>Milk, when containing less than a certain per cent, of solids. State v. Smyth, 14 R. I., 100; Polinsky v. People, 73 N. Y., 65; Commonwealth v. Shaffner, 146 Mass., 512; State v. Campbell, 61 N. H., 404; 1 Am. & Eng. Encyc., p. 743, note 1, showing states which have laws on these subjects.</p> <p>In cases which, in the discretion of the legislature affect the health of the people.</p> <p>Putting limits within which the slaughtering of cattle shall be forbidden. 16 Wal., U. S., 36, Slaughter house cases.</p> <p>Protecting the water supply of cities. 1 Dillon Munic. Corp., section 146; Livingston v. Pippin, 31 Ala., 542; Pome v. (Jabot, 28 Ga., 50; LLale v. Houghton, 8 Mich., 458. Fixing qualifications of doctors and surgeons. Eastman v. State, 109 Ind., 278; PichaA'dson v. State, 47 Ark., 562; Robinson v. Hamilton, 60 Iowa, 134.</p> <p>Regulating location of cemeteries. 18 Am. & Eng. Encyc., p. 749, note 3.</p> <p>Compelling drainage or filling of stagnant waters. Winsloio v. Winslow, 95 N. Car., 25; Donelly v. Decker, 58 Wis., 461; Kennedy v. Board of Health, 2 Pa. St., 366.</p> <p>Forbidding smoking upon street cars. State v. Heidenhain, 42 La. Ann., 483.</p> <p>Forbidding- the growing of certain crops or keeping certain animals within a city. Green v. Mayor, etc., 6 Ga., 1.</p> <p>Regulating the rate of charges for services rendered by one who serves the public as by a railroad or warehouse. Munn v. 111., 94 U. S., 113.</p> <p>In cases concerning the preservation of public morals, prohibiting lotteries. Moore v. State, 48 Miss., 147; Stone v. Miss., 101 U. S., 814; Nolin v. Mayor, etc., 5 Yerger (Tenn.), 163.</p> <p>Prohibiting’ gambling or gaming-. Waugh v. Beck, 114 Pa. St., 422; Peoples. Weithoff, 51 Mich., 203; Gamer on v. State, 15 Ala., 383; Torney v. State, 13 Mo., 155.</p> <p>Restricting sales of intoxicating liquors. Tiedeman’s Lim’s of Police Power, section 103; Mugler v. Kansas, 123 U. S., 623; State v. Donehey, 8 Iowa, 39&•, Lincoln Y. Smith, 27 Vt., 328; State y. Robinson, 33 Me., 568.</p> <p>Restraints on games and amusements. Tanner v. Albion, 5 Hill, 121; Commonwealth v. Colton8 Gray, (Mass.), 488 ; /Stoic v. Hoy, 29 Maine, 457; /Stoic v. Freeman, 38 N. H., 426; Walloch y. Mayor, eto., 3 Hun. (N. Y.), 87.</p> <p>Though the illustrations above cited give some intimation of the extent and variety of subjects upon which the police power is exercised by the legislature, yet they by no means cover the entire field. We beg from this court a brief attention to some of the subjects in which the exercise of the police power has been under their consideration. Buck v. State, 1 Ohio St., 61; Bliss v. Keans, 16 Ohio St., 54; Call v. Cincinnati, 18 Ohio St., 563; Bainbridge v. State, 30 Ohio St., 264; Palmer v. State, 39 Ohio St., 236; Anderson v. Brewster, 44 Ohio St., 576; Weller v. State, 53 Ohio St., 77; /Stoic v. Kelly, 54 Ohio St., 166.</p> <p>We contend that all these eases cited from Ohio Supreme Court decisions deny the principle which was assumed as the basis of the opinion given in the ease at bar by the court of common pleas, to-wit: That the police power could only be exercised on things immoral, or as it was also expressed, things mala in se.</p> <p>Aside from the many illustrations above given, which show the police power to extend to matters harmless in themselves, we beg to refer to the doctrine of crime in Ohio. FoutSY. State, 8 Ohio St., 111.</p> <p>VIII. The law forbidding the playing of base ball on Sunday should not be pronounced unconstitutional unless it can be shown to be plainly and without doubt repugnant to the constitution.</p> <p>In 21 Pa. St., 147, this principle is asserted by judges of every grade, both in the Federal and in the state courts, and by some of them it is expressed with much solemnity of language. 6 Cranch, 87.</p> <p>To the same effect is the doctrine stated in 6 Am. & Eng. Encyc., (2nd Ed.), p. 1085,. paragraph (bb) and note 6; Cass v. Dillon, 2 Ohio St., 607; Goshorn v. Purcell, 11 Ohio St., 653; Lehman v. McBride,, 15 Ohio St., 591; State v. Keridle, 50 Ohio St., 355.</p> <p>We shall seek to maintain:</p> <p>That said act, section 7032does not create an offense.</p> <p>Said act is in conflict with section 1 of the Bill of Rights as restricting and interfering with the inalienable right of a human being to enjoy life, to seek and obtain happiness.</p> <p>Said act is in conflict with section 7 of the Bill of Rights as being an act in aid of and seeking to enforce the observance of the first day of the week on religions grounds, and preferring the Christian religion.</p> <p>Said act is void in not containing the exception mentioned in section 7033 in favor of those who conscientiously observe the seventh day as therein mentioned.</p> <p>Said act cannot be justified as an exercise of police power.</p> <p>Of these claims in their order:</p> <p>First — It is in the nature of an. eos post facto law, in that it makes an act done, which when done is innocent, not prohibited, not criminal. Chitty’s Blackstone, Vol. 1, page 31; Blackstone’s Commentaries, 5.</p> <p>Section 7032a, does not declare any base ball playing an offense, because the will of the sovereign power does not indicate this. An offense or crime must be such at the time it was committed, because the sovereign power has declared that the act shall not be done, or has commanded that the act be done, in default either way, punishable. Any base ball playing on the first day of the week would become an offense, depending entirely upon the views of the various localities and counties of the state — lawful if the liberal sentiment of the community will tolerate it, and unlawful if the religious sentiment of the community disapproves. It is in the nature of an act depending’ entirely upon the popular will find not upon the will of the sovereign power in declaring’ the act to be an offense.</p> <p>Sections 7031, 7032, 7032a and 7033, which touch human conduct upon the first day of the week, contain the clause, “on complaint made within” the time stated, ten days in sections 7031, 7032 and 7033, and twenty days in section 7032a. All other sections of crimes and offenses in the state of Ohio fail to show this peculiar clause as to time.</p> <p>Second and Third Claims involve a constitutional question, an argument involving the relations of church and state, and the character which is sought by the advocates of Sunday laws, (the union of church and state,) to be given through secular power, to the day which they observe as a sacred day; not so much in obedience to the common labor statute as to the religious sentiments maintained by them as to how the day shall be devoted and to what purposes.</p> <p>Let us note, at the outset, what are the constitutional provisions bearing upon the question. Revised Statutes, Vol. 2, page 3209.</p> <p>Bill of Rights, section 1 : “All men are by nature free and independent and have certain inalienable rights, among which are those of enjoying and defending life and property, acquiring, possessing and protecting property and seeking and obtaining happiness and safety.” Anderson v. Poindexter, 6 Ohio St., 622; Morgan v. JSTolte, 37 Ohio St., 23.</p> <p>Those who have advocated Sunday laws, so-called, have shown an inclination to treat constitutional limitations lightly. Story on the Consti-' tution, Vol. 2.</p> <p>When human conduct is controlled upon one day in a manner different from other days, excepting the common labor statute, and regulates human action upon one day by prohibiting an act, which is not deemed by the state prejudicial to it or to its citizens upon other days, which Sunday laws do, such legislation is in furtherance of religious ascendancy over the human mind.</p> <p>“Webster on the Independence of the Judiciary,” Vol. 3, page29; 15 Pa. St., 18; 15 N.Y., 558; Cooley’s Con. Lim., 43 ; 1 Ohio St., 81.</p> <p>The first Sunday law was in the time of Constantine, March 7, A. D. 321, Neander, Church History, 300; see Carthage Convention year, 401; Schaff’s Church History, Vol. 2, section 27.</p> <p>History records the fact that after the doctrine of Christ became recognized in the Roman empire and thereafter spread to other portions of the then partially civilized countries, that in time the Papacy subordinated the civil power and continued to enforce the religious views of Sunday, not prohibiting common labor on the first day of the week on the basis of sanitary regulations, but entirely upon the basis of the religious views of the day.</p> <p>The first Brownist Sunday law, so-called, was passed in England in 1623.</p> <p>The next thing was a law aimed at traveling. In 1632, nine years after the first Sunday act, the law forbade “worldly work. ” A century and a half elapsed after this first Brownist Sunday law, so-called, before any work, (that is, one’s ordinary calling with the exceptions of works of necessity and charity) was forbidden on Sunday.</p> <p>The combined prohibition of work and play is found in the statutes of many states, as to the first day of the week, not necessarily in the same act prohibiting common labor, but in separate acts.</p> <p>We shall attempt to support the claim that all legislation from the earliest dawn of civilization are based upon the historic truth that Sunday laws represent and embody union of church and state. This, in tiie early decisions was ignored by the courts, as for instance, the celebrated case of Lindmuller v. The People, 33 Barber, N. Y., 548, relied upon so much as the main case in the state of New York, said latter case holding the contrary doctrine of Bloom v. Richards 2 Ohio St., 387, cited in said case which clearly declares and recognizes that there is no union of church and state in Ohio.</p> <p>In 1803 Georgia enacted a Sunday law requiring all persons to attend public worship. The Georgia statute is based upon the principle that Sunday is a holy day. Weldon’s case, 62 Ga., 449.</p> <p>The Iowa statute set Sunday apart as sacred. Davis v. Fish, 1 Green, 400.</p> <p>In New York, it seems to have been consecrated by the statute. 8 Johns, 290; Johnson’s case, 22 Pa. St., 102; Stockton’s case, 18 Ark., 186; North Carolina and. Tennessee had similar laws. Also South Carolina. State v. Ambs, 20 Mo., 314; 35 Neb., 614; Goursey v. Bath, 35 N. H., 530; Varney v. French, 19 N. H., 245; Moore v. Hagan, 2 Duv., Ky., 437; Davis v. Somerville, 128 Mass., 594.</p> <p>This indicates beyond all question that the main idea underlying such legislation is the religious view maintained as to how the day shall be utilized.</p> <p>The very object of the constitutional guarantees, “is to limit the power of the majority; to enumerated points which they shall not be permitted to decide.” 2 Ohio St., 387.</p> <p>Suppose the Israelites, Seventh-day Adventists and Baptists, under this sound constitutional principle of protection to the minority, should go to the legislature asking for protection in the same way that the advocates of Sunday laws ask, to enact a law compelling all people to abstain from the innocent acts prohibited in sections 7032 and 7032-a, in order to protect them in their rights in observing Saturday as their Sunday. What would be thought of that? Cooley, Con. Lim., 476.</p> <p>But it will be said that the Ohio labor statutes excepts those who observe the seventh day. Excepts them from what ? Section 7033 prohibits “common labor on Sunday” and then makes an exception in favor of those who conscientiously observe the seventh day of the week as Sabbath. The face of this statute indicates religious basis and religious views.</p> <p>The language of most Sunday laws is so general as to strongly support the idea that spiritual betterment of the abstainer from physical work is -what the state is aiming at, although it is sought to justify Sunday legislation on other grounds that is, sanitary benefits.</p> <p>Many American eases take this view, spiritual benefit, which is the established rule in England. Fenmueller v. Ridley, 5 B. •& C., 406.</p> <p>Another class of cases, while holding to the view that Sunday laws are essential religious regulations, 3et reason that their design is not to improve the spiritual condition of man, but to enforce rest upon him in order to prevent him from interfering with measures taken by other people for their own spiritual improvement. These cases may contend that the object of Sunday laws is to preserve good order and peace. 20 Howard Pr., 76. And that these laws are passed in order that religious exercise may be performed without interruption. Pierce v. Atwood, 13 Mass., 324. And to prevent the disturbance of our citizens in their religious devotions. Adams v. Gray, 19 Vt., 358. And to prevent the religion of the community from unseemly hindrance. Smith v. Wilcox, 24 N. H., 353.</p> <p>Williams case, 4 Tre., 400; The People v. Eavenor, 149 N. Y., 203; Lindmuellm' v. The People, 33 Barber, 548; 69 N. Y., 557 ; 140 N. Y., 514; People v. Gillson, 109 N. Y., 389; Cooley Con. Lim., 467; Tiedeman on Pol. Power, section 76.</p> <p>Article IV of the constitution of the United States says: “No religious test shall ever be required as a qualification for office of public trust under the United States.” By an' amendment: “Congress shall make no laws respecting the establishment of religion or promoting the free exercise. In 1796 a treaty was made with Tripoli in. which it was declared (Art. 11.) that: “The government of the United States of America is not in any sense founded upon the Christian religion.”</p> <p>Certainly the fathers of the constitution, the public men then (1796) representing the affairs of the infant nation .were competent to construe and know the meaning of constitutional provisions. This was the view that the fathers then maintained. Note how this is in conflict with the case of Lindmueller v. The People, in 33 Barber, 548.</p> <p>The inhibition in section 7033 is simply of common labor as distinguished from intellectual. Those then that observe the seventh day of the week as a religious day are exempt from said statute. Exempt from what? From the prohibition as to common labor? If this be true, then the first day of the week, as to the people who fall within this statute, observing the seventh day, is the same to them, and ought to be as a matter of right so far as civil power is concerned, as Monday, Tuesday or any other day of the week.</p> <p>If this be true, then why should the provisions of sections 7032 and 7032 «, so far as it relates to human conduct which is not of itself a breach of the peace, like rioting and quarreling, be binding upon them when the provisions in these two sections are not binding upon the Christians so far as the seventh day of the week is concerned.</p> <p>It seems that the legislature entertained like views, as evidenced by the act passed February 17, 1831, Vol. 29, page 161, and found in S. and C., Vol. 1, page 447, entitled, “An act for the prevention of .certain immoral practices. ” Cincinnati v. Bice, 15 Ohio, 225; Canton v. JVist, 9 Ohio St., 439; Thompson v. Vernon, 11 Ohio St., 688.</p>

The Farmers NationaLBank of Findlay brought suit in the court of common pleas to subject real estate of J. S. Trout in Hancock county to the payment of liens. The cause was appealed to the circuit court where it was tried upon issues joined by the several pleadings of the plaintiff in error and Laura D. Trout.

<p>School districts — Creation of subdistricts — Sections 3946-3948,Revised Statutes — Duty of commissioners appointed by probate court— Action by taxpayer enjoining erection of school building, etc.</p> <p>1. Where, pursuant to sections 3946, 3947 and 3948, Revised Statutes, a petition praying for the creation of a subdistrict for school purposes is filed with a probate judge, and commissioners are appointed by him to determine the expediency of establishing a subdistrict, it is the duty of such commissioners, if they report in favor of establishing the sub-district and there is no suitable schoolhouse therein, to select a site for a schoolhouse. Their action in this respect is final and conclusive ; and if thereafter, the board of education elected within such subdistrict, attempts to abandon the site thus selected, and selects and purchases another site, and proceeds to erect a schoolhouse thereon, such action is unauthorized and void.</p> <p>2. Where in such case an action is brought by a resident taxpayer, on behalf of himself and others, to enjoin the erection of a schoolhouse on the constituted site, the negotiation of bonds to provide funds therefor, the paying out of funds already provided, the levying and collection of a tax therefor, and also asking for general relief, such action is not barred, because, having been commenced after the substituted site had been selected and the erection of a schoolhouse thereon begun, the board of education, disregarding the pendency of such action, proceeded to erect and complete'the schoolhouse. In such case a court of equity should afford the plaintiff and those he represents all the relief to which they are entitled, ■ and which under the circumstances can be decreed against any of the parties to the action.</p>

The action in which the judgment was rendered which it is now sought to reverse, was commenced in the court of common pleas by the filing of a petition by one Elizabeth Furst against Herman Muller, Phillip Volkert and Frederick Quatkemeyer, to recover a judgment against Muller and to reach certain choses in action claimed to be in the possession of Volkert and Quatkemeyer which they had received from Muller, and held in trust for the plaintiff.

Miss Swisher brought suit in the court of common pleas seeking to recover from the plaintiffs in error as sureties upon the additional bond of one Lowry who had been her guardian before she attained her majority. The facts alleged in her petition and their answer are uncontroverted.

The plaintiff in error filed a petition in the court of common pleas, alleging in substance that on Nov. 6, 1894, one George Hobson was elected clerk of the common pleas court of Hamilton county; that he qualified and held the office until April, 1897, when he resigned; that the commissioners of the county appointed E. R. Monfort to fill the vacancy, and that he qualified and entered upon the duties of the office in which he continues to act.

Error tc the Circuit Court of Darke county. The plaintiff in error seeks the reversal of a judgment of the circuit court affirming- a judgment of the court of common pleas.

The errors relied upon were stated in the motion for a new trial, and without action on that motion the errors upon which he relied could not be assigned or made the subject of an action in error; besides he could not assume in advance that the motion would be overruled. The plaintiff in error did not consent to the delay or failure to pass upon the motion for a new trial. He was not negligent. He could not have the motion heard.

<p>Error to the Circuit Court of Wood county.</p> <p>The action below, was for the recovery of damages for a personal injury. The case was tried in the common pleas court, and judgment rendered in favor of the plaintiff. A motion was made for a new trial, which was overruled and exceptions taken, and a bill of exceptions was allowed, signed and filed, and ordered to be made part of the record. A petition in error was filed in the circuit court, together with a transcript of the docket and journal entries, and the original papers, including the bill of exceptions. The circuit court affirmed the judgment, and thereupon Mr. Townsend filed his petition in error in this court, together with a transcript of the docket and journal entries, and the original papers, except the bill of exceptions. Printed records were duly filed in this court, including what purports to be the bill of exceptions, but the bill of exceptions itself was not filed in this court. After the expiration of six months from the rendition of the judgment of affirmance in the circuit court, the defendant in error filed his motion in this court to dismiss the case and affirm the judgment of the lower court, for the reason that the plaintiff in error failed to file the bill of exceptions in this court. The errors assigned in the petition in error, all depend upon the bill of exceptions. After the filing of the motion, the plaintiff in error delivered the bill of exceptions to the clerk of this court, and requested that it be filed, and it was present in court upon the hearing of this motion. ■</p>

Sherman Weaver, having a wife and three small children, and being a yard brakeman in the employ of the P., C., C. & St. L. Ry. Co., received injuries while in the discharge of his duties as such brakeman, at Bradford Junction, in this state on the 29th day of August, 1894, and died as a result of such injury four days thereafter.

On the 17th day of July, 1895, Leo Schott as treasurer of Hamilton county, brought suit before a magistrate of that county, against F. W. and C. A..Wasteney, partners as Wasteney Brothers, to recover two hundred and twenty-four dollars and ninety-three cents, the amount of the personal taxes with which the defendants were charged on the tax duplicate of that county for the year 1884.

On Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Perry county. Mayhem at common law was the violently depriving a man of one of the members of his body, which would render him less able to defend himself in a fight or annoy his adversary. The biting of an ear did not constitute the crime of mayhem at common law. 14 Amer: and Eng. Ency., 985, and cases cited. Mayhem at common law and maiming under section 6819 are not synonymous.

This is a petition in error to reverse a judgment of the circuit court affirming a judgment of the court of common pleas awarding damages to Andrews, as administrator, for negligently causing the death of his intestate, The substance of the original petition of the administrator is, that Barton was a brakeman in the service of the company, and upon the night of his death was head brakeman on a freight train; that it was his duty to be upon the front end of the train, or in…

• The cause of the Village of Mineral City ag’ainst George J. Markley was tried in the circuit court of Tuscarawas county, on appeal from the common pleas, and it is to the judgment of the circuit court that error is prosecuted here by Markley. The purpose of the suit was to obtain a decree setting aside a deed of three acres of land which had been made by the Village to Markley, to require him to reconvey the premises to the Village, ■ and for possession of the property.

Anton Rechtine, being the owner of sixty acres of land in Putnam county, executed and delivered his mortgage deed (his wife joining with him) to The Northwestern Mutual Life Insurance Company, of Milwaukee, Wisconsin, of the date of April 26, 1889, for the sum of sixteen hundred dollars, which mortgage was duly recorded.

Suit was brought by the city of Greenville on the official bond of Charles B. Elliott as clerk of that city, to recover damages for alleged breaches of the bond. The amended petition contains thirteen causes of action, each of which charges the clerk with a misappropriation of the funds of the city, and a violation of his official duty in obtaining the same. Elliott failed to plead, and judgment was rendered against him for the amount claimed.

This cause having been appealed from the common pleas court to the circuit court, was tried on the pleadings and the evidence.

This action was commenced by the plaintiff in error in the court of common pleas of Putnam county to set aside a conveyance which he alleged to have been made in fraud of the creditors of the grantor. The court of common pleas deciding the case against him, he appealed the action to the circuit court, and upon the trial in that court the same judgment was rendered. He then brought the action to this court to obtain a reversal of the judgment of the circuit court.

The action below was in quo warranto, brought by the prosecuting attorney of the county of Hamilton, against the defendant in error, Sullivan, and John Zumstien, Louis Werner and George M. Roe. Its purpose was to oust respondents from the office of board of supervisors of the City of Cincinnati, and to induct the relators.

Defense by one partner that he withdrew from the firm under an agreement that his copartner should retain the assets and pay the liabilities, and that thereafter the plaintiff, with notice of the dissolution and agreement, accepted in satisfaction of his claim against the firm, a time certificate of deposit, at interest, from the copartner.

Section 4154, Revised Statutes, provides that the mortgagee, his agent or attorney, shall, before the instrument is filed, state thereon, under oath, the amount of the claim, etc.; and if given to indemnify the mortgagee against a liability as surety for the mortgager, such sworn statement shall set forth such liability and that the instrument was taken in good faith to indemnify against loss that may result therefrom.

On the part of the plaintiff in error, we contend for a line of demarkation between acts which are governmental in their character, as to which an honest discretion may be exercised, as to which honest differences of opinion may arise and as to which a decision is a matter of policy, the adoption, of which may or may not be to the best interests of the public, but which nevertheless embodies the honest best opinion of those persons adopting or rejecting the policy.

Wonsetler and others brought an action against Andrews and others in the court of common pleas to recover upon numerous causes of action, founded on the following instrument, the plaintiffs being lessors and the defendants the successors of the lessee: “That the said party of the first part hath this day leased and let, and do hereby convey unto said second party, for the consideration hereinafter mentioned, all their right and title to any coal which may be found upon or…

This action was brought in the court of common pleas of Fairfield county by the defendant in error against the city of Lancaster, plaintiff in error, to recover a balance claimed to be due him from the city on account of the construction of part of a certain sewer, and certain catch-basins to be used in connection therewith, for the use of the city. The plaintiff had judgment in the court of common pleas which was affirmed by the circuit court on error.

This action was begun by J. M. Hughey, as receiver of the Hillsboro Gas & Electric Light Company, a corporation organized under the laws of this state, to manufacture and furnish electric lights, to sell certain real estate that belonged to the corporation, and for adjustment of liens thereon.

Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Summit county. May 27, 1897, John M. Gardner was convicted, before the mayor of Akron, Summit county, of a violation of the act of April 21, 1896, entitled “An act to promote the public health and regulate the sanitary construction of house-drainage and plumbing” (92 Ohio Laws, 263), and sentenced to pay fine and costs.

In Quo Warranto. The petition of the attorney-general alleges that on the fourth day of March, 1898, the defendant, Miss Adams, was by the governor commissioned as a notary public for Lake county; that she then gave bond and took an official oath as prescribed by statute ; that she has ever since claimed, and now claims, to be holding such office and exercising its functions; that she is usurping said office because of the invalidity of the act assuming to authorize her…

On May 3, 1897, being at the April term of the court of common pleas of Franklin county, Jacob Weber, the plaintiff in error, plead guilty to an indictment for keeping- a room for gambling, and the court sentenced him to pay a fine of $400.00 and costs, and that he be confined in the county jail for the period of ten days, and to said sentence added the following words: “But execution of the sentence to jail is hereby suspended.” Afterwards, at the same term of court, on the…

In Mandamus. The defendants constitute the board of elections in the city of Columbus, Ohio.

Petition in Mandamus. Otto J. Renner, an attorney, having been employed by the dairy and food commissioner under section 4 of the act of April 12, 1898 (93 Ohio Laws, 103), and having rendered certain services under said employment, presented his bill therefor to the auditor of state and demanded a warrant on the state treasury in payment.

This action was brought in the court of common pleas of Richland county by the defendant in error to recover of the plaintiff in error damages sustained by Mm on account of the railroad company having laid a railroad track along a street of the city of Mansfield, upon which the property claimed to be injured abutted. The defendant in error prevailed in the court of common pleas and the judgment there recovered was affirmed by the circuit court.

On the 21st day of November, 1860, John Carey and wife conveyed to their daughter, Cinderella, then of the age of thirty-four years, unmarried and… Held: that the plaintiff had the full title in fee to all the lands described in the quitclaim deed to his wife, and that the brother and sisters had no interest therein, and a separate judgment as to said lands was entered accordingly. The plaintiff filed a motion for a new trial, which was overruled and exceptions taken.

Anson C. Barbour brought an action in the court of common pleas against Selina A. Grapes and Frank* M. Grapes, counting in his first cause of action upon a promissory note alleged to have been executed by them to him, and in his second cause of action upon a mortgage alleged to have been executed by them to him upon lot No. 157, in the city of Tiffin, to secure the payment of said notes according to its terms.

At the February term, 1898, of the court of common pleas of Jackson county, William F. Hale was indicted for practicing medicine in that county, without having complied with the provisions of the act “to regulate the practice of medicine in the state of Ohio,” passed February 27,1896 (92 O. L., 44).

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

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

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

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

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