Volume 59 — Ohio State Reports, New Series

On the eighth dajr of August, 1895, William L. Phillips, as executor of the last will and testament of Thomas H. Madden, deceased, filed his petition in the court of common pleas of Morrow county against Myrtle S. McConica, as guardian of Mary R. McConica, a minor, which said petition is in the words and figures following: “Plaintiff says that Thomas H. Madden died on or about the twenty-first day of August, 1891, leaving a last will and testament, which said will was duly…

The original action was replevin brought by Speyer & Co., against Margaret Baker, before a justice of the peace in Hamilton county, to recover possession of a lot of household goods. In the court of common pleas, on appeal, where issue was joined on the plaintiffs’ right of possession, the verdict and judgment were in their favor. That judgment was reversed by the circuit court.

The plaintiff filed his petition in the court of-common pleas against the defendants, Stearns & Hoover, alleging- that on and after July 15, 1892,-they were engaged as contractors in eonstructingthe Columbus and Short Line Railway ; that one Harmon was employed by them as ag-ent to purchase and pay for all lumber, timber and ties that might be needed in such construction, and that one-Brooks was in their employ in connection with and under Harmon “to so licit lumber and…

This action was brought by the relator, Mrs. Katherine C. Mullikan, defendant in error, against the plaintiff in error as auditor of Hamilton county, to require him as such auditor, to correct an erroneous valuation upon certain real estate owned by her, and to require said auditor to call the matter to the attention of the county commissioners that they might order a refunder of the taxes paid by her for the five preceding years on this overvaluation.

The action below was by William M. Warren against the John Hancock Mutual Life Insurance Company of Boston, Massachusetts, to recover the amount of a policy of life insurance on the life' of George E. Warren, son of the plaintiff below. The first ground of defense denied that George E. Warren was in good health at the time the policy was issued, and denied generally the allegations of the petition.

Plaintiff in error brought suit before a justice of the peace in Erie county against the defendant in error to recover the sum of three hundred dollars, the value of sheep and lambs alleged by him to have been converted by her to her own use. The transcript of the justice’s docket shows the following entry on June 21, 1893: Court charged the jury and they were sent out, and after due consideration returned a verdict for plaintiff for ten dollars damage ($10.00).

<p>Partnership — Suit between partners for accotmt — Can be no judgment until balance ascertained — Rule as to burthen of proof.</p> <p>1. In a suit for an account by one partner against another, no judgment can be rendered in favor of either party for any sum until the account has been stated, and the balance due either, if any, thus ascertained.</p> <p>2. The burthen of proof in such case is on the plaintiff to furnish the evidence requisite to enable the court to state the account; and if he fails in this he fails in his action, and the petition should be dismissed, unless for good cause shown, a new trial is allowed.</p> <p>The arguments of counsel and cases cited are sufficiently indicated in the opinion. — Reporter.</p>

The issue in the controversy is between the plaintiff: in error, as assignee of Mary Johns, insolvent, and Albert Hughes, defendant in error, mortgagee, and creditor of the insolvent, and is prosecuted upon exceptions to the assignee’s report and account filed in the probate court of Butler county, tried on appeal in the court of common pleas.

The facts as disclosed by the record necessary to a full understanding of this case are as follows: In the year 1892, Thomas B. Youtsey and others became the owners of a tract of land in Hamilton county, Ohio, known as the Hyde Park Syndicate property. The interest of Mr. Youtsey in the property was somewhat greater than the undivided one-sixth part thereof.

On the thirtieth day of September, 1892, Joseph Day and Ellzey Day broug’ht suit in the court of common pleas of Richland county, against Merchant Carter and others, for the partition of sixty acres of land situated in that county. The petition alleges that the plaintiffs are the owners in fee simple of the undivided eight-ninths of the land, and the defendants, as tenants in common with them, own, in various proportions specified, the other undivided one-ninth.

<p>Owner of ancestral lands conveys to another to delay creditors— Agreement to reconvey — Grantor dies — Grantee reconveys to ■widow of former grantor — Brothers and sisters of reconveying grantee have no rights in law or equity in the land.</p> <p>1. Where an owner of ancestral lands conveys them to another, on a written agreement that he will, upon request, reconvey them, the ancestral character of the land is thereby destroyed; and if a request to reconvey is made, but the grantor dies before it is executed, without issue, but leaving a widow, and brothers and sisters, a conveyance to the widow is a proper execution of the trust, and the brothers and sisters of the deceased grantor have, as heirs, no legal or equitable title to the land.</p> <p>2. Where an owner of ancestral lands, to hinder and delay a possible creditor, conveys them to a third person, who after the death of the grantor, without issue, conveys them to his widow, the brothers and sisters of the grantor can not, for this additional reason, maintain an action against her to compel a conveyance of the lands to them. They stand. in the shoes of the grantor and have no rights in law or equity to the lands, but such as could have been asserted by him; and he, by reason of his fraud, had none.</p>

<p>Conduct of elections — Papers to secure nomination of candidates— Signers must pledge to support nominee — Act of April 8,1898— Constitutional law.</p> <p>The requirement of section 1 of the act of April 8, 1898 (93 Ohio Laws, 93), that papers to secure the nomination of candidates for public offices “shall contain a provision to the effect that each signer thereto pledges himself to support .and vote for the candidate or candidates whose nominations are therein requested,” operating uniformly and impartially upon all classes of electors and interposing no unreasonable impediment to the exercise of the elective franchise, is valid.</p>

<p>Error to the Circuit Court of Summit county.</p> <p>This action was brought in the court of common pleas of Summit county by the defendant in error, William E. Russell, to assert a judgment lien against certain real estate of Mrs. Jane Allen, deceased, and to marshal the liens thereon. The cause was appealed to the circuit court and there tried on the merits, and judgment rendered for defendant in error, and certain other lienholders, and denying to the plaintiff in error, William E. Allen, a claim he had set up for taxes and for improvements made as an occupying claimant of the land in question.</p> <p>Thereupon the plaintiff in error instituted proceedings in this court to reverse the judgment of the circuit court. The facts will be stated in the opinion.</p>

<p>Error to the Circuit Court of Jackson county.</p> <p>The defendant in error, Morgan, commenced an action -against the plaintiff in error, the City of Wells ton, a municipal corporation, in' the court of common pleas of Jackson county, alleging in his petition, in substance, that about the year 1888 the municipality, through its council, duly and legally entered into a contract with the Consolidated Wells-ton Coal & Iron Company, a corporation, providing for the lighting by electricity of its streets, alleys and public places therein, and by ordinance granted to the company and to its assigns certain rights and franchises in the use of its streets and alleys for the erection and building therein of necessary buildings, poles, wires, et cetera, to carry out the terms of the contract of lighting’, and further provided for the rights of the company and its assigns in the operation of the plant for lighting, fixing the price, time and manner of payment. Pursuant to the contract and ordinance, the company, at great expense and outlay of money and labor, erected its plant within the city limits, all in conformity to the contract and ordinance, and to the acceptance of the City, until about February 7, 1889, in accordance with the terms of the contract. On that day the City, without any fault on the part of the company, or the owners of the plant, refused to further pay, and still refuses, although the contract is in full force and effect; notwithstanding which the company continued to operate the plant and light the streets, et cetera, according to the terms of the contract and ordinance for more than two years after the refusal, and until the City became indebted to the company therefor in the sum of $4,800, which it still owes and refuses to pay. The company continued ready to perform, but did not light after that date because of the refusal of the City to pay.</p> <p>The petition further alleged the assignment by the company and transfer of its said plant and all appurtenances, including all rights, privileges and franchises, and the said claim of $4,800 to the plaintiff, Morgan, who, since that date, at great expense, has kept up the plant and has been ready and willing and offered to carry out the terms of the contract, but the City has wholly refused to permit the plant to be operated, and refused to carry out its stipulations under the contract and ordinance, which have continued and still are in full force and effect. Said plant, et cetera, is adapted only for the lighting of said streets, public places as well as the buildings in said city, and does not interefere in the use of said streets, alleys and public places for other matters, and the plant could not be removed and would be of no value for any other purpose or place.</p> <p>The City, regardless of plaintiff’s rights, and unlawfully, and without a hearing, and without 'consent of the plaintiff, without condemning or making compensation to plaintiff, and by force, is threatening to and is about to tear down and remove said machinery, poles, wires and lamps, and will, if not restrained, cut down and remove the same to the irreparable damage and injury of the plaintiff, against which he could have no adequate remedy at law.</p> <p>The prayer was for a temporary restraining order; also that an account may be taken between the Citjr and plaintiff, the owner of the plant, that the City maybe required to carry out the terms of the contract, said injunction be made perpetual, and the plaintiff recover such damages as may be justly due for the violation of the terms of the agreement, and the City’s refusal to perform on its part, and for other and further relief in law and equity as he may be entitled to. A temporary restraining order was allowed upon the filing of the petition.</p> <p>To this petition a general demurrer was filed by the City, which upon hearing, was sustained, and the plaintiff failing to plead further, judgment was rendered for defendant, that it go hence without day and recover costs. Notice of appeal to the , circuit court was entered and in due time bond given and the appeal perfected.</p> <p>In the circuit court a motion was interposed by the defendant to dismiss the appeal because: 1. It appears by the petition that the case is in law and not in equity. 2. Because there was no final order or decree made by the common pleas from which an appeal can be legally taken. 3. Because the judgment rendered is a money judgment, and not a decree in equity. ■</p> <p>Upon hearing, this motion was overruled to which the City duly entered its exception. A general demurrer to the petition was then interposed which was overruled and exception taken. Thereupon an answer was filed by the City, alleging, in substance, as a first defense, that the so-called ordinance undertook to give to the company exclusive permission and authority within the limits of the municipality to erect, lay, operate and maintain on the public streets, alleys, et cetera, its poles, wires, et cetera, and other electrical apparatus, for the period of ninety-nine years. It provided also that the company should receive §200 a month, and for each lamp over twenty, eight dollars per lamp. It further provided that the company may at any time after three months’ notice to the council abandon all rights and privileges granted to the company by the ordinance, and that when the company signified its assent in writing, filed with the clerk, the same should become operative. The ordinance was the only authority, contract or agreement that the municipality had with the company, and the only semblance of contract that the company had when it erected its said plant. The ordinance is unconstitutional and illegal because the council had no power to pass the same; because it is contrary to law, is in restraint of trade and against public policy, and because it is an attempt to dispose of public money without such money being in or due the treasury or any tax levied therefor at the time said company entered upon what it claimed to be part performance on its part of the stipulations of the pretended contract.</p> <p>The company was not formed for the purpose of furnishing light, nor could it under any implication possess the power of entering into any such contract, the same not being- authorized by the certificate of its organization or by the laws of the state. So there was and is no mutuality of obligation between the municipality and the company, nor between the plaintiff and the defendant, and on the seventh day of February, 1889, the council duly notified the company that said council had stopped the payment of said $200 per month, as it then did, and as it was legally bound to do, and from said date no further payments were made on said alleged contract.</p> <p>For a second defense the City denied the indebtedness claimed, and put in issue generally the averments of the petition not covered by the allegations of the first defense.</p> <p>For a third defense the answer took issue with allegations of the petition bearing upon plaintiff’s claim for equitable relief, and tending- to justify the City’s action with respect to its order for the removal of the poles, eb cetera, from the streets. A copy of the ordinance was attached to the answer and made a part of it. A reply was filed to the third defense which took issue upon all the allegations of new matter therein.</p> <p>At the May term, 1896. of the circuit court, the cause was heard upon the petition, the answer and reply, and the evidence. The court, on request, stated its conclusions of fact and law separately. Among other facts found by the court was the passage of the ordinance of the character as stated in the answer; that the poles for lights were placed and located by direction of the City; that in erecting the plant and lighting the City the company acted under the ordinance and in good faith and in the belief that the same was legal and binding. That the company commenced to light and continued from about the first of May, 1888, for over two j^ears and the City paid the bills which were rendered until Felruarv 7, 1889, subject to certain deductions agreed upon. On the date named the City refused to further pay because of ■ certain other promises made by the company with other parties. The company and its assigns continued to run and operate the plant for twenty-four months after February, 1889, with the knowledge of the council, and without objection other than as shown by a written notice of February 7th, to the effect that the council had ordered the payment of $200 per month to be stopped until certain agreements and contracts were complied with by the company. About February 1, 1891, the City notified the company to take down its poles and wires from the streets, and remove the plant, or that it would be done by thé direction of the council and at the expense of the owners. The City did not pay any portion of the amount provided by the ordinance to be paid monthly for the twenty-four months from and after' the first of February, 1889. The court found that the lighting during the twenty-four months was subject to a deduction of $50 a month because the plant was not in repair and the light furnished not as good as the ordinance required, but that it was worth $150 a month. The court further found that Morgan was the owner and assignee of the rights of the company, and of the claim against the City, and entitled to' recover any amount that might be due thereon.</p> <p>' As conclusion of law the court found: 1. The ordinance to be illegal, null and void, and the plaintiff not entitled to the equitable relief thereunder as prayed for. 2. The City to be liable for lights furnished after the seventh of February, 1889, and the plaintiff entitled to recover from the defendant the value of said lighting, being $150 a month for twenty-four months, amounting- to $3,600:</p> <p>To all of which findings of fact, and to the second conclusion of law, the defendant excepted. Judg-ment was thereupon rendered for plaintiff for the amount found, with interest and costs, and as to the equitable relief prayed for the petition was ordered dismissed. A motion for a new trial was filed by defendant and overruled; exception duly taken, and this proceeding is to reverse the judgment of the circuit court on the ground, among others, that the court erred in overruling the motion to dismiss the appeal; that it erred in overruling-the demurrer to the petition; that it erred in its second conclusion of law; erred in overruling the motion for a new trial; and erred in rendering judgment against the City and in favor of Morgan.</p>

<p>County commissioners — Not required to construct or repair bridges on city streets not part of state or county road — Duty of city— Act of February 8, 1894 — Construction of law.</p> <p>Under the amendment made February 8, 1894, of section 860, Revised Statutes (91 Laws, 19), county commissioners are not required to construct and keep in repair bridges over natural streams and public canals, on streets established by a city or village for the use and convenience of the municipality, and not a part of a state or county road, though the city or village receive no part of the bridge fund levied on the property within the same. It is the duty of the city or village to construct and keep in repair such bridges, and is liable in damages to one injured by its neglect to do so.</p>

<p>Error to the Circuit Court o^ Stark county.</p> <p>The defendant in error files a motion to dismiss the printed record filed in this ease by the plaintiff in error for the following reasons:</p> <p>1. Because said record does not contain all of the testimony offered and admitted in said cause, necessary to be reviewed upon the errors complained of. in said plaintiff’s petition in error, to-wit: the deposition of Charles W. Robinson, the assignor, which was used in said cause in the court below and which was part of the bill of exceptions allowed by the court in this case.</p> <p>2. Because of other, testimony offered in said cause necessary to be reviewed upon the error complained of in said petition in error and which -does not appear in said printed record.</p> <p>The motion is supported by affidavits showingthat upon the trial of the cause, below the defendants in error relied upon, the testimony not printed.</p>

<p>County auditor elected to succeed one appointed to fill vacancy — Commencement and term of office.</p> <p>A county auditor elected to succeed one appointed by the county commissioners to fill a vacancy is elected for the full term of three years, commencing on the third Monday in October next after the election.</p>

<p>Error to the Circuit Court of Muskingum county.</p> <p>The plaintiff in error filed in the court of common pleas of Muskingum county the following amended petition:</p> <p>‘ ‘The State of Ohio, Muskingum county, court of common pleas, Sarah S. Carter, as administratrix, etc., v. The City of Zanesville, Wm. Morrison, George Kerner, John Nepp, C. Stolzenbach and David Hahn, defendants. Amended petition.</p> <p>“The plaintiff, for her amended petition, says, that she is the administratrix of Alice T. Carter, deceased, duly appointed and qualified by the probate court of said county.</p> <p>“That one Jehu W. Carter, late of said county, deceased, was the father of said Alice T. Carter and he died on May 27, 1880, intestate, leaving said Sarah S. Carter his widow, and the following children, Charles R. Carter, James W. Carter, Mary I. Carter and Edward S. Carter, who still survive and together are the sole next of kin or said Jehu W. Carter and said Alice T. Carter, who died intestate and unmarried on July 16, 1852. That about said last named date, said Jehu W. Carter purchased from said city of Zanesville, for a valuable consideration then paid, lot No. nine (9) in the twelfth (12) tier of the east center square, in what was then called the Zanesville cemetery, which is the same as is now called Greenwood ■cernetery. Said grant of said lot was to Jehu W. Carter, his heirs, and assigns, to be held and used .as a burial place.</p> <p>“On the eighteenth of July, 1852, the body of said Alice T. Carter was buried in said lot No. nine (9) and remained there till about the first of June, 1890, when it was, by the said city of Zanesville ,and said Stolzenbach and said Hahn and their superintendent, agents and employees, and who (with Thos. Lindsay, who is now deceased), composed the then board of trustees of said cemetery and represented said city in the management of the same, none of which acts, were within their statutory powers as such trustees, unlawfully and forcibly and fraudulently taken up and taken into their possession and by their carelessness and negligence, commingled with many other remains, so as to make identification impossible, and carted off to some unknown spot in said cemetery and is now still held by defendants, said city and said Morrison, Kerner and Nepp, who are now the trustees of said cemetery, and represent said city in its management. Said unlawful having of the possession of said body and remains and the said disinterring and removal thereof and all of said acts, were done when defendants had the means of identifying- said remains and without any notice whatever to the said owners of said lot and next of kin of said descendants (although they or some of them lived in. said city all the time), and against their wish.</p> <p>“That the plaintiff and next of kin never found out said unlawful disinterring, taking and holding by defendants, of said body or remains, until about June 12, 1895. Said Morrison, Kerner and Nepp are, and then were the board of trustees of said cemetery, and plaintiff and said next of kin, have several times, since said June 12th, requested and demanded said body or remains, and they have failed and refused to surrender the same, or locate same.</p> <p>“And plaintiff further says, it was the duty of defendants to afford repose and security to said body or remains, and they held said cemetery upon that, among other sacred trusts, for the benefit and solace of the lot owners, their heirs and next of kin, and the next of kin of those buried therein.</p> <p>“Wherefore the plaintiff says a cause of action has accrued in her behalf against the said defendants, in the sum of five thousand dollars, for the benefit of the said next of kin of said Alice T. Carter, for which sum she asks for judgment, and also for all other relief to which she may be entitled.”</p> <p>The court of common pleas sustained a general demurrer to this amended petition, and the plaintiff, not desiring to plead further, a final judgment was rendered against her, which on error was affirmed by the circuit court. The cause was thereupon brought to this court for review.</p>

On the first day of May, 1889, the Tiffin Street Railway Company executed and delivered to Joseph A. Beauvais, as trustee in trust, its mortgage’on its street railway property for the sum of $40,000, which mortgage was duly recorded.

The case was tried on appeal in the circuit court, the plaintiff in error being plaintiff there. In his petition plaintiff alleges that on the twenty-seventh of June, 1893, he executed and delivered to the defendant, Lentz, his promissory note for $5,000, payable September 1, 1893, with eight per cent, interest thereon; and to secure the payment thereof at maturity, deposited with him, duly endorsed, fully paid up stock of said fuel company, of the par value of $15,000.

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>On the twenty-second day of November, 1895, the plaintiffs in error, also plaintiffs below, Roland C. Mott, Orlando A. Houghland, Oscar F. Powers, William A. Kennedy, Martha B. Kennedy, Charles Lock, George F. Leick, William L. Leick, Charles M. Yorce, John Marzell, Henry G. Vorce, and Henry Houck, commenced their action in the court of common pleas against the treasurer, auditor and commissioners of Cuyahoga county to enjoin the collection of an assessment placed upon the duplicate against their lands, and to enjoin the placing of further assessments upon the duplicate, in a proceeding for the widening and improving of a county road, known as Euclid avenue, pursuant to the provisions of the act of March 13, 1894, entitled “An act to supplement section 4637 of the Revised Statutes of Ohio,” 91 Ohio Laws, 64.</p> <p>The grounds upon which the injunction was asked were, among others, that the said act was unconstitutional, and that the assessments included $4,800 as expenses for building certain bridges and culverts.</p> <p>The defendants by their answers traversed all the grounds upon which the injunction was asked, and in addition pleaded that the plaintiffs were estopped from questioning the constitutionality of the act, because they had procured the passage of the act in question; had petitioned for the improvement; had taken an active part in all the steps connected with the improvements so far as they had gone; had occasioned an expense of $1,644.08 in the proceedings had in the case.</p> <p>The court of common pleas held the assessment for bridges and culverts void and enjoined the collection of the $4,800, and dismissed the petition on its merits as to the balance of the assessment.</p> <p>The case was appealed to the circuit court by the plaintiffs below, and upon trial in that court there was a separate finding of facts and conclusions of law as follows:</p> <p>Fwst — That all the plaintiffs excepting Martha B. Kennedy, George F. Leick, William Leick and C. M. Vorce, assisted in procuring the passage by the legislature of the state of Ohio, of the act of March 13, 1894, 91 O. L., 64, and that of said plaintiffs, George F. and William Leick, H. Houck and John Marzell, signed the petition'presented to the-county commissioners for the widening and improvement of said road, limiting the width thereof to one hundred (100) feet; and all the other plaintiffs signed a petition presented to the county commissioners asking that the width of the improved road be limited to eighty (80) feet. That accompanying’ said petition there was filed with the said county commissioners a bond duly certified and attested, containing as the conditions thereof a recital of the substance of the said petition, and in all respects conforming to their requirements of law in such case made and provided; and that all of said -plaintiffs were present with the viewers when they made the survey, and participated in their action; that all of said plaintiffs presented claims for damages growing out of said improvement, to the said viewers, and damages were awarded by said viewers to all said plaintiffs upon such application; that the action of the viewers was approved by the county commissioners, and the road established as prayed for-under said statute at the width of one hundred (100) feet. That from the award of damages thus made, two of the plaintiffs, O. F. Rowers and H. G. Vorce, and others not plaintiffs, appealed to the probate court and had a trial in that court on the question of the damages which should be awarded to them by reason of said improvement, and in said court, were awarded greater damages than they were given by the viewers, which award in the probate court was afterwards certified to the county commissioners and approved by them, and included by them in the assessment thereafter made to defray the expenses of said improvement. Costs were made in said proceeding in the probate court to the amount of $629'’. 63; that the costs of the proceedings down to the report of the reviewers and the order of the county commissioners approving the report and establishing the road, amounted to $583.60; that thereafter the county commissioners made an assessment to defray the costs of making said improvement in accordance with the said statute, among others upon lands owned by all of said plaintiffs respectively; that all of said plaintiffs appeared before the county commissioners and participated in the proceedings of making said assessment; that thereafter all of■ said plaintiffs except George F. Leick and William Leick excepted to said assessment on their respective lands so made by the county commissioners, and necessitated the appointment by said county commissioners under said act of March 13, A. D. 1894, of a board of equalization ; that thereafter all of said plaintiffs, except George F. Leick and William Leick, appeared before said board of equalization and participated in the equalization of said assessment made by said board of equalization; that thereafter said assessment so equalized by said board of equalization was approved by the board of county commissioners; that the costs of making said assessment before said county commissioners and by said board of equalization, amounted to $430.85; that the total expense of the said proceeding toward the making of said improvement, amounted to $1,644.08, of which sum $1,060.48 was made after the county commissioners had approved the report of the viewers, and ordered the improvement made; and that all of said expenses are included in the assessment for the costs of said improvement in said petition; that all of said costs have been paid by the county except the costs made in the probate court as above stated; that all of the steps and proceedings in reference to the widening and improving of said road, are in accordance with said act, and the other statutes bearing upon the cause; that nothing has been expended in grading or improving the said road. The court in addition to the foregGing facts is of the opinion that it should, and it does, take judicial notice of the fact that there is a necessity for wide and better improved roads in counties containing a city of the first class, second grade, and in the vicinity of such city than in counties containing no populous municipality ; but no evidence was permitted to be given in support of such proposition. “Findings of Law.” First— The appeal in this case to the circuit court vacated the entire decree in the common pleas court; Second — -That plaintiffs are estopped from asserting the uneonstitutionality of said act of March 13, 1894; Third — That the law in question is constitutional, the classification as to roads made by it is just and not illusory, reasonable and not arbitrary, judicious and not unnecessary; that the whole amount of said assessment was legally assessable upon the lands fronting upon said road, it is therefore ordered, adjudged and decreed by the court that the interlocutory injunction heretofore allowed herein be, and is dissolved; that the petition herein be dismissed, and that defendants recover of plaintiffs their costs herein to be taxed, to collect which execution, as of a judgment at law is awarded them, and that plaintiffs pay their own costs herein. Ordered that a special mandate be sent to the court of common pleas to carry this judgment into execution.</p> <p>Whereupon plaintiffs in error filed their petition in error in this court seeking to reverse the judgment of the circuit court.</p>

^ Exception to the Court of Common Pleas of Franklin county.' At the April term, 1897, of the court of .common pleas, Martin was indicted for grand larceny committed on the twenty-second day of December, 1896, The indictment also charged that at the December term, 1877, of the court of common pleas of Wayne county, the defendant as Elbert J. Anderson had been convicted of the crime of grand larceny and sentenced to imprisonment in the penitentiary, and that he was actually…

On Motion for leave to file petition in error to the circuit court of Ashtabula county. At the January term, 1898, of the court of common pleas Hervey was jointly indicted with others for burglary. He demanded a separate trial. At the March term he was convicted and sentenced to imprisonment in the pentitentiary for four years. At the October term of the circuit court the judgment was reversed for error in the charge.

On Motion by defendant in error to dismiss petition in error on tbe ground that the plaintiff: in error has not filed an authenticated transcript of the original papers and journal entries in the cause. On Motion by plaintiff in error for leave to correct the clerk’s certificate of authentication. The facts will be stated in the opinion.

On the nineteenth day of January, 1897, John W. Jones of Delaware county executed and delivered to James W. Gallant, Stephen O. Thomas and Charles M. Wambaugh his certain deed of that date, conveying to them 480 acres of land in Delaware county in this state, ■ together with certain town property.

This action was brought by the plaintiff in error to restrain the defendant in error from collecting certain taxes which had been assessed ag’ainst it by the auditor of Medina county under the provisions of section 2781, Revised Statutes. The facts necessary to an understanding of the decision will be found in the opinion of the court.

The defendant in error, D. S. Erb, commenced an action in the court of common pleas against one Hendrickson and others, including the plaintiff in error, Irvin T. Coe.

The State commenced its action in the court of common pleas to recover a small parcel of land in Sidney, Shelby county, alleging that it had a legal estate in and was entitled to possession, and that plaintiff in error, Philip Smith, keeps it out of pos-‘ session.

The action helow was brought in the court of common pleas of Pickaway county, by Ella M. Sohn against the City of Circleville, to recover damages for an injury alleged to have resulted from a defective sidewalk in the city. The petition alleges: “That the defendant, the City of Circleville, Ohio, is a municipal corporation of the fourth grade of the second class, duly organized under the laws of the state of Ohio.

The controversy arises out of the second cause of action in - the petition filed in the court of common pleas by Lane against the oil company.

The First National Bank of Chicago, and The Rock Island National Bank, both of the state of Illinois, having recovered judgments, aggregating $30,000 against F. C. Trebein in the common pleas court of Greene county, filed their petition in that court against F. C. Trebein and “The F. C. Trebein Co.” ostensibly a corporation under the layrs of Ohio, to set aside a certain conveyance of real estate made by F. C. Trebein to the company, on the ground that it was made to hinder,…

<p>Supreme Court jurisdiction in error proceedings — Review of judgment in lower court — Act of April ZB, 1898.</p> <p>Section 6710, R. S., as amended April 25, 3898 (93 Laws, 255), does not affect the jurisdiction of this court to review a judgment of a lower court, where the right to prosecute error in this court existed at the time the amendment took effect. Curry v. Homer, 40 Bul., 303, overruled.</p>

<p>Motion to dismiss for want of jurisdiction.</p>

<p>Liability of owner of premises — For illegal sale therein of tntoxicating liquors — Judgment against seller conclusive as to facts, ■when — Section 4364, Revised Statutes.</p> <p>1. In an action under section 4364 of the Revised Statutes, to subject the premises where intoxicating liquors were sold, to the payment of a judgment recovered ag'ainst the seller for damages caused by such sales, that judgment, when not impeached for fraud or collusion, is conclusive as to the facts, (a) that the sales of the liquors which caused the plaintiff’s injury were made by the defendant in the judgment, (b) that the sales were made in violation of law, and (u) that the plaintiff, in consequence of such sales, sustained damages to the amount of the judgment; and they are not open to dispute by the owner of the premises in the action brought against him.</p> <p>2. But, allegations that the premises were leased by the owner to the seller for the purpose of selling intoxicating liquors therein or were permitted by him to be used for that purpose, and that the liquors which caused the plaintiff’s injury were sold on the premises, may be put in issue by the owner ; and when that is done, the burden of proof is on the plaintiff.</p> <p>3. A denial-that the liquors were unlawfully sold on the premises, tenders an issue only as to the illegal character of the sales, and not as to the fact of the sales, and upon the issue so tendered the judgment against the seller is conclusive.</p>

<p>Error to the Circuit Court of Erie county.</p> <p>At the February term, 1898, of the court of common pleas of Erie county, the plaintiff in error was convicted of the crime of concealing stolen property exceeding thirty-five dollars in value, and sentenced to imprisonment in the penitentiary for a term of years. That judgment having been affirmed by the circuit court, a petition in error, on leave granted, was filed in this court. The facts relevant to the questions upon which the case is reported are stated in the opinion.</p>

In the ease of the State ex rel. v. Heffner, the petition alleges that the defendant Heffner, having been elected sheriff of Mercer county for two successive terms of two years each, and having on the first Monday of January, 1899, occupied said office continuously for four years, nevertheless he refused to vacate said office and asserted his right to continue therein until the first Monday of September, 1899, and prayed that he be ousted therefrom.

<p>Illegitimate children deemed legitimate, when — Section 417S', Revised Statutes.</p> <p>1. A child begotten by parents who were at the time not intermarried, and who could not then enter into a legal contract of marriage, may be legitimated under section 4175, Revised Statutes, by the subsequent legal marriage of the parents and the acknowledgment of the child by the father as his child.</p> <p>2. M, an unmarried man, had a child by R, a married woman; R afterwards became divorced from her husband, and thereafter M intermarried with her and acknowledged the child as his child. Held: That the child was thereby legitimated, and upon the death' of M, the child had all the rights of an heir of his body.</p>

<p>Leases of natural gas and oil lands to be recorded — Rights of subsequent purchasers with notice prevail against unrecorded lease, when — Section 4-lllia Revised Statutes — Law of contracts.</p> <p>1. A lease or license to operate upon land for natural gas or petroleum, until filed for record as required by section 4112a, of the Revised Statutes, is without any effect, either at law or in equity, as against a subsequent lessee, or licensee, or other third person acquiring an interest in or lien on the land, although he took with notice of such prior unrecorded lease or license, unless the person claiming thereunder was, at the time, in the actual possession of the land.</p> <p>2. Such a lease or license granted for a specified term of years, and as much longer as oil or gas is produced or found in paying quantities on the land, expires at the end of the specified term, unless within that time oil or gas is obtained from the land in the designated quantities,</p> <p>3. Where it is sought to establish an implied contract from extraneous facts and circumstances and have a reformation of a written instrument in conformity therewith, such relief, if attainable in any case, shou] d only follow clear and convincing proof that the party against whom it is sought had full knowledge of all the material facts from which it is claimed the implied contract arose.</p>

<p>Error to the Circuit Court of Logan county.</p> <p>The plaintiffs action' in the common pleas court was against the city of Bellefontaine and the trustees of its gas works. His petition is as follows: .</p> <p>1. On and for more than ten years next prior to the twelfth day of June, 1892, the defendant, the village of Bellefontaine, which since the commencement of this suit has been advanced to the grade of a city and is now the city of Bellefontaine, was, and it still is the owner of gas works, erected by said, the village of Bellefontaine, under the provisions of section number 2486 of the Revised Statutes of Ohio, which gas works have, during all said time and down to the present date, been managed, conducted and controlled by a board of trustees as provided in sections numbers 2487, 2488 and 2489 of the Revised Statutes of Ohio, and at the date of the commencement of this suit, Sidney Nichols, Joseph P. Hunter, George W. Bartholomew, William Lane and John Gauss were the duly elected and qualified and acting trustees of said gas works.</p> <p>2. On or about the---day of June, 1892, the said gas trustees of Bellefontaine, for the defendant, the village of Bellefontaine, purchased from one Joseph Askins,' who then delivered the same, certain purifying boxes for use in the gas works of Bellefontaine, which were of the value of $1,040.00, one-half of which value and price, to-wit: $520.00 and one-half of the freight charge thereon, to-wit: $7.80, to-wit: a total sum of $527.80, the said defendant, the village of Bellefontaine, by its said gas trustees, then and there agreed to pay to said Askins.</p> <p>3L On or about the second day of June, 1892, the said defendant, the village of Bellefontaine, through, its said gas trustees, by contract in writing, purchased from said Joseph Askins, one condenser, valve, 10-inch pipe and connections, which the said Askins then delivered, and, at the request of said gas trustees, put in place in the gas works of said village, for which the said defendant, the village of Bellefontaine, by and through its said trustees of gas works, then and there agreed to pay said Askins the sum of $1,507.00.</p> <p>4. On said second day of June, 1892, the defendant, the village of Bellefontaine, through and by its agents, the said trustees of gas works, purchased from said Joseph Askins, and employed him to place in position in said gas works of Bellefontaine, the following goods and material, which, with the skill and labor of placing the same in position were of the following values, to-wit: .</p> <p>4 10-ineh valves at $35.00 each.............................$140.00</p> <p>3 10-inch tees at $16.80............................................. 50.40</p> <p>6 10-inch ells at $10.00................................................ 60.00</p> <p>15 10-inch sci'ew flanges at $2.72......................... 40.80</p> <p>204 f bolts at .05 each.................................................. 10.20</p> <p>18 10-inch threads at $1.50........................................ 27.00</p> <p>[Erroneously carried into account hereinafter mentioned as..................................................... 37.00]</p> <p>6 10-inch cuts at $1.25............................................... 7.50</p> <p>The said Joseph Askins then and there delivered all said goods and material and placed the same, and the said defendant, the village of Bellefontaine by its said trustees of gas works then and there agreed to pay him. said sum of $345.90, the aggregate thereof for the same.</p> <p>5. On or about the second day of June, 1892, the said defendant, the village of Bellefontaine, by its said trustees of gas works, employed the said Joseph Askins to, and he then and there did furnish, and set, and adjust a new meter, which wad of the value of $25.00 which the said defendant, the village of Bellefontaine, by its said trustees of gas works, then and there promised and agreed to pay to said Askins.</p> <p>6. On or about the second day of June, 1892, the said defendant, the village of Bellefontaine, by its said trustees of gas works, employed the said Joseph Askins, to furnish the means and materials including a 10-inch outlet, and to furnish the skill and labor, in connecting, the governor with the mains of said gas works, all of which the said Askins then and there did, and the same was of the value of $50.00 and the said defendant, the village of Bellefontaine, by its said trustees of gas works, then and there agreed to pay the same to said Askins.</p> <p>7. On the fifth day of July, 1892, the defendant, the village of Bellefontaine, b3r its said trustees of gas works, purchased from said Joseph Askins, who then delivered to said defendant, the village of Bellefontaine, for use in said gas works, the following materials which were of the values following, to-wit:</p> <p>21 5-12 ft. 10-inch pipe at $4.75, less 65 per cent, $35.61, and 64 1-3 ft. 10-inch pipe at $4.75, less 65 per cent, $106.96.</p> <p>And the said defendant, the village of Bellefontaine, by its said trustees of gas works, then and there promised and agreed to pay said sums for the same to the said Askins.</p> <p>8. On or about the twent3'--third-day of August, 1892, said J oseph Askins rendered an account to said defendant, the village of Bellefontaine, by delivering the same to said trustees of the gas works, of all of the foregoing- items of materials and labor, •which were then and there computed to amount to $2,598.27, but by correction of the extending thereof is in fact $2,588.27. Copy of said account is hereto attached marked “Exhibit A.”</p> <p>9. On the twenty-third day of August, 1892, the said account, above mentioned, copy of which is hereto attached marked “Exhibit A,” was duly rendered to the defendant, the village of Bellefontaine, and to said trustees of gas works, and the same was then and there settled and agreed to and the same then and there became an account stated between said Joseph Askins and the said defendant, the village of Bellefontaine, now said city of Bellefontaine, and it was then and there settled, agreed and determined that the surd of $2,598.27 was then due to said Askins from the defendant, the village of Bellefontaine, and the same then and there and thereby became an account stated.</p> <p>10. Plaintiff as a further cause of action says that about the first of November, 1892, by contract in writing, the defendant, the village of .Bellefontaine, through its said trustees of gas works, employed the said Joseph Askins to furnish for and place in said gas works of Bellefontaine, one gas generator for the sum and price of $500.00 which was then and there done and performed by said Joseph Askins.</p> <p>11. Plaintiff says that all said materials, skill and labor, were so furnished and performed by said Joseph Askins, to and for said defendant, the village of Bellefontaine, under contract with said trustees of gas works, for the use and maintenance of said gas works, and the same have all been had and used by said defendant, the village of Bellefontaine, ever since said dates, respectively, and no part of said aggregate sum of $3,088.27 has ever been paid except as hereinafter stated.</p> <p>13. Before the commencement of this suit, to-wit: On the fifth day of August, 1893, said Joseph Askins, for value received sold, and assigned to plaintiff, in writing, all his said claims hereinabove set out against the defendant, the village of Bellefontaine, now said city of Bellefontaine, and the same is now the property of said plaintiff, except that the same was assigned subject to the payment by plaintiff out of the same</p> <p>To The Buchanan Bridge Company of...............$60.00</p> <p>To George W. Emerson of............................................. 20.00</p> <p>To Howenstine & Huston of....................................100.00</p> <p>And such other and further sum to Howenstine & Huston as would be their reasonable charges and fees for collecting said claim.</p> <p>14. Upon said indebtedness, the said defendant, the village of Bellefontaine, paid to said Joseph Askins upon the items for purifying boxes set out in the second paragraph of this pleading, the sum of...................................................................................................$450.00</p> <p>And further paid upon said whole claim</p> <p>July 1, 1892 [or July 5]...................:...........................$200.00</p> <p>July 22, [or July 5]............................................................. 500.00</p> <p>July 22, 1892............................'.......................................... 24.75</p> <p>Aug. 26, 1892, to Buchanan Bridge Co........... 25.00</p> <p>Oct. 26, 1892, to Haekenger on order.............. 4.00</p> <p>Oct. 26, 1892, to Ear hart on order.................... 6.00</p> <p>Dec. 1, 1892, to Buchanan Bridge Co................ 35.00</p> <p>May 8, 1894, to B. M. Allen....................................... 100.00</p> <p>June 5, 1894, to Hamilton............................................ 86.93</p> <p>Total...........................................................................$1,431.68</p> <p>Said items of $25 and $35 paid to the Buchanan Bridge Co., aggregating $60.00, constitute 'the amount of $60.00 reserved m said assignment, for the benefit of said The Buchanan Bridge Co.</p> <p>The gross amount of said claim of plaintiff against the defendant, the village of Bellefontaine, now the city of Bellefontaine, is $3,088.27 upon which has been paid said aggregate sum of $1,431.68 and no other or further payment has been made thereon, and there is due and remaining unpaid to this plaintiff, which he claims from the defendant, the village of Bellefontaine, now the city of Bellefontaine, the sum of sixteen hundred and fifty-six and 59-100 [$1,656.59] dollars, which plaintiff claims with interest on $1,156.59 thereof, from August 23, 1892, and on $500.00 thereof, from November 1, 1892, and for the same he asks judgment against said defendant, the village of Bellefontaine, now said city of Bellefontaine.</p> <p>A motion by the city to strike from the petition the averment numbered nine was sustained. Thereafter a general demurrer was interposed by the city and sustained by the court and the petition was dismissed. To the rulings on the motion and the demurrer plaintiff excepted. The circuit court affirmed the judgment of the court of common pleas. The reversal of both judgments is sought here for alleged errors in sustaining the motion and the demurrer.</p>

<p>Error to the Circuit Court of Miami county.</p> <p>This action was brought by the defendant in •error, John L. Prugh, as treasurer of Miami county, to recover of the plaintiff in error, John A. McCurdy, as guardian of a minor, certain taxes and penalties claimed to be due on account of the guardian having listed at too low a valuation certain promissory notes and other evidence of credit due him as such guardian.</p> <p>The treasurer recovered a judgment in the court ■of common pleas, which was affirmed by the circuit •court; whereupon the cause was brought to this court, by the guardian, to procure a reversal of those judgments.</p> <p>The facts will be stated in the opinion.</p>

<p>Action against receivers of railroad, company — For killing stock —Allegation o/ negligence — Erroneous admission of evidence.</p> <p>Where in an action against receivers of the property of a railroad company to recover for the killing of stock, the only allegation of negligence in the petition is that the defendants had neglected to maintain a fence sufficient to turn stock, it is error to admit evidence that the stock got upon the track through a gate at a farm crossing carelessly left open, there being no claim that the gate itself was out of repair. And in such case, it is also error to overrule a motion to arrest the evidence from the jury, interposed at the conclusion of the plaintiff’s testimony, where there is no evidence bearing upon the negligence of the defendants except that so erroneously admitted.</p>

This case involves the right of Levy & Company to participate in the distribution of the proceeds of chattels sold by the sheriff of Jefferson county as the property of Joseph B. Aknovitch being all the property which he possessed.

In the year 1886 the city of Findlay, by proper action of its council, determined to establish and erect a natural gas plant for the purpose of supplying the city and the citizens thereof with natural gas for public and private use and consumption, and such a gas .plant was properly established and a board of gas trustees appointed and afterward elected as authorized by law; and wells for natural gas were drilled, pipes laid and natural gas furnished an'd supplied to the…

<p>Indictment for embezzlement of moneys — By agent of foreign corporation — No defense that corporation failed to comply with sections 148c and 148d, Revised Statutes.</p> <p>On the trial of an indictment for the embezzlement of moneys coming into the possession of the defendant as the agent of a foreign corporation it is not a defense that the corporation had failed to file with the secretary of state the statement required by sections 148c and 148d of the Revised Statutes.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>Stoner sued Bahmann before a justice of the peace for rent, $37.50, and for damages to premises, $100, in all $137.50, and recovered a judgment therefor, and for costs. On appeal to the common pleas, Bahmann pleaded and proved that, before action brought, he tendered Stoner the amount due under the lease, $38.85, which was refused. He also set up a counterclaim on which he asked judgment for $50. A verdict was rendered in favor of plaintiff for the exact amount of the tender, >$38.85. It then being shown that the amount of $38.85 had been paid in by defendant to the clerk of the court before trial, it was considered that the plaintiff pay all the costs of the action, and that the clerk apply the amount deposited to the payment of the costs. And it appearing that the costs exceeded the amount of the tender by $6.79, judgment was rendered in favor of defendant against plaintiff for that amount. On error the circuit' court reversed this judgment and rendered final judgment against Bahmann for the amount of the verdict, interest and costs.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>Mary Kilbane, defendant in error, filed her petition in the court of common pleas of Cuyahoga county against Patrick Heeney, plaintiff in error, as follows:</p> <p>“On or about the twenty-fifth day of December, 1893, at the city of Cleveland in said county, in a certain discourse which said defendant then and there had of and concerning said plaintiff, and in the presence and hearing of divers good people as well as in the presence of the plaintiff, the defendant falsely, unlawfully, wickedly and maliciously spoke and published of and concerning said plaintiff, the false, scandalous and malicious words following, viz.:</p> <p>“You,” meaning said plaintiff, “are the Swede’s whore.” Meaning thereby, that said plaintiff was and had been a whore for a certain Swede, referred to. “I, myself, pulled him off from you.” Meaning thereby, that he, said defendant, had himself detected and interrupted her in her adultery.</p> <p>In said conversation the defendant repeated the slanderous words aforesaid many times, to the end that they might be clearly understood, remembered and believed by the large assemblage of persons then and there assembled. And they were spoken, as aforesaid, at the time and place above given, without any provocation on the part of said plaintiff; said defendant there and then well knowing that his declarations aforesaid were false and untrue; but they were spoken with the design and purpose of injuring plaintiff in her good name and reputation, and of vexing and scandalizing her,and of blasting* her character, and that she has been damaged thereby, in the sum of ten thousand dollars, for which sum she asks a judgment against defendant.”</p> <p>The answer was a general denial.</p> <p>Mary Kilbane is a relative of the wife of plaintiff in error and he assisted her in reaching Cleveland from Ireland. She resided in his family until she became the wife of Michael Kilbane, and after the marriage there were frequent and violent quarrels between Mary and her husband, and the plaintiff in error. At the date mentioned in the petition plaintiff in error, after a fierce quarrel with Mary and her husband, ejected them from his saloon, and thereupon she threw stones at him and at his saloon, and he threw stones at her, and during this violent quarrel which drew together a large concourse of people of that neighborhood, the words charged in the petition are alleged to have been spoken by him of and concerning her, in a loud, angry and boisterous manner, in the presence of the people so assembled, as well as in the presence of the plaintiff below. The police appeared upon the scene and arrested him as well as her, and upon a hearing both were discharged. It was claimed by her counsel upon the trial that she caused his arrest a few days therafter before J. C. Poe, a justice of the peace, for verbal slander, upon an affidavit sworn out by her, and that he plead guilty to the charge, and the intimation is that the verbal slander charged in the affidavit is the same as the words alleged to have been spoken as averred in the petition.</p> <p>The jury returned a verdict in her favor for $1,200. A motion for a new trial was overruled and judgment entered on the verdict, to all of which he, by his counsel, excepted. The circuit court affirmed the judgment, and thereupon he filed his petition in error in this court, seeking to reverse the judgments below:</p>

<p>Tax laid on liquor business — Manufacturer carrying on btisiness of selling elsewhere than at the factory — Selling and delivering to customers is subject to tax, when — Section 4864-9 Revised Statutes.</p> <p>3. A manufacturer of intoxicating liquors who carries on the business of selling them elsewhere than at the manufactory, is engaged in the traffic within the purview of section 4364-9, of the Revised Statutes, and subject to the tax thereby imposed.</p> <p>2. It is not essential to a valid imposition of the tax that the traffic be carried on in a building or structure, or fixed place of business. Selling and delivering the liquors to customers from a vehicle provided for that purpose is a method of carrying on the business that is subject to the tax, unless it is done in connection with, and as part of a traffic in which the proprietor is engaged on which he has paid the tax.</p> <p>3. When the traffic is so carried on by the sale and delivery from wagons as a separate and independent business, and the liquors are supplied from a store house where they are kept on hand for sale in that manner, in charge of a local agent, the store house may properly be regarded as the seller’s place of business. Hanson v. Luce, and Monaghan v. Luce, 50 Ohio St., 440, distinguished.</p>

<p>Beneficial corporation — May not issue benefit certificates to one not dependent on member, when — Petition to recover on certificate, must show plaintiff dependent on deceased member — Lost certificate — New certificate issued with different payees, invalid when.</p> <p>1. A beneficial corporation, whose charter provides that its particular business shall be to afford material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a benefit fund, from which, on the death of a member, a sum not exceeding $5,000 shall be paid to the'family or dependents of such member, is not authorized to issue a benefit certificate providing for payment to one not dependent upon such deceased member.</p> <p>2. A petition in an action against such a corporation, brought to recover upon a benefit certificate, in which the plaintiff is described simply as a brother of the deceased member, and containing no allegation showing that such brother was, in any way, dependent upon the deceased member, is bad on demurrer, and will not support a judgment.</p> <p>3. Where such a corporation has issued a benefit certificate to a member payable upon his decease to his wife, and afterward, acting upon a mistaken belief induced by the representation of the member, that such certificate has been lost, issues and delivers to the member a second certificate for a like amount, payable two-thirds to the wife and one-third to a person who is a brother of the member but not a dependent, such second certificate will be held invalid and the first be given full force and effect.</p>

The plaintiffs in error were tenants from month to month of one William Volrath, occupying several storerooms on Fourth street in the city of Columbus. Mrs. Volrath brought her separate actions against them for rent for the months of March, April and May, 1894, alleging that William Volrath had assigned to her his claim for the rents for said months.

This action was in mandamus, brought in the circuit court of Licking county by the defendant in error, who is a member of the board of elections of the city of Newark, to compel the plaintiff in error as clerk of said city to issue to him a warrant, or order, on the treasurer of the city for his salary as a member of such board of elections, at the rate of $200 per annum, and to require E. T. Rugg, as such treasurer, to pay the order or warrant when issued.

Error, to the .Circuit Court of Crawford county. Henry Stevenson commenced his action November 29, 1895, against Albert Kirk before a justice of the peace of Crawford county, to recover for money claimed to have been paid by'him as- surety for Kirk, and filed an affidavit for attachment in which it was stated that the property about to be attached is not personal earnings of defendant fob services rendered within three months, and is not exempt from execution, and that…

On motion to dismiss petition in error. On the twenty-eighth of July, 1896, the defendants in error filed their petition in the court of common pleas (the cause having come into that court by appeal) against the plaintiffs in error to recover a sum less than $360 on a promissory note.

Mathews and numerous other plaintiffs brought suit in .the court of common pleas, against MrKrisher and numerous other defendants, the material parts of their petition being as follows: Plaintiffs allege for their cause of action herein* That Smiley Mathews, a resident of Hardin county, state of Ohio, died testate on or about the eighteenth day of February, A. D. 1868; that he died seized in fee simple of the following described real estate, situated in Cessna township,…

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

<p>Right of trial by jury — Subject-matter of general legislation — Act of May 29,1894, known as Cuyahoga county jury law, invalid— Constitutional law.</p> <p>1. The right of trial by jury is a subject-matter of general legislation, and laws affecting it must be uniform in operation throughout the state. Section 26, Art. 2, Const.</p> <p>2. A statute,- by the provisions of which the parties to a suit in which the issues are of right triable by jury are “deemed” to have waived the right, unless a certain time before the term at which the issues are, by the laws of the state, required to be made up, a demand is made for a jury, attended with a “deposit” of a certain sum of money for the benefit of the jury . fund, affects the right of trial by jury, and must be uniform in its operation. The Cuyahog'a County Jury Law adopted May 29, 1894, (91 Laws, 793), is, in substance, such a law; and being limited in its operation to Cuyahoga county, is invalid.</p>

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

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

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