Volume 6 — Ohio Circuit Court Reports

<p>1. In an action brought upon a policy of insurance issued by a Mutual Fire Insurance Company, to recover for the loss of mill property and machinery destroyed by fire, a witness who was well acquainted with the property, and knew its cost, although not an expert, was properly permitted to testify as to its value.</p> <p>2. In such action, where the answer alleges, and the reply denies, that certain assessments were regularly made upon the premium notes of the plaintiff, and payment thereof demanded and refused, it is not necessary for the plaintiff, in his evidence in chief, to disprove such allegations, although he has, in his petition, averred full performance on his part, of the terms of the contract.</p> <p>8. On the trial of such an issue it is not competent for the company to make parol proof of the alleged assessment unless the proper foundation is laid for introducing secondary evidence. The records of the company, or a duly examined and proven copy thereof, showing the action of the proper authorities in making the assessments, should be produced, or the absence thereof properly accounted for.</p> <p>4. The by-laws of the defendant company, which were made part of the policy of insurance, declared that an over-valuation of the property insured should avoid the policy. The lands upon which the buildings and machinery insured were situate, appeared, by the testimony, to have been over-valued. The answer did not aver that the lands were over-valued, nor did the testimony show an over-valuation of the property insured, namely, the buildings and machinery; nor yras any bad faith shown. Held: That these facts furnished no defense to the action.</p> <p>5. Where the agent of an insurance company, in taking an application for insurance against loss by fire, himself writes out the answers of the ap - plicant to interrogatories propounded in behalf of the company, he acts, in that regard, as the agent of the company; and if any mistake occurs in writing out such answers, without fault on the part of the 'ZZL assured, the latter is not prejudiced thereby.</p>

<p>1. A municipal ordinance, providing for the condemnation of private property for street purposes, is an ordinance for the expenditure of money within the meaning of section 2702 of the Revised Statutes, and it is essential to the validity of such ordinance that the city auditor duly make and file the certificate required by said section.</p> <p>2. It is not competent for a city council, in an ordinance directing the appropriation of lands for the extension of a public street, to require that the costs of the appropriation proceeding, including the compensation that may be awarded to the owners, shall be assessed upon the abutting property of such owners. Such action on the part of the council is forbidden by section 19, article 1, and section 5, article 13 of the constitution of this state, and by the fourteenth amendment to the constitution of the United States.</p>

<p>1. In a proceeding in aid of execution under section 5464, Eev. Stat., the-action mtisL be founded upon a judgment.</p> <p>2. Such an action cannot be maintained upon a judgment which had become dormant at the time of the commencement thereof.</p>

<p>1. The clerk of the court of common pleas must, under the statute, enter on the journal all orders and acts of the judge of the court during the term. All changes should be subsequently entered by the clerk without omission of any former entry.</p> <p>% Mandamus will lie to compel the clerk of the court of common pleas to enter upon the journal of the court the fact that the court has fixed the amount of the appeal bond to be given by the party desiring an appeal at a certain amount, when bond in such amount has been given by suck would-be appellant, although the fixing of such amount has not been journalized by the clerk, and the amount fixed for appeal has been subsequently increased by the judge who fixed the same and before it was journalized.</p> <p>3. In an appealable case, after notice of appeal and bond has been given, the case is eo instamti in the circuit court, although the clerk has journalized neither the decrée nor the notice of appeal; and the rule that a judgment in a case is within the control of the court during the term at which it is rendered, and that the case does not .go beyond the power ' of the court until the close of the term, has no application to such-case.</p>

<p>Error to the Court of Common Pleas of Mahoning County.</p>

<p>H. & Co. made an assignment to S. of all the real and personal estate of such partnership, for the benefit of creditors. The personal property so assigned was covered by chattel mortgages to an amount greater than the same was sold for by the assignee. Two separate parcels of land were also assigned. On one of these was a mortgage to one building association, and on the other was a mortgage to a different association. These tracts were appraised under the order of the probate court, and it appeared that if sold at the appraisement, the proceeds of the sale of each parcel would be more than sufficient to pay the mortgage thereon, the costs of the proceeding to sell the same, and would leave something for the general creditors. Thereupon a proceeding for the sale of such real estate was commenced by the assignee — his assignors and their wives and such lienholders being made parties defendant. The lien-holders by their several attorneys set up their liens, which were not contested, and were by the court found to be valid, and such lauds ordered to be sold separately. At the sale each parcel was purchased by the association, having the lien thereon, at two-thirds of the appraised value thereof, which sum was not in either case sufficient to pay the mortgage on such tract.</p> <p>Held: 1. That in settling the rights of the parties, and making distribution of the proceeds of such sales,, no part thereof should be applied to the payment of the general costs of the assignment. These were payable from the personal estate in the hands of the assignee, while the costs of the proceeding for the sale of such real estate were payable' from the proceeds of such sales.</p> <p>2. The assignee was not entitled to any poundage or commissions on that part of the purchase-money for the tracts sold to such associations, which was not actually “ collected and accounted for by him,” but which, under the ■ order of the court, was retained by them respectively, and applied in part payment of their respective claims. And the assignee having presented no claim for extraordinary services rendered, and for expenseaincurred as to these tracts of real estate, or either of them, other than: for the fees of his counsel in the conduct of the proceedings for the sale thereof, no allowance in this case should have been made therefor.</p> <p>3. But it appearing that the proceeding was commenced by the assignee in-good faith, and that it was apparently necessary to the proper discharge of his duty, and that the same in some degree operated to the benefit of lienholders, who otherwise would have been compelled to file several; petitions for the foreclosure of their mortgages, resulting in greater costs, which would have to be paid from the proceeds of such sales, in such case, under the provisions of sec. 6357, Bev. Stat., such assigneemay be allowed for the fees of his counsel such sum as under all the circumstances of the case may seem to the court just and reasonable.</p>

<p>Error to the Court of Common Pleas of Muskingum County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>The firm of H., H. & Co. made an assignment to L. for the benefit of its creditors. At the time of the assignment, Harris, a member of the partnership, was the owner by purchase and indorsement ¡from the person ■to whom they had been executed and delivered, of four negotiable promissory notes of such firm, not then due, and before the maturity therof they were, on a valuable consideration, assigned by him to The Union National Bank, as security for a judgment owned by it at the ■time, against another firm of which Harris was also a member. After the assignment of H., H. & Co. to L., the bank presented to such assignee, for allowance against the estate of H., H. & Co., a claim on the judgment so secured by such notes, and the same having been rejected by the assignee, suit was brought to compel him to allow the same. By an amendment of the petition, the notes themselves were set out, and the several amounts due thereon averred in separate causes of action, and in a fifth cause oE action it sought the allowance of the judgment to secure which the notes had been assigned, as a claim against the estate. On the hearing of such case, the court by its decree found that the assignment of H., II. & Co., was of said firm only, and not of the individual members thereof, and that the claim, the allowance of which was sought, was a judgment against one of the individual members of said firm oí H., II. & Co., and not against the firm, and that it ought not to be allowed by the assignee, and the petition was dismissed.</p> <p>The present suit was then brought by J. to whom the bank had assigned such notes, to require L. to allow them as a valid claim against the estate ; and L. pleaded the former adjudication in bar of this proceeding. Held:</p> <p>1. That the former judgment is not a bar to the prosecution of this suit. That was to compel the allowance by the assignee of a claim on 3 judgment to which his assignors, the firm of H-, H. & Co. was not party, and for which the firm was in no way bound. This suit is for the allowance by such assignee of a claim on four notes made by such firm, and on which it was liable.</p> <p>2. The claim on such notes should be allowed by the assignee, even if it be conceded that the present holder stands -in the shoes of Harris, a member of such firm, who assigned the notes to the bank, and if he were still the owner of them, might not be entitled to receive a dividend thereon until all of the other creditors of such firm had been fully paid. The mere allowance of a claim by the assignee does not settle the question as to the order in which the debts of the partnership are-to be paid. This is to be determined in the first instance by the court having the distribution of the assets of such partnership, in accordance with the rights of the parties under settled principles of law and equity.</p> <p>3. These notes having been transferred by Harris to the Bank before their maturity, and for a valuable consideration, the question whether the holder thereof is not entitled, for this reason, to stand on an equality with the other unsecured creditors of the firm, is not now before the ■ court, and is not decided.</p>

Pleas of Hancock County. In a case in the court of common pleas of this county, in which Elijah P. Jones was plaintiff, and the plaintiff in error and the defendant in error and others were defendants, the defendant in error, on its cross-petition, recovered a decree against the plaintiff in error upon a mortgage. The property of plaintiff in error was three times appraised and twice offered for sale under each appraisement, but was not sold for want of bidders.

<p>Appeal from the Court of Common Pleas of Lucas County.</p>

David L. Nike, John A. Shauck, Bennett F. Witt, David W. Crider, C. I. B. Brane, Samuel Mills, George F. Deal,. Held: ,at Fostoria, Ohio, in May,*1885, in pursuance of the action- and report of a certain standing committee, known as Committee No. 6, it was determined by a majority vote of said Conference that the General Conference had the right “ to institute measures looking to the amendment, modification, or change of the constitution at any time…

<p>Error to the Court of Common Pleas of Yan Wert County.</p>

<p>Error to the Court of Common Pleas of Cuyahoga County.</p>

. The plaintiffs bring their action against the heirs at law of' David Taylor and others, demanding partition of certain real estate, situate in Franklin county, consisting of certain vacated streets and alleys in a certain addition to the city of Columbus hereinafter mentioned, and to which plaintiffs claim title by reversion as heirs at law of Amos Ramsey, the original proprietor, deceased.

The plaintiffs, thirty-six in number, in their petition and the amendments thereto, allege, in substance, that they are members in good standing of Goodale Lodge, Noi 372, Free and Accepted Masons ; that said lodge is a charitable, benevolent, beneficial and social organization; that they have each paid large sums as admission and other fees and dues; that their membership is valuable to- each of them; that the defendant, Gilbert, is the Worshipful Master of said lodge; that…

The cause of action upon which the original suit was founded was the alleged breach of the official bond of the plaintiff in error, Monahan, as constable of Montgomery township, Franklin county. .

Fraas filed his petition in the court below against the plaintiff in error to recover money loaned. Her answer was a general denial. Upon the trial of the case the plaintiff introduced evidence tending to show that before the 5th of August, 1887, C. Behlen, the defendant’s husband, applied to him for a loan of money, and that he denied the application.

<p>Error to the Court of Common Pleas of Cuyahoga County..</p>

<p>Error to the Court of Common Pleas of Lucas County,</p>

This case was brought before this court on application for an order suspending an order dissolving a temporary injunction granted by the judge of the court of common pleas of this county.

<p>Charles McMicken, by will, dated 1855, devised certain property to the city of Cincinnati and its successors, for the purpose of founding an institution, where white boys and girls might be taught, not only a knowledge of their duties to their creator and their fellow men, but also to receive the benefit of a sound, thorough and practical English education, and such as might fit them for the active duties of life, as well as instruction in the higher branches of knowledge (except denominational theology) to the extent that now or may hereafter be taught in any of the secular colleges or universities of the highest grade in the country.” He provided also “ that the college buildings * ® shall be erected ” on the premises on which he then resided in ' the city of Cincinnati, and purchased by him of the executor of Lu-man Watson, deceased, the building for the boys on the north, and ' that for the girls on the south of a certain road in said grounds; “ and should additional grounds be required for the buildings connected with the college for the girls, I would refer to lot No. 32, in Jacob Maderia’s subdivision adjoining on the west.”</p> <p>Meld: 1. That the desire and intention of the testator was to found a college of the highest character, but not to restrict the location of the building perpetually to one spot. That if the site selected by the testator was at that time a proper one, but should for any reason thereafter become unsuitable, the trustees under the will would be authorized to erect buildings and conduct the instiution on other suitable grounds.</p> <p>2. Such a devise is not a private one, but in its nature a gift to a general public use; the city was capable of taking under the will as devisee, and a court of equity will enforce its provisions, or so mould them to suit changed circumstances, as will best carry out the real intentions of the testator and make the devises most conducive to the welfare of the beneficiaries.</p> <p>3. Should the trustees remove the university to another and more suitable site, they would be authorized under the will, to lease the present site and treat it generally as the other real estate devised for the purpose of the university; and this, without forfeiting any part of said estate, or causing it to revert to the heirs of Charles McMicken.</p> <p>4. The city of Cincinnati has the authority under the act of April 16, 1870, 67 Ohio Laws, page 86, to set apart and appropriate for said university, any public ground of the city, not specially appropriated, or dedicated by ordinance for any other purpose, notwithstanding said property was paid for by a tax levied on the general duplicate of all the property of the city, nor would this power be limited by the fact that the testator had provided that “ the Holy Bible, King J ames’ version, should be used as a book of instruction in the university.” ,</p> <p>5. This' action is instituted under section 6202 of the Revised Statutes to obtain the opinion and direction of the court as to whether the university can be removed to another site ; upon such an application any question as to whether the trustees have committed acts, or omitted to perform any duty which is alleged as a ground of forfeiture of the estate to the heirs of Charles McMicken, constitutes no defense and cannot be inquired into. The property has been devised for public charitable purposes, and a court of equity will see that the trustees perform their duty under the will, or remove them and appoint others who will, and in no event can the heirs of McMicken assert any title or ownership inconsistent with the use to which the property has heen devised.</p>

The administrator of the estate of Thomas Fuhrman filed his petition in the probate court to sell real estate to pay debts. Mary A. Fuhrman, the widow of the decedent, filed an answer claiming dower, waiving the assignment thereof by metes and bounds, and praying that she may have the same in money out of the proceeds of the sale. The property was ordered sold and was sold for $3,700.

<p>When money is paid to the Secretary of State by natural persons upon the filing of certificates of incorporation, or by railroad corporations upon the filing of agreements of consolidation, such payment i& voluntary, though made under protest.</p>

<p>The circuit court reversed the judgment in this case at the costs of the defendant in error, and remanded it to the court of common pleas to be proceeded in according to law, and for execution for costs. The clerk entered the judgment of reversal and the order remanding the cause for execution upon'the journal, but failed to enter the order remanding it for further proceedings. No mandate was ordered, or issued, or sent. New pleadings were filed in the common pleas, and judgment recovered by the defendant in error, to reverse which, a petition in error has been filed in the circuit court.</p> <p>Quere: Is riot the cause’still pending in the circuit court upon the original petition in error ?</p> <p>2. "Were the proceedings in the court of common pleas, after the reversal by the circuit court, without jurisdiction?</p> <p>3. Can the circuit court, by an entry upon its journal, nunc pro tune, cure the defect in the original entry ?</p> <p>4: Can a mandate issue upon a corrected journal entry as of the proper date?</p> <p>5. Can the court of common pleas order such mandate to be recorded on its journal as required by sec. 5239 Revised Statutes as of a date prior to the proceedings in that court anti subsequent to the reversal ?</p> <p>6. If the foregoing corrections can be made and omissions supplied, are they necessary, or will it be presumed that that was done which should have been done ?</p> <p>In order to make a bill of exceptions a part of the record, the journal must show that it was allowed, as well as signed. '</p>

-Habeas Corpus. The petitioner alleges that he is unlawfully restrained of his liberty by the Board of Managers and the Warden of the Ohio Penitentiary under a sentence of the Court of Common Pleas of Montgomery Count)-, for three offenses of burglary and larceny, the first committed November 21, 1877, the second September 30, 1881 and the third May 30, 1889, the sentence being that he should be imprisoned in the penitentiary for the term of two years, and at the expiration…

<p>1. In an error case pending in the circuit court, a motion to strike £rom the files thereof a bill of exceptions, which the transcript of the journal entries made in the court of common pleas shows was duly and regularly signed and allowed by such court, should not he granted on the grounds, 1st, that as alleged, it does not truly state what occurred at the trial, and was improperly obtained; or 2nd, that it was signed by the trial judge by mistake, he not knowing what it contained when he signed it; or 3rd, that the attorneys for the plaintiff in error improperly withdrew it from the files after it was signed, so that it could not be amended by the judge at the term at which it was signed, or 4th, that it was not presented to the attorney of the defendant in error as. the statute requires. These are questions which in the first instance must be determined by the trial court, and while the record of such court shows an allowance of that bill, this is conclusive while such record stands.</p> <p>2. The provisions of secs. 5298, 5301 and 5302 Bev. 'Stat., as amended: April 25, 1890, (Ohio L. vol. 87 p. 206) seem to be mandatory in their character, and to require that h bill of exceptions not taken during the progress of the trial, shall be submitted, by the party excepting, to opposing counsel for examination, not less than ten days before the expiration of forty days from the end of the term at which the verdict was rendered, or the decision, (including the overruling of a motion for a new trial), was made, and to the trial judge, for his signature, not less than five days before the expiration of said forty days. "Whether, if not so presented to opposing counsel as the statute provides, or a reasonable effort be not made to comply with this requirement, the court should refuse to sign the bill, or if signed and allowed without it having been done or waived in some way, the opposing party is entitled, on proper application to the court which so allowed it, to have the entry of the allowance striken out, is not presented in this case, and is not decided — though it is probable that if such state of fact were shown, and it appeared that the person objecting was without fault or laches on liis part, the court would be jusstified in granting the application.</p> <p>3. In view of these new provisions and requirement of the statute, it would seem to be good practice for the court allowing such bill, to have the journal entry show that they had been complied with, or waived, or that for sufficient reason it could not be done. .</p>

<p>Appeal from the Court of Common Pleas of Franklin, County.</p>

'Hatch sued the Railroad Company as a common carrier to recover the value of goods shipped to him from Sandusky to Findlay, which the company failed to deliver. The company admits it carried the goods ; that they arrived •at its station at Findlay, and that they were not delivered to Hatch.

<p>Appeal from the Court of Common Pleas of Lucas County.</p>

The plaintiff in error was plaintiff below. Pie sues the city to recover damages for a personal injury.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. The arbitration clause contained in the lease of the Cincinnati Southern Bailway made by the Trustees, of the Cincinnati Southern Bail way and the Trustees of the Sinking Fund to the Cincinnati, New Orleans '& Texas Pacific Bailway Company, under and by which it is provided “ that all questions of difference arising between the parties hereto in relation to the construction of this agreement, or otherwise, in reference to the right of the parties under this lease, shall, upon the written demand of either party, stating in such demand the question or questions claimed to be in dispute, be submitted to the arbitration of five disinterested arbitrators,” etc., is valid and binding, not only upon the parties thereto, but upon the City of Cincinnati, the real owner of the demised property. Such provision being one that is incorporated into nearly all leases of railroads, and this lease in all of its terms having been duly approved by the agents of such city, specially authorized, and which as a whole has been acted upon by the City for nearly ten years.</p> <p>2. The powers and duties of the Trustees of the Cincinnati Southern Bail-way did not cease with the making of said lease. There is no express statement in any of the different statutes passed by the legislature of this state upon this subject-matter, that the trust conferred upon said trustees by such laws should cease and determine upon the sale or lease of the road, or at any other fixed or uncertain time. Such trustees do not stand in the same position in respect to the continuance of such trust as did the commissioners appointed under certain statutes to erect a court-house and an armory for the county of Hamilton; the acts under which such commissioners were appointed, provided clearly and expressly for a termination of their trust upon the completion of said structures. Aside from this, a railroad several hundred miles in length, and which under some arrangement may probably remain the property of the city for all time to come, stands on a very different footing in many respects from the mere erection of a courthouse or an armory.</p> <p>By the statutes of the three states of Ohio, Kentucky, and Tennessee, in each of which this railway is situate, the right is conferred upon the Board of Trustees to exercise the right of eminent domain therein, and to acquire or appropriate any land “ or any rights or franchises ” necessary for any purpose. It is altogether improbable and perhaps impossible that all “ lands, rights, and franchises ” which in the progress of events will be found to be necessary for the reasonable use and maintenance of a great railroad, can or would be acquired at the time when cars were first able to pass over the whole road. Constant and continued acquisition of lands for side-tracks, switches, depots, work-shops, warehouses, the re-location of the tracks, and for many other-purposes, must be had, and as this apparently is to be done in the name and by the authority of the Board of Trustees of the railway, and no provision is made in the statute that it should be done by any other person or body, it is not lightly to be pre- ■ sumed or found by the court, searching for the intent of the legislature as to the tenure of offiee of such board, that it was the purpose to prevent any such future acquisition from the moment the railway was sold or leased.</p> <p>The intention of our general assembly is not left to mere inference, however, in this matter. Since the lease of this railroad in 1881, several statutes have been enacted, which, in our judgment, clearly recognize the fact that the said trustees are not funeti officio. From those enactments, it seems manifest that the legislature, which has the right to continue the powers of these trustees and to confer new and other duties upon them, has recognized and affirmed the continued existence of .the board after the execution of the lease, and that it still had duties to discharge with reference to this railway, and has imposed new duties upon them.</p> <p>3. The claim of the lessee company arising out of the alleged breach by the Trustees and the City of the provisions of the lease for the expenditure of certain money in the purchase of terminal facilities for the railway so leased, and upon which said company has demanded an arbitration, is fairly covered by the arbitration clause in the lease, but the other demand made by said lessee company for a submission to arbitration of its claim for damages sustained, losses incurred, and expenditures made by it by reason of the false and fraudulent representations made, as it is claimed, by the Trustees and by the City before the lease was executed, as to the condition of said railway,- does not raise a question in regard “ to the construction of this agreement, or otherwise, in reference to the rights of the parties under the lease,” which question only the parties have agreed to arbitrate, and the arbitrators, even if the facts necessary for recovery in an action at law or in equity were fully shown, could not, under the provision of said arbitration clause, render an ajyard in favor of the lessees for any damages therefor.</p> <p>One of the questions to be submitted to arbitration being proper, the fact that the demand also seeks arbitration as to one which does not come within the contract of submission does not afford good ground for a court of equity, in an action brought for that purpose, to. enjoin any arbitration under such demand. Nor should the court interfere by like proceedings to restrain the arbitration of such improper question. Should the arbitrators proceed to adjudicate matters not covered by the agreement of submission, an award on the merits thereof would be void, and, on petition therefor, would be so declared, and set aside by the court.</p>

<p>1. Section 1804, Bevised Statutes of Ohio, is not unconstitutional, because it authorized a ministerial officer to issue or not issue a warrant as he may or may not think a crime is charged in an affidavit filed before him.</p> <p>2. The ordinance of the city of Cleveland construed as to mode of selecting and impaneling juries.</p> <p>3. The acts of an officer defacto, when questioned collaterally, are as binding as those as an officer de jure.</p> <p>4. Every issue questioning the authority or rights of an officer is collateral, unless the officer himself is in some way a party to the action. As a general rule the only way to try such an issue is in an action of quo warranto.</p> <p>15. In this case it was sought to question the constitutionality of the' appointment of C. W. Coates, Esq., as acting police judge of the police court of the city of Cleveland, being appointed as such by the mayor of the city. The right of the acting judge to sit in the case, and his want of jurisdiction as a judge, and other similar issues, were raised by the accused at the time of his trial, and these issues were decided by the acting judge. These were all collateral issues as to the officer, which could not be raised and tried in that way. The case then is the •same as Ex parte Strang, 21 Ohio St. 610.</p>

<p>Error to the Court of Common Pleas of Hancock County.</p>

<p>Error to the Court of Common Pleas of Williams County.</p>

<p>1. While sec. 3835 Bev. Stat., as amended April 15, 1880, gives to borrowing members of a building association, the right io dividends on the total amount of dues paid by them prior to the declaration of such dividends, as well as to the rebate of interest therein provided for, yet where under the constitution, by-laws and regulations of such an association, adopted prior to the passage of such amendatory section, it was the plan of such association, in addition to such rebate of interest, to allow dividends to borrowing members, only on dues paid by them during the fiscal year for which the dividend was declared, and to allow dividends to non-borrowing members on all dues paid by them prior to declaring such dividend; and if at the time a person became a member of the association, and when he became a borrowing member, he was fully advised 06 the manner in which dividends were declared, and with full knowledge thereof continuously for eight or nine years continued to receive dividends so declared, and without complaint allowed such association to deal with all of its members on the same plan, and to pay or credit to non-borrowing members, many of whom are not now members thereof, such dividends, such person is now estopped from claiming that such method was contrary to the statute in force, and that he was entitled to dividends on all dues paid by him, which would require a recasting of all the accounts of all the members during such time, and which would result in great loss to such association.</p> <p>2. It seems that since the amendment to this section, passed May 8, 1886, the manner of declaring dividends adopted by the defendant company, herein mentioned, is not in conflict with the provisions of such section as so amended.</p>

<p>In the trial of an action to contest a will on the .ground that it was not, in fact, executed and attested as required by law, it is error to charge that the jury must be satisfied, by a fair preponderance of all the evidence, that the paper writing is not the last will of the decedent, or they must find that it is.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Motion to dismiss appeal.</p>

<p>he “ discipline ” of the Evangelical Association provides “ that the time and place of the general conference shall be appointed by the bishops with the consent of the majority of the conference; and if no hishop be present, the general conference shall do it by a majority of votes, or the oldest' annual conference, who then shall give the other annual conference due notice of time and place.” Held, that said provision conferred no special right upon the oldest conference, but simply provided a convenient mode in which time and place might be fixed if bishops or general conference failed to do so.</p> <p>he general conference of 1887 fixed time, and by unanimous vote of bishops and conference left matter of appointing a place for 1891 conference to the board of publication, who, in October, 1890, designated Indianapolis as the place. Held: that there was nothing in the nature of duty to be performed which would prevent bishops and general conference from intrusting it to the board of publication.</p> <p>The construction placed upon the provision of the church discipline by the highest body of the church, will be entitled to great respect by the civil courts. Held, that the conference held at Indianapolis was the true general conference of the Evangelical Association, and that the bishops and officers by it elected are the legally elected members of the board of publication.</p>

<p>Ii was not the intention of the legislature to apply the provision of section 2502 of the Revised Statutes, in respect to publication of notice and competition in rates, to a renewal of the grant of a franchise to a street railway company to occupy the streets ; nor is the consent of the property owners a condition precedent to the Validity of such grant.</p> <p>Whenever in the opinion of the city council, the public welfare would be promoted thereby, it may, by agreement with a street railway company, terminate a grant previous to its expiration, and renew the franchise for any period not in excess of the limitation fixed by statute.</p>

<p>On appeal from the Court of Common Pleas of Hancock County.</p>

<p>1. The question whether a prosecutor will he required to elect between”difdiffent counts of an indictment is ordinarily one addressed to thejdiscretion of the trial court, and its action thereon cannot generally he assigned for error.</p> <p>2. Where an indictment contains several counts, each charging a criminal offense regarding property, and the record of the trial on the indictment discloses the fact that the property described in the different counts is the same, and that only one transaction was sought to be proved,previewing court will not presume that any prejudice resulted to the accused from the refusal of the trial court, on motion for that purpose, to require the prosecutor to elect on which of the several counts he will rely, although the indictment does not directly allege that each of said counts relates to the same property, and to but one transaction.</p> <p>3. Error may be prosecuted on exceptions taken to the rulings of the court on the trial of a criminal case as to the admission or rejection of evidence, and as to the court’s charge to the jury notwithstanding the motion for a new trial does not allege said grounds.</p> <p>4. Where an agent is sent by the prosecuting attorney to a person whom he contemplates causing to be indicted for a crime, for the purpose of obtaining admissions of such person as to his part in the commission of the crime, and as to who his accomplices were, and such agent goes to the person and states to him that he has been sent by the prosecuting attorney of the county to find out from him who were concerned in the commission of the crime, and that it would be for his interest and would save him a heavy fine if he would “ own up who the parties were,” admissions thus obtained are not competent against such person on his trial under an indictment for said offense shortly thereafter returned against him, unless it be first made to appear affirmatively that such representations had no influence in inducing the accused to make such alleged admissions. But where expressions of the accused obtained as above stated, have been by the trial court allowed to be given in evidence over the objections of the accused, a reviewing court may determine whether or not such ruling resulted prejudicially to him.</p> <p>5. Where the defendant in a criminal case is asked on cross-examination by the state’s attorney concerning alleged admissions by him made to another person whose testimony regarding them had been offered by the state and rejected by the court as not properly obtained, and objection to such cross-examining question is made and sustained, it is improper for the attorney for the state in his argument'to the jury, to call attention to said ruling, and to state to the jury that said evidence of such admissions was excluded by the court “ upon a long-settled and well understood principle of law that a confession, in order to be admissible, must be voluntary.”</p> <p>■6. To found a right to a new trial on the ground of newly discovered evidence, the party against whom a verdict has been rendered must make it appear by suitable proof that he exercised due diligence in attempting to procure such proof for use at the trial, and his mere statement in his own affidavit that “ at, before and during said trial he did not know of the existence, and could not by the exercise of reasonable •diligence have ascertained the same,” is not necessarily conclusive upon the question of diligence, even though not contradicted by affidavit or other direct proof.</p> <p>7. A person may be rightfully indicted and convicted for aiding and abetting an owner of property to commit the crime defined in section 6832 of the Revised Statutes.</p> <p>•8. In such case section 6804 does not apply as to the form of the indictment, but this should be in such form as to charge the jdder and abetter with the offense according to the fact under the general rules of criminal pleading.</p> <p>9. Where it is necessary in ‘an indictment to charge a criminal intent, if the intent be charged, but not with clearness, the remedy is by motion, and not by demurrer.</p> <p>10. An aider and abettor may be prosecuted and convicted although his principal be not prosecuted, or although the principal has been pros•ecuted on another indictment and acquitted by another jury, but it is necessary that the proof on the trial of the aider and abettor be such as to show the principal guilty of the crime.</p> <p>11. In such case the proof of admissions of the aider and abettor that the principal was guilty of the act charged, is not, of itself, sufficient proof of the actual guilt of the principal to warrant a conviction of the aider and abettor.</p> <p>12. On the trial of a person charged with aiding and abetting an owner of property insured against loss or damage by fire, to burn the same with intent to prejudice the insurer (Sec. 6832 Rev. St.), evidence that .the owner made a claim under the policy for the loss, and verified and delivered proofs of loss, is competent.</p> <p>13. Statements of the principal after the fire that he had hired the accused to burn the property, not made in connection with any efforts of the principal to obtain the insurance, are inadmissible as against the accused.</p> <p>14. On the trial of a person indicted for aiding and abetting an owner of property to commit the crime defined in section 6832, the trial court charged the jury as follows:</p> <p>“ The law presumes a person to intend the natural and probable consequences of his act; therefore, should you find from the testimony that the owner of the property procured the defendant to burn the same ; that it was insured to said owner by said company against loss or damage by fire ; that the natural and probable consequences of its being burned would be to prejudice, damage or defraud such insurance company, then you will find such burning to be with the intent to prejudice, damage and defraud such company.”</p> <p>Held : that such charge is erroneous as tending to mislead the jury into misapplying a general rule of law, and as treating the presumption alluded to as conclusive.</p>

<p>Error to the Court of Common Pleas bf Seneca County.'</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The defendants in error, by their answers and cross-petitions filed in the court of common pleas, allege that Caroline■Sharkey died intestate, January 11, 1889, and seized in fee of ■certain real estate in said county, leaving her son Elmer L. ■Sharkey, her sole heir at law ; that thereafter, said Elmer L. Sharkey executed to them several mortgages to secure the payment of certain promissory notes, their cross-petitions containing appropriate averments as to the execution of…

<p>1. It is well settled in Ohio that under existing legislation power is not conferred upon municipal authorities to grant an exclusive right to any railway company to use the streets of the municipality for railway purposes.</p> <p>2. As between a street railway company and the general public, the latter" may make reasonable use of that portion of the streets which is occu<-pied by the tracks- of the former.</p> <p>3. The council of a municipal corporation, in the exercise of its discretion^ and acting in good faith, may grant to one street railway company the right to use, to a limited extent, the tracks of another company, on provision being made for the payment of reasonable compensation for such use. But the council possesses no power to take from one company a portion of its tracks, or railway system, and hand it over, absolutely, to another eompany, t« the exclusion of the former; especially is this so where the portion sought to be taken constitutes the-heart of the system.</p> <p>4. Whether section 3440, of the Eevised Statutes, before the passage of the amendatory act of April 11, 1890 (87 O. L. 178), empowered one street-railway company to condemn the right to occupy and use, jointly and* equally with the owner, any part of the tracks and structures of another company, qucere. But this power is conferred by the statute as-so amended. The right acquired by appropriation proceedings under this statute, however, can not be exercised beyond the duration of the-franchise granted by the council to the company whose tracks are subjected to such joint use.</p> <p>5. The act of April 11, 1890, entitled, “an act to amend section 3440 of the Eevised Statutes of Ohio,” (87 O. L. 178), is a general, and not a special act, and is a valid and constitutional enactment.</p> <p>6. Where, in appropriation proceedings, instituted and carried on in the probate court under the Eevised Statutes sections (6414-6453) a verdict, fixing the amount of compensation to be paid has been rendered) by the jury empanelled in the case, and an order or judgment of confirmation of such verdict entered by the court under section 6432, proceedings in error may be prosecuted .under section 6708, by the defendant in the proceeding, to reverse such order or judgment of confirmation, before the compensation awarded by the jury has been paidr or the order provided for in section 6433 made. The ruling upon this point in Railroad Go. v. Barealow, 4 O. O. E. 49, followed.</p> <p>7. The finding and order of the probate court made upon the preliminary hearing in such case, may, after the verdict of the jury has been rendered, and judgment confirming it entered, be reviewed upon petition in error.</p> <p>8. As to whether the rules of code pleading are applicable to a petition to-appropriate private property for public uses, filed under the statute, in the probate court, qucere. In case of doubt, the judgment rendered in. such proceeding will not be reversed for failure to strictly observe such, rules..</p> <p>9 The official signatures of the presiding officers of the two boards constituting the city council are not essential to the validity of a city ordi-' manee. Where the names of such officers have been attached, before publication, to an .ordinance which has been duly passed, by the' city ■/clerk, without express authority, but in accordance with a custom and ■practice of long standing, the record thereof regularly made by the city clerk is competent evidence of the existence of such ordinance. '</p> <p>10. In a proceeding by one street railway' company to appropriate the right to use and occupy a portion of the tracks and structures of another ■street railway company, jointly with the latter, as authorized by an ordinance of the city council, the appropriating company is not required to /prove that application to the council for the franchise was made, and .-notice thereof given, or that the consents of abutting property ■owners were obtained. And where the defendant in such proceeding . is not the owner of property abutting upon the street wherein its railway is being operated, it can not be permitted to go into an inquiry upon that subject.</p> <p>H. In a proceeding of the character above mentioned it was shown by the evidence that the appropriating company, at the time of filing its application, had constructed and was operating within the corporate limits, .-a line of electric street railway of sufficient extent to entitle it, under the- ■ statute, to condemn the right to use and occupy that portion of the rail- ■ way tracks of the defendant, sought to be appropriated, but itd’id not ■appear, either by the pleadings or the proofs, that the appropriating • company had ever obtained from the council authority to construct and operate a certaiin portion of the line necessary to be taken into the account in order to enable it to maintain its proceeding. Held: That ■under the terms of the statute it was sufficient to show that at the time ■the proceedings to appropriate were commenced, the required proportion of railway had been constructed, and was being operated.</p> <p>,T2. A reviewing court is not confined to the evidence contained in a bill of exceptions taken at the close of a preliminary hearing in appropriation proceedings, to determine¡whether or not sufficient proof was made of the inability of the parties to agree, but it may look into the entire record, and if upon all the testimony as brought upon the record, such inability is manifest, the finding of the probate court upon that subject will not be disturbed.</p> <p>M3. Where a city council has duly authorized the construction nnd operation of a line of street railway upon certain streets of the city, and the use by the grantee of such franchise of a portion of existing railway tracks of another company, the question of the necessity óf such use can. not, except for the reason below stated, be inquired into in appropriation proceedings in the probate court. In the absence of evidence impeaching the action of the council for fraud, the probate court is concluded thereby.</p> <p>314. If the articles of incorporation of a street railway company purport to confer corporate powers in excess of those authorized by law, the articles are not thereby rendered invalid as to the franchise lawfully granted. If the corporation attempt to exercise other powers, the remedy is by proceedings in quo warranto.</p> <p>U5. Where, in proceedings to appropriate private property for public uses, proof has been made of the due incorporation of the appropriating company, and evidence tending to establish the genuineness of the record kept of the proceedings of such company has been given, such portions of the record as are pertinent thereto are competent evidence to show that the organization of the company has been regularly perfected.</p> <p>16. An ordinance passed July 28, 1890, by its terms required the appropriating compay to use, as part of its railway system, certain specified portions of the track's of the defendant company. This ordinance .provided that it should take effect “ from and after its passage and le.gal publication ” and the filing with the city clerk of a written acceptance of the terms and conditions thereof. The written acceptance was duly filed, but publication was not made until after the proceedings to •appropriate had been commenced. 'A prior ordinance passed March '27, 1889, granted “ to A. B. trustee, his successors or assigns,” the right ito construct and operate a, line of street railway upon the same streets imentioned in the ordinance of July 28, 1890, and also to use and oc■cupy the tracks described in said proceedings. The appropriating •company, at the date of the commencement of the proceedings, was the assignee of all the rights and franchises conferred by the ordinance of March 27, 1889. Held: That if the ordinance of Juiy 28, 1890, was not in force at the date of the commencement of the appropriation proceedings, then they were properly instituted and conducted under the ordinance of March 27,1889. If the former ordinance became operative during the pendency of the proceedings, then nothing therein contained rendered ineffectual the proceedings so commenced.</p> <p>17. It Is not error for the probate judge, upon .the conclusion of the preliminary hearing in an appropriation proceeding, to refuse “ to state in writing the conclusions of fact found separately from the conclusions of law upon each and every the several questions involved in the preliminary hearing.” He has fully performed his duty in that regard when he has made the findings prescribed by the statute; especially is this so where, at the instance of the defendant, he has signed a bill of exceptions embodying all the evidence given on the preliminary hearing.</p> <p>18.. In ascertaining the measure of compensation to be paid by the appropriating company in a proceeding such as is above described, the jury should take into consideration the value of so much of the railway structure and materials in place, of the defendant company, as is sought to be appropriated, including the cost of the paving constructed by the defendant in conformity with the city ordinances; also the damages, if any, which such structure will sustain in adapting it to the uses of the appropriating company. But the defendant company is not entitled1 to compensation for any supposed depreciation in value of its fran- • chise to operate its line of railway in the streets of the city caused by the proposed joint use and occupancy of its tracks; nor for • the loss of fares which may be occasioned thereby; nor for the inconvenience and interruptions to business which may be caused thereby; ■ nor for the consequential diminution in value of other portions of the • line forming part of its street railway system. The compensation awarded for the use of the tracks of the defendant company, should be limited to the value of such use during the unexpired term of the-franchise granted such company by the city council. Whether there • should also be included a just proportion of the probable expense of future repairs and maintenance of the railway system, and future taxes, or whether these expenses should be provided for by the respective companies as they accrue, quosre.</p>

<p>On motion to set aside service.</p>

<p>On Demurrer to the Petition.</p>

<p>The petition in this case alleged in substance, that at the annual election for 1891, for directors of the defendant company, three persons (naming them) were duly elected as such directors, and qualified as such, and sought to exercise and perform the duties of such office, but that the defendant company and the other directors would not allow them to do so, but recognized three other persons (naming them) as having been elected to fill such offices, who were not, in fact, so elected, and had no right or title whatever thereto, and prayed for proper relief. To this petition defendant company filed an answer] containing two separate defenses, to each of which the plaintiff demurred: Held, 1. The facts stated in the answer of the defendant, as set out and stated in the opinion of the court, do not constitute a defense to the petition of the plaintiff. ,</p> <p>2. By the agreement made and carried into effect, by and between Brown, Shipley & Co., and the shareholders of defendant company uniting therein, as shown by Exhibits “A” and“B,” Brown, Shipley & Co. became trustees for those depositing with them the original shares of stock, and for those to whom the certificates issued by B, S. & Co. in lieu thereof, should be assigned, B., S. & Co. thus becoming the holders of the legal title to the stock so transferred to them, and entitled to have the same transferred to them on the books of the Company, and entitled to vote the same, personally or by proxy, unless such arrangement was itself illegal, or the mode in which it was to be executed was contrary to law or to public policy.</p> <p>3. On the face of such agreement there is nothing to indicate that it or the object of it was unlawful, but as expressed it was legal and laudable, viz: to arrange certain differences between the preferred and common shareholders and to re-adjust the affairs of the Company in the interest of the shareholders thereof ; and all the other shareholders had the right to come into the agreement.</p> <p>4. While the law may not tolerate an arrangement by which the voting power of the shareholders of a corporation is turned over to another person or corporation absolutely, all other rights to the stock being retained by the owner thereof, yet it does recognize and allow the vote of such owner to be cast by another person duly authorized to do so. Such vote so cast is the vote of the principal acting by his agent. And any number of shareholders may authorize the same person to vote for them, and direct that such vote be cast for particular persons, or to bring about a particular result, not contrary to law or to public policy. Nor would it be illegal to stipulate that the proxy so appointed should cast such vote in accordance with the direction of one or more persons, named by the owner, whether they be shareholders or not.</p> <p>5. A shareholder has the right, for a legitimate and proper purpose, to transfer his stock to another, as trustee for him, or for another person, and may stipulate that the trust shall continue for a specified period, or indefinitely, and that during its continuance, the trustee shall have the legal title thereto, and the right to vote upon it. There is no express provision in this contract as to how long it shall continue, and it is probably revocable by any party thereto, so far as he is concerned, at any time. But if this be not so, and for this reason the contract, so far as this is concerned, is illegal, any party thereto, for this reason, may revoke it, and the illegal part being separable from the legal, the latter would stand. But no such revocation appears to have been made,</p> <p>6. Nor do the facts stated in the second defense make a good answer to the claim of the plaintiff. The fact that after, or ever before the making of the agreement contained in Exhibits “A” and “ B,” secret negotiations had been had between the committee named therein, and a representative of the Baltimore & Ohio Eailroad Co., (a connected and not a competing line of railroad), which representative was also a director in the defendant company, which negotiations resulted in an agreement such as that set out in said second defense, by which the practical control of the defendant company, and of its railroad, was to be in the hands of the B. & O. Eailroad Co., did not justify defendant company in excluding from office as directors therein, persons duly elected thereto, though they were elected in pursuance of such arrangement, at the instance of the B. & O. Eailroad Co. If such agreement was illegal, there are other legal and appropriate means by which the execution thereof might be prevented, without depriving the persons elected by the votes of a great majority of the stockholders, from exercising their office.</p> <p>7. But under the provisions of sec. 3300, Eev. Stat, such an arrangement would not seem to be illegal.</p>

<p>Appeal from the Court of Common Pleas of Lucas County.</p> <p>Motion for the allowance of a preliminary injunction.</p>

<p>The Village of Carthage, a municipal corporation, by ordinance of May 2,' 1871, granted to a railroad corporation the right to appropriate and use so much of Lebanon street and its crossings as may be necessary for the construction of the railway through said village, and to lay their trades thereon ; subsequently to the passage of this ordinance, one Applegate, owner of property abutting on said street, for a valuable consideration, gave to the Railroad Company the right of way as then surveyed, and released to the company all claim which he could have for damages on account of the construction of the railway over the street, and by his permission the Railroad Company laid a track through said street in 1872. Applegate’s deeds to the Railway Company were duly recorded before this time.</p> <p>1. Held: that Varwig, apurchaser from Applegate subsequently to these facts, is not entitled to an injunction to prevent the Railroad Company from laying an additional track in the streets.</p> <p>2. When permission is given by the proper authority to a railroad company to lay its trades in a public street, and it has laid one track, it is not estopped from laying another track when the necessities of the road require it.</p>

<p>On Appeal from the Court of Common Pleas of Cuyahoga County.</p>

<p>To entitle a party to a review of a decision of a court or a verdict of a jury on. any one defense on the ground that the verdict or decision is not sustained by sufficient evidence, the record must show that the bill of exceptions contains all the evidence given at the trial; and it is not sufficient for it to’set out that it contains all the evidence given upon that particular defense.</p>

<p>Error to tbe Court of Common Pleas of Hamilton County.</p>

<p>H., a resident of New York, died in that state testate, having appointed, four executors of his last will and testament, who were also to some-extent made testamentary trustees. Three of the persons so appointed, lived in New York. One had domicile in Erie county, Ohio, though, spending about two-thirds of his time, his family with him, in New York, where he had business interests. One executor failed to qualify, one qualified and subsequently resigned on account of ill health — • leaving the other two, who duly qualified, in charge of the estate — one-residing in New York and the other in Ohio, as aforesaid. The property of the estate was all held in New York by the executors, none of' it being brought into Ohio.</p> <p>The executors qualified before, and reported to, the Surrogate’s Court of' New York.</p> <p>Under these circumstances the Auditor of Erie county, Ohio, claimed the-right, and attempted to place at least one-half of the personal property of the estate, consisting of bonds,Jstocks and securities, uponj the-tax duplicate of said county, for taxation.</p> <p>Held: That he could not rightly do so.</p> <p>Held, also: That plaintiff had a remedy by injunction to prevent him. from doing’so.</p>

<p>1. In a proceeding for the dissolution of a corporation brought under the provisions of sec. 5673 Bev. Stats., any of the petitioning stockholders may, before the court has found that the statements of the petition are true, and that the same was filed by the stockholders owning one-fifth or more in amount of the paid up stock of the corporation, withdraw therefrom and cease to prosecute such proceeding, subject to such order as to the costs of the case as the court in the exercise of a sound discretion may make. And if on such withdrawal it appears that there are not left remaining as petitioners, the owners of one-fifth or more in amount of the paid up stock of the corporation, the court can not properly, as against the objection and exception of such withdrawing petitioners, disregard such withdrawal, and proceed on such petition to dissolve such corporation.</p> <p>•2. Where on the hearing of an issue made in such a case as to the ownership of stock by one or more of the petitioners, and whether the required owners of the amount of stock had filed such petition, it was found by the court that the owners of one-fifth or more in amount of the paid up stock of the corporation, had not joined in such petition, any of such petitioners may then legally and properly withdraw from the further prosecution thereof, and it is error for the court to disregard the same, and allow another stockholder to become a party plaintiff, and unite in the prayer. And where this is done, and counting the stock owned by such new petitioner, and that owned by those who sought to withdraw and whose stock was necessary to make the required one-fifth, it appears that one-fifth of the stock is so represented, the court cannot legally dissolve such corporation in such proceeding.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. A marriage freely and voluntarily entered into by a person of full age, and of sufficient mental capacity to understand and carry out the same, but which marriage took place after a guardian had been appointed for Mm by tbe probate court under tbe provisions of sec. 6317 Kev. Stat., vMch guardianship continued until bis death, and where tbe parties to such marriage lived together as husband and wife for sixteen months, and until his death, without any objection on the part of the guardian, but with his tacit consent and where no proceeding was ever taken before the death of the husband, to annul such marriage, held to be valid and binding.</p> <p>2. The adjudication of a probate court in such a proceeding, that by reason of intemperance or habitual drunkenness the person was incapable of taking proper care of himself or of his property, and appointing a guardian of his person and property, is, in a case of this kind, but prima faeie, and not conclusive evidence of his want of capacity to contract a marriage.</p>

<p>Brade-marlc — To constitute a device or design a trade-mark, it is not necessary that the name of the manufacturer, place of business and similar statements must accompany the device. — Ed. Bulletin.</p>

<p>On Appeal from the Court of Common Pleas of Cuyahoga County.</p>

<p>1. Where since the passage of the act of the General Assembly, of March 19, 1887, entitled “An act to define the rights and liabilities of husband and wife,” IT. and W. intermarried, the husband being without property, which was known to the wife before the marriage, when she assured him that it made no difference, that she had enough for both of them; and when, after said marriage, having resided together as man and wife for some time in the dwelling of the wife, she being possessed of valuable real and personal property yielding a large income; and where the husband being in no fault, the wife combines with her son by a former marriage, and, together with said son, by cruel usage and threats of enormous bodily harm, excludes the husband from her dwelling and premises, and refuses to assist in his support, he being old and infirm and unable to support himself,</p> <p>Held: That under the provisions of said act the wife is liable, and it is her duty to assist in the support of the husband as far as she is able; and to that extent the husband has an interest in her property, and may maintain an action under the provisions of the civil code for such as- • sistance in his support and to enforce such duty.</p> <p>2. That such action is not for the recovery of money only and triable by a jury, but is equitable in its nature and triable by the court.</p> <p>3. That in such action the husband’s interest in the wife’s property may be declared, and the property subjected to the payment of such reasonable amount as may be found necessary for the husband’s support, (1st) by appropriating, through a receiver, the personal properly ; (2nd) by sequestering the rents and profits of the realty, and (3rd) by sale of the realty, when the same is necessary.</p> <p>4. The husband has a right, if desired, to be restored to the occupancy of the dwelling, to be enforced by order, and if necessary, by proceedings for contempt.</p> <p>5. While the ante-nuptial intention of the wife to charge her property for the support of the husband is entitled to consideration, the rights of the husband rest mainly upon the provisions of the statute, being of a higher nature.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Lucas .County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. In an action brought by a plaintiff against a married woman on a written contract purporting to be signed by her, by her husband, to recover the contract price for work done by the plaintiff in grading and sodding cer.tain real estate owned by her, and there was no evidence tending to show that the husband was authorized by the wife to make such contract for her, or that she ever knew of the same, or in any way ratified, or had any information that the work was done under such alleged contract, it was error to allow the same to be introduced in evidence against the objection of the defendant.</p> <p>2. Where the answer in such case simply admits the payment by the defendant of the sum alleged in the petition to have been paid the plaintiff on the work, but the evidence clearly shows that such payment was by the husband, and there was no evidence tending to show that it was done with the knowledge of the wife, this will not estop her from denying her liability upon such cbntract.</p> <p>3. On this state of fact the defendant is not liable under the provisions of section 3192, Rev. Stat., on the said contract so made by plaintiff and her husband.</p>

<p>1. Where one partner hy written agreement contracts to sell to his co-partners all of his interest in the property and assets of the partnership, both real and personal, for a certain sum, payable in instalments, and the whole of such property, in accordanfce with such agreement, was turned over to the vendees, who occupied and controlled such real estate, and used and disposed of the personal property as their own, with the knowledge and consent of the vendor, paying the taxes on the real estate as provided in the contract, and which agreement contained the stipulation that deeds were to be executed by the vendor to the vendees on the payment of the whole of the purchase-money and the interest thereon, and that the vendor did not part with any interest in the real estate until the whole purchase-money and interest was fully paid — the amount of the purchase-money unpaid, at the time the vendor was required by law to return his personal estate for taxation, must, if collectible, be taken into account by him in making such return, the same being a credit within the meaning of the revenue statutes.</p> <p>2. The same having for years been improperly omitted by the plaintiff from his tax returns, the county auditor, on the fact being made to appear, was authorized by section 2781, Revised Statutes, to place on the duplicate of the current year, the amounts so improperly omitted for the preceding five years, with the taxes which were properly chargeable bn the respective sums so omitted in the several yearB.</p>

The following facts appear from the admissions of the pleadings, and from the evidence submitted upon the issues joined : Prior to July, 1881, John C. English and William Monypeny had been associated… Held: administered and distributed by him as executor in lieu of said real estate according to the terms and conditions of said will.

<p>Error to the Court of Common Pleas of Defiance County.</p>

This is an action brought by the executor of Lucy C. Hall under the provisions of Revised Statutes sec. 6202, to obtain the direction of the court in the execution of his trust.

<p>Suit to enforce sub-contractor’s lien. — Answer admitting sum due principal contractor, but stating same was claimed by a material man, who answered claiming the amount, but did not claim lien on building. Upon trial material man demanded jury, which court refused, and proceeded to hear the case. The material man appealed from judgment rendered. Upon motion to dismiss appeal.</p> <p>Held: That appeal should be dismissed.</p>

The plaintiff in this case claims, under the residuary clause of the will of John Brickell, to be entitled to a moiety of an undivided one-half of 7J acres of land near the corner of Goodale and High streets, in Columbus, Ohio. Certain other persons claiming under the same will, are made defendants, and set up their claims substantially the same as plaintiff. The contesting defendant is the present occupant of the property, deriving title by mesne conveyances from Ur.

<p>. Error to the Court of Common Pleas of Warren County.</p>

<p>Error to the Court of Common Pleas of Warren County.</p>

<p>1. As the law now stands, the proceedings in error in criminal eases may properly be brought after the expiration of six months from the rendition of the judgment complained of. Sec. 6723, Bev. Stat., does not apply to such cases.</p> <p>2. On the trial of a defendant on an indictment charging him with unlawfully selling intoxicating liquors, on a day named therein, to divers persons whose names were to the grand jurors unknown, within two" miles of the place where an agricultural fair was being held, the state offered evidence tending to show sales by the defendant on that day to many different persons — but the name of any of such persons was not shown, nor was there any evidence of any specific sale. At the close of the evidence on the part of the state, the counsel for the defendant ' moved the court to require the prosecuting attorney to elect as to which of the several sales shown he would rely upon. This the court refused todo. The refusal was erroneous, and prejudicial to the defendant.</p>

This was an action brought upon a promissory note by the defendant in error, who was the payee of the note, against the principal and the plaintiffs in error, who were his sureties. The defense of the sureties was that after the execution of the note by them, it was materially altered by the principal with the knowledge and consent of the defendant in error, by the addition of the words ‘‘ with all reasonable attorney’s fees,” without their knowledge or consent.

<p>1. In an action brought against a street railroad company by a minor to recover damages for a personal injury received by him by being struck by one of the cable cars of the defendant company, on one of the streets of the city, in consequence of the negligence and default of the company, its officers and agents, and the unskilfully constructed, insufficient and defective guards upon said car — the plaintiff is only entitled to recover on such ground, when such negligence or default appears fro . the evidence. And v here there is no evidence tending to show negligence as to such guar Is, or that they were in any respect different from.those in general or ordinary use on like cars, it is error for the court, in the charge given t > the jury, to leave it to them to find whether the car, considering the route upon which it wag run, was in their judgment constructed as ordinary caro would require, in the matter of placing the guar.i upon the same, and to instruct them that if they found it was not, and that the injury to plaintiff was caused by that defect, that the defendant would be liable.</p> <p>2. One of the issues in the case was, whether the defendant under all the circumstances of the case, was running its car on the street with ordinary care when the plaintiff was injured. The court charged the jury, without any qualification thereto, “ that upon the public street, any person has the right to walk, either at the pavement or on the part used by vehicles, or upon the pari of the street used by the street cars.” This, under the circumstances of the case was erroneous and prejudicial to the defendant. While such abstract right may exist, it is not to be exercised in opposition 10 the known rights of others. Persons who walk upon that part of the street used principally and rightfully by teams, vehicles and cars, are reasonably held to greater care than when on the sidewalk, and those running the car might reasonably look for such greater care under those circumstances.</p>

<p>Error to the Court of Common Pleas of Hamilton County-</p>

Error t® the Court of Common Pleas of Greene County. The plaintiff in error filed its petition in the court of common pleas, alleging that it is a manufacturing corporation formed under the laws of Ohio, and located at Xenia ; that the defendant is a manufacturing corporation organized under the laws of New Jersey, to do business in New York and elsewhere; that on the 20th of January, 1890, in the city of New York, the plaintiff leased to the defendant a large part of its…

<p>On motion t’o strike bill of'exceptions from the record and. files.</p>

<p>lapping sewer — Abutting owner not to be compelled to pay more than license fee fixed by ordinances and statute.</p>

<p>D. P., by his will gaye to his wife A. three or more separate parcels of real estate, “for the .term of her natural life, or as long as she may remain my widow.” He then provided, “ that after the death of,my said wife, my said son Joseph C. Paris is to have the use and benefit of said property” (describing it) “ during the period of his natural life, but without the right or power to alienate, charge or incumber, or in any manner anticipate his said life estate in said property. And at his death, or when he shall attempt to so alienate, charge, incumber or .anticipate his said life estate, I will and bequeath'that the said property shall go to his children, if at that time he shall have children living, to have the use and benefit of said property during the life time of my said son, Joseph C. Paris, and upon his death, I give and bequeath the said property to the children of said Joseph C. Paris, if he should have any children surviving him, and their heirs forever.” During the life time of A., the widow, she and J. C. P. executed two mortgages — one of them on one of said parcels, and the other on a different parcel, which were duly recorded, but both of which during the life-time of said A. were fully paid and satisfied. A. died in 1881, and J. C. P. took possession of said premises, and held them until July, 1881, at which time his life estate therein (if any he had) was sold on certain executions issued on judgments recovered against him by his wife, the mother of the plaintiff, who is the only child of J. C. P. J. C. P., the father, is still living. In an action brought by said child, M. P., against the purchaser at such sale of said premises, to recover the possession of the whole thereof, on the ground that J. C. P. had forfeited his life estate therein by the execution of such mortgages, and by suffering'the sale on such executions. Held:</p> <p>1. That the sustaining by the court of a demurrer to the petition of the plaintiff, setting up the foregoing facts, was erroneous.</p> <p>2. That the interest devised to said J. C. P. in said premises, was one which but for the provisions of said will, might have been aliened or incumbered by him during the life time of A., the widow.</p> <p>3. That the provision of such will that when said J. C. P. “ shall attempt to so alienate, charge, incumber or anticipate his said life estate,” that it should at once pass to his children, was valid, and on the execution and taking effect of such mortgages respectively, his estate in the land so mortgaged, ceased and determined, and the same passed to the plaintiff, his only child.</p> <p>4. That the sale of the other parcel of such real estate, on executions issued on judgments rendered against J. 0. P., did not operate to forfeit his life estate therein.</p>

<p>Appeal from the' Court of Common Pleas of Hamilton County.</p>

<p>1. Under the provisions of section 6408, Revised Statutes, which point out the steps to be taken when a party desires an appeal under section 6707 from any order or decision of the probate court in the cases named, to the court of common pleas, it does not seem essential to the appeal that a person required to give an undertaking therefor, should also give notice of his intention to do so, by causing an entry of such intention to be made upon the jourmal of the probate court.</p> <p>2. A person who is not required by the terms of such section to give an undertaking for an appeal, must give written notice to the court of his intention to appeal, within the time limited for giving bond. Whether this is to be done by having an entry made upon the journal of the probate court, or in some other way, Quaere: ■</p> <p>3. Two mortgages had been executed to different persons on the same chattel property, which was afterwards assigned by the mortgagor to an assignee for the benefit of creditors. One of these mortgages, with the note secured thereby, was transferred by the owner thereof to K. Whether with or without recourse on such person, does not appear. The holders of the two mortgages asserted their claims in the probate court against the proceeds of such property, and the assignee, by written motion, called upon the court to adjudicate as to the validity and priority of such mortgages, which was done. The assignor of such note and mortgage was not a party to the proceeding. On appeal to the court of common pleas, a judgment was rendered that the mortgage so assigned was invalid. Such judgment should not be reversed, on the ground that the assignor of such mortgage, or the general creditors, were not parties to the proceeding, or that proper issues were not made by pleadings in the case.</p> <p>4. The whole case having been appealed to the court of common pleas, and that court having disposed of but one of the several issues made, or questions raised, and then remanded the case to the probate court, this was erroneous.</p>