Volume 6 — Ohio Circuit Decisions

<p>INSOLVENT DEBTOR — FRAUDULENT CONVEYANCE.</p> <p>Frazier, Woodbury and Raubie, JJ.</p> <p>1. Where a failing debtor, whose liabilities are in excess of his assets, conveys real estate to his son, who has knowledge of some of said liabilities, but not of their full extent, and there is' no actual intent to defraud present in the mind of either grantor or grantee, said conveyance, under Sec. 6344 of the Revised Statutes of Ohio, is constructively fraudulent as to the creditors of said debtor.</p> <p>2. A mortgage duly executed and delivered by an insolvent debtor to a trustee for the use aud benefit of the wife of said debtor, to secure a bona fide indebtedness to said wife, should inure, under the provisions of Sec. 6343, of the Revised Statutes of Ohio, to the benefit of all the creditors of said debtor in proportion to the amount of their respective claims.</p> <p>3. Where, in an action brought in the common pleas court under the provisions of sections 6343 and 6344, of the Revised Statutes of Ohio, and afterward taken to the circuit court, there are conflicting claims of some oí the parties to said action, the circuit court will neither administer the trust nor remand it to the common pleas court, but the circuit court will certify its findings to the probate court as the proper forum for the administration of said trust.</p>

<p>Heard on Error to an order allowing the defendant in error ten dollars a week alimony.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>1. Rescinded Rule. Plaintiff, in an action against a railway company for personal injuries resulting from a collision of trains at a point where, according to schedule time, only three minutes was allowed between the arrival of trains going in opposite directions, one of which had the right of way and made no stop at that point, having charged negligence upon the part of the company in not providing a rule for stopping the trains between switches, may be permitted, in proof of the negative fact, to show that such a rule had once existed and that it had been rescinded.</p> <p>2. Reiterating Charges oe Negligence. When several charges of negligence are stated in'the petition, and the defense is a mere denial, without affirmative facts avoiding the charges, it cannot be said that the trial court gave undue prominence to plaintiff’s case by enumerating the charges of negligence and then stating “ all these charges of negligence are put in issue by the denials of the defendant; ”• although it might be proper for the court to state, with a little more fullness, the position of the railway company upon the various matters.</p> <p>3. Negligence. What Constitutes Negligence. Proof. Vice Principal Rule. See Opinion.-</p>

L. J. Harshman and S. D. Harshman, executors of the last will of Mary 'Harshman; deceased, included in their inventory of the assets of the estate of said decedent a promissory note of $500, executed by said S. D. Harshman to .said testatrix in her lifetime. At the time of his appointment as one of the executors, S. D. Harshman •was and thereafter continued to be insolvent.

<p>ADVANCEMENT OF CITIES — QUO WARRANTO.</p> <p>Baldwin, Caldwell and Hale, JJ.</p> <p>1. R. S. 1617 refers to the annual report for the current year, to be made on or before the 20th of November (R. S. sec. 62) and to be printed and presented to the legislature sitting the next January. It does not authorize, on an examination made in April, a special report to the legislature then sitting and commencing its session in January of that year.</p> <p>2. The fact of such special report does not advance the time when under R. S. 1647 a city ■shall be advanced in grade.</p> <p>, 3. After an examination in April, 1891, and a special report in the same, month to the legislature then in session, the council of the city of Cleveland under and in pursuance of R. S. 1549, in February, 1892, determined that it was inexpedient that Cleveland should pass from the second grade to the first grade of the first class: Held, Cleveland remained a city of the second grade.</p>

<p>MALICIOUS PROSECUTION.</p> <p>Latitude oe Jury in a Case eor Malicious Prosecution.</p> <p>The jury in a case for malicious prosecution, in which the evidence warranted them ini returning a verdict, may rightfully infer from such evidence that the defendant maliciously and without probable cause, caused the prosecution of the plaintiff.</p>

<p>ERROR to the Court of Common Pleas.</p>

<p>CORPORATIONS.</p> <p>Baldwin, Caldwell and Hale, JJ.</p> <p>1. Where a corporation is organized with five directors, three of whom sell to the corporation property at twice its value in full payment of stock by them taken in the corporation at the time of the sale, and the corporation becomes insolvent, the creditors can compel them to pay the difference between the face value of the stock and the value of the land at the time of the sale.</p> <p>2. If a stockholder sells stock representing it to be fully paid up, when it was not; as between him and his vendee he is primarily liable for the debts of the company contracted while he held the stock.</p>

<p>CONTRACT — LAW AND EQUITY.</p> <p>Reliee eor Alleged Breach oe Contract. •</p> <p>In order that a court of equity may grant any relief to a party for an alleged breach of contract, the petition and evidence must show that the plaintiff can not receive full and adequate reliet in damages by a suit at law, in case the contract is broken.</p>

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

<p>INJUNCTION — DORMANT JUDGMENT.</p> <p>Baldwin, Caldwell and Hale, JJ.</p> <p>Execution — Dissolution of Restraining Order against Enforcing.</p> <p>In this case, which was a suit in injunction against enforcing an execution issued upon a dormant judgment, it was not error to overrule a motion to dissolve a restraining order granted therein.</p>

<p>DOWER.</p> <p>Dower of Widow — Proceeds in Foreclosure.</p> <p>A widow, who, during coverture, joined her husband in a mortgage of realty to secure ai debt of the husband, is dowable in equity bf the entire proceeds arising from a judicial sale, under a decree of foreclosure thereon, the proceeds remaining being sufficient tc>' satisfy the mortgage.</p>

<p>BURDEN OF PROOF — EVIDENCE.</p> <p>1. Burden or Proor to Establish an Arrirmative Derense.</p> <p>In an action to recover damages against a railway company for causing the death of one not in its service, at work unloading a car upon the company’s switch, on the ground of negligence in causing cars to back onto and collide with the car on which decedent was at work, after notice to decedent and o-thers by the yard conductor of the company that no cars would be sent upon the switch, the answer filed by the railway company, denying generally the negligence charged, amended, during the trial, by setting up that the injury was caused by the accidental severing of a brake pin in the operation of . switching the cars, Held:</p> <p>That it was not error for the court to charge the jury that the defense of the breaking or the pin was an affirmative defense to be established by a preponderance of the evidence.</p> <p>2. Proor or Circumstances or Injury under General Denial or Negligence. That under a general denial of negligence the defendant is permitted to offer proof of the manner and circumstances of the injury.</p>

<p>PLEADING — SET-OFF AND COUNTERCLAIM.</p> <p>Baldwin, Caldwell & Hale, JJ.</p> <p>1, Unliquldated Damages as a Set-ope — Nature op a Claim Controls its Character — Default por Amount Admitted by Answer to be Due.</p> <p>Where the plaintiff sets up two causes of action in his petition, one on a promissory note and the other for a balance due him for services earned under a contract between himself and the defendants, and the answer sets up three defenses_ all arising out of the same contract for services set up in the second cause of action in the petition, and the amount defendant claims due him is more than the plaintiff claims in his petition, and the answer denominates the defenses “ counterclaim,” it is error for the court, under section 5320, statutes of Ohio, to render judgment on the first cause of action in the petition, on the ground that the answer sets up no defense to it.</p> <p>2. Acts Sounding in Tort, Although Pounded on a Contract, as a Set-off t® an Action for Money Only. *</p> <p>Where a contract between A and B has been performed by A in such a negligent and tortious manner as to cause B large and unnecessary expense, and cause him to pay heavy damages to others injured by the careless manner in which A performed the contract, and A thereafter sues B on a contract arising out of another transaction, B may in his answer plead by way of set-off the damages he has suffered by the negligent manner in which A performed said contract, providing he pleads the same as sounding in contract and not in tort.</p>

<p>CONSTRUCTION OF A WILL.</p> <p>Moore, Seney and Day, JJ.</p> <p>Words Indicating Intention oe Testator — Entaiement Restricted by Statute.</p> <p>A devise to a son “ and bis heirs to tbe third generation,” is an entailment within the meaning of section 4200, Revised Statutes. Under the provisions of that section, the son takes a life estate, and his heirs an absolute estate in fee-simple.</p>

<p>OIR AND GAS REASE — COLLATERAL CONTRACT.</p> <p>Moore, Seney and Day, JJ.</p> <p>J. The Orax, Promise oe One or Two Parties to a Mutuae Agreement, as Consideration for that of the Other Party.</p> <p>W. and McC., owners of oil and gas lands, by a lease granting the right to operate for and produce petroleum oil and gas, and R., owner of adjoining oil and gas lands, by a similar lease, for the purpose of operating their respective leases amicably, to preserve the rights of each with respect to the dividing line, and to avoid increased expense and probable loss and damage, mutually agreed and promise^, orally, not to drill or construct any oil or gas wells, on either of said leasehold estates within two hundred feet of the said division line: Held, The promise of one was a sufficient consideration for the promise of the other, the consideration passing was both valuable and good, and the agreement was not void for want of consideration.</p> <p>% Not Void Under Provisions of Statute of Fraud.</p> <p>Such oral agreement was not for land or interest in land, but was merely an agreement settling an d fixing upon the best method of operating the said leases, and was not void by the provisions of section 4199, Revised Statutes.</p> <p>3. Remedy for Breach of Such a Contract is by Injunction.</p> <p>An action at law, for breach of such negative contract, does not afford the aggrieved party an adequate remedy. Injunction is the proper remedy.</p>

On the 29th of March, 1894, the administrators, with the will annexed of James Emmitt, deceased, filed their petition in the court of common p;eas of Pike county, for authority to sell the real estate situate in Pike county and of which Emmitt died seized, containing the usual averments in such cases essential, to their right to an order to sell real estate, viz.: The description of the realty,, amount of debts, amount of personal property of the estate, and the in…

<p>INSURANCE — PLEADING—CHARGE TO JURY.</p> <p>Baldwin, Caldwell & Hale, JJ.</p> <p>1. Pleading — Allegation oe Ownership oe Property Destroyed by Fire.</p> <p>The petition setting forth that plaintiff,being the owner of a stock of goods, was insured by the defendant against loss to it by fire, and setting forth the loss by its destruction by fire, sufficiently alleges his ownership in the property at the time of loss.</p> <p>2. Surrender oe Policy — Reliance upon an Express Agreement.</p> <p>Where an insurance company claims that a policy has been surrendered by an express agreement with assured, and this agreement is conditional, it must show the condition was fulfilled. It cannot rely partly on that agreement and partly on the right of cancellation fixed in the policy, disregarding' parts of each mode of cancellation. One or the other must be fully executed. Nor would it make any difference that the conditions of the agreement to surrender were beyond the authority of the agent of the company.</p> <p>8. Objection that Charge to Jury is Too General is not Available unless Excepted to.</p> <p>An exception to a charge as being too general is not to be sustained, unless there are requests which would make it more specific which are refused.</p> <p>4. Insurable Interest.</p> <p>That a plaintiff may be bound to account to a third party for a portion of the proceeds of the property insured of which he has full title, does not dimimish his insurable interest.</p> <p>5. Averment and Prooe oe Representations which may Avoid Policy.</p> <p>It does not devolve upon plaintiff to aver or prove the truth of representations for the falsity of which the defendant has a right by the policy to declare the contract void.</p> <p>6. Averment oe Performance oe Warranties.</p> <p>Nor does it devolve upon plaintiff to aver the warranties for violation of which a policy may be avoided by the company and prove their performance. The burden is upon the company, if it desires to avoid the policy for a violation of the warranties therein contained to set up that as a defense.</p> <p>7. Violation oe Warranty as a Defense.</p> <p>The policy of insurance reading: “This entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if • * * the interest of th-e assured be other than unconditional and sole ownership.” Held, this is a warranty the violation of which, if it is desired on that account to avoid the policy, should be set up in defense.</p> <p>8. Charging Jury as to Grounds oe Defense not Appearing in Pleadings.</p> <p>That the defendant cannot ask the court to charge the jury as to grounds of defense as to violation of conditions or warranties, when neither the violation, nor even the condition or warranty appears in the pleadings.</p>

<p>BILLS AND NOTES — SURETYSHIP.</p> <p>Want of Consideration on the Part of the Second Signer oe Joint Promissory Note.</p> <p>Where it appears from the evidence that several joint promissory notes were signed and delivered a week or two after delivery of the goods for which the notes were given, and that the payee knew that the second signer signed as a surety. Held, that such notes were not invalid for want of consideration as to the second signer, and that the good consideration existing between the payee and the principal debtor is a good consideration for the contract of the second signer.</p>

<p>APPROPRIATION OF PROPERTY FOR STREETS.</p> <p>When Value oe Property Appropriated is to be Taken.</p> <p>In a proceeding to appropriate private ^property for street purposes, the value of the property is to be taken at the time of the trim, and not at the date of the condemnation ordinance.</p>

<p>Heard on appeal.</p>

<p>AGENCY.</p> <p>1. Contract or Sale When Pact or Agency is Unknown by the Purchaser.</p> <p>Wliere the owner of personalty puts the same in the possession and control of his agent to he sold by him, and he sells it to a third person under an arrangement whereby the latter pays partly in cash for said personalty, and the balance is paid by the application thereto of a claim which the purchaser holds against the agent himself, and the purchaser has no knowledge of the fact of such agency, but believing and having reasonable ground to believe the agent to be the absolute owner of such personalty, such contract of sale is valid and binding as against the real owner, and cannot be repudiated by him.</p> <p>.2. Right Or Real Owner to Recover Any Unpaid Part op the Purchase Money.</p> <p>If, in such case any part of the purchase money is unpaid by the purchaser, the. real owner of the personalty has the right, by notifying the .purchaser of his ownership, to compel the payment to him as thereat owner of the amount still unpaid according to the terms of the contract, but in so doing, the real owner must affirm the contract of sale in all its parts, and must accept the payment as made by the antecedent debt of the agent to the purchaser, so far as the same applies on the purchase price.</p>

<p>VACATION OF JUDGMENT.</p> <p>1. What Motion to Set Aside must Contain.</p> <p>A motion filed under section 5354 of the Ohio Revised Statutes, asking the court to vacate or modify its own judgment made at a former term on the ground of irregularity in obtaining the judgment, must contain a specification of what the irregularity consisted in.</p> <p>2. Court must First Adjudge that there is a Valid Defense.</p> <p>On the hearing of a motion to vacate or modify the judgment of a court rendered at a former term, the court must, under section 5359 of the Revised Statutes, decide upon the grounds to vacate or modify before trying or deciding upon the validity of the defense or cause of action, and before said judgment can be vacated or modified, the court must adjudge that the party seeking the vacation or modification had a valid defense or good cause of action as the case may be.</p>

<p>ATTORNEY FEES.</p> <p>Smith and Swing, JJ.</p> <p>When an Attorney not Representing the Receiver May be Paid out or Assets.</p> <p>Where a petition has been- filed by one of two members of an insolvent partnership, asking for appointment of a receiver therefor, and a dissolution of such partnership and the winding up of its affairs, upon the alleged ground that the other partner is mismanaging the same, and a receiver is appointed and a fund is thus brought into court for the benefit of„creditors;’on application of the plaintiff for an allowance from the fund for the services of his attorney in filing such petition and procuring the appointment of such receiver, if the court finds that such services have been beneficial to the parties entitled to the fund on distribution, such motion should be granted, and a reasonable allowance made therefor.</p>

<p>On appeat from tbe Court of Common Pleas of Butler county.</p>

<p>STREETS — CHANGE OF GRADE.</p> <p>Evidence Required in an Action for Damages for a Change of Grade.</p> <p>In an action for damages for a change of the grade of an unimproved street, it is necessary for the plaintiff to show that the grade which he anticipated, in the erection of buildings on said unimproved street, was in fact established by some affirmative act of the city, and a simple user, through a long period of years, does not amount to such an establishment.</p>

<p>APPORTIONMENT OF SCHOOL FUNDS.</p> <p>Follett, Jenner and Pomerene, JJ.</p> <p>1. Failure of Auditor to Apportion School Funds — Authority of Township Board of Education.</p> <p>The failure of the auditor to apportion the state common school fund according to law, does not authorize a township board of education to treat it as a contingent fund, and disburse it according to their discretion.</p> <p>2. Duty of Auditor as to Apportionment of School Funds.</p> <p>The auditor must apportion the state common school fund to the several districts, sub-districts, joint subdistricts and fractions of districts according to the enumeration of youth of school age in each as required by section 3964, Revised Statutes, and because there are other funds belonging to subdistricts which he is unable to apportion, affords no excuse for a failure to comply with the plain letter of the statute.</p> <p>8. Want of Such Legal Distribution no Defense to Action for Pay for Teachers’ Services.</p> <p>Where there has been no such legal distribution, but the township treasurer held $1,255.60 of the state common school fund with other funds, together amounting to $3,339.32, at his September settlement, 1892; the fact that the board of education is indebted over $4,000 for school houses erected, affords no defense to the payment of an order for $50 for services as teacher in a subdistrict for the school year preceding said settlement, the enumeration of youth therein being one-fourth of the enumeration of the township, and the contingent fund set apart to pay teachers for the subdistrict having been exhausted for said year.</p>

<p>GUARANTY.</p> <p>Smith and Swing, JJ.</p> <p>CONSIDERATION TO SUPPORT A GUARANTY, AND FOR A SUBSTITUTED NOTE.</p> <p>T. loaned the firm of S. & M. a sum of money and took their note. Afterwards S. & M. became bankrupt, and then made a composition with their creditors, which T. signed, -and filed her claim. Mrs. S. guaranteed the payment of the original note, in pursuance •of an agreement made at the time of the failure, and T. retained the same, in lieu of ■what was due her under the composition agreement. Mrs. S. paid various sums •on the note, and afterwards S. made a new note like the old one and Mrs. S. signed the ■same as maker. Held, That there was a good and sufficient consideration to support the guaranty of Mrs. S., and consequently there was a good and sufficient consideration for the execution of the note which was given in lieu and satisfaction of the first note so guaranteed by her.</p>

<p>REPLEVIN — BOND.</p> <p>Action Against Surety on Bond — Effect oe Defect in Magistrate’s Judgment.</p> <p>Courts have no authority to sustain an action against a surety on a replevin bond beyond the strict letter of the bond, and where in replevin suit the judgment of a magistrate stops short of the judgment which the statute in such cases directs, they have no power to enter judgment for the value of the property.</p>

<p>Heard on appeal; motion to dismiss appeal.</p>

<p>EMPLOYER AND EMPLOYEE — EXCEPTIONS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Discharge for Disobedience of Instructions.</p> <p>Where an employee willfully disobeys the proper instructions of his employer, the latter may legally discharge the former before the expiration of the term of employment.</p> <p>'2. Retention of Funds for Pavment of a Doan.</p> <p>An employee cannot retain funds, collected by him for his employer, in payment for a loan made by the former to the latter for a definite period which has not expired,</p> <p>• 3. Generad Exceptions to a Number of Speciai, Charges.</p> <p>A general exception to a number of special charges asked and refused by the trial court will probably not avail to raise the question of correctness of each of the charges, unless they are all correct.</p>

<p>REVIEW OF SENTENCE.</p> <p>Necessity oe Fieing Transcript oe Record.</p> <p>In order to permit the circuit court to review a conviction and sentence in the court of common pleas, on a petition in error, there should be filed with .such petition in error a complete certified transcript of the record in the case as provided in section 7358, R S., and in omission to do so the petition in error will be stricken from the files.</p>

<p>PLEADING.</p> <p>Defective Construction of Sewer by a City — Liability of Land Owner.</p> <p>A petition alleging in substance, that the city of Toledo had built a sewer across a certain tract of land belonging to S. and that in doing so had so carelessly performed the work that the sewer had broken in; that plaintiff had been employed by S. or taken contract under S. to cut grass upon said land, and while in the performance of that duty it became necessary to cross said land and that while plaintiff was doing so her team fell into the hole and sustained injuries etc.</p> <p>Held,, Such petition states a good cause of action against the city and is not within the rule laid down in Burdick v. Cheadle, 26 O. S., 393.</p>

<p>FIRE-ESCAPE LAW.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Validity or Section 82 or the Act or February 28,1888.</p> <p>Section 32 of the act of February 28, 1888 (85 O. U., 34_; Smith & Benedict Statutes, sec. 8223-100), is a law of a general nature, applicable to cities of the first grade of the first class, and is not in contravention of sec. 26 of article 2i of the constitution of Ohio.</p> <p>2. Unconstitutionality or Section 61 or Same Act.</p> <p>Section 61 of the same act (8223-130, Smith & Benedict) is in conflict with section 5, article I of the constitution of Ohio, providing that the right of trial by jury shall be inviolate.</p>

<p>JUDGMENT — EVIDENCE.</p> <p>Baldwin, Caldwell & Hale, JJ.</p> <p>1. Validity of a Judgment for Individuad Partners on Cognovit Note Payable to Firm.</p> <p>A promissory note made by a corporation not organized for profit, with a cognovit attached, was payable .to R. & Co. An action was brought on such note by R. and another, partners, as R. & Co., and a judgment rendered for plaintiffs. Held, Such judgment, in the absence of proceedings in error, is valid.</p> <p>2. 'Competency of Parod Evidence to Show upon What Issue a Former Judgment was Rendered.</p> <p>Where several distinct issues were involved in a case wherein judgment has been rendered, parol evidence in a subsequent case is competent to show that the former case was decided upon some technicality, or some one issue, and not on the merits, if the record is silent in that respect.</p>

<p>Heard on error.</p>

<p>CONSTRUCTION OF A WILL.</p> <p>Laubie, T'razier and Woodbury, JJ.</p> <p>Evidence to Show Meaning oe Word “Heirs” to be “Children.”</p> <p>S. devised tbe use of a farm to a married daughter for her life, with remainder in fee to “her heirs.” The daughter died, leaving her husband surviving, but without living issue. In other items of the will the testator bounded other lands devised to other of his children by lands described as belonging to the 1 heirs” of certain named persons. The husband of the daughter was not named or referred to in the will. Held;</p> <p>1. That, in order to show the testator used the word “heirs” in such devise of the remainder in the sense of “children,” it was competent to prove that the heirs of such named persons, in each instance, were the children of such persons, and that such persons and their said children had been long known to the testator, and had owned respectively such adjoining lands for many years prior to his death, to his knowledge.</p> <p>2. Under such circumstances, it is to be presumed that the testator used the word heirs in the devise of the remainder in fee in the sense of “children,” and intended to exclude the son-in-law; that the devise of the remainder had failed, and the estate passed to the heirs oí the testator.</p>

<p>MUNICIPAL CORPORATION.</p> <p>Validity of Contract Entered into by Village to Expend Money Where the Village .Clerk Fails to Make Certificate Required by Section 2702 of the Revised Statutes of Ohio.</p> <p>A contract entered into by a village whereby it agreed to pay a certain amount of money within a certain time, to be ascertained thereafter, the amount of money not being stated in dollars and cents, but to be ascertained by a fixed rule thereafter, and to be paid by the village out of the general fund, is one that comes within the provisionc of section 2702 of the Revised Statutes of Ohio, and is not valid when the terms of such section have not been complied with.</p>

<p>STREET RAILWAY FRANCHISE.</p> <p>1. To Whom Street Railway Franchise Must be Awarded.</p> <p>A street railway franchise can be awarded only to the lowest bidder, whose bid is accompanied by a bond which is sufficient and valid.</p> <p>2. Effect of Collusion Among Bidders, Resulting in Dow Bidding.</p> <p>Collusion among bidders, which results in low bidding, is not a ground for rejecting such low bids.</p>

<p>MANDAMUS — PREJUDICE OF JUDGE.</p> <p>Follett, Hale and Pomerene, JJ.</p> <p>1. Whetst the Duty oe a Judge, who has a Bias or Prejudice Ceases, as to the Triad of such Case.</p> <p>As soon as the affidavit, provided for in section 550 of the Revised Statutes of Ohio, is filed, and entered by the clerk on the trial docket, the trial of the case, concerning which such affidavit is filed, by the particular judge to whom the affidavit applies, is at an end, and the duty of such judge, as to such case, ceases.</p> <p>2. Sufficiency of Affidavit Provided for in Section 550 of R. S. of Ohio.</p> <p>The fact of bias, or prejudice, set forth in such affidavit, is not an issuable one to he tried, and it is not necessary to set forth the facts constituting such bias or prejudice.</p> <p>3. Assignment of Perjury on such Affidavit.</p> <p>Whether perjury can be assigned upon such affidavit, is- a query; but such assignment cannot be made on a traverse of the fact of bias or prejudice.</p> <p>■4. Remedy of Party where the Triad Judge Ignores the Fact of the Fiding and Entry of such Affidavit.</p> <p>After such affidavit is filed and entered on the trial' docket by the clerk, the judge, to whom it applies, is disqualified and has no jurisdiction to hear or try the case concerning which such affidavit is filed, and if he insists on so doing, the party aggrieved has a remedy by appeal or error; but not by mandamus.</p> <p>5. Misjoinder of Parties Pdaintiff in an Action to Disquadify a Judge on Account of Bias or Prejudice. *</p> <p>Different parties cannot join to disqualify a judge, on account of bias or prejudice, in different actions in which they are not jointly liable or interested.</p> <p>6. Verification of an Adtered Pdeading. ■</p> <p>A pleading may be altered, but after the alteration is made, it must be reverified.</p>

<p>HOMESTEAD EXEMPTION — EVIDENCE.</p> <p>1. When a Married Person is not Entitled to Homestead Exemption.</p> <p>In an action brought by a married woman to recover $500 in lieu of a homestead, under-the provisions of section 5441 of the Revised Statutes of Ohio, it will not be presumed that she is entitled to such exemption in the absence of evidence showing that she and. her husband are living together, and that neither of them is the owner of a homestead..</p> <p>2. Competency of Book entries to prove Dissolution oe Partnership, where such Entries were made Subsequent to Alleged Dissolution.</p> <p>Book entries made by a member of a partnership after the alleged dissolution thereof are not competent as evidence for the purpose of tending to prove the fact of such dissolution. ■ -i ,</p>

<p>TRUST — FRAUD.</p> <p>1. Sufficiency of Petition in an Action Against a Trustee of an Express Trust, for Defrauding Beneficiaries.</p> <p>In an action against the trustee of an express trust, charged with defrauding some of the beneficiaries, a demurrer will not lie against the petition alleging such fraud, even though the allegations are not as to a substantial fact and may be difficult of proof.</p> <p>2. When Action for Fraud Against the Trustee of an Express Trust is Saved from the Statute of Limitations. •</p> <p>An allegation that such fraud was not discovered until within four years of the filing of the petition saves the action from the bar of the statute of limitations, as against a demurrer. .</p> <p>3. Individuad and Representative Capacity of the Trustee of Express Trust.</p> <p>Where such action is brought against the trustee in her representative character, and it appears from the petition that the acts constituting such fraud were done by her in. her representative capacity, and operated to her benefit as trustee, the petition is not subject to demurrer on this ground.</p>

<p>STREET ASSESSMENTS.</p> <p>1. Constitutionality of “Erie Avenue Act”</p> <p>The “Erie Avenue Act,” passed April 22, 1890, and contained in vol. 87 of Ohio Taws, page 577, is constitutional.</p> <p>'% Jurisdiction of County Commissioners as to Benefits and Fixing Assessments. Under said act the decision of the county commissioners is final as to benefits and the amount of the assessments.</p> <p>3. Power of Auditor to Change the Time for Paying Installments of Road Assessment.</p> <p>The time for paying the installments of a road assessment cannot be changed by the auditor to earlier dates than those originally fixed by the commissioners.</p>

<p>PLEADING.</p> <p>Bentley, Haynes and Scribner, JJ.</p> <p>Waiver of Misjoinder oe Causes of Action.</p> <p>If the defense of a misjoinder of actions is not set forth in the answer it will be deemed to have been waived,</p>

<p>Heard on Motion to dismiss Appeal.</p>

<p>PRACTICE — NEGLIGENCE.</p> <p>Withdrawal of Evidence from the Jury and Rendition of Judgment bjr the Court.</p> <p>When a Case Should be Submitted to the Jury eor Decision.</p> <p>In an action for personal injuries, where there is evidence tending to prove negligence of one party or the other, the case should be submitted to the jury. The time. for the judge of the trial court to act is when the case comes before him on a motion for a new trial; then if the verdict is not sustained by sufficient evidence it is the duty of the court to set it aside,</p>

<p>ERROR to superior court of Cincinnati.</p>

<p>TOLL ROAD ASSESSMENT.</p> <p>Who Must Bear Assessment in a City.</p> <p>Where a part of a toll road is brought within the limits of a city by annexation of territory to such city, and the right to take toll on so much of said road as lies within such limits has been condemned by the city authorities, a part of the amount required to pay the condemnation money may be legally assessed upon the lots and lands abutting on that part of such road lying within the city limits.</p>

<p>Error to Hamilton common pleas.</p>

<p>EVIDENCE — CHARGE TO JURY.</p> <p>1. Admissibility or Statements made by an Agent.</p> <p>Where an agent acting under instructions from his principal answers orally and under oath a garnishee process served on such principal, his statements so made may he given in evidence against the principal in another action involving the property about which the agent had so testified, and about which he alone had knowledge.</p> <p>.2. Charging Jury as to Recovery if They Found Parties made some Other Contract.</p> <p>Where the only issue was whether the defendant had purchased certain accounts for an agreed price of the plaintiff, and the court has fully instructed the jury as io the issue and the burden of proof, it is not error to refuse to charge that it the jury found that the parties made some other contract their verdict should be for defendant.</p>

<p>CROSS-DEMANDS.</p> <p>Smith, Swing & Cox, JJ.</p> <p>Xiability on Debtor to Pay Assigned Claim, where He has Promised to Pay such Claim to the Assignee Thereof.</p> <p>H. had a claim against F. and assigned it to D. & W. At the time of such assignment F. had an existing claim against H. In a suit brought by D. & W. against F. on such assigned claim—</p> <p>Held, That under the provisions of section 5077 of the Revised Statutes of Ohio, the two demands must be deemed compensated, notwithstanding the fact of such assignment and any promise that F. might have made to D. & W. to pay such assigned claim, F. at the time not knowing that his claim could be set off against the other.</p>

<p>DIRECT INHERITANCE TAX.</p> <p>Swing, Cox and Smith, JJ.</p> <p>1. Not a Taxation op Property.</p> <p>The act of April 20,1894 (91 O. E. 166), does not impose a tax on property, but on the privilege of inheriting property.</p> <p>2. Not Uniform in its Operation.</p> <p>The passage of a law taxing the privilege of inheriting property is within the legislative discretion, but this act is not uniform or equal in its application to all classes of estates, and is therefore in contravention of both the state and federal constition.</p>

<p>Error to tbe superior court.</p>

<p>PRACTICE.</p> <p>Caldwell, Hale, and Marvin, JJ.</p> <p>Right oe One not a Party to Intervene in Attachment Case.</p> <p>A person not a party to the action claiming to own property upon which an attachment has been levied, cannot intervene for the purpose of determining his rights and ownership to the property attached. His remedy is by independent action.</p>

Heard on Feror to the Hamilton Common Pleas Court. The suit was for recovery from the plaintiff in error of a balance of $270,. claimed to be due on a policy on the life of the defendant in error’s son, the allegation being that the company sent by check to its agent, J. A. -Streng, $590 in. full payment of the policy, but the said Streng, or the defendant, or some one or moi e of its agents, kept and refused to pay over the balance, for which this suit was brought.

<p>LIFE INSURANCE — BILLS OF EXCEPTIONS.</p> <p>11. Bill oe Exceptions at Variance with the Truth as to the Testimony.</p> <p>The assignment of error that the verdict is not sustained hy the evidence will not be considered by the reviewing court, although the bill of exceptions contains the statement that it embraces all the testimony, if, upon the face of the bill itself, it appears that the statement is untrue.</p> <p>2. Deposition Detached prom Bill op Exceptions.</p> <p>A deposition, detached from the bill of exceptions, a part of which appears to have been offered and read upon the trial, will not be treated as a part of the bill, in the absence of the statement therein that it is so made.</p> <p>3. Insurance — Contracts with Insuring Companies Located in Other States Are Subject to Laws op this State.</p> <p>A contract of insurance, the assured residing in this state, the insurer in another, the latter doing business in this state, having complied with conditions of the statute so permitting, by the terms of which it is agreed that the same shall be regarded as made under the laws of the state where the insurer resides, is, nevertheless, subject to the laws of this state, in determining the rights of the parties thereunder, when sought to be enforced by the beneficiaries in the courts of this state. Laws founded in public policy, for the protection of all the citizens of the state, cannot be evaded or nullified by a contract between a citizen of this state and a citizen of another, permitted to do business in this state only by a compliance with conditions imposed by statute.</p>

<p>MECHANICS’ LIEN.</p> <p>1. Mechanic Tien — When Giving Note is Not a Waiver.</p> <p>Since the act of March 7,1887, sec. 3181, R. S., the giving of a promissory note is not a waiver of the lien of the mechanic unless there be an agreement that the note is received in payment.</p> <p>3. When Time Dates from, During Which Tien May Be Taken.</p> <p>Under a contract to slate a house, the proof showing that it was the general custom for the slater to return and make such repairs as are necessary because of injury occasioned by other workmen, the time during which the lien may be taken, dates from the completion of such repairs.</p>

<p>WILLS.</p> <p>Construction oe Wire — Income—Construction oe the Word "Use” to Create a Iviee Estate.</p> <p>The use in a -will of the words “I give, devise and bequeath to my wife the use of all my real and personal property which I may own at the time of my death, to be used by her during her natural lifetime,” creates a life estate in such wife and the income or accumulation arising therefrom will pass by her will to the legatees.</p>

<p>EVIDENCE.</p> <p>Haynes, Upson and Baldwin, JJ.</p> <p>Burden oe Prooe — Evidence by Defendant of a Different Contract from that Sued Upon.</p> <p>In an action brought on a contract which was claimed to be absolute, but denied by the-answer; the evidence introduced by the defendants tending.to show a conditional contract: Held, That the burden of proof did not shift, and that the court erred in charging the jury, that the burden of proof was upon the defendants to prove that the contract was a conditional one.</p>

<p>APPROPRIATION.</p> <p>Baldwin, Caldwell and Hale, JJ.</p> <p>Slight of Action For Value of Appropriated Lands Conveyed After Conditional Judgment is in the Vendee.</p> <p>After conditional judgment in favor of the plaintiff in error under 66 O. L., sec. 637, p. 240 (R. S., 2260), in appropriation proceedings against the city of Cleveland, he conveyed the lands in fee simple. Thereafter and after the expiration of the six months provided for in that statute, and without any new appropriation-contract, city took possession of the land, but did not pay therefor.</p> <p>Held, The right of the vendor to receive the damages under the conditional judgment had ended, and the right of action for damages for the taking of the land accrued to the vendee.</p>

<p>REINSTATEMENT OF DISBARRED ATTORNEY,</p> <p>Stewart, C. J., Shauck and Shearer, JJ.</p> <p>1. Power oe Court to Reinstate.</p> <p>The court which disbars ah attorney has power, upon motion and for good cause shown, at any time, to modify its order or to reinstate him.</p> <p>2. Grounds for Reinstatement.</p> <p>Such order should not he modified or set aside unless the court is satisfied upon consideration of such attorney’s life and conduct prior to his disbarment, and the reasons for such disbarment, that his life and conduct for a reasonable length of time since said disbarment, have been such that his restoration to the bar will not be incompatible with a proper respect of the court for itself, and a proper regard for the dignity of the profession.</p>

<p>DEFECTIVE SIDEWALK — EVIDENCE.</p> <p>1. Evidence oe Witness Who Saw a Defective Sidewalk on the Day Following-an Injury.</p> <p>In an action for personal injuries resulting from a defective sidewalk, plaintiff introduced! the testimony of a witness who observed the sidewalk in question after the injury, and who, upon cross examination, stated that he did not see the walk immediately after, or upon the day of the accident, but saw it on the day following. Held, Taking into consideration the circumstances, the description of the walk as it appeared to various witnesses at the time of the accident, that the admission of such testimony 0 was not error prejudicial to the defendant.</p> <p>2. Testimony'oe a Non-Proeessionae Witness as to Whether a Person Appears Sick.</p> <p>Although it is not competent for a non-professional witness to go into detail and determine the technical disease with which a person is affected, he may be permitted, upon the general matter of his health, to testify whether a person appears sick or not.</p> <p>3. Impeachment oe a Witness’ Testimony without Laying Grounds eor Contradiction.</p> <p>It is in conflict with the general rule of law that a witness whose deposition has been taken, without cross-examination as to particular statements that he may have previously made, inconsistent with his then testimony, should be contradicted by evidence-of those statements; and Held, on the facts of the case at bar, to be error prejudicial to the defendant. * ,</p> <p>4. Physicians’ Statements not Competent as Part oe the Res Gestae.</p> <p>Where the principal fact to be proven is the condition of a person’s health of body, a physician’s remarks as to the nature of a prior ailment, made at the time it existed, are not part of the res gestee. Application and limitation of the rule, see opinion.</p> <p>5. Pla-intife’s Knowledge oe Condition oe a Sidewalk on which She Was Injured.</p> <p>Motion to take case from the jury on the ground that plaintiff had the same knowledge of the situation of the walk, and its condition, as the village had: The court held without stating the facts, that it should be a very clear and very strong case to warrant the allowance of such a motion.</p> <p>6. Same — Some Vigilance is Required oe Municipal Officers To Find • Out What Walks Are Out of Repair.</p> <p>The duties of inspection and ascertainment of defects in sidewalks which devolve upon a village, do not rest upon a citizen, and a charge to a jury which implies that the plaintiff was as much bound to know the condition of the walks as the village officers, is erroneous.</p> <p>Í. Burden of Proof to Show Exercise of Care — Jury to Determine When It Shifts. ' '</p> <p>When it is claimed that plaintiff’s testimony shows a want of care on her part, the court will not charge the jury as a matter of law that “ the burden of proof is upon the plaintiff to show * * * * that she was in the exercise of due care.” This would be assuming that a case has arisen for the application of the rule regarding the shifting of the burden of proof, a fact that the jury should find. The true rule is that when,, if an ordinary person walking upon a sidewalk would have seen that it was dangerous to go upon, and the jury find that it was open, apparent, and patent that it was so,, and that, notwithstanding that, the plaintiff did go along and was injured, then the burden is shifted.</p> <p>8. Charge to the Jury — Taking Different Propositions Together.</p> <p>Each distinct proposition of a charge to the jury should be a complete statement within itself, containing every element belonging to the proposition, but when a proposition is incomplete or inadequately expresses the whole law upon the subject, the verdict will not be set aside if what immediately follows the defective part is sufficiently explanatory to prevent the jury from being misled.</p> <p>'9. Use of “Might” for “Would” or “Should.”</p> <p>Criticism of the use of the word “ might ” for “ would, ” or “ should, ” in such expressions as “ If by the exercise of diligence the party might have discovered, ” etc.</p>

<p>PARTNERSHIP — CONTINUING DEBT.</p> <p>1. Amendment oe Pxeading to Set up Notes not Sued Upon.</p> <p>The plaintiff in an action upon promissory notes may he allowed to amend his petition and set up notes other than those originally sued upon, when the evidence shows that the notes first sued upon were received in renewal of the original indebtedness.</p> <p>2. Partnership — Pacts Constituting.</p> <p>An arrangement was made between B. and M., whereby B. loaned to M. $10,000, to be used in business; B. received notes from M. for the amount loaned, bearing interest at the rate of 8 per cent per annum. It was further agreed that B. should receive one-fourth of the net profits of the business and, further, that if the profits should not ex- . ceed the amount of 8 per cent per annum on the notes, that M. should pay B. the interest ; B. also agreed to indorse notes at the bank for M. for a certain amount. Held„ That said arrangement constituted a partnership as to creditors, and that B. is re-j^>wsLsible for debts contracted by M. during the period of such relations or agreement.</p>

<p>APPROPRIATION OF LANDS.</p> <p>1. Wrongful Entry — Right of Owner of Lands to Treat such Entry as a Sale.</p> <p>A wrongful entry upon premises, bya corporation, without compensation or agreement with the owner, does not of itself entitle such owner to recover the value of the property ; but it leaves him an election to treat such wrongful entry as a sale of the property, and by tendering a conveyance and making the election to recover compensation, it enables him to bring an action for that purpose, and to recover the value of the land.</p> <p>2. Character of Suit for Compensation — Statute of Limitations.</p> <p>A suit to recover compensation for land appropriated, where the defendant entered with the verbal consent of the owner, is an action upon an implied contract and is barred by the six years’ statute of limitations.</p>

<p>STREET RAILWAY — NEGLIGENCE.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Street Car Jumping Track at Curve — Presumption of Negligence where a High Degree of Care and Skill is Used at Time of Accident.</p> <p>In an action against a street railway company for the recovery of damages for a personal injury to a passenger, caused by an electric car jumping from the track, if it appears that the injury was not caused by any fault of the plaintiff, and there is no explanation for the escape of the car from the track, and nothing shown that it was inevitable or unavoidable, the jury will be justified in presuming that there was some negligence on the part of the railway company, notwithstanding it and its agents, at the time of the accident, were using a high degree of care and skill.</p> <p>'2. Setting Aside an Excessive Verdict.</p> <p>A verdict will not be set aside for excessiveness, unless clearly shown to be excessive from prejudice or passion.</p>

<p>BENEFICIAL, SOCIETY.</p> <p>Swing, Smith & Cor, JJ.</p> <p>Right or1 a Beneficiad Society to Apply its Ponds to Religious Purposes.</p> <p>The funds of a society, organized to assist its sick and needy members, cannot, without a change of its constitution, be applied to religious purposes.</p>

<p>Heard on error.</p>

<p>EVIDENCE — NEGLIGENCE—STREET RAILWAYS»</p> <p>Baldwin, Caldwell & Jenner, JJ.</p> <p>1. Competency oe Declarations Made by Injured Party at Time oe Accident.</p> <p>In an action to recover for personal injuries, evidence as to what the injured party said, at the time, indicating his pain, in the usual way, is admissible, but what he said, at the time of the accident, as to how it occurred, is not competent and should not be admitted.</p> <p>2. Burden oe Proof Where Testimony oe Injured Party Discloses Contributory Negligence.</p> <p>If, in such an action, the testimony of the party injured discloses negligence on his own part, contributing to the injury, he cannot recover, unless, by his own testimony, he relieves himself of the burden thus cast upon him.</p> <p>3. Degree oe Care to be Exercised in all Rinds oe Business.</p> <p>Although the degree of care to be exercised in different hinds of business should be increased in different cases owing to the character of the business and the surrounding circumstances, yet only ordinary care is required; and although the amount of care in perilous kinds of business should be increased, the standard always remains the same.</p> <p>4. Duty oe Traveler in Crossing Railroad Track.</p> <p>It is not negligence per se, if a traveler in crossing a railroad track fails to stop, look and listen; but it is his duty to use his senses to look and listen.</p> <p>•5. Rights oe Street Railways in and to the Streets Through Which Their Dines Extend.</p> <p>Street railway companies have no rights in the streets of a municipality through which their lines extend, that are superior to the rights of the public therein; but their rights are only equal to those of the public.</p>

<p>Appeal from the court of common pleas of Ottawa county.</p>

<p>Error to tie court of common pleas of Butler county.</p>

<p>DITCH CONTRACT.</p> <p>Seney, Day and Price, JJ.</p> <p>Damages eor Breach oe Bond to Complete Work.</p> <p>A board of county commissioners is not liable in damages for breach of a ditch improvement contract taken by the engineer, under the provisions of section 4476 of the Revised Statutes of Ohio.</p>

<p>RAILROAD LAW — NEGLIGENCE,,</p> <p>1. Duty op Railroad Company to Provide Rules por Protection op its Employees.</p> <p>During the progress of the work of repairing or altering railway tracks, by which said tracks are made dangerous, it is the duty of the railway company to provide rules and regulations for the control and protection of employees and for the protection of the public against dangers consequent upon such work or the temporary condition of such tracks.</p> <p>:2. Same — Securing Cars on Siding.</p> <p>Where railway tracks, when finished, and constituting a siding, stand upon an inclined plane, it is the duty of the company to provide rules and regulations to secure the care which are placed upon such tracks from getting out onto the main line.</p> <p>S„ Measure op Damages.</p> <p>Verdict of $19 000 not excessive considering the earning capacity of the person who was injured, and the sufferings he had to endure i a verdict of $19,000 is not so excessive as to warrant the court in interfering with it.</p>

<p>ERROR — BILL OF EXCEPTIONS.</p> <p>1. Bill or Exceptions not Filed within Time, Stricken erom Files.</p> <p>A bill of exceptions not allowed and filed witbin fifty days from the overruling of the . motion for a new trial, or from the decision excepted to in case a motion for a new trial is not necessary, will be stricken from the files on motion, although a motion was made to open up the judgment and retry the case, which motion was overruled within fifty days before the filing of the bill of exceptions.</p> <p>2. Petition in Error Dismissed.</p> <p>A petition in error filed more than six months after such first judgment, will be dismissed as to all errors assigned to said judgment.</p>

<p>DAMAGES FROM STREET IMPROVEMENT.</p> <p>Recovery Must be Limited to Amount Claimed.</p> <p>Where an owner of a lot hounding or abutting upon a street improvement files a claim for damages by reason of the improvement, under section 2315, Revised Statutes, he is limited by the amount he fixes in his claim, irrespective of what they are, and cannot recover anvthing in excess of the amount of such claim.</p>

<p>Hearü on appeal from Hamilton county common pleas.</p>

<p>EVIDENCE — CHARGE TO JURY.</p> <p>1. ' Competency oe Evidence oe Acts oe Managing Officers.</p> <p>One Mammet having been killed by the falling of a street bridge over the hake Shore railroad and over which decedent was passing on a street car of which he was the motorman and in the employ of a street railroad company, his administrator brought this action against the steam railroad, the electric street railroad and the city of Toledo, and alleged that each of these companies had knowledge of the dangerous condition of the bridge, and that decedent had no such knowledge. It was competent to show on the trial that the managing officers had examined the bridge the day before the accident and had pronounced it safe, and this was communicated to the decedent, by one of his fellow employees shortly before the bridge fell.</p> <p>2. Reading Sections of Statutes as Part oe Charge to Jury.</p> <p>As a part of its charge, the court read sections 6134 and 6135 as the law upon the right to and measure of damages in an action brought thereunder. This was proper, and if any of the parties desired more specific instructions on the subject, they should have requested them.</p> <p>S. Vehdict Sustained by the Evidence.</p> <p>On the facts stated in the opinion, the verdict is sustained by sufficient evidence.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>1. Effect of Remoteness of Incidents given in Evidence.</p> <p>When it was claimed that an injury causing death was caused by decedent in crossing a railroad track in front of an advancing train, catching his foot between a plank at a road crossing and a rail of the track from which plank a piece was split off one side and end, and the planks were old and rotten, it was not error to permit a witness to tes tify that he had caught his foot at the same place six months before, and his horse had caught its foot there six years before, on which occasions he had noticed the defects complained of, the remoteness of the incidents affecting the weight and not the competency of such evidence.</p> <p>2. Contributory Negligence in attemeting to drive Sheep oep the Track.</p> <p>The evidence tending to show that decedent saw the train coming and went upon the track to save his property from being destroyed by the train, and that he could have crossed in safety but for the defect in the plank where his foot was caught, it is held he was not guilty of negligence contributing to his injury in so going upon the track.</p> <p>■3. Verdict Sustained by the Evidence.</p> <p>The verdict in such case is sustained by sufficient evidence.</p>

<p>PLEADING.</p> <p>1. Power oe Court to Strike Equivocal and Evasive Pleadings from Files.</p> <p>Courts have the power on motion, to strike equivocal and evasive pleadings from the files.</p> <p>2 Right of Courts to Summarily Strike a Denial of the Allegations of Petition from Files on Preliminary Hearing.</p> <p>In an action where a denial ot the allegations contained in the petition is made, and a motion is filed by the plaintiff to strike such denial out as false, the court has the power for its own protection, to summarily adjudicate the question as to the falsity of' such denial, especially where the court is satisfied that such denial was made to prevent the administration of justice.</p>

<p>REMOVAL, OF BUILDINGS FROM LEASED LANDS.</p> <p>Caldwell, Hale and Marvin, JJ„</p> <p>1. Right to Remove Buieding erom Grounds Leased for a Schooehouse.</p> <p>A building erected upon leased land by a lessee, for use exclusively as a schoolhouse, is as to the right of removal governed by the same rules of law which govern in the case oi buildings erected by a lessee for the purposes of trade.</p> <p>2. Same — Absence oe Express Agreement.</p> <p>Such building, in the absence of any express agreement on the subject, may, when the duration of the term granted by the lease is dependent upon a contingency over which the lessee has no control, be removed before, or within a reasonable time after, the expiration of the term granted by the lease.</p> <p>3. Rights oe Purchaser erom the Lessor.</p> <p>On taking a conveyance by deed of lands from a lessor before the expiration of the term granted by the lease upon which is a building erected by the lessee, exclusively for use of a schoolhouse, with knowledge that such, building was so erected, stands in the same situation as to the removal of such building as did the original lessor.</p> <p>4. When Acceptance oe new Lease wiee not be a Surrender oe Lessee’s Right to Remove.</p> <p>When the lessee, within the time in which he has the right to remove a building erected by .him on the leased premises, accepts a new lease in writing from the owner, in which; nothing is said about such right to remove, and in which nothing is said about the condition in which the premises are to be delivered up at the expiration of the lease,, and where such lease is executed on the part oí each party by an agent, and such agents, agree by parole at the time of the execution of such new lease, that the lessee’s right to remove the building shall be left open, the acceptance of such new lease is not such a surrender of the lessee’s rights to remove, as to prevent him from removing the building, within the term granted by such new lease.</p>

<p>MECHANICS’ LIENS — BUILDING AND LOAN COMPANIES.</p> <p>1. Payment by Note and Mortgage to Principad Contractor to Divest Subcontractors, etc., oe a Right to a Lien.</p> <p>Under the mechanics' lien statutes it the owner as a part paynjent on a past due installment, owing to the principal contractor in good faith, execute and deliver to the said . contractor his note and mortgage securing the same, upon the premises in question, which note and mortgage is so received as payment by the contractor, the same will be considered a valid payment, although subcontractors and material men may still be unpaid.</p> <p>2. Payments by a Buii,ding and Loan Company, in Violation oe Orders erom Owner.</p> <p>A building and loan company having undertaken to loan to the owner a certain sum of money, and also undertook with his consent to pay the same upon his order, and as it should be needed in paying for the work and material done and performed upon a building, then in course of erection, the said building and loan company must regard the orders given it by said owner, and pay the money only as he directs, or if it pays in violation of his order, or without his knowledge, if will not be protected in such payment.</p> <p>3. Right oe Building and Loan Company to Pine and Assess.</p> <p>The mortgagor, not having defaulted on any conditions of his mortgage, cannot be fined or assessed by a building and loan company mortgage, a sum, for an attorney’s fee, incurred in maintaining a claim which is by the court found invalid.</p>

<p>INSURANCE — CHARGE TO JURY — EVIDENCE.</p> <p>3. Beeect or Untruthful Statements in Application — Right to Maintain Action on Policy Where Property Is Held by Trustee — Eeeect oe Property’s Becoming Vacant — Conditions Subsequent.</p> <p>An action was brought by L. P. against the O. P. Insurance company upon a policy of insurance issued by said company, covering both realty and personalty, to recover for a loss by fire, ot the property so insured. The company, in its answer, set up several specific defenses, substantially as follows:</p> <p>First — That the plaintiff, in applying for said insurance, was required to make a written statement as to whether there were any mortgages on the property, and as to the value of the same; that the plaintiff stated that there was a mortgage of $2,000, and that the property was worth $7,500; that there was in fact, at the time of such application, •a mortgage of $4,000 upon the property, and the value thereof was not nearly as great as was stated by plaintiff, and that, by the terms of such application and policy, such statements were a warranty and condition precedent to the right of the plaintiff to recover, if such statements were false..</p> <p>.Second — That subsequent to the issuance of such policy, the real estate insured, was transferred by said L. P. to one M. P., contrary to the conditions of such policy.</p> <p>Third — That the property so insured had been allowed to remain vacant and unoccupied, or that it was occupied by tenants, contrary to the terms of the policy, thereby avoiding it.</p> <p>Fourth — That at the time of such loss, an action to foreclose certain mortgages upon said property, and for judgment, was pending, and that the sheriff was proceeding to sell said property by virtue of an order of sale issued by the court in said action, which, it was claimed, operated to avoid the policy.</p> <p>The plaintiff replied, that the application for such insurance was taken by defendant’s agent who wrote out all of the various answers appearing in the application; that plaintiff, in all the statements made to the agent, told the truth as it then existed; and that it any errors occurred in the written answers, they were the errors of defendant’s agent, and not of the plaintiff; but it was not denied that there was more than $2,000 mortgage indebtedness on the property insured.</p> <p>The testimony disclosed that such transfer was made by L. P. to said M. P., to be held by her in trust for L. P., although such fact was not alleged in the reply.</p> <p>Held: First — That whether the insurance company had knowledge at the time of said mortgage liens, and whether there had been any intentional fraud on the part of the plaintiff in making his application for insurance, were questions to be submitted to the jury under proper instructions from the trial court.</p> <p>Second — That said I* P. had the right to maintain such action against the insurance company in his own name, but the fact of such trust should have been averred in the reply.</p> <p>Third — The fact that said property became vacant and u -’occupied would not absolve the insurance company from liability under said poli , unless the risk was thereby increased, and whether said property did become vacant, as well as whether the risk was increased, was a question to be determined by the jury.</p> <p>Fourth — A condition arising since the making of such policy cannot avoid it, unless the risk is thereby increased, and the burden of proving that it is thereby increased, is on the defendant.</p> <p>'2. Divisibility op Contract op Insurance.</p> <p>Such contract of insurance is divisible and severable, and although stuKh policy might be void as to the realty, because of the risks becoming increased by such mortgage lien, under proper circumstances the plaintiff could recover for the loss of the personalty.</p> <p>3. Rule Governing Conditions Predecent and Subsequent.</p> <p>In insurance policies conditions subsequent are governed by the same rule that governs conditions predecent.</p> <p>4. Rule as to Submitting Abstract Propositions oe Law to Jury.</p> <p>Abstract propositions of law should not be given to a jury, but requests for charge should be moulded to fit the facts of the case as claimed by the respective parties.</p> <p>5. Effect of Cross-Examining Witness on Matter Foreign to Issues.</p> <p>In such action, the insurance company’s answer did not allege that such fire was of an incendiary origin, or that said property was burned or procured to be burned by either said L. P. or M. P., but at the trial the court allowed defendant’s counsel to cross-examine said M. P. for the purpose of tending to show that the fire was of incendiary origin, and that she either burned the property or procured it to be burned. Held: It was error for the court to allow such cross-examination for such purpose.</p>

<p>TAXATIONS</p> <p>Bentley, Scribner and Haynes, JJ.</p> <p>L Exemption op Property Owned and Used by a City.</p> <p>Under the provisions of section 2, article XII, of the ..constitution of Ohio, it is competent for the general assembly, by law, to exempt from taxation the gas wells," pipe lines, and machinery and fixtures necessarily connected therewith, acquired, owned and used by the city of Toledo, for the purpose of supplying the city and its inhabitants with natural gas, for heating and lighting, under the act of 1889. 86 Ohio Laws, p. 7.</p> <p>Ü. Property which may be Regarded as Used Exclusively por Public Purposes.</p> <p>Said property is to be regarded as used exclusively for public purposes, within the meaning of paragraph 8, of section 2732, as amended in 1891, 88 Ohio Laws, 95, though natural gas supplied thereby is used for lighting and heating private dwellings and factories, as well as public buildings of the city, and although a large part of said property is outside the limits of said city, and of Lucas county. (See State ex ret. v. 7%e City of Toledo, 48 Ohio St., 112.)__</p>

<p>NEGLIGENCE.</p> <p>Province of Jury in Determining Negligence.</p> <p>In an action against a railway company for personal injuries caused by the plaintiff being struck by a train of the company at one of its crossings, whether or not the plaintiñ negligently approached the crossing is a question to be left to the jury.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>CONSTRUCTION OF CONTRACTS.</p> <p>Smith, Swing and Shauck, JJ.</p> <p>[Judge Shauck, of the Second Circuit, taking the place of Judge Cox.]</p> <p>1. Importance of Conduct and Acts of Parties in Construing Contracts.</p> <p>Where the terms of a contract are ambiguous and obscure, a court, in adjudicating upon it and attempting to arrive at the meaning and the intention of the parties in using the language in question, should give great weight to the acts and conduct of the parties thereto, and to the interpretation by them placed upon it for many years continuously, with full knowledge of the questions involved. And it should receive . this interpretation, though it may seem to be opposed to the natural and ordinary meaning of the language used.</p> <p>■ S.' Same — Set-off of Amount Claimed to have been overpaid.</p> <p>When such construction has been so acted upon by the parties for many years, with such full knowledge and large sums of money have been paid by one to the other at various times in accordance with the interpretation so by them placed upon said contract, and an action is brought by one of the parties thereto against the other to recover further installments olainfed to be due thereon, the party who had made such former payments, under what it now claims was an incorrect interpretation of such contract, is not entitled to set off as against the demand of the plaintiff, the amount claimed to have been overpaid to it, by reason of such incorrect interpretation of the contract, and recover a judgment for"the residue so claimed to have been improperly paid. And the plaintiff will be entitled to a judgment for the amount'due upon said contract, according to the interpretation so placed by both parties upon the contract, in the manner hereinbefore stated.</p>

<p>ON appeae from the court of common pleas of Hamilton county.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Bentley, Haynes and Scribner, JJ.</p> <p>1. Admissibility or Evidence under G-enerai, Allegation op Negligence.</p> <p>It is error for a trial court, under a general allegation of negligence upon the part of a railroad company to permit evidence to be introduced proving or tending to prove that tbe car upon which plaintiff was injured was defective.</p> <p>2. Effect op Directions by the Court to the Jury to Disregard Evidence Received.</p> <p>Having received such testimony the court subsequently directed the jury to disregard it entirely. Held, That the judgment should not be reversed on account of the original error where the court subsequently instructed the jury as stated.</p> <p>Verdict not sustained by sufficient evidence.</p>

<p>STREET RAILWAY LAW.</p> <p>Follett, Jenner and Pomerene, JJ.</p> <p>1. Authority over Streets Beyond Corporate Limits.</p> <p>An ordinance passed by the council of a municipal corporation, under authority of section 3438, Revised Statutes, authorizing a street railway company to extend its line beyond the limits of the corporation, and along a state road, is no defense to an action by the county commissioners against the company, to recover damages for the injury to said road occasioned by the construction of such extended line.</p> <p>2. Sams — Abutting Owners’ Rights.</p> <p>The ordinance passed by the council only permits the company to extend its railway beyond the limits of the corporation; the control of the county commissioners over the state road is not affected thereby, nor the property rights of abutting land owners extinguished.</p>

<p>SALES — FRAUD—REPLEVIN.</p> <p>1. Right to Replevin Goods from Assignee oe Insolvent Debtor in the Absence of Evidence, Disclosing Fraud.</p> <p>Where goods were replevined from the assignee rof an insolvent debtor and there was no evidence tending to show with certainty that such debtor at the time he ordered said goods knew of his failing condition, or did not intend to pay the debt contracted by their purchase, when it became due, and the question of such debtor’s intention at the time of making such order, was submitted to aqury, which rendered a verdict in favor of the assignee and against the vendor, the plaintiff in replevin, a judgment rendered for such assignee on such verdict will not be reversed.</p> <p>2. Sale of Goods to an Insolvent Debtor who has no Reasonable Expectation of Paying for Them, Void for Fraud.</p> <p>If goods are sold to an insolvent trader, who has knowledge of his insolvency, and in view of all the circumstances of which he, at the time of such sale, possesses knowledge, he has no reasonable expectation of paying for said goods, the same is equivalent to an intention not to pay for them, and the vendor may avoid the sale for fraud.</p>

<p>BOUNDARY LINE EVIDENCE.</p> <p>Haynes, Scribner and Ring, JJ.</p> <p>1. Right to (Recover Possession oe Land Where Line has been Established by Mistake.</p> <p>The boundary line between two parcels of land, separated by a fence, was in dispute. In an action brought by the lessee of one parcel to recover possession of certain land claimed and occupied by the lessee of the adjoining parcel, it appeared, from the testimony, that the land, occupied and claimed by the plaintiff, had been surveyed many years prior to the commencement of the suit by a surveyor and civil engineer, who established the boundary line, and whose survey corresponded with the description in plaintiff’s lease; that a stake, indicating said boundary line, had subsequently disappeared from sight, and, at the time of the construction of said fence was not visible although no actual attempt was then made by the parties to find it or ascertain the true line, but that plaintiff’s grantor had pointed out to the defendant the point where said stake was supposed to have been driven by the surveyor; and that thereupon the defendant caused said fence to be constructed at said point on said supposed boundary line, which gave plaintiff’s grantor less land than his lease called for. It also appearedin evidence, that the defendant had been in possession of the disputed land less than twenty-one years.</p> <p>Held: That the line, pointed out by plaintiff’s grantor and acted upon by the defendant, was one established by the mistake of the parties rather than by agreement, and that the plaintiff was not estopped from claiming the true line.</p> <p>2. Competency oe Surveyor’s Eield Notes as Evidence. ,</p> <p>In such action, the field notes of the surveyor, who died prior to the trial, are competent evidence to go to the jury, provided they contain anything relating to the controversy.</p>

<p>STATUTE OF LIMITATIONS — EVIDENCE—DAMAGES.</p> <p>Haynes, Scribner and King; JJ.</p> <p>1. When Statute Commences to Run where Injury is not Continuous and WrongDoer is not a Trespasser in first Instance — Right to Recover for Damages-Accruing Subsequent to Death of Party Injured.</p> <p>D. and the city of Toledo were each the lessees of certain realty under the state of Ohio, and under the terms of their leases were respectively entitled to 1,600 and 1,700 cubic feet of water per minute from the surplus waters of a canal. D.’s right to his 1,600 cubic feet every minute was prior and superior to the city’s right to its 1,700 cubic, -feet every minute, but the city tapped said canal for its water.at a point above D.’s premises ánd abstracted its water first, thereby at certain times in the year depriving D. of his full 1,600 cubic feet per minute, although during the greater part of each year there was enough water for both parties.</p> <p>In an action brought by D.’s, administrator against the city to recover damages for wrongly depriving the decedent of his full proportion of water—</p> <p>Held: (1). The city not being a trespasser m the first instance, and the injury to D.’s. rights under his lease not having been continuous, an action lay in favor of D. against the city as soon as the latter took enough water from the canal to deprive D. of his full proportion, and the statute of limitations then commenced to run.</p> <p>(2.) Plaintiff could not recover against the city for any water wrongfully taken after the death of decedent.</p> <p>2. Competency of Questions Assuming what has not been Proved.</p> <p>It is not error to sustain objections to questions which assume what has not been proved.</p> <p>3. Right to Recover Damages where Plaintiff’s Negligence or Want of Reasonable Care has Conduced to Same.</p> <p>If, in an action for damages, it appears that the plaintiff, through his negligence or failure to use reasonable care and diligence, has allowed the damage to be unnecessarily-increased, he cannot recover for the increased loss which he might have avoided by the-performance of his duty.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Frazier, Woodbury and Laubie, JJ.</p> <p>1. Competency of the History oe the Repair oe a Structure Alleged to Have Been Defectively Constructed — Admissibility of Testimony as to the Ordinary Construction of Similar Structures.</p> <p>In an action against a railroad company to recover damages for a personal injury, caused by the breaking down of one of the defendant company’s bridges, while a train was passing over the same, the plaintiff alleged in his petition that the said company was negligent in the construction, repair and maintenance of said bridge, and that said company, its agents and servants, knew or should have known of its defective condition.</p> <p>Held: At the trial of such action, evidence, forming a part of the history of the repair of such bridge and relating to the ordinary construction of similar structures, is competent and admissible.</p> <p>2. Competency oe Statements as to Permanency oe Injury.</p> <p>It is competent to show in such action that the plaintiff’s injury will probably be permanent.</p> <p>-3. Condition oe Structure may be Shown by Condition oe Timbers Taken There-erom Previous to the Accident.</p> <p>As tending to show what the condition of such bridge was when it was repaired two or three months prior to the accident, it is competent to show the condition of timbers taken therefrom at the time of such repairing.</p> <p>4. Competency oe Evidence Raising Collateral Issues.</p> <p>At the trial of such action the testimofly disclosed that there was a highway bridge near said railroad bridge, and that the highway track on the former was about teu feet lower than the railway track on the latter. The trial court allowed it to be shown in evidence that during a freshet or heavy rain storm immediately preceding the accident, said highway bridge remained intact, whereas the railroad bridge went down shortly after the freshet.</p> <p>Held: It was error for the court to permit the admission of testimony as to said highway bridge, as such testimony tended to raise a collateral issue, and thereby tended Ic mislead the jury,</p> <p>b. Availability of'Excetpion to Evidence Received Subject to Objection.</p> <p>Where evidence is received subject to objection and the further consideration of the . court, the party objecting, must, before the case is closed, call the court’s attention to such evidence, that the court may consider the same, in order to make an exception thereto available.</p> <p>6. Notice to “Section Boss” oe Defective Condition of Railroad Bridge, not Notice to Railroad Company.</p> <p>Testimony that notice of the defective condition of such bridge was given to the “section boss” of the section in which said bridge was situated, is not competent for the purpose of showing that the defendant company was charged with such notice.</p> <p>7. Degree of Care to be Exercised in Construction and Maintenance of Railroad Bridge.</p> <p>In such action it was error for the court to charge the jury that in the construction and maintenance of such bridge “the company is not bound to provide against unusual floods, such as have never been known to occur, and which could not have reasonably been foreseen by competence and skill;” but the instruction should have been, that if the defendant, its agents and servants, in the construction, repair and maintenance of such bridge used that degree of care which men of ordinary prudence are accustomed to employ in like business, the defendant would not be liable.</p>

<p>NEGLIGENCE — CHARGE TO JURY.</p> <p>1. Effect of Conflicting and Irreconcilable Instructions in Court’s Charge to-Jury.</p> <p>The giving of conflicting and not easily reconcilable instructions in the court’s charge to the jury, is misleading.</p> <p>2. Right to Recover for Personal Injury upon Pact of Machine, which Caused Injury, Being Dangerous.</p> <p>In such action, the court, in substance, charged the jury that if they found that the plaintiff was not employed to work upon the machine by which he was injured, but was employed to do other work, and was, by the defendant, set to work upon such machine, and without, fault upon plaintiff’s part, he was injured while operating such machine, and that such machine was dangerous and subjected plaintiff to risks which he had no-reason to expect as being within his employment, plaintiff was entitled to recover; provided there was evidence showing that the danger which actually caused plaintiff’s injury was a danger not understood by him at the ¿ime.</p> <p>Held: Such charge in the unqualified form given was erroneous.</p> <p>3. Knowledge of Particular Danger to be Guarded Against.</p> <p>In such action, it was error to charge the jury that the general danger of accidentally coming in contact with that part of the machine which-caused the injury, might be plain; yet that the particular danger to be guarded against in order to prevent such an accident, might not be known without experience. This was a question of fact for the-jury.</p> <p>á. Instruction to Jury Containing an Assumption of Plaintiff’s Inexperience.</p> <p>Where the court, in such action, gives to the jury an instruction proceeding upon the assumption that the plaintiff was inexperienced in the use of such machine; but fails, to submit to the jury the question as to whether the plaintiff was ignorant of the assumed danger, such instruction is erroneous._</p> <p>•5. Embeoyer’S Duty to His Employe® in Regard to Providing Safe Machine.</p> <p>In such, action, it is error for the court to charge the jury that “The duty of the employer towards his employee is to provide a machine as safe as can be provided, in the exercise of ordinary care and prudence, and the employer is negligent in this respect, if he neglects to do what a perso'n of ordinary care and prudence would have done under the circumstances.” Such instruction is misleading.</p> <p>'6. Liability oe Defendant Where His Negligence is the Probabee Cause oe Peaintiee’s Injury.</p> <p>Before plaintiff can recover in such action it must be shown by a preponderance of the evidence that defendant’s negligence was the real cause of plaintiff’s injury — not that it was the probable cause. .</p> <p>.7. Liabieity oe Empeoyer where there is Doubt whether the Act which the Empeoyee is Ordered to Perform is Within the Scope oe His Employment.</p> <p>In such action, the court submitted the following instruction to the jury: “If there is doubt whether the act which the servant is ordered to perform is within the scope of his employment, the servant is not obliged to refuse obedience and run the risk of being discharged. He may obey the command in such case, and does not thereby assume the risk of injury in such manner as will relieve the master from liability.”</p> <p>Held,: Such instruction was misleading and erroneous.</p> <p>•8. Degree of Care to be Used by Employer.</p> <p>Whether or not the employer was guilty of negligence, in such case, depends upon whether he used ordinary care — such care as men of ordinary prudence and intelligence, under like circumstances, would have used.</p>

<p>BILL, OF EXCEPTIONS — LIBEL—EVIDENCE.</p> <p>Jenner, Pomerene and Adams, JJ.</p> <p>1. Assignments of Error not Considered by Reviewing Court where Bill of Exceptions does not Set out all the Evidence.</p> <p>A reviewing court will not consider an assignment of error, that a verdict is excessive or is not sustained by sufficient evidence, where the bill of exceptions does not set out all the evidence. And where, in connection with the cross-examination of a witness, a copy of a newspaper or periodical is introduced in evidence but not attached to, or in any way made a part of, the bill of exceptions, the admission of such testimony, even if it were erroneous, will not be considered by the reviewing court.</p> <p>2. Distinction between Express and Implied Malice — Malicious Intent.</p> <p>In an action to recover damages for an alleged libel, the court, among other things, charged the jury that “Malice is of two kinds; express and implied. Implied malice means malice in a legal sense, and is a wrongful act, intentionally done, without just cause or excuse. Express malice means an actual feeling oí ill-will, and a desire to injure another; an act done from abad motive, or with a wicked intention. Now express , malice is to be specifically proven. That is, it is to be proved by evidence not contained in the language itself that “implied malice is inferred from the falsehood of the charge, from the falsity of the libel, and need not be expressly proven and that “the law always presumes that, in the publication of an article, which is libelous in itself, it was published with malicious intent.”</p> <p>Held: Such propositions, so submitted to the jury, were correct and fairly drew the distinction between express and implied malice.</p> <p>3. Effect of Testimony not the Proper Subject for the Opinion of a Witness.</p> <p>A judgment will not he reversed where testimony, not a proper suoject for the opinion of a witness, has been introduced in evidence, and the error in introducing such testimony is sc slight as not to be prejudicial to the party complaining.</p> <p>4. Competency of a Plea in Justification Withdrawn from Answer before Trial.</p> <p>In such action, the defendant, in its answer, in addition to a general denial, set up a justification os. the publication of the alleged libelous matter, and shortly prior to the trial, was allowed to withdraw such plea. At the trial, the plaintiff was permitted to read such pier of justification to the jury, against the objection and exception of the defendant.</p> <p>Held: The withdrawal of such plea did not destroy its competency as evidence of a republication of the libel, and as tending to prove malice.</p> <p>5. Competency of Evidence.</p> <p>The plaintiff, in such action, may, in chief, offer evidence to prove the falsity of the libelous charge, and may offer evidence to show his social standing.</p>

<p>ASSESSMENT INSURANCE.</p> <p>Smith, Swing and Cox, JJ. '</p> <p>Failure oe Agent oe Insured to Pay Assessments — Laches not Amounting to a Waiver.</p> <p>G., having since 1881 been a member of the Cincinnati Life Association, left the payment of monthly assessments to his bookkeeper, who turned out a defaulter and had failed to pay the assessment of February 1, 1890. The policy provided that where an assessment remains unpaid for thirty days the policy should be forfeited. On March 1, 1890, the thirty days for paying the February assessment not having yet expired, G. was notified of another monthly assessment, which was not paid, and on March 11 the policy was declared forfeited. On the following day, March 12, G.’s bookkeeper came to the office of the company and offered to pay the two assessments, which was refused. Nothing more was done in the matter until September, when G. discovered that the ' assessments had not been paid. G. then offered to pay all arrearages, and asked to be re-instated, which was refused. Held:</p> <p>That the dishonesty and neglect of G.’s bookkeeper was not an unavoidable accident or mistake so far as the association was concerned, for which a court could grant relief.</p> <p>The fact that the forfeiture of the policy was not declared sooner by the association than it was, as it had a right to do, does not amount to a waiver of its right to forfeit the policy.</p> <p>The rules of the association provided for medical examiners and a medical director, whose duty it was to make all examinations of applicants and to examine all written applications reported by medical examiners, and who might accept or decline applicants, according to the risk. The association having declared its willingness to re-instate G. on furnishing a satisfactory medical examination. Held: Such examination was to be satisfactory to the medical director, provided that the judgment of the medical director should be fair and honest, and in accord with the established rules of medical authority.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>INSURANCE.</p> <p>Haynes, Scribner and Price, JJ.</p> <p>Canceieation of Contract with General Agent.</p> <p>Where the contract between an insurance company and one of its general agents for a-fixed period of years, provides “ That whenever the amount of new business done by the agent is, in the opinion of its officers unremunerative; or, when the business of the company is not conducted in a manner satisfactory to the officers, they may cancel. the contract.”</p> <p>Held, It is for the officers alone to decide, if acting in good fáith, when the condition, arises for such cancellation.</p>

<p>DAMAGES — EJECTMENT FROM TRAIN»</p> <p>Frazier, Woodbury and Laubie, JJ.</p> <p>1. Right of Passenger Wrongfully Ejected from a Train, to Recover for Injury to Feelings.</p> <p>In an action brought by a passenger against a railroad company for being wrongfully and illegally ejected from one of the defendant’s trains, the plaintiff is entitled to recover for the injury to his feelings, which naturally and necessarily resulted from the wrongful and deliberate act of the defendant’s conductor in ejecting the plaintiff from such train, although said conductor used no physical force in so doing.</p> <p>2. Verdict for Four Hundred and Fifty Dollars for Such Wrongful Ejectment not Excessive.</p> <p>The evidence at the trial of such case showed that at the time of being ejected from said train, the plaintiff had a proper ticket of the defendant company for his passage on said train, that said conductor failed to examine said ticket, and that he publicly charged plaintiff with fraudulently and wrongfully attempting to pass a worthless ticket.</p> <p>Held; A verdict for four hundred and fifty dollars, in favor of plaintiff, was not excessive.</p>

<p>CONSTRUCTION OF STATUTE.</p> <p>Frazier, Woodbury & Uaubie, JJ.</p> <p>1. Constitutionality op Section 3375a op the Revised Statutes oe Ohio, as Amended April 13,1892 (89 O. I*. 276).</p> <p>Section 3375a of the Revised Statutes of Ohio, as amended April 13, 1892 (89 Ó. L., 276), providing that '“physicians in the discharge of their professional duties, and sheriffs and deputy sheriffs in the performance of their official duties, shall be permitted to ride at their own risk and take a prisoner or prisoners upon freight trains, between stations where such trains stop, paying therefor the regular passenger fare,” is not unconstitutional.</p> <p>2. Ris-ht oe Sheriee to Avail Himsele oe the Provisions oe such Section when He has no Prisoner in his Charge.</p> <p>Sach statute permits a sheriff or deputy sheriff to ride on the trains, specified therein, when he is in the discharge of his official duties, whether he has a prisoner in his charge or not.</p> <p>3. Trains to which such Section Applies.</p> <p>Slid section applies only to freight trains stopping regularly at the points or stations to which the physician or sheriff demands passage.</p> <p>4 Manner in which such Section is to be Construed.</p> <p>Such section is to be strictly construed, and it is error for a court to instruct the jury that a sheriff in the discharge of his official duty would be entitled to enter a car of a freight train and ride thereon to a station at which such train stopped, although such station was not a regular stopping place for such train.</p>

<p>CONTRIBUTORY NEGLIGENCE-PRACTICE.</p> <p>Swing, Cox and Smith, • JJ.</p> <p>1. When Question oe Contributory Negligence Should be Submitted to the Jury.</p> <p>It is clearly the law of Ohio, as settled by repeated adjudications of the supreme court, “Where the question of contributory negligence depends upon a variety of circumstances from which different minds may arrive at different conclusions as to whether there was negligence or not, the question ought to he submitted to the jury under appropriate instructions.” And “If the testimony be conflicting, the facts uncertain, or the proper inference to he drawn therefrom ■doubtful, in such case it would be error for the court to withdraw the case from the jury, or direct them to return a particular ver-</p> <p>2. Admissions Involved in Motion eor Non-suit.</p> <p>A motion by defendant for a non-suit, or for a judgment in his favor on the evidenoe offered by the plaintiff, “involves an admission of all the facts which the evidence in any degree tends to prove, and presents only a question of law whether each fact indispensable to the right of action, and put in evidence by the pleadings, has been supported by some evidence. If it has, the motion must be denied, as no finding of facts by the court, or weighing of the evidence is permitted.”</p> <p>.3. Error oe Trial Judge in withdrawing Evidence erom Jury.</p> <p>The evidence in this case clearly tended to show negligence on the part of the Servants of the defendant company in the management of its car, and which caused the injury to the plaintiff, and to show his right to recover, if it did not further show that his own (negligence contributed to his injury. Some of the evidence did tend to show that he was free from fault, and did not so contribute to his injury. Or, at the least, it was doubtful on such evidence whether he failed to exercise that care and caution which a man of ordinary prudence would have exercised under like circumstances. And as different 1 minds might reasonably arrive at different conclusions as to this, the action of the trial judge in sustaining a motion to withdraw the evidence from the jury, and in ren-I dering s. judgment for the defendant was erroneous, and an invasion of the right of / the plaintiff to have the question submitted to the jury.</p>

<p>BURDEN OF PROOF — RAILROAD LAW.</p> <p>babbie, Woodbury and brazier, JJ.</p> <p>1. Meaning op Rule as to Burden op Proop when Presumption op Contributory Negligence Arises.</p> <p>The rule in negligence cases that “ if the plaintiff’s own testimony in support of his _cause of action, raises the presumption of contributory negligence on his part, the burden rests upon bim to remove that presumption,” means nothing less or other than that the burden of proof is cast upon the plaintiff to show the exercise ol ordinary care on his part; and thereafter such burden cannot be made to shift on to the defend* ant.</p> <p>2. Duty op a Railroad Company to Give; Notice; op Starting its Trains.</p> <p>It is not the duty ordinarily of a railroad company to give notice to passengers who are to alight from its cars at a station where the train has stopped, before putting such train in motion, that it is about to start such train. Circumstances may arise which would create such duty, and require such notice, but the jury must be first required to find the existence oi such circumstances before they can be allowed to find that the failure to give such notice was negligence on part of such company.</p>

<p>. T APPEAL.</p> <p>Bentley, Scribner & Haynes, JJ.</p> <p>L Cause not Appealable Where a Personal Judgment is Proper and is Asked ■and Obtained.</p> <p>The rule that a case is not appealable to the circuit court where, under the allegations in his petition, the plaintiff would be entitled to and he asks and obtains personal judgment for the amount due upon the note secured by mortgage as well as a foreclosure of the mortgage, applies iu a case where the personal judgment includes the amount of taxes on the mortgaged property paid by the plaintiff to protect his lien, and also the amount of the principal of the note, though the same had not matured by its own terms, but by reason of the terms of the mortgage had fallen due for the nonpayment of installments of interest.</p> <p>Whether in such case the personal judgment for the full amount of the note is proper, query.</p> <p>2. Effect of Motion for a New- Trial on Perfecting Appeal.</p> <p>The filing of a motion for a new trial, which is not disposed of by the court until some time after it is filed, does not extend the time for giving notice of appeal, or for giving bond therefor.</p>

<p>EXEMPTION.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Real Estate op Wipe Partly Paid por by Husband’s Personal Earnings not" Subject to Judgments op Husband’s Creditors.</p> <p>Suit brought to subject real estate held by wife to the payment of husband’s debts, some portion of the purchase price of the land haying been paid from the personal earnings. of the husband from month to month.</p> <p>Held; That inasmuch as his personal earnings from month to month were exempt from . being subjected to the payment of claims of his creditors, he might give the same to his wife or apply the same upon the purchase price of her property,, and his creditors could not reach that property.</p>

<p>INJUNCTION BOND.</p> <p>Haynes, Scribner and King, JJ.</p> <p>No Breach oe Bond where Injunction was Rightfully Granted. .</p> <p>When a court of chancery rightfully issues an injunction at the instance of a plaintiff, who is compelled to resort to such court for the protection of his property rights, the defendant in such action cannot, in a subsequent action against the original plaintiff, recover for an alleged breach of the injunction bond.</p>

<p>INTOXICATING LIQUORS.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Liability op Wipe’s Real Estate por Illegal Sale op Liquor on Her Premises.</p> <p>Where a wife, in good faith, and on all proper occasions, objects to her husband selling' intoxicating liquors on her premises, and has not leased or rented the same to him to be so used, such premises cannot be subjected to the satisfaction of a judgment, recovered against the husband for an illegal sale of such liquors on said premises.</p>

<p>NEGLIGENCE — RAILROAD CROSSING.</p> <p>Haynes, Scribner & King, JJ.</p> <p>1. When a Verdict against a Railroad Company for Alleged Negligence Should be Set Aside.</p> <p>A verdict against a railroad company for an injury, resulting in the death of a fireman on one of defendant’s trains, which injury was alleged to have been caused by the negligence of one of defendant’s locomotive engineers, under whom said fireman was working at the time of the accident, will be set aside where the evidence shows that the engineer, at said time, was acting like a prudent man, and did all that was possible to be done under the circumstances.</p> <p>2. Highway Crossing Constructed in a Sufficient Manner for Ordinary Purposes of Travel.</p> <p>A railroad company is not liable for an injury, alleged to have been caused by a defective crossing at a point where the railway is crossed by a public highway, where the evidence shows that such a crossing was constructed in a safe and sufficient manner for all the ordinary and regular purposes of travel.</p>

<p>INTEREST — CONSTRUCTION OF STATUTE.</p> <p>Haynes, Scribner aud King, JJ.</p> <p>1. 38 O. L., 177, Construed — Bonds Executed Thereunder Providing for Interest Payable Annually.</p> <p>The bond required by section 4 of “An act to authorize the sale of school section sixteen, in the township number two, in the United States’ twelve mile square, at the foot of the rapids of the Miami of Lake Erie, in the county of Lucas ” (vol. 38, p. 177), to conform to the provisions of such act, should have been drawn with a provision in it for the payment of interest thereon at the rate of six per cent per annum, payable annually for the five years that such bond was to run before it matured, but after the maturity of such bond it could only draw interest at the rate of six per cent per annum, and not with.annual rests.</p> <p>2. How an Instrument Should be Drawn to Bear Interest, at Same Rate, Payable Annually.</p> <p>Interest at “ six per 'cent per annum ” is simply the rate as to time ; and if a person seeks-to have an instrument bear interest at the same rate payable annually, it must be so expressed therein.</p>

<p>Error to Erie county common pleas.</p>

<p>PRACTICE — AMENDMENT OF PLEADINGS — BAR.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Refusal to Permit Amendment which does not Warrant a Reverlij — LonsuiT not: a Bar.</p> <p>Plaintiff’s petition set up a cause of action arising from the use and occupation by de— fejsdast of certain lands belonging to the plaintiff. The testimon. disclosed the fact. that the real cause of action was a'n agreement on the part of fhe plaintiff that the* defendant might turn his cattle in plaintiff’s pasture and that tne defendant Uad agreed.' to pay such price as was fair and reasonable. Held: (1) That plaintiff should have been allowed to amend the petition upon terms but that a refusal to permit an amendment upon any terms was not such an abuse of discretion by the trial court as would warraat’a reversal of the judgment. (2) Also, that the iudgment of nonsuit is r.ot a bar to another suit upon the real cause of action.</p>

<p>EVIDENCE — PLEADING.</p> <p>Smith, Swing and Cox, JJ.</p> <p>.1. Proof of Existence of Corporation. . .</p> <p>Where one of the issues raised by the pleadings is whether-the- defendant was an incorporated company, the affidavit to the answer purporting to be made by the superintendent of the defendant, “a corporation,” is not the best evidence of that fact, and was probably not admissible for that reason. ,</p> <p>:2. Practice of Denying add Averments in Adversary’s Pleading, Some of Which are Known to be True, Condemned.</p> <p>The interposition of a general' denial to each and every allegation contained in the pleading of an adversary, when it is manifest that as to one or more of the allegations so denied, the person making the allegation to the truth thereof, actually knew at the time, or had good reason to know that such allegations were true, is a manifest evasion, or a direct violation of the letter and spirit of our law, which aims, by requiring pleadings to be sworn to, to prevent the rising of sham issues, or put the burden upon the adversary to offer proof on points as to which no real controversy exists. Such practice and pleading should be discouraged by the courts.</p>

<p>PARTITION.</p> <p>Follett, Jenner and Pomerene, JJ.</p> <p>1. Amendment Prescribing the Time Which Must BÉapse Before Action in Case Property Came by Descent or Devise.</p> <p>The amendment, by way of proviso, to section 6756, Revised Statutes, passed March. 20, 1891, must be strictly construed; and it does not limit the right to file a petition, for partition of real estate, as that right existed prior to the passage of said amendment.</p> <p>8. Same — Effect of the Amendment.</p> <p>If the title to the real estate came by descent or devise on the death of an inhabitant of this state, then said amendment limits the time within which the partition may be ordered by the court; and, unless the petition sets forth and it be proved that all debts and claims against the estate have been paid or secured to be paid, or that the personal property is sufficient to pay the same, partition will not be ordered within, one year from the date of the death of such inhabitant.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>1. Competency, oe Opinions oe Expert Witnesses as to Effect oe Fire on Brick, and Mortar Waxes.</p> <p>In an action to recover damages for the destruction of property, caused by the falling of a wall of a hrick and stone building previously destroyed by fire, it is competent to inquire of witnesses, who are builders of experience and have had opportunities to-observe the effect of fire on brick and mortar, as to what that effect is, it being alleged,, in the petition, that the defendants negligently permitted said wall to stand for several, days after the fire, they knowing it was weakened and made dangerous thereby.</p> <p>2. Eiabixity of the Owners of the Ruins of a Buixding Destroyed by Fire, where the Fire Department Pronounces such Ruins Safe, and they Subsequentxy-Faxx and Destroy Property.</p> <p>The fact 'that the fire department of the municipality in which said building was destroyed took possession of the ruins thereof, and, by the exercise of reasonable care, tested, said wall and pronounced it safe, would not excuse the owners of such ruins from the exercise of ordinary care on their part in examining and caring for said wall.</p> <p>3. Eiabixity of such Owners for the Want of Ordinary Care where they are NOT BXCXUDED FROM THE POSSESSION OE SUCH RUINS.</p> <p>In such action it is error to so instruct the jury that they may find, if such owners were-not excluded from the possession of such ruins by the fire department, they would be-excused from exercising ordinary care.</p> <p>4. Degree of Care to be Exercised on Sunday. ■</p> <p>The degree of care which the law requires of all persons in the management of their - own affairs and in the control of their own property, must be exercised on Sunday the-same as on any other day, and is never suspended.</p>

<p>HABEAS CORPUS — EXTRADITION»</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Power of Another Judge of Same Court to Hoed Triad.</p> <p>A trial under a writ of habeas corptis, allowed and returnable to one of the judges of the court of common pleas, may be heard and determined by another judge of the same court, if from any proper cause the case is brought before him. There is no difference, in this respect, between a proceeding of this kind and other civil actions.</p> <p>2. Effect of Discharge in Another Habeas Corpus Proceeding.</p> <p>The judgment of discharge of a prisoner in one habeas corpus proceeding is no bar to a different judgment in another proceeding, where the imprisonment is justified under a wholly different warrant issued for a wholly different purpose.</p>

<p>NEGLIGENCE — CHARGE OF COURT.</p> <p>Liability op Contractor por Injuries Sustained by an Employee and Caused by the Acts op Co-employees.</p> <p>In an action brought by an employee against a building contractor to recover damages for a personal injury sustained by the plaintiff and caused by the falling of a scaffold attached to a building upon which plaintiff and co-employees were working, and upon which scaffold plaintiff and another employee were standing when the accident occurred, the plaintiff, in his petition, alleged, and the evidence adduced at the trial showed, that the other employees of the defendant who were working with plaintiff on such building, together with the one standing with plaintiff when such accident happened, were his fellow workmen. Held, As a matter of law, it was proper for the Court to instruct the jury—</p> <p>First — That said employee alongside of plaintiff, when said accident occurred, was plaintiff’s fellow servant, and the defendant was not liable for any negligence or carelessness which the evidence might show was committed by such fellow servant.</p> <p>Second — That if the jury found, from the evidence, that no other person was placed by the defendant in authority over the plaintiff, with power to control and direct him in the performance of the duties in which he was engaged when said accident occurred, then all other employees at work on said building with plaintiff were his fellow servants, and the defendant was not liable for any negligence or default of said co-employees while so engaged in said work.</p>

<p>EVIDENCE.</p> <p>1. When Written Instructions Should be Taken by the Jury.</p> <p>Written instructions presented to the court and by it given to the jury on the request of either party, after the evidence is closed, and before the argument, should be taken by the jury in their retirement.</p> <p>2. Evidence oe Witness’ Opinion Excluded.</p> <p>In an action to recover damages for a personal injury, claimed to have resulted from the-negligence of the defendant, it is proper to exclude the opinion of a witness that the-plaintiff “might have been saved” from injury.</p> <p>3. Discretion oe Court to Receive Evidence in Chiee on Rebuttal.</p> <p>Where evidence is offered in rebuttal that was competent in making out plaintiff’s case, its admission or rejection is discretionary with the trial court.</p> <p>4. Evidence oe Conduct oe Motorman under Which Verdict will not be Disturbed.</p> <p>There being evidence tending to show that the motorman running an electric motor car rung the gong, turned off the electric current and put on the brake as soon as he-could reasonably anticipate his car was likely to run against a boy, who suddenly turning from the position he had occupied, ran upon the track not at a passenger crossing and was injured, a verdict for the company owning and running the car will not be disturbed, there also being evidence from which contributory negligence on the part of boy might be inferred by the jury.</p>

<p>COMMON CARRIER — BAILMENT.</p> <p>1. Liability op Common Carrier por Doss op Merchandise Carried as Baggage, where the Carrier had Knowledge op the Character op the Same at the Time it was Received for Carriage.</p> <p>Where the baggage agent of a railroad company, without objection receives a trunk from a passenger and gives him a check for it, with knowledge that such trunk contains valuable merchandise, and places the same on one of its trains for carriage, where it is subsequently destroyed by the negligence or carelessness of said company, the latter is liable for the loss of such merchandise, upon the same principle that it would be liable, in case such merchandise was ordinary baggage.</p> <p>2. Liability op Common Carrier por Loss op Merchandise Carried as Baggage, where the Carrier is without Knowledge op the Character op the Same.</p> <p>Where such agent receives from a passenger a trunk, containing valuable merchandise, without any knowledge as to its contents, and the passenger makes no disclosure concerning the character of the same, there is no implied undertaking of the railroad company to insure the safe carriage of such merchandise, but the company, by accepting the same for carriage, assumes the relation thereto of an ordinary bailee, and is only bound to take such care of the property as a man of ordinary prudence would exercise over his own, under like circumstances.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>INSOLVENT ESTATES.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Distribution of costs, commissions and attorney’s fees in assignment for benefit of: creditors among lienholders and general creditors.</p>

<p>OPEN SALOON ON SUNDAY.</p> <p>Jenner, Pomereue and Adams, JJ.</p> <p>Evidence Necessary to Establish a Defense.</p> <p>If a saloon is open on Sunday, it is prima facie a violation of Revised Statutes, section 8902. A bare preponderance of evidence only is necessary to establish a defence.</p>

<p>Error to the court of- common pleas of Licking county.</p>

<p>On appeae from tbe court of common pleas of Hamilton county.</p>

<p>Appeae from the court of common pleas of Stark county.</p>

<p>A statement of the issues and facts contained in the opinion of the cpurt.</p>

<p>On error to the court of common pleas of Guernsey county.</p>

<p>COAL, LEASE.</p> <p>Frazier, Woodbury and Laubie, JJ.</p> <p>Liability or Lessee bob. Rent white Mining Pittars oe Coat.</p> <p>The lessor of coal, located under the surface of his lands, brought on an action against the lessee thereof to recover a certain sum of money alleged to be due the former from the latter under the terms of their lease.</p> <p>Such lease provided, in substance, that installments of certain amounts, named therein,, should be paid yearly so long as the lessee was holding under said lease and mining ■ coal from under said lands.</p> <p>At the trial of such action, the evidence disclosed that the defendant had so mined and excavated the coal under said lands as to allow certain pillars of coal to stand for the purpose of preventing the superincumbent land from sinking, and that the defendant had subsequently mined and removed said pillars of coal.</p> <p>Held; It was not error for the court to instruct the jury that if they found it was usual and customary in such business, to mine out and remove such pillars, and the defendant was engaged in the business of mining and removing such pillars, then, while so engaged, the defendant should be regarded as holding under said lease and mining coal from said lands, and therefore, would be liable to the plaintiff for such installment of rent as became due while the defendant was so engaged in mining such pillars.</p>

<p>BUILDING CONTRACT.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Right op Contractor, to Recover for Work on a Buieding Destroyed by Inevx-tabee Accident Before its Completion.</p> <p>Where work is to he done, under a contract, on a building, which is not wholly the property of the contractor, or for which he is not wholly accountable, and.the building is destroyed by an inevitable accident before the completion of the contract, the contractor may recover pro tanto for the work done prior to the destruction of such building.</p> <p>2. Impeied Condition that a Buieding in Existence wiee Continue to Exist, where Work is to be Performed on It.</p> <p>When work is to be done under a contract upon a building in existence, or to be built by another, it is an implied condition of the contract that the building shall continue in existence, and its destruction without fault of either of the parties will excuse perform-anee of the contract, and a right of action accrues to the contractor for the work done.</p>

<p>SIDEWALK ASSESSMENT.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Right or a Lire Tenant to an Apportionment or Assessments against Property which is being Partitioned.</p> <p>The owner of a life estate in land can, in action for partition, under the provisions of section 2268 of the Revised Statutes of Ohio, have the court apportion sidewalk assessments, levied on the land and paid by him, between himself as owner of the life estate and those who own the fee, in proportion to the relative value of the improvement to-their respective estates.</p>

<p>ATTORNEY FEES.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Liability op Municipality por, where a Contractor Cannot Collect City Improvement Assessment.</p> <p>An assessment having been made for city improvement, the same was declared illegal by the courts. Thereupon the contractor brought suit against the city for the amount of the assessment and the amount of his attorney’s fees for defending the assessment in the former suits. The city admitted its liability for the assessment, but not for the attorney fees.</p> <p>Held, That the city was not liable for the attorney fees.</p>

<p>WORK AND LABOR.</p> <p>Agreement Authorizing Employer to Fix Compensation.</p> <p>While an agreement might be made permitting an employer to say at the end of the ser- • vice of an employee what the services are worth, such an agreement cannot be enforced where the employer fails or refuses to exercise his right to fix the compensation in good faith, at the time named in the contract, or when called upon by the employee to do so.</p>

<p>DITCH ASSESSMENT.</p> <p>Hale, Caldwell and Baldwin, JJ.</p> <p>1. Right op County Auditor to Increase County Ditch Assessment, without Authority.</p> <p>The commissioners of a county authorized an assessment to be levied on certain lands to provide for the cost of locating and establishing a county ditch. In placing such assessment upon the duplicate, the auditor of such county, without any authority, made an addition to said assessment.</p> <p>■Held, Such assessment, so increased by said auditor, was irregular and should be set aside.</p> <p>2. Irreguuar Assessment Pairs within Provisions op Section 4491, Rev. Stat.</p> <p>Such illegal assessment falls within the curative provisions of section 4491 of the Revised Statutes of Ohio.</p>

<p>BANKING — EVIDENCE.</p> <p>Caldwall, Hale and Marvin, JJ.</p> <p>1. Power oe Cashier to Make Contracts.</p> <p>.The cashier of a bank cannot make for his bank a contract, in regard to a subject matter outside of the usual and customary business of the bank, and outside of the business usually performed by cashiers.</p> <p>2. Competency oe Instructions by Principal to Agent.</p> <p>Where an agent has had definite instructions not to act for his principal in a matter outside of his duties as an agent, the principal may show such instructions where he is sought to be held for the acts of his agent contrary to such instructions.</p> <p>S. Character oe Agency of Different Banks Receiving a Draft for Collection.</p> <p>Where a bank in this state receives for collection a draft, payable in this state and for the same purpose forwards the draft to its correspondent in Pennsylvania, and the bank in Pennsylvania forwards it for like purpose to another bank in Ohio, where it is payable, such’last named bank is the agent of the bank in Pennsylvania, and is not the sub-agent of the bank in Ohio that first received the draft. The bank in Ohio where the collection is to be made is responsible for its negligence to the Pennsylvania bank only.</p> <p>4 Obligation of One Who is Liable on One of Two Separate Claims to Defend, against Both Claims.</p> <p>If M. is sued on two separate claims, and W. is liable to M. on one of the claims if M. has it to pay, but is not thus liable on the other claim, and M. when sued notifies W. of the pendency of the suit, W. is under no obligation to defend the suit involving both claims, and if judgment is obtained against M. for the sum of both claims, M. cannot recover from W‘ a part of the costs and attorney fees in the suit against him.</p>

<p>ESTATES FOR LIFE — WASTE.</p> <p>Seney, Moore and Day, JJ.</p> <p>1. Forfeiture by Commission of Waste.</p> <p>Prior to March 19,1887, in Ohio, estates for life, other than dower and curtesy, were not forfeitable for waste committed or suffered thereon by the life tenant.</p> <p>2. Amendment not Retroactive.</p> <p>Section 4177, of the Revised Statutes of Ohio, as amended March 19,1887, does not affect such life estates vested prior thereto.</p> <p>8. Rule of Damages for Waste.</p> <p>The true rule of damages for the wrongful or unlawful waste committed by a life tenant;, is: “The diminished value of the estate in remainder by reason of such waste.”</p>

<p>WILLS — BEQUEST TO EDUCATIONAL INSTITUTION.</p> <p>Clark, Clierrington and Russell, JJ.</p> <p>Devise oe Property in a Wire Executed Within a Year oe Testator’s Death.</p> <p>H. F. P., a resident of Ohio, died October 27,1891, leaving a last will and testament and three codicils, executed less than a year before his death. He devised and bequeathed to his widow one-half of the net income of his real estate in Ohio, for her life, and the-other half he devised and bequeathed to his only issue, an unmarried daughter, for her life. The remainder in said real estate he devised and bequeathed to the Ohio-State university in fee, an educational institution belonging to the state of Ohio. If his daughter died before his wife, her one-half of the net rents are to go to the said university, so long as his wife lived. If said charitable devise and bequest should fail, or be held void for any cause, then said remainder was to go in fee simple to his-brother’s children. In a codicil, he said his object and intention by the devise and bequest to his brother’s'children was, in case he died within a year from the date of his will, and the consequent failure of the devise and bequest to the university, said children should take, but not that they should have the property in any other event. He then authorized and empowered his only daughter and issue to ratify and confirm the devise and bequest to the university, in case of his death within a year, and requested her to do so. About forty days after his death, the daughter, by an instrument duly executed, confirmed said devise in so far as she was able. The daughter died intestate, unmarried and without issue, August 4, 1893. Said will further provided if the devise and bequest to the university should be held void for any other reason than his death within a year, then he gave the property to the state of Ohio. “I have no doubt, in that event, that the legislature would donate said property to said University.” Held:</p> <p>I. Said devise and bequest to the university was void and never took effect.</p> <p>2. Said testator had not the power to devise and bequeath said property to said university iu a will executed within a year of his death, nor had said university the power to take said property under said will.</p> <p>8. Saiii devise and bequest to the university was in contravention of section 5915, and section 20, of the Revised Statutes, and it failed, for the reason that said testator died: _within the year._</p> <p>4. The authority given his only daughter to ratify and confirm, said devise and bequest to the university was a naked power, and equally within the condemnation of the statute. He could not authorize her to make valid his invalid devise and bequest, nor could he evade the plain meaning and intent of the statute by such an artifice.</p> <p>■5. The attempt of the daughter to ratify and confirm the invalid devise and bequest to the university, did not have the effect to revoke the devise to his brother’s children; it did not amount to a compliance with his request; it only confirmed its infirmity.</p> <p>‘6. The power to make wills is not an inherent right, but is governed entirely by statutory law. It may be regulated, limited or taken away entirely by the legislature.</p> <p>7. The reason of the limitation placed upon the power of the testators, under section 5915, to devise or bequeath their property to religious, benevolent, educational, or charitable purposes, only in wills executed more than a year before their death, was founded upon a broad public policy; it was for the protection of the testators against the importunities of designing persons, and against themselves, as well as for the protection of their families, and the interest of the state.</p>

<p>OID AND GAS LEASE.</p> <p>Seney, Day and Price, JJ.</p> <p>1. Or What Courts Wdm, Take Judicial Notice.</p> <p>•Courts will take notice of whatever ought to be generally known within the limita of their jurisdiction.</p> <p>-2. Construction oe Contracts.</p> <p>In construing a contract effect should be given to all its language.</p> <p>. 3. ‘Grant or Gas and Oh, Construed.</p> <p>A grant — conveying all the gas or oil under certain premises — with an exception and reservation to the grantee of a certain part of the minerals produced, and containing a clause: “All wells to be drilled on said land are to be.drilled within three years,” and limiting the grant to a term of years, is a lease.</p> <p>4. How Such Lease is Governed.</p> <p>Such lease is governed and controlled by rules>of law, applicable to lease of land for gen-_eral tillage._</p> <p>5. Clause Limiting Time for Drhaing Construed.</p> <p>The clause, “All wells to he drilled on said land are to he drilled within three years,” after the expiration of three years, it is a mutual covenant; before the expiration of three years, it is a covenant obligatory alone upon the lessee.</p> <p>f>. How Covenant Must be Performed.</p> <p>The lessee’s covenant must be performed honestly, fairly, reasonably and in good faith.</p> <p>7. Remef Granted in Equity.</p> <p>Equity will grant relief at the instance of the lessor for a violation of the provisions of the lease. 1</p>

(For further facts in this case, see Myerv. State, 2 O. D., 233, which is the decision of the common pleas court, and which is affirmed hereby.)

<p>PLEADING — CONSTRUCTION OF STATUTES.</p> <p>1. Necessary Averments oe Answer in Action, Where Payment oe Taxes or Assessments is Resisted on Grounds oe Ieeegality.</p> <p>If, in an action brought against the owner of a city lot to recover a gross amount, as taxes, interest, penalties and assessments on such lot, the defendant claims th.at a portion of such taxes and assessments are illegal, it is incumbent upon him to aver and set forth in his answer what part and how much of the amount sued for is illegal and the ground of the illegality, and, in the absence of such averments, a judgment will be rendered on the pleadings for the amount prayed for in the petition.</p> <p>% Legality oe Eevy eor Interest on Natural Gas Bonds, Causing Total Eevy to Exceed Number oe Mills Prescribed by General Statute.</p> <p>Where a statute especially authorizes a levy to be made for the payment of interest on natural gas bonds, issued by a city, a levy made thereunder is legal, although it causes the total levy of such city to be in excess of the number of mills allowed by the general statute, prescribing the maximum levy.</p> <p>3. Purpose and Object oe Section 2491, oe the Revised Statutes oe Ohio, as Amended March 1, 1895 (86 O. E., 63).</p> <p>The purpose and object of section 2491 of the Revised Statutes of Ohio, as amended March 1, 1889 (86 O. E-, 63),, was to provide that, before a company, pursuing one method of lighting, should be allowed to come into competition with, or displace, another company, pursuing the same method of lighting, in any city, the question, as to whether the former company ahould be allowed to occupy the streets of the city in question, and operate therein, should first be submitted to the qualified votéis thereof.</p> <p>■4. Object oe Sections 2310-2314 oe the Revised Statutes oe Ohio, and Liability oe Property Owners for Payment oe Assessment Provided Thereby in Addition to General Tax eor Street Cleaning Purposes.</p> <p>The object of sections 2310-2314 of the Revised Statutes of Ohio was to provide means for the resident's of a street or a district in a city of the first class to clean and sprinkle their street, or streets, under the supervision or control of a committee of their own so as to secure better service than that rendered by the city generally; and the assessment provided by such sections does not exempt such residents from paying the general tax assessed by the city for general street cleaning purposes.</p>

<p>STREET DEDICATION.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Necessary Elements of.</p> <p>It is essential to a -valid dedication of land to a municipality that there be an intent to dedicate on the part of the landowner, either expressed or made manifest by facts and circumstances, as well as an acceptance on the part of the municipality.</p> <p>2. When Continuous Use of Hand for more than Twenty-one Years will not Vest the Same in the Public.</p> <p>Where the public have used for a walk a strip of land, bordering on, and adjacent to, a street of a municipality, for more than twenty-one years, in the absence of any intention on the part of the landowner to dedicate such strip of land to the public, and in the absence of any claim on the part of the municipality that the use made of such strip was under a claim of right, such municipality acquires no right to such strip and can assert no claim thereto.</p>

<p>TAXATION — PRACTICE.</p> <p>Swing and Smith, JJ.</p> <p>1. Findings or Fact and Conclusions op Saw.</p> <p>Where under the provisions of section 5205, Revised Statutes, the trial court at the request of one of the parties,' has in the judgment, stated the conclusions of fact found separately from the conclusions of law, and in one of the so-called conclusions of fact it is-stated, as was done in this case, that the executor did not omit certain stock from the returns made by him of property from taxation because he believed said stock to be not taxable, but with intent on his part to evade the payment of any tax which the law imposed thereon, and that said returns were “ false returns,” and no fact was found in any of such findings t which would justify such conclusion, but on the other hand all of the facts found strongly tended to show that the said stock was not returned for the reason that said executor in good faith believed, and had reasonable ground to believe, that such stock was not taxable, such finding should not be considered as a finding of fact, but as a conclusion of law.</p> <p>2. Finding op Facts Against Weight op Evidence.</p> <p>But if it is to be considered as a proper finding of fact in this case, it is manifestly against the weight of the evidence heard in the case, which is all set forth in the bill of exceptions taken on the overruling of the motion for a new trial, based on the ground that the finding of facts, and the judgment entered was against the law and the evidence.</p> <p>S. False Return op Property does not Authorize Auditor to Place on Duplicate Other Property Omitted in Good Faith,</p> <p>Under the provisions of section 2781, Revised Statutes, as passed April 14, 1886, if any per- • son, whose duty it was to list property, or make a return thereof for taxation, shall in any year or years make a false return or statement, or shall evade making a return or. statement, the county auditor shall for each year ascertain as near as practicable, thé'trüe amount of personal property, money, credits and investments, that said person ought to have returned or listed for not exceeding (the) five years next prior to the year, in which the inquiries and corrections therein provided for are made, and to the amount so ascertained for each year he shall add fifty per centum, multiply the sum or sums thus increased by said penalty by the rate of taxation belonging to said year or years, and enter the same for collection on the duplicate of the current year. But where a person has, in any year within five years prior to the year in which such correction is made, in good faith believing and having reasonable ground to believe that certain property owned by him is not taxable, omitted to return the same, and at the same time omits to return for taxation other personal property owned by him, subject to taxation, and which he had no reason to believe was exempt, this will not give to the auditor the right to place upon the duplicate for the current year the taxes and penalty on the amount of the property, so in good faith omitted from his returns. As to such property thus omitted in good faith the returns made were not false.</p>

<p>Heard on appeal.</p>

<p>CHARGE TO JURY — AMENDMENT.</p> <p>1. Instructions to Jury in the Absence of Counsel.</p> <p>A trial court may instruct the jury, in the absence of parties or counsel, upon questions of law, but it is error for the court to instruct the jury, in the absence of parties or counsel, upon matters of fact, unless opportunity is given counsel to be present.</p> <p>2. Amendment of Motion for a New Trial.</p> <p>Under section 5114, R. S., a motion for a new trial, filed within the time prescribed by the statute, may be amended at a later date so as to include an additional assignment or ground of which the party complaining was ignorant at the time the original motion was filed.</p>

<p>ATTORNEY FEES.</p> <p>Smith, Swing and Cox, JJ.</p> <p>!Recoveky oe Unearned Portion oe a Fee Paid in Advance.</p> <p>(Where an attorney dies before completing work he had undertaken to do for a specified sum, if the fee has been paid in advance, the client may recover the unearned portion of the fee.</p>

<p>APPROPRIATION OF LAND — EVIDENCE,</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Land Owner has no Right to Require Praintiee to Incrude more Land in its Petition than it Chooses to Appropriate.</p> <p>A railroad company, in a proceeding in tbe probate court to appropriate land, abutting on a public highway, to its use for the construction of a bridge, cannot, by motion, be required to include in its petition a description of more land than it chooses to include for such appropriation.</p> <p>2. Competency oe Evidence to Prove Varue oe Premises by Showing Cost oe Improvements Thereon.</p> <p>In such proceeding it is proper, in determining the value of a farm, of which the land sought to be appropriated is a part, to show that such farm is underdrained with tile, but not to show what such tiling cost.</p> <p>3. Competency oe Evidence Showing whether The AccomprishmenT oe The Purpose, eor which Land is Sought to be Appropriated, wourd be Advantageous . to Property Owner’s Premises.</p> <p>In such proceeding, it is proper, in cross-examining a witness of the defendant, to "ask him if such bridge would not be an advantage to such farm instead of a detriment./"</p> <p>4. Injury to Adjoining Property, Done Prior to Commencement oe Proceedings to</p> <p>Appropriate, Cannot be Considered.</p> <p>In such proceeding, it is not proper to take into account, in assessing the damages that, by reason of such appropriation, will result to the adjoining property, any injury that may have already been done by such railroad company, prior to the commencement of such appropriation proceeding, in front of the defendant’s properly in such highway,</p> <p>5. Ruee oe Compensation.</p> <p>The difference in the value of the defendant’s property with the appropriation and that without it, is the rule of compensation in such proceeding.</p> <p>6. Right to Set oee Generar Incidentar Beneeits Against Generar Incidentar Damages.</p> <p>In such proceeding to appropriate, general incidental benefits, arising from such appropriation cannot be set off against general incidental damages, caused thereby.</p> <p>7. Right to Award Prospective Damages eor Change in Pubric Highway.</p> <p>En such proceeding, no damages or compensation can be awarded the defendant because of any anticipated change or alteration of such highway by the plaintiff in the construction of such proposed bridge.</p>

<p>REAL ESTATE — ADVERSE POSSESSION.</p> <p>Right of Grantor of Eand to Acquire Titee thereto by Mere Continued Possession</p> <p>Where real estate is conveyed by deed to a grantee, but the grantor remains in continuous, possession thereafter for twenty .one years, such possession is not adverse and does not vest title in the grantor as against his prior grant, unless the grantee has actual notice of the intention-to so hold, or by.such open and notorious acts that notice will be presumed.</p>

<p>JUROR.</p> <p>Laubie and Frazier, JJ.</p> <p>1. -When Judgment wide be Reversed eor Incompetency oe a Juror.</p> <p>A judgment of a trial court will not be reversed because of the alleged incompetency of one of the jurors impaneled at the trial, unless the evidence of such juror’s incompetency is clear.</p> <p>2. When a New Triad Shoudd be Granted eor Misconduct oe a Juror.</p> <p>Where a party seeks a new trial on the ground of the misconduct of a juror, and the act, constituting such misconduct, was one from which prejudice could naturally be inferred, or was such, that the party, seeking the new trial, was prejudiced thereby, in the absence of a showing to the contrary, a new trial should be granted.</p>

<p>NEGLIGENCE — EVIDENCE.</p> <p>Frazier & haubie, JJ.</p> <p>1. Competency oe Evidence oe Same Kind oe Negeigence by Others to rebut Presumption oe Contributory Negeigence. .</p> <p>If, in an action to recover damages for a personal injury sustained by the plaintiff, and alleged to have been caused by the negligence of the defendant, the evidence shows that the plaintiff was negligent in the manner of performing his work when the accident occurred, it is not competent for him, for the purpose of relieving himself from such negligence, to show that others are accustomed to commit the same negligence in performing the same kind of work.</p> <p>2. Nature oe the Question oe Negeigence.</p> <p>Primarily, the question of negligence is one of both law and fact; but it may be one of law only. ></p> <p>•3. Taking Case erom Jury where the Peaintiee’s Testimony Raises a Presumption oe Contributory Negeigence.</p> <p>If, in such an action, the plaintiff’s own testimony raises a presumption of negligence upon his part, contributing to his injury, and he offers no evidence tending to rebut such presumption, in such case the plaintiff’s negligence becomes a matter of law . merely, and the court is warranted either in directing the jury to return a verdict for the defendant, or in taking the case from the jury and entering a judgment of dismissal.</p> <p>4. Presumption Arising erom Sieence oe a Party as to a Materiae Matter in Controversy.</p> <p>Where a party to an action offers himself as a witness, and is not asked to testify concerning a matter of importance to himself in such action, the presumption is that he was not inquired of concerning such matter, because his answer would have been unfavorable to himself.</p>

<p>REAL ESTATE DEED.</p> <p>When Mistake in Deed Will be Corrected so as to Conform to Intention of Parties.</p> <p>A conveyance of certain real estate was executed in the year 1852 by S., a married man, his name appearing only in the granting clause of the deed of conveyance, and his wife releasing therein to the grantee of said deed all her right, title and interest in and to such real estate “ by way of dower and otherwise.” Such deed was properly signed and acknowledged by both S. and his wife, and full value paid by said grantee for the real estate so conveyed. Subsequently, in the year 1893, it was discovered that the legal title to said real estate was not in the name of S. at the time of such conveyance, but was in the name of his wife.</p> <p>In an action by such grantee to obtain a correction of the mistake and to make such deed conform to the intention of the parties : Held, 1. Such ’deed should be so corrected as to conform to the intention of the parties. 2. Such action was not barred by the statute of limitations.</p>

<p>OIL AND GAS LEASE.</p> <p>Seney, Day and Price, JJ.</p> <p>Conditions Under Which Dease was Heed to Have Expired.</p> <p>In 1886, six joint owners of an entire tract of land, leased the same for a term of five years, (for oil and gas purposes only) and as much longer as oil or gas should be found in paying quantities, at a yearly rental of $100 for each gas producing well. During the term, D. purchased and became the sole owner of about 190 acres of said tract.' Nine gas producing wells were drilled on the entire tract, two of which are on the land purchased by D., one of which was exhausted and abandoned in 1892, and the other was worthless when suit was commenced. The rental was paid to D. — from the time .she became the owner — on the one until it was abandoned, and the other until April, 1893, and it was tendered to her each year thereafter and refused.</p> <p>Held: That where the lessee knew of and admitted the separate ownership of D., and recognized and ratified the same by payment and tender of payment to her of rentals for the two wells on her separate tract; and further, where at the beginning of the action, gas is no longer found on the same in paying quantities, the lease by its terms, as to D.’s lands, has expired.</p>

<p>MUNICIPAL CORPORATION — RAILROAD LIGHTING.</p> <p>Haynes, Scribner & King, JJ.</p> <p>1. Sufficiency of Title of Ordinance for Lighting Tracks.</p> <p>The title of a village ordinance, that provides for the lighting of the tracks of a certain railroad company, “ operating another railroad ” within the limits of the village, is valid, although the terminus of the latter railroad is beyond the points where such lighting is required.</p> <p>2. Immaterial Variance of Corporate Name no Defense.</p> <p>An ordinance, providing that such company should be assessed for such lighting, and denominating it as a railway company instead of a railroad company, does not make such a material variance of its corporate name as will render the assessment invalid, and defeat an action to collect it.</p> <p>3. Questions of Law, not for Jury.</p> <p>Questions of law should be determined by the court, and should not be submitted to the jury.</p> <p>4 Variance in Name of a Street not Fatal.</p> <p>The fact, that such railroad company was required to light its tracks in such village at the intersection of a street, denominated in the ordinance as “West Wooster” street, and that suit was brought to recover for lighting “ Wooster ” street (its real name), was not such a variance as would mislead or prejudice such company.</p> <p>3. The Purpose to be Accomplished by a Lighting Ordinance.</p> <p>The only purpose to be accomplished under the statutes of the state of Ohio, by the passage of such first mentioned ordinance, is to require such railroad company to light its tracks at the points designated by such ordinance, and it is a matter of no consequence as to who owns or operates the apparatus for furnishing the required light</p> <p>6. Fact of Non-existence of a Law Providing for Edectric Lights Does not Render Ordinance Invadid.</p> <p>The fact, that at the time of the passage of such lighting ordinance there was no law, authorizing such village to require such railroad company to light it tracks within the corporate limits with electric lights, is no valid defense to an action brought by such village against suchj railroad company to recover a certain sum of money expended by it for lighting such tracks with electricity.</p> <p>7. Position of Lights Immaterial,.</p> <p>In such action, it is no defense for the railroad company to show that such lights were not placed over the center of its tracks, so long as the evidence shows that they carried out the purposes of such ordinance and furnished sufficient light at the points therein designated.</p>

<p>ACCOUNT — PAYMENT.</p> <p>Caldwell, Hale & Marvin, J J.</p> <p>1. How» Payment Should be Applied in the Absence oe Specific Application by Either Party.</p> <p>Payment upon an open current account, with no specific application made by either party at the time of the payment, should apply to the oldest items of that account.</p> <p>2. How When Some of the Items are Subject to a Dien.</p> <p>Where some of the items of an account are subject to a lien, and the others are not, and payments are made on such account generally, the creditor may apply the payments so-made to such items as are not subject to such lien.</p>

<p>Error to the court of common pleas of Hancock county.</p>

<p>Error to the court of common pleas of Hancock county.’</p>

<p>Appeal from the court of common pleas-of Hancock county.</p>

<p>RAILROAD LAW.</p> <p>Scribner, Haynes and King, JJ.</p> <p>1. Damages To Rand by Pibe from a Uocomotive — Competency oe Evidence.</p> <p>In an action against a railway company to recover damages caused by fire set by its locomotive, the proof is subject to considerable latitude. It is competent to show that the fire started m the grass along the track soon after passage of a locomotive, and that . about that time and immediately after the passage of the locomotive, other fires occurred in that neighborhood. Where the particular locomotive that is claimed to have set the fire, is not traceable, it may be shown that the railway company was reckless in this particular, and it would be competent to show that every one of the company’s ^locomotives emitted fire.</p> <p>2. Spark Arresters.</p> <p>Duty of railway company under sections 8516-39, Revised Statutes, to guard against sparks from its locomotives.</p>

<p>PUBLIC OFFICERS.</p> <p>Scribner, Haynes and King, JJ.</p> <p>Election and Term oe Oeeice oe Township Treasurer — How Long Appointee to fill Vacancy to Serve.</p> <p>Under section 1448, Rev. Stat., where a vacancy occurs in the office of township treasurer, the person appointed by the township trustees to fill the office holds not for the unexpired term, but until a successor is elected and qualified, which, under the statute, is to the next general election thereafter occuring more than thirty days after the vacancy happened.</p>

<p>BUILDING INSPECTOR.</p> <p>• Smith, Swing and Cox, JJ.</p> <p>Right To Refuse a Permit fob. the Erection of a Buirding- with an Orier Window.</p> <p>Building inspectors, whose duties are defined by section 8223-72 (sec. 4) of the Revised Statutes of Ohio, cannot refuse to grant a permit for the erection of a building with an oriel window, projecting out over a sidewalk, in the absence of a city ordinance, prescribing or regulating the limits of such windows.</p>

<p>FRAUD — CONFUSION OF GOODS.</p> <p>Baldwin, Caldwell and Jenner, JJ.</p> <p>1. Fraudulent Acts Subsequent to Purchase do not Divest Purchaser oe Title</p> <p>If a dealer largely indebted, proposing to purchase goods, states the facts truly, and goods are then sold to him on credit, the title passes, and no subsequent fraudulent acts will divest him of the title, and reinvest it in the seller.</p> <p>2. Confusion oe Goods.</p> <p>A grocer largely indebted, purchased of a wholesale dealer, goods of an amount and quality suitable for retail in his business, and placed them in the original packages in his store, with like packages bought from other dealers. Such act was not a wrongfully intermingling of goods so as to justify the seller in taking all the unbroken packages, because he was unable to identify the ones he had sold.</p>

<p>STREET RAILWAY LAW.</p> <p>Scribner, Haynes and King, JJ.</p> <p>Rights Acquired by Appropriating Portions or Another Line.</p> <p>Where a street railway company has regularly appropriated, by proceedings under the statute the right to run and operate its railway cars over and upon certain designated ' portions of the line of street railway of another company, it does not thereby acquire such an interest in the property of the latter company as to entitle it to demand from another company which has subsequently acquired, by contract with the company owning the railway the right to use its track, compensation for such use. The case of 'The Toledo Consolidated Street Railway Company v. The Toledo Electric Street Railway Company, 3 O. C. D., 493, approved and followed.</p> <p>Appeal from the court of common pleas of Lucas county.</p>

<p>EXEMPTION OF EARNINGS.</p> <p>1. Excess op The.ee Months’ Earnings over $150.</p> <p>Section 6489 of the Revised Statutes of Ohio (88 O. U., 278), the justice of the peace attachment act is not a limitation of section 5430, § 6 — the three months’ earnings exemption law — when on motion to dissolve attachment it is .shown that the excess of the three months’ earnings over $150 is also necessary for the support of the debtor’s family and demand of the same therefor. Upon such showing the debtor is entitled to hold exempt from the attachment both the $150 and the remainder of the three months’ earnings as well, whatever the amount.</p> <p>2. Faii/ure to Show Amount op Earnings in Hands op Garnishee.</p> <p>It is not necessary that a definite amount of said three months’ earnings in the hands of the garnishee be made to appear in order to entitle the debtor to a dissolution of the attachment.</p>

<p>costs:</p> <p>Smith, and Swing, JJ.</p> <p>Discretion oe Court as to Division oe Costs.</p> <p>Where, in a case in which equitable relief is sought on certain grounds set forth in the-petition, and afterwards, other and different grounds are set up by an amended petition, one of them being that the resolution to improve the street, and the assessing-ordinance, (the execution of which was sought to be enjoined), were not legally passed which allegations of the original and amended petitions were all denied by the city and on the trial of the action was dismissed by the court, and the relief sought denied, — each party to pay one-half of the coste, to which judgment the plaintiff excepted, but no motion for a new trial was made, and no bill of exceptions taken setting out the evidence — on a petition in error filed to reverse such judgments, as to the costs, it should not be done, though it appears that the defects in the manner of passing such resolution and ordinance had been cured by an act of the legislature, passed after the commencement of such suit.</p>

<p>CONSTITUTIONAL LAW.</p> <p>Seney, Day and Price, JJ.</p> <p>Exemption op Toredo Gas Prant prom Taxation,</p> <p>Paragraph. 8 of section 2732, of the Revised Statutes of Ohio, as amended March 18,1891, and found in volume 88, Ohio Daws, page 96, reads : “ All market houses, public squares, or other public grounds, town or township houses or halls used exclusively for public purposes, and all works, machinery, pipe lines and fixtures belonging to any town ana used exclusively for conveying water to said town,, or for heating or lighting the same.”</p> <p>Held, That in so far as said section exempts from taxation “ all works, machinery, pipe line and fixtures belonging to any town and used exclusively for conveying water to said town or for heating or lighting the same, ” is in conflict with and in violation of article XII, section 2, and article X, section 7 of the constitution of the state; hence void.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>MASTER AND SERVANT — -PLEADING—EVIDENCE.</p> <p>Right to Allege that Services Were Rendered During Employment eor a Member oe Employer's Household.</p> <p>In an action against a decedent’s estate to recover for the value of services, rendered under employment as housekeeper for the deceased in his lifetime, an allegation in the petition, that the plaintiff had rendered some service for a brother of the deceased, who was a member of the decedent’s household during a part of the time when the services were rendered, is proper, being descriptive of the character of the service rendered under such employment.</p> <p>Competency oe Showing the Condition oe House and Premises Where Services Were Rendered.</p> <p>In such action, it was competent for the plaintiff to show the condition of the house and premises where she rendered her services during her employment, for the purpose of aiding the jury in determining the value of such services.</p> <p>Competency oe Declarations Made by a Deceased Employer that He Would Pay His Employee Well ie She Would Continue Her Services.</p> <p>Declarations made by such employer in his lifetime, that he would pay plaintiff well and would give her a farm, if she would remain with him and continue her services, were competent to show the amount and rate at which he valued her services.</p> <p>When a Jury is Justified in Rendering a Darge Verdict for an Employee, Engaged by Deceased Employer to Do Housework.</p> <p>In such action, the evidence showed that the plaintiff, who was about twenty years old, rendered her services for the deceased, who was an old man and very penurious, for more than five years; that he was a bachelor and had living with him an imbecile brother in a sort of hovel, destitute of all conveniences and comforts; that during about one-half of the period of such employment the deceased was a paralytic and at times almost helpless ; and that the plaintiff acted as a nurse for him as well as being his housekeeper.</p> <p>Held: A verdict of $1,400, rendered by the jury for such services, was'justified by the proof.</p>

<p>principal, and agent.</p> <p>Swing and Smith, JJ.</p> <p>1. RESbonsibirity or Agent eor Money Received ¡in Prosecution or an Irregar Enterprise.</p> <p>While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.</p> <p>.2. Agent’s Note to Principar for Money Tied Up in a Gambring Dear Not Enrorcibre.</p> <p>D., an agent of C., was engaged with C. in a wheat gambling deal at Chicago. While the deal was in progress, D., being in Cincinnati, was induced by threats of prosecution, to execute his note to C. for money C. had furnished for the deal. On suit on the note, Held, C. cannot recover on the note. If D. had had the money in his possession at the time, he could not retain it from C. But the deal still being in progress at the time, and the money being in the deal, and not in D.’s possession, the note was a gambling transaction, given in furtherance of the gambling transaction, and therefore not enforceable at law.</p>

<p>SUFFICIENCY OF PLEADING.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Sufficiency of Pleading in an Action for Damages for Injury by Railroad.</p> <p>Action for damages for injury by railroad — Averments that injury was committed by servants of defendant, negligently, wantonly, willfully and unlawfully, sufficient as against general demurrer.</p>

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

<p>Error to the court of common pleas of Butler county.</p>

<p>CONFLICT OF LAWS.</p> <p>Haw of Ohio as -to Rules of Evidence, Governs in an Action Brought in an Ohi< Court Where the Parties Both Reside and the Cause of Action Arose in An other State.</p> <p>In an action by an employee of a railroad company against the latter to recover damage for a personal injury alleged to have been caused by the negligence of the defendan company, it was alleged in the pleadings and appeared at the trial, that both the plain tiff and defendant were residents of, and that the injury occurred in, the state of Penn sylvania, and that a portion of the defendant’s line of railroad extended into Ohio.</p> <p>At the trial of such action, the evidence tended to prove that a certain appliance on on<</p> <p>■of the defendant’s cars was defective and that the plaintiff received his injury bj reason thereof, and also tended to prove that the plaintiff was required to do work 01 and around such defective car by reason of the orders of another of defendant’s em ployees who ha i power and authority to direct and control plaintiff, and who was alsc a resident of, and performed his work for defendant in the state of Pennsylvania.</p> <p>Held.: That the law of Ohio prescribes the rules of evidence that must govern at the trial of such case, and therefore, the second sfection of the act of the general assembly of Ohio, passed April 2, 1890, 87 O. E., 149, applies to such action, and not the law of the state of Pennsylvania.</p>

<p>Errok to the court of common pleas of Hamilton county.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>NEGLIGENCE — RAILROAD COMPANY — BURDEN OF PROOF.</p> <p>1. Duty or Employee as to Observing Ruees of Company.</p> <p>One of the rules of a railroad company provided that “ Brakes must be examined before attempting to use them, and those having occasion to use them must know their condition and take no risk.” In an action brought to recover damages from such company for the death of one of its brakemen, caused by a defective brake on ono of its cars. Held • While the duty of the deceased must be measured with reference to the rules of such company and especially the above rule, it was not necessary that its letter be complied with ; but it was incumbent on the deceased to give reasonable attention to such rule and a reasonable compliance to its requirements, measured solely by the time and occasion.</p> <p>2. Presumption as to Observance of Ruees and Burden of Proof as to Ignorance of Defective Appeiances.</p> <p>The presumption is that such employee did his duty and knew of the defective condition of such brake ; and therefore, in such action, the burden of proof rested upon the plaintiff to show that the deceased either in fact did not know of such defect, or if he did, that he was not negligent in using the brake.</p> <p>3. What Dangers a Servant Assumes by his Contract of Service.</p> <p>A servant, by his contract of service, assumes only the ordinary and usual dangers of such employment. And if the master conducts his business with an appliance that is fatally defective, the servant, entering that employment, does not take upon himself the risks incident to such defective appliance; unless he actually has knowledge of it at the time.</p> <p>4. Injuries Caused by Appliance Becoming Defective After a Servant Enters His Master’s Service.</p> <p>If, after a servant has entered into his master’s service, an appliance, with which the particular business is carried on, becomes defective and causes an injury to the servant, it is simply a question on the part of the master, to defeat a recovery for such injuries, whether the servant was guilty of contributory negligence, and it is not a question whether he assumed such risk by entering the service.</p> <p>5. Province of Jury in Determining Whether Company is Diabee for an Injury Caused by Defective Brake.</p> <p>If, in such action, the evidence showed that the deceased did not know of such defect, then it was the province of the jrrry to find from the evidence whether, under tho said rule of such company, he was negligent in not knowing that the defect existed, and, if the jury found that he was not negligent in that respect, then it was for them to determine whether the deceased at the time of the accident was exercising ordinary care; for his safety.</p> <p>6. Nature or the Rute as to Burden of Proof in Cases of Contributory Negligence.</p> <p>The rule laid down by the courts in regard to the burden of proof as to contributory' negligence is a peculiar one, and should not be extended, but strictly confined within, the actual limits of its true application.</p> <p>7. Duty of the Court as to Determining on Whom the Burden of Proof Rests.</p> <p>In such action it is the duty of the court to determine for itself whether there was any evidence raising the presumption of contributory negligence, so as to cast the burden-of proof to rebut and remove such presumption on the plaintiff; and it is error for the-court to leave that to be determined by the jury.</p>

<p>VENDOR’S LIEN.</p> <p>Swing and Smith, JJ.</p> <p>1. Vendor’s Lien not Lost by Taking Coeeathrae Security.</p> <p>The lien of a vendor on land sold by him, for the unpaid purchase-money, is not lost by the mere taking of collateral security for the payment thereof. If a distinct purpose to preserve and rely upon the lien is shown, it will remain. And such was the casé here.</p> <p>2. Vendor’s Lien heed Prior to that op Buiedi.ng Co.</p> <p>Where such is the case, and no conveyance has been made of the land to a vendee, but only a contract made between the owner and the purchaser, by which the latter was authorized to execute to a building association a mortgage for not exceeding the value of houses to be erected thereon by the purchaser, who was then to execute to the vendor a second mortgage on the land to be prior to all liens and conveyances except the building association mortgages, and the purchaser contracted, without the knowledge or procurement of the vendor, with a building company to erect houses thereon, which was done, and a builder’s lien placed therefor on the land, but the purchaser thereupon assigned the land to an assignee for the benefit of his creditors without having executed and delivered the mortgage provided for, the land having been before conveyed at the request of the purchaser to a trustee for his benefit, and the same was done with a stipulation by the purchaser and his trustee, that there was to be no other liens prior to that of the vendor thereon, other than the building association mortgages, in such case the lien of the vendor is prior to that of the building company.</p>

<p>PRACTICE.</p> <p>Swing and Smith, JJ.</p> <p>PROCEEDINGS IN ERROR DISMISSED BECAUSE ADD PARTIES TO ORIGINAD ACTION NOT Joined.</p> <p>On the facts hereinafter stated, the motion to dismiss this proceeding in error should he granted. All of the parties in the original action were proper and necessary parties to the proceeding to reverse the judgment rendered below, the reversal of which as to one of said parties would necessarily affect the rights of all of the other parties thereto. No one of such other persons was made a party to this proceeding in error, and moro than six months having elapsed between the [time of the' rendition of the judgment complained of and the time of the filing of the- motion to dismiss, the case will be stricken from the docket.</p>

<p>Arpead from the court of common pleas of Columbiana county.</p>

The original action in the common pleas court was brought by John W. Morris v. The C., H. & D. Railroad Company on December 29, 1888. The cause was three times tried to a jury, resulting each time in a verdict for the plaintiff. The first verdict was set aside by the trial judge. The second by the circuit court at a former term for error in the admission of evidence, and because the verdict was against the weight of the evidence.

<p>Appeal from common pleas court of Stark county.</p>

<p>BILL OF EXCEPTIONS.</p> <p>Sufficiency of When it. Does Not Appear that the Bile Contains am, the Evidence.</p> <p>A judgment will not be reversed for alleged error in the trial court’s refusing to grant a new trial on the ground that the yerdict or judgment is against the weight of the evidence, unless the bill of exceptions affirmatively and clearly shows that all of the evidence heard by the court is embodied therein.</p>

<p>SETTLEMENT OF ESTATES.</p> <p>Shearer, Summers and Allread, JJ.</p> <p>Debtor as Administrator — Effect of Insolvency — When Appointed.</p> <p>When the debtor of a deceased person is appointed administrator, the debt shoufd be included in the inventory, and becomes assets in the hands of the administrator, for which he is accountable as such; but, on exception to his final account, claiming that he has omitted to charge himself with the amount of such debt as so much money in his hands, if it appear to the court that he was insolvent at the time of his appointment, and has continued so during the whole period of his administratorship, he should not be held accountable for the amount of such debt.</p>

<p>STREET RAILWAY LAW.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Titee to County Property.</p> <p>In legal effect the title to property owned by a county for county purposes rests in the county commissioners.</p> <p>2. Consent eor Use oe County Property by a Street Railway.</p> <p>The board of county commissioners is the proper source from which to obtain a consent of county property .(court-house) for the use of a street by a street railway.</p> <p>.8. Action oe Commissioners Need not be Entered on Journal.</p> <p>The action of a board of county commissioners consenting in writing for a street railway to occupy a street, is valid, although not entered in the journal of the board; such action may be shown to have been taken by parol evidence.</p>

<p>CORPORATION — JUDGMENT.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Power of President to Encumber Property of Corporation by Judgment or Otherwise.</p> <p>That the president of a corporation is the owner of nearly all its capital stock, and is its superintendent and treasurer, and the active manager of its affairs, and was accustomed to borrow money for the company’s use, will give him no power to encumber its property by a mortgage or judgment confessed lor money borrowed.</p>

<p>FALSE IMPRISONMENT.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. When a Verdict foe. the defendant Will be Set aside as not Sustained by ■ Sufficient Evidence.</p> <p>If, in an action to recover damages for an alleged false imprisonment, caused by the defendant baying bad the plaintiff arrested on a charge of larceny, the evidence shows •that the plaintiff, in taking the property alleged to have been stolen, was acting fairly, openly and honestly in taking such property; that he was taking it as an officer of a private corporation, under the direction of the president thereof, and under color of title to the property in such corporation; that the defendant, either prior to, or at the time of, procuring such arrest to be made, knew these facts, and purposely and wrongfully and without reasonable or lawful excuse, caused such arrest to be made; and that the plaintiff was acquitted on such charge, a verdict rendered in favor of the defendant, under such circumstances, is not sustained by sufficient evidence, and should be set aside.</p> <p>2. Advice of Counsel Not a Full Defense.</p> <p>If, in such an action, under such circumstances, the party causing the arrest, is advised by counsel that he has a case, such fact is not a full defense, but only goes to the mitigation of damages.</p>

<p>CONSTRUCTION OF STATUTE — SURETY.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Right of Pates of a Promissory Note to Recover from Surety Thereon without Eirst Proceeding against the Principal Debtor where the Latter is Beyond Jurisdiction of tbe State.</p> <p>Under section 5833 of tbe Revised Statutes of Obio, tbe payee or bolder of a promissory note is not bound, at tbe instance of tbe surety thereon, to follow tbe “principal debtor” on sucb instrument out of the jurisdiction of this state to recover judgment against him and make by execution tbe amount due on sucb instrument, before proceeding against sucb surety.</p>

<p>CONTRACT OF SALE.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Who Must Bear the Loss oe Goods, Destroyed Without Fauet oe Either Vendor, or Vendee.</p> <p>A written contract was entered into between P. & D. whereby the former sold to the latter certain fixtures and a stock of goods. The value of the fixtures was-fixed in the contract. A part of the purchase money was paid by D. at the- time of executing the contract, and by the terms of such contract, the balance was-to be paid immediately after the value of said stock should be determined by appraisement, provided that, if the combined value of the fixtures and stock should exceed $3,000, D. should give an evidence of indebtedness for the excess, to be secured by a chattel mortgage on the property purchased. The stock was appraised in pursuance of the contract, and the value thereof found to be considerably in excess of $3,000. Shortly after the completion of such appraisement, but before D. had executed such evidence of indebtedness and the chattel mortgage, provided for by the contract, and while P. was still in possession of such fixtures and property, the same, without the fault of either P. or D., were by the falling of the walls of a neighboring-building destroyed by fire. In an action brought by D. to recover the cash paid by him to P., Held:</p> <p>1. The property in said fixtures and stock passed to, and vested in, D. immediately on the-completion of said appraisement, and therefore, the burden of such loss was cast upon him.</p> <p>2. A modification of such contract of sale, made immediately after the completion of said appraisement, at the instance and for the sole benefit of D. whereby he was relieved, from taking all of said stock, would not relieve him from bearing such loss.</p>

<p>RIPARIAN RIGHTS.</p> <p>Haynes, Scribner and Bentley, JJ.</p> <p>Boundary Line Between Abutting Proprietors is Located Along The Thread as the Main Channel. Where an Island Intervenes in a River.</p> <p>At a point in the Maumee river, which, flows a little north of east, an island, known as “ Island No. 1,” is situated. The main channel of said river lays between this island and the northwest bank of the river. Said island is owned by O., who also owns the land bordering on the northwest bank or boundary of said river, except so much thereof as belongs to the state of Ohio for canal purposes. From the northwest bank of said river to said island a dam was erected by the state, and said dam was extended from said island to the south bank of the river. Just west of-the point where said dam touches the northwest bank of the river, a canal strikes into the main land and extends in a northeasterly direction.</p> <p>This strip of land, peninsular in form, between said canal and said river, is owne by L.</p> <p>Immediately below said dam, in the bed of the river, between the northerly shore of said island and the northwest bank of the river, and south of the thread of the channel between said island and the northwest bank of tfie river, a stone quarry is located, which quarry was claimed by both O. and L.</p> <p>Held: (1). The riparian rights of O. must be measured from said island. (2). The riparian rights of L. must be measured from said peninsular strip of land. (3). The center iof the channel, between the said island and said strip of land, is the boundary line between the land of the said iparties, and said stone quarry, therefore, belongs to O. (4). The state of Ohio must be treated, in such case, as a riparian proprietor.</p>

<p>Error to Lucas common pleas.</p>

<p>SCHOOL LAW.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. PuEadiNG — Sale oe School Order where Board has no Authority to Purchase.</p> <p>Where a board of education purchased books of S. and issued to him its order on the treasurer of the township, payable at a future time, and S. sold the order to a bank before maturity, and the bank was unable to collect the order because the board of education had no legal authority to make the purchase, the bank has no recourse on S. without allegation and proof of fraud on the part of S. in the sale of the order to the bank.</p> <p>2. No Warranty Implied on Part oe Seller oe the Order.</p> <p>The law implies no warranty on the part of S. except that he had good title to the order and that the same was genuine.</p>

<p>NEGLIGENCE — COURT’S CHARGE.</p> <p>1. When Motion eor a Non-suit on Ground or Contributory Negligence will be Granted.</p> <p>Tn an action to recover damages for personal injuries, caused by defective machinery, a motion for anon-suit on the ground of contributory negligence will not be sustained, unless the facts are so clear that there can be no question but that the plaintiff was guilty of negligence, contributing to his injuries.</p> <p>2. Right op Court to Repuse Special Requests, Already Covered by General-Charge.</p> <p>It is not error for a trial court to refuse to submit to the jury certain special requests to chárge, wlien suck requests are, in substance, a repetition of wkat has already been charged.</p> <p>6. Master's Duty to Servant.</p> <p>The master’s duty to his servants is reasonable care in providing suitable machinery and appliances, and also reasonable care in keeping such machinery and appliances in repair.</p>

<p>WILL — CONTRACT.</p> <p>Jenner, Pomerene and Adams, JJ. •</p> <p>Rights op Devisees and Legatees under a Wide where the Same was Originally Made in Consideration op the Execution op another Wiee, but was Subsequently Changed.</p> <p>In 1878, on the same day, a husband and wife each made a will, the husband devising and bequeathing a part of his property to his wife and bequeathing a certain portion to a church; and the wife devising the use of her real estate to her husband during his life, and bequeathing a portion of her personalty to the same church. Simultaneously with the execution of such wills, said husband and wife entered into a written contract, providing among other things, that neither party should gain more by reason of any existing law than the provisions made for him or her in the other’s will; that such wills should be unalterable and irrevocable in so far as they related to the interest of each party, their heirs or legatees in the property of the other as the same was fixed by such will; and that each of said wills was executed in consideration of the execution of the other.</p> <p>The wife died iu 1891, and her will was admitted to probate and its provisions carried out. After the wife’s death the husband sold his real estate, and, in 1891, he changed his will so that neither such church nor the heirs of the deceased wife should receive any of his property. Shortly after he died, and, in an action by such church and heirs to recover under the provisions of his first will, Held: Neither the church nor such heirs were entitled to recover thereunder.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Affirmative Testimony oe More Weight than Negative.</p> <p>Affirmative testimony of witnesses wbo testify to tbe existence of a fact is entitled to more weight than that of those who state they did not see or did not hear.</p> <p>2. Street Car Colliding with Wagon on Track — Excessive Speed.</p> <p>This wagon was in plain sight of the motorman on the car. He came up this grade towards this bridge at a speed which, from his own story, was so rapid that'when he saw that the wagon was not going to get out of the track he could not stop the car in time to avoid a collision. We think it is a fair question to submit, to the jury., whether the railroad company through its motorman was negligent when he did not stop the car under these circumstances in time to avoid a collision with a vehicle in plain sight in front of it.</p> <p>8. Verdict not Excessive.</p> <p>For an injury which suddenly deprives a man in the prime of life, of following the trade to which he was accustomed, and at which he was receiving $1.75 a day, a verdict of $2,950 held not excessive.</p>

<p>Appeal from the court of common pleas of Putnam county.</p>

<p>PURE FOOD LAWS.</p> <p>Seney, Day and King, JJ.</p> <p>(Judge King of the Sixth Circuit taking the place of Judge Price.)</p> <p>1. Generad Manager Prosecuted in Any County Where Saee Made by Agent.</p> <p>A general manager of a corporation engaged in the business of wholesaling food supplies,, having the supervision, direction and control of its business, who, in conducting said business, keeps in stock and sells, through traveling salesmen employed for the purpose, an adulterated article of food, is a principal offender in violating the provisions of the statute prohibiting the manufacture and sale of impure and adulterated articles of food,'and may be prosecuted for such offense in any county of the state where a sale is made.</p> <p>2. Guidty Knowledge Not Necessary to an Oeeense.</p> <p>Under the provisions of said statute, guilty knowledge of adulteration is not essential. Vendors of foods are charged with knowledge of their purity and in prosecutions for sales of adulterated foods ignorance of the fact of adulteration is not a defense.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>PUBLIC OFFICERS.</p> <p>Scribner, Haynes and King, JJ.</p> <p>1. Power oe Courts to Interfere with Discretion oe Public Officials.'</p> <p>In the distribution of powers under the constitution of Obio, certain political and civil powers are vested in certain public bodies, and these bodies, in the exercise of their powers, cannot be interfered with by other bodies or the courts. Courts, however, have the power to enjoin when such bodies or officials are proceeding to make illegal contracts, and to some extent to interfere where there is a gross abuse of power. But courts have no power to set their opinion or discretion against that of the body or officials acting within the scope of their powers./</p> <p>S. What Constitutes a County Officer.</p> <p>\ By special act of the legislature, passed February 2,1893, the legislature of Ohio authorized the building of a new court house for Wood county. It is provided in section 5 _thereof that the judges of the circuit court of the sixth circuit should appoint four freeholders of said county as a “Building Committee,” to act and vote with the'county commissioners in procuring, making and approving plans, estimates and specifications for said court house, in awarding contracts for labor or materials used in building the same, and for furnishing said court house when completed. Such building committee was appointed by the circuit court. Held: That the members of such building committee are not “ county officers ” within -the meaning of section 1, article 10, of the constitution, who must be elected, and section 5 of the said act of the legislature is not in conflict with the constitution in that regard — what constitutes a'“ county officer within the meaning of section 1, article 10, of constitution defined.</p> <p>3. Majority op Total Number of Two Bodies Acting Together Must Act.</p> <p>Under the provisions of the special act of February 2,1893, the county commissioners! must act with the building committee in all matters relating to the building and furnishing of the new court house, and both together forming a body of seven members, the consent of at least four of the whole body is required in favor of any proposition to contract in regard to building and' furnishing the new court house.</p>

<p>INSOLVENT ESTATES.</p> <p>Swing and Smith, JJ.</p> <p>Conceusweness on Judgment oe Probate Court on Assignee and His Sureties.</p> <p>C. and others made an assignment of certain real estate to S. for the benefit of their creditors, which deed was filed by S. in the probate court, and thereupon S., with L. and others, executed in said court a bond for the faithful performance of his duties by such assignee, who thereupon entered upon the execution of his duties under said trust. Afterwards the same assignors executed to said S. two other deeds for other parcels of real estate on the same trusts, which deeds were also filed in said court, but no bond was given or required of said assignee, for the faithful performance of ais duties under the same; and from that time forward the matter was dealt with in the probate court, as if a single trust was being administered, and orders made for the sale of the real estate conveyed by the - ■'cond deed as if all had been conveyed by the first deed. An account was afterwards .ed by the assignee, and he thereby purported to charge himself with all the moneys received from the sale of the real estate conveyed by the three deeds and to credit himself with all payments claimed to have been made by him. Exceptions were filed to this account by the assignors, and on the nearing ' (the probate court found that there was a certain sura in the hands of the assignee due to the assignors, -which sum he was ordered to pay to them. The assignee having failed to do this, an action was commenced in the superior court by the assignors against the obligors on the bond to recover the amount found by the court to be due to the said assignors. On these facts appearing, the court gave judgmeut for the defendants.</p> <p>Held, That even if it appeared that the three trusts were consolidated with the consent of the assignors (which does not satisfactorily appear), the judgment rendered in the probate court (which remains in full force and effect), m the absence of fraud or collusion in the obtaining of the same, is conclusive and binding on the assignee and his sureties, and the judgment of the superior court should be reversed.</p>

<p>MANDAMUS.</p> <p>Scribner, Haynes and King, JJ.</p> <p>1. Wmr Must Contain Copy oe Petition.</p> <p>An alternative writ of mandamus to be effective under the statute must contain a copy of the petition, that the defendant may know what act he is required to perform.</p> <p>2. No Writ will be Allowed When Act Required is Impossible to be Pereormed.</p> <p>Where, in an action to compel a municipal council to award to plaintiff a contract for paving a certain street, it appears from the pleadings that before the alternative writ of mandamus was served upon defendant, a contract had been entered into and performed and at least ninety per cent of the contract price paid, so that council could not comply with the order of the court if ordered to do so, no writ of mandamus will be allowed.</p>

<p>BILL, OF EXCEPTIONS — NEGLIGENCE—CHARGE TO JURY.</p> <p>Swing, Cox and Smith, JJ.</p> <p>1. Defect in Biee oe Exceptions Cannot be Cured by Amendment at Subsequent Term.</p> <p>To make a paper a part of a bill of exceptions, it must be incorporated in it, or attached to it, or hied with it, and so described as to leave no doubt as to its identity. When not so made a part of the bill, the defect cannot be cured by obtaining an entry in the trial court at a subsequent term directing it to be taken as a part of the bill.</p> <p>2. Affirmative Proof of Absence of Contributory Negeigence not Necessary.</p> <p>It is error for the court to charge the jury that plaintiff not only must prove defendant’s negligence, but also prove affirmatively that he did not contribute to his injury. The burden of showing contributory negligence is on the defendant.</p> <p>8. Error Presumed in Charge to Jury Where Daw not Correctey Stated.</p> <p>Parties are entitled to a correct statement of the law by the court in its charge and error will be presumed when the law is not correctly stated, but the error must appear to be prejudicial to plaintiff in error.</p>

<p>ASSAULT — EVIDENCE.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Evidence;' oe Character Not Adm'issibee.</p> <p>Upon the trial of an action brought by a woman to recover damages for an indecent assault, alleged to have been committed upon her by the defendant, evidence offered by him tending to show that he was, at the date oí the alleged assault, a man of good general character is not admissible; nor is it competent in such action for the defendant to-show that at the time of such alleged assault the general reputation of the plaintiff for chastity was bad.</p>

<p>STREET RAILWAY LAW.</p> <p>Bentley, Haynes and Scribner, JJ.</p> <p>1. Right o» an Appropriating Company as Against a Third Company Using Tracks.</p> <p>To entitle one street railway company to an injunction to prevent tbe operation of another company’s cars over tracks in the street in which it has appropriated a right of use, it must appear not only that the plaintiff was not made a party to the appropriation proceedings, but also that it has a real and abiding interest in the tracks.</p> <p>2. Nature oe a Street Railway Crossing.</p> <p>The mere crossing over a street railway track by the cars of another company will not authorize an injunction to stop such crossing. Such crossing is a burden incident to the right to operate a street railway in a public street.</p> <p>3. Rebuilding Tracks Establishes no New Rights as Against Appropriating Company.</p> <p>Where a street railway company transfers its railway property to another company to be operated, and the latter company rebuilds the tracks, so that it becomes the practical owner of them, a court of equity will not enjoin the operation of the cars of a third company over such tracks, the right to use the tracks having been obtained under appropriation proceedings duly brought against the company so in possession.</p>

<p>CORNER LOT ASSESSMENTS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Signing a Petition for Side Street, not an Admission as to Erontage.</p> <p>Where the owner of an improved lot which has a frontage of 50 feet on one street, and which abuts 136 feet on another street, signs a petition to the council of a village, asking for the improvement of such side street in a certain manner, “and that an assessment (to which we hereby specially assent), to pay the costs and expenses of such improvement, be made according to the law of assessments, levied per foot front upon all the lots and lands so abutting upon said improvement,” and such petition is signed by the owners of more than two-thirds, but less than three-fourths of the feet front abutting thereon, the lot of such owner is to be assessed on but fifty feet thereof, under the doctrine of the Haviland case, 50 Ohio St., 471.</p> <p>2. Not Being Signed by Three-fourths, only 25 Per cent. Collectible.</p> <p>Such petition not having been signed by the owners of three-fourths of the feet abutting on such improvement, the provisions of section 2272, Rev. Stat., making the whole assessment collectible, do not apply, and the assessment upon such lot for such improvement, amounting to over twenty-five per ceut. of the value of the same after the improvement is made, is invalid, under the other following provisions of such section.</p> <p>3. I/Aw as to Corner Dots Applies to Sidewalks.</p> <p>When the owner of such lot also signed a petition to the council asking for the construction of a sidewalk for 136 feet along said lot on Carter street, “one-half to be paid by the village in accordance with sec. 2334a, S. & B. Rev. Stat., the other half to be assessed upon all of the lots and lands so abutting upon the improvement,” and this petition was also signed by the owners of two-thirds of the feet front of the property abutting upon the proposed improvement, and the improvement was made accordingly at the instance and request of the petitioners, the said petitioner is bound thereby and must pay the assessment for the one-half the costs of his said improvement.</p> <p>4. Illegal Part Enjoined on Condition Valid Part be Paid.</p> <p>Where the court finds that a portion of an assessment was legally made, it will order that upon payment of the same, the collection of the residue be enjoined.</p>

<p>DRAINAGE — CHARGE OF COURT.</p> <p>L. Liability op a Municipality in Changing Water Course and Increasing Plow Thereof by Paving and Changing Grade op Streets — Errors op Raw in Court’s Charge as to Such Liability.</p> <p>In an action brought against a municipality by a land owner thereof to recover damages, alleged to have been caused by changing the course of a stream of water and increasing the flow thereof, which stream crossed the lands of plaintiff, the petitic n substantially alleged: 1. That the defendant, in grading its streets, increased the territory that discharges its water into said stream. 2. That the defendant, in grading, paving, and guttering its streets in the vicinity of said stream, diverted the water in that vicinity from its natural drainage into sewers, and caused it with other additional waters, to flow into said stream and upon the land of plaintiff, to his damage. 3. That certain residents of said corporation, with the consent, and at the direction of defendant, drained their sewage and other filth into said stream, and allowed it to flow down on to the lands of plaintiff. 4. That the defendant diverted the course of said stream from where it originally flowed, and caused it to flow through a large pipe on, but not across, the lands of plaintiff, and there left it to dischaige its accumulation of filth, water and dirt upon plaintiff’s said land.</p> <p>The defendant denied all the allegations of the petition but alleged in its answer, that the plaintiff had consented to the location of said pipe upon his premises, and that it was left there in such condition with his consent and. advice.</p> <p>The plaintiff replied that he gave his consent for the location of such pipe on his lands upon the express condition, and no other, that said pipe should be extended entirely across his land so that said water and filth would not be discharged thereon. At the trial of such action: Held, 1. It was not error for the court to instruct the jury, that the burden of proving any new matter alleged in the reply, was on the plaintiff.</p> <p>2. It was error for the court to instruct the jury, that the alleged creation of such new channel, distinct from the old one, was the only allegation that charged upon the de- ' fendant the exercise of powers that it had no right to exercise.</p> <p>8. It was error for the court, in its charge to the jury, to assume that the plaintiff had consented to the laying of said pipe and the making of said improvement just as it had been left, the pleadings and proof not showing any such consent.</p> <p>4. It was error for the court to instruct the jury, “that it being admitted that the new or substituted channel was made with the knowledge of the plaintiff, the plaintiff would be subjected to all the incidents that ordinarily attached to the natural stream before such substitution, and for injuries resulting from such incidents would not entitle the plaintiff to damages from the city, because of the changed location of said stream.”</p> <p>5. In such case the defendant is a proprietor, and had a right to drain its lands and increase the flow of water, that naturally found its way into said stream, by carrying it into a ditch, or otherwise, if that was the natural place for the water to go, and it was in the habit of flowing there, but the defendant, as such proprietor, would be liable to the plaintiff for all damages caused by increasing the servitude of the land below, by making the overflow of water greater than it originally was, or by making an overflow where there was originally no overflow, and the plaintiff would not be bound to anticipate any injury therefor, until it came to him.</p> <p>2. Fob. Other Eerors of Law in Charge of Court, see Opinion.</p> <p>3. Effect of Giving to the Jury a Curative Request to Charge where the Main Charge has been Misleading. <</p> <p>Where the court’s charge proceeds all the way through so that it is misleading to the jury, a request, that is given to them after they have retired, and that cures to some extent the errors of the main charge, will not prevent the defeated party from having a new trial.</p>

<p>TAXATION.</p> <p>Haynes, Scribner and King, JJ.</p> <p>'Power oe Boards oe Esuaeization to Change Vaeuation without Notice. -</p> <p>Annual boards of equalization cannot change the taxable valuation of property fixed by the decennial board of equalization without notice to the owner of the property of the contemplated change.</p>

<p>PARTNERSHIP — EVIDENCE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. What Constitutes Sufficient Notice to Exempt a Withdrawing Partner from: Liability for Subsequent Debts.</p> <p>The publishing, by a firm, of notice of dissolution thereof in a paper of general circulation in the community where such firm has carried on its business, is sufficient to exempt the withdrawing members thereof from liability for any debts .contracted after such dissolution by a new firm, under the same partnership style, with persons who-had not dealt with the old firm.</p> <p>2. Actuad Notice of Dissoeution Necessary to Exempt Withdrawing Partners, from Eiabieity for New Debts.</p> <p>To exempt such withdrawing partners from liability fore debts, contracted by such new firm with former dealers of the old firm, actual notice of such dissolution must have been brought to such former dealers.</p> <p>3. Who are not “Former Deaeers” of an Oed Firm, Subsequently' Dissolved ani> Changed in Membership.-</p> <p>Where such old firm, prior to its dissolution, had transacted business with another firm, composed of C. and M., who subsequently dissolved, and thereafter M., individually-transacted business with such new firm. Held: M. could not be regarded as a former dealer with such old firm so as to hold such retiring members for debts contracted in. his favor by the new firm.</p> <p>4. Competency of Commercial Agency’s Reports to Prove Notice of Dissolution.</p> <p>In an action brought by a creditor of a firm to charge a person as a member of such, firm, a book, published by a commercial agency, and of general use among commercial men, and noting the fact that the defendant is not a member of such firm, and to. which the plaintiff has had access, is competent evidence to go to the jury as tending to show that the plaintiff^had notice of such fact.</p>

<p>PUBLIC OFFICERS — FEES.</p> <p>1. By Whom Compensation op County Recorder por Keeping up op General Indexes. Must be Fixed.</p> <p>While the rate of compensation for services rendered by a county recorder in keeping up the general indexes to the records of all the real estate in his county is fixed by law, the amount due for such services must be fixed by the county auditor, and the claim of the recorder therefor must be presented to, and passed upon by, the county commissioners.</p> <p>2. Right op Recorder to Recover por Keeping up General Indexes where the Work was not Ordered by the Commissioners.</p> <p>Where the commissioners of a county have directed the county recorder to bring up and complete such general indexes to a given date, and thereafter the recorder keeps up. such indexes by entering thereon each instrument as it is recorded, in an action brought by the recorder to recover for such subsequent services, the fact that they were not ordered by the commissioners, is irrelevant.</p> <p>3. Right op a Public Oppicbr to Fix His Own Compensation.</p> <p>It is contrary to the public policy of this state for any public officer to fix his own compensation or the amount due him for his services.</p>

<p>APPROPRIATION OF PROPERTY — EVIDENCE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>I. Competency oe Questions to Witness, Making no Aeeowance eor Benefits.</p> <p>At the trial of an action, brought by a railroad company, to appropriate land for a right of way and to assess damages for injuries, resulting to the adjacent premises of the land owner, the general rule is, that no deductions from the damages to be assessed for injuries to such, adjacent premises are to he made on account of any benefits, and, until it affirmatively appears that the case on trial comes within some exception to that rule, it is proper to ask questions of witnesses upon the assumption that such case is within the general rule, allowing no deductions for benefits.</p> <p>2. Competency oe Evidence as to Pair Market Vaeue oe Land.</p> <p>It is proper for witnesses, who are qualified as to a knowledge of the value of the lands sought to be appropriated, to testify what the fair market value of such lands is.</p> <p>3. Right to Cade Attention oe Witness’ on Re-Examination to Particuear Saees oe Land.</p> <p>In such an action, one of the defendant’s witnesses testified as to the value of the land sought to be appropriated, and, on cross-examination, his attention was especially called to sales of land in the vicinity made at a very low figure.</p> <p>Held: On re-examination it was competent to call the attention of the witness to sales of land made at a higher figure.</p> <p>4. Competency oe Statements oe Witness as to Vaeue oe Land.</p> <p>\t the trial of such action a witness giving his judgment as to the value of the land appropriated used the following language: “I put that at $200. I think, if I owned land there I should be satisfied with $200 per acre, if it was my property.”</p> <p>Held: Such answer was not prejudicial to the railroad company.</p> <p>5. Eeements oe Compensation To be Considered in Computing VaeuE.</p> <p>At such trial the court submitted the following proposition in its charge to the jury: “Where a piece of land is taken and severed by the appropriation from its connection with the other land of the owner, some elements of compensation necessarily enter into the computation besides the abstract value of the number of feet or acres of ground taken. These elements of compensation may be comprehended in the following . 1. The abstract value of the land taken. 2. The value arising from the relative situation of the land taken in connection with the residue of the owner’s land, from which it is taken. 3. The effect upon the value of the residue of the owner’» land, arising from the use for which the appropriation is made.” .</p> <p>Held: Such proposition was not erroneous.</p> <p>6. Ruee oe Compensation. .</p> <p>In such action, the difference in the value of the land owner’s property -with the appropriation and that without it is the rule of compensation.</p> <p>7. When Incidentae Benefits wiee not be Set Oee Against Incidentae Damages.</p> <p>In the absence of anything in the proof tending to show local peculiar benefits, resulting to such adjacent premises of the defendant by reason of such proposed construction, not common to the public, it is not proper to instruct the jury to deduct the amount of incidental benefits from the amount of incidental damages.</p>

<p>REAL ESTATE BROKER — CONTRACT.</p> <p>Jenner, Pomerene and Adams, JJ.</p> <p>Right to Recover Commission- Where Agency is Terminated.</p> <p>I/., a real estate broker, entered into a written contract with R., in which R. agreed to pay D. a certain sum of money on condition that he would sell certain real estate belonging to R. D. did considerable labor in endeavoring to sell said real estate to one S., and while negotiations were pending for the sale of such real estate to S., R. requested D. to deliver up said contract and end his agency, which D. agreed to do, provided R. would pay him the sum agreed upon, if the sale of such real estate should afterward be effected to S., and to that condition R. agreed, and the original written contract was delivered to him. Subsequently R. sold said real estate to S. In an action brought by Xi. to recover his commission from R.—</p> <p>Held: There was a sufficient consideration in the subsequent agreement between R. and L. to enable D. to recover his commission for such sale.</p>

<p>DEFECTIVE SIDEWALK — NEGLIGENCE.</p> <p>Jenner, Pomerene and Adams, JJ.</p> <p>1. When Notice to Municipality is, or is not Necessary.</p> <p>In an action to recover damages from a municipality for personal injuries caused by a defective sidewalk, if the evidence shows that the defect existed in the original construction of the sidewalk, the municipality is entitled to no notice of such defect before becoming liable for such injuries; but if the defect occurred after the original construction of the sidewalk, the municipality is entitled to such notice before becoming liable for injuries resulting therefrom, unless the defect was of such a character, or had continued for such a length of time, that notice is presumed.</p> <p>'2. Inability oe Municipality where Sidewalk was Constructed by Abutting Property Owner.</p> <p>The fact, that such sidewalk was originally constructed by the abutting property owner, does not shift the responsibility and exempt the municipality from liability for such injuries.</p> <p>A Competency oe Occupation oe Plaintiee and Compensation Received by Him.</p> <p>In such action, it is competent for the plaintiff to testify as to his occupation and the amount of compensation he receives from it, although there is no averment in the petition as to special damages.</p> <p>•<L Competency oe Opinion oe Physician who Details Conversation with the Plain-tiee.</p> <p>The fact, that the testimony of a physician, who examined the plaintiff in such case, shows that the physician talked with the plaintiff about his injuries at the time of such examination, will not disqualify such physician from giving to the jury his opinion, based upon such examination, as to the character of such injuries.</p> <p>■S. Eeeect oe sam(E Case being Tri^d Twice with Same Verdicts.</p> <p>The fact that a case has been tried to a jury the second time, and that the last verdict is substantially the same as the first one, should carry more weight to a reviewing court than if tried but once.</p>

<p>NEGLIGENCE — CHARGE OF COURT,</p> <p>Brazier, Woodbury and Laubie, JJ.</p> <p>1. When a Raieroad Company must have a Flagman, or Maintain Bars, at a Pubeic Highway Crossing.</p> <p>A railroad company may, because of the speed and management of its trains, make it necessary or incumbent upon itself to place a flagman or bars at the crossing of its tracks by a public highway.</p> <p>2. Duty oe a Person as to Using Care in Crossing Tracks oe a Raieroad Company.</p> <p>Negligence of a railroad company, in giving signals or omitting precautions of any kind, will not excuse the omission of a person about to cross the tracks of such company, ■who is in the full enjoyment of the faculties of hearing and seeing, in using such faculties for the purpose of discovering and avoiding danger from approaching trains, before crossing such tracks.</p> <p>3. Eeeect oe Raiding to Request Court to Charge Propositions oe Daw Pertinent To the Case.</p> <p>” A failure to charge a correct proposition of law, pertinent to the case on trial, will not ordinarily afford a ground for reversal, in the absence of a request to charge such proposition.</p> <p>4. Liability oe a Raieroad Company eor Injury to a Person Crossing its Tracks.</p> <p>At the trial of an action to recover damages from a railroad company for personal injuries sustained in going across the defendant’s track at a street crossing, the defendant company requested the court to submit the following proposition, which the court refused to charge : “ If the crossing is a dangerous one and the plaintiff knew it, that fact made it all the more necessary for the plaintiff to use his faculties to avoid danger from an approaching train, and if he failed so to exercise his faculties, he cannot recover.” • ,</p> <p>Held: Such refusal to charge was error. The defendant was entitled to have the jury charged in apt and appropriate words to the effect, that, if the plaintiff before he attempted to cross the track on which he was injured, could by looking have seen the approaching train, but failed to look, and by reason of such failure, was injured, he could not recover for his injuries.</p>

<p>NEGLIGENCE — FELLOW SERVANT.</p> <p>Bentley, Haynes and Scribner, JJ.</p> <p>Evidence Sustaining Verdict, M</p> <p>2 Duty os Foreman in Selecting Utensils.</p> <p>It is the duty of a foreman in charge of a body of men to use ordinary care in the selection of utensils with which the work is to be done, and to have ordinary knowledge of the strength of such utensils.</p> <p>Duty os Employee to Examine Utensils Employed in His Work. &</p> <p>An employee is bound to obey the foreman and be active and diligent in his work, hut is not supposed to stop and examine the means employed, though if he have actual knowledge of the same he is chargeable with ordinary care in going on with the work. — ■ .</p>

<p>EVIDENCE — CRIMINAL LAW.,</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Competency oe Testimony eor the Purpose oe Proving Criminal Intent.</p> <p>C. was indicted in the court of common pleas for cutting timber on the land of another without leave or license from the owner of said land. Prior to the finding of said indictment, C. had been arrested for cutting timber at another and previous time on the same land, and had been brought before the probate court for trial on said former charge, whereupon, in consideration of the costs being paid, he agreed with the owner of said land to cut no more timber thereon and to relinquish all claims thereto.</p> <p>Held: At the trial in the court of common pleas on said indictment, it was not error for the prosecutor to state to the jury that he expected to prove the agreement made by C. with the owner of said timber, whereby the charge against C. in the probate court was dismissed, and it was competent to put such agreement in evidence before the jury, not only for the purpose of showing that C. had no claim to such timber, but to show his intent in going upon said land to cut said timber. *</p> <p>2. Statements by the Prosecuting Attorney, in Argument.</p> <p>In the trial of a criminal case, it is not error or misconduct, for the prosecuting attorney-to state to the jury that the indictment against the defendant was returned by as good a grand jury as ever sat in the county and that the foreman of said grand jury was a good citizen, especially when the prosecutor is attacked by the opposing counsel and charged with carrying on the prosecution for personal reasons.</p>

<p>MECHANICS’ LIEN.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Priority of Over Mortgage.</p> <p>A mortgage on real estate is subject to the liens of mechanics, who, prior to the execution of such mortgage, furnished various articles for an improvement on the premises, although the execution of such mortgage furnished the means of raising the greater part of the purchase money for such real estate.</p> <p>2. What are Proper Subjects oe Mechanics’ Liens.</p> <p>Belting, shafting, etc., constituting part of an improvement on real estate, are proper subjects of mechanics’ liens.</p>

<p>DAMAGES — EVIDENCE—INTEREST.</p> <p>1. Competency of Showing what has been Expended for Repairing Injured Property.</p> <p>In an action brought by a property owner against a municipality to recover damages for injuries to the property owner’s premises, alleged to have been caused by the defective condition of one of the municipality’s sewers, it is error to permit the admission of evidence as to the expense to which the property owner has been put in repairing his premises.</p> <p>2. True Rude to be Observed in Ascertaining Damages:</p> <p>In such action, the true rule to be observed in ascertaining the amount of damages, is to find from the witnesses liow much less valuable the plaintiff’s premises were in consequence of such injuries; or, what the difference was between the value of the property in the condition it was in before such injuries, and its value immediately thereafter.</p> <p>3. From what Time Interest can be Recovered in an Action for Damages.</p> <p>In such action, interest upon the amount of damages sustained by the plaintiff, should be computed'only from the time the plaintiff actually suffered the injuries complained of, and not from the time when money was expended for such repairs.</p>

<p>STREET IMPROVEMENT.</p> <p>Hayaes, Scribner and King, JJ.</p> <p>Letting of contract to lowest responsible bidder — Separate bids for material or labor, and bids por the whole — Authority of council to decide who is the lowest responsible bidder.</p>

<p>PARTNERSHIP — COMMERCIAL LAW.’</p> <p>Bentley, Haynes and Scribner, JJ.</p> <p>1. Authority or Partner to Bind Firm by Indorsement or Negotiable Paper.</p> <p>Bach member of a partnership for trading and business purposes may bind his firm as to third parties by receiving, selling and indorsing negotiable paper payable to the firm, in the usual course of partnership business.</p> <p>A partner cannot, unless specially authorized, bind his firm to any one with knowledge of the facts, by a mere accommodation indorsement, nor by signing the firm name as surety.</p> <p>2. Burden or Proor.</p> <p>In an. action upon a promissory note payable to the order of a partnership and bearing its indorsement, by a purchase thereof for value before due m the usual course of bu' '■■ess, the burden of proving that the same was received and indorsed by one part-nt mly, and as a mere accommodation to the payee, rests upon the partnership.</p> <p>3n such case, when it is shown that the transaction was really one attempting by the act of one partner to pledge the credit of the firm by way of accommodation indorsement, the burden of proving his authority so to do rests wi.h the holder of the note.</p>

<p>EASEMENT — RIGHT OF WAY.</p> <p>Jenner, Pomerene and Adams, JJ,</p> <p>1. A Right oe Wav not Connected with Premises is one in Gross.</p> <p>A right of way that does not terminate on the lot to which it is claimed to be incident, but which is situated four lots distant therefrom, is a way in gross, and not a way ap-pendant or appurtenant.</p> <p>2, Power oe Grantor to make a Right oe Wav, Personae to Himseee, Appurtenant to Rand he Convevs, at a Distance Thbreerom.</p> <p>If the reservation of a right of way in a deed he personal to the grantor thereof, such grantor cannot, by conveying a lot, distant from such right of way, not connected therewith and not touching it, make it appurtenant thereto.</p> <p>8. Right oe Wav Appendant cannot be Converted into One in Gross.</p> <p>A right of way appendant cannot be converted into one in gross, nor can one m gross be converted into one appendant.</p>

<p>ON appeal from tbe court of common pleas of Stark county.</p>

<p>Error to the court of common pleas of Lucas county.</p>

<p>REVIVOR OF JUDGMENT!</p> <p>Caldwell, Hale and Marvin, JJ.'</p> <p>1. When Discharge in Bankruptcy Not a Bar to Revivor oe JttdgmeñTX</p> <p>In a proceeding to revive a judgment, where the judgment debtor pleads his discharge in bankruptcy, such discharge will not be a bar to such judgment where it appears that the original cause ox' action on which such judgment was rendered was one of fraud of the most active kind.</p> <p>2. Effect oe Proceeding to Revive Upon Record.</p> <p>The proceeding to revive such judgment brings the whole record pfthe original cause before the court.</p>

<p>REGISTRATION OF PHYSICIANS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Abuse of Discretion by Board of Heaeth, as to Admission to Register.</p> <p>Under a regulation of the board of health of the city of Cincinnati, requiring that any one desiring to prescribe or practice medicine in any of its branches, including surgery, in the city of Cincinnati, must be registered as such, and that it shall be unlawful for him to prescribe medicine in any of its branches unless he shall have first been so registered, and that such registration shall be allowed on proof satisfactory to the department of health, that such applicant is duly qualified according to law to be registered, a peremptory mandamus should not be allowed against such health department, requiring it to admit a person to register, if it appears that the discretion thus conferred upon it has not been abused.</p> <p>2. Regueation Making Right to Register Depend on Sanction oe an Officer of Board is Invaeid.</p> <p>But in view of the fact that by section 4403, Revised Statutes, the legislature of the state has provided as to those who shall not practice medicine in any of its branches, in this state for reward,- and thereby, in effect, allows all persons not excluded thereby, or by other statutes of the state, to do so; and by section 6992, Revised Statutes, has provided that it shall be unlawful for persons to practice medicine in any of its departments, without having the qualifications therein set forth, under the penalties therein mentioned.</p> <p>Held: That while in the exercise of police power, a regulation requiring all persons practicing medicine or surgery in such city, to register as such, would probably be valid; that such a regulation as the one in question, which makes the right to register depend upon sanction or approval of an officer of the board, and of his view as to the qualifications of such persons to practice, and provides that the person violatingit shall be punished, is not authorized by any law of the state, and is invalid._</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>Error to tbe court of common pleas of Hamilton county.</p>

The plaintiffs, in these cases, sued to recover the value of shares in the defendant building association, which they claim were transferred to them by Eliza Eloyd, now deceased. The parties made defendant were the building association and Frank Bowles, administrator of Eliza Eloyd. The building association answered, admitting that it had in its possession money belonging to Eliza Eloyd,. and asking the direction of the court as to whom it should be paid.

<p>CANCELLATION OF DEED.</p> <p>Swing and Smith, JJ.</p> <p>1. Destruction oe Records by .Pire.</p> <p>On the facts found the plaintiff is entitled to a decree of the court, cancelling the deed procured from him, though owing to the destruction of the records of the county in the court house fire, he was not able to show that at the time the conveyance was executed he had any title to the land described therein.</p> <p>2. Abstract oe Record and Decree not Admissible as Evidence.</p> <p>The evidence offered by the plaintiff tending to prove that in the office of an abstract company in this city is what purports to be an abstract of the record and final decree rendered in a case lately pending in one of tne courts of this county, the record of which was destroyed by fire, and which tended to show title to this land to have been in the plaintiff when the deed was executed, and the evidence further tended to prove that the said abstract was in the hand writing of a former proprietor of such abstract company, such abstract was not in this case competent evidence.</p>

<p>agency:</p> <p>Cox, Smith and Swing, JJ.</p> <p>Payment to Agent Who Negotiated Saxe, Acting eor Both Vendor and Vendes, and Absconding with Purchase Money.</p> <p>On the facts in this case, as found by the court, Loud had apparent and actual authority, as the agent of the plaintiff, to deliver the deed made by the plaintiff to the defendant, and to receive from her the purchase price for the property. And the fact that the defendant paid to Loud, in good faith, a sum of money for his services while he was acting as the agent of the plaintiff in negotiating the sale of the real estate to the defendant, did not prevent Mrs. Levy from relying on such payment — the parties having agreed that Loud might receive a part or the whole of his commissions from her.</p>

Appear from the common pleas court of Hamilton county. The two cases above named were consolidated in the court below, and tried as one case.

<p>ASSESSMENTS.</p> <p>Swing and Smith, JJ.</p> <p>1. Frontage oe Corner Dot.</p> <p>On the facts found by the court, as hereinafter stated, the lot of the plaintiff for the purpose of assessment for a street improvement did not front on Carson avenue for the whole distance it abuts on said avenue, viz., 417 feet, and should be assessed for the improvement of said avenue only on 243} feet thereof.</p> <p>2. Signing Petition not an Estoppel.</p> <p>The signing by the plaintiff of a petition for such improvement, did not operate to estop him from claiming that the assessment made against his lot therefor, was excessive.</p> <p>3. Former Decree on Difeerent Grounds of Action not a Bar.</p> <p>In a suit brought by the plaintiff against the defendant to enjoin the collection of the whole assessment levied upon his lot for said improvement, on the ground that it was wholly void for other reasons, a decree was rendered against him. The questions raised in that case were wholly different from those presented in this case, and the plaintiff is not barred by that' decree from asserting and maintaining his claim in. this.</p> <p>4. Voluntary Payments of Installments of Assessment Cannot be Recovered.</p> <p>Where there have been voluntary payments of excessive installments of such an assessment, the plaintiff is not entitled in an action like this, to a credit on future installments, for the excess so paid — especially is this the case as to such payments made more than one year prior to the commencement of such an action, in which he practically seeks to recover the amount claimed to have been improperly paid.</p>

<p>Appear from the court of common pleas of Hamilton county.</p>