Volume 60 — Ohio State Reports, New Series

The action was brought by Thomas J. Mapel against' John H. Kunneke for an accounting as partners. He averred that in June, 1891, plaintiff and defendant entered into a partnership as dealers in dry goods, etc., plaintiff contributing $2,650 to the capital and defendant $1,950, and they were to share in the property and profits in the ratio of such contribution. Defendant was to and did manage the business.

The action below was by the administrator of Ear hart A. Altemeier, deceased, against the Street Railway Company for recovery under sections 6134 and 6135, Revised Statutes. The deceased was a minor, twelve years of age, and on the day of his death was a passenger on the street railway. The ear on which the deceased was riding to school was slowing up for the purpose of stopping at the southern entrance to the Avondale school house yard.

In Mandamus. The cause is submitted on demurrer to the answer.

This action was brought by the plaintiff in error to be subrogated to the rights of a mortgage creditor to whom, as a surety of the ancestor of defendants in error, he had paid the mortgage debt. The court of common pleas and circuit court found adversely to his claim whereupon he instituted proceedings in this court for relief against the judgment of the latter court. The facts will be stated in the opinion.

Farmer brought suit in the court of common pleas to recover for injuries to his horse caused by the negligence of the company in removing a brick pavement and leaving the street for a long time in an unsafe and dangerous condition by reason of the exposure of its tracks and conducting wires. The answer denied the negligence of the company and alleged that the horse was injured by reason of the negligence of the plaintiff himself.

Plaintiffs in error filed their petition in the court of common pleas against the defendants in error for the partition of real estate in the city of Canton described in the petition, alleging that they and the defendant Louis E. Blum were the children and heirs-at-law of Elizabeth Blum who had died intestate and seized in fee of said premises, that upon her death the said children each became seized in fee of one-third thereof, and that the defendants were in possession of…

Action to enforce vendor’s lien. Judgment below giving tlie lien priority, affirmed. The case is sufficiently stated in the opinion.

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

<p>Statute of limitations — Action of ejectment — Original seizure a disseisin — Running of limitation statute not arrested, when — General judgment -where two issues pleaded — Judgment not reversed as to one issue exclusively, when — Pleadings.</p> <p>1. Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseisin, any subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to' buy within the twenty-one years, nor an acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the land, will have that effect.</p> <p>2. Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entities'him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues. Sites v. Haverstick, 23 Ohio St., 626, approved and followed.</p>

Action by a manufacturing corporation on a claim for unliquidated damages, purchased in connection with its manufacturing plant, from a co-partnership. Judgment for plaintiff affirmed. The case is stated in the opinion.

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

<p>Error to the Circuit Court of Pickaway county.</p> <p>Mary E. Creath brought her action against Cork-well and Riggin as executors of the will of John McCafferty, deceased, and the sureties upon their joint bond to recover the sum of $1,006.73, the balance of her share of the sum which the probate court had found due in the hands of the said executors for distribution. The questions to be considered here arise upon the third defense in the answer of Corkwell and the evidence relating to issues joined on that defense. That defense is as follows:</p> <p>Third Defense — Por his third defense, this answering defendant, George W. Corkwell, says,that prior to said April 4, 1895, said executors had collected the assets of said estate, and deposited the same in the Citizens’ Bank of Mt. Sterling, Ohio, to their credit as such executors, and that the same were on deposit on April 4, 1895, and so remained until paid out in the settlement of said estate, and the payment of the sum hereinafter referred to, as paid to George V. Riggin individually, and that the sum so on deposit on April 4, 1895, was sufficient to pay the entire balance remaining due upon all of the distributive shares of said estate, of all of which facts plaintiff had full knowledge.</p> <p>This defendant further avers that prior to said April 4, 1895, said George V. Riggin had individually made divers and sundry loans or advancements to said plaintiff upon her distributive share, of said estate, the exact amount of which loans or advancements were at the time and still are, unknown to this answering defendant, George W. Corkwell.</p> <p>That on said April 4, 1895, said executors and part of the legatees of said estate, including plaintiff, met in the probate court of Pickaway county, Ohio, for the purpose of settling said estate, and determining the amountsof the several distributive shares of each of said legatees, and paying the same in full, of all of which plaintiff had full knowledge. That at the said time and place said George V. Riggin and plaintiff represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, who is a brother-in-law of plaintiff, had an accounting to make with plaintiff of his said loans and advancements to her; and thereupon said George V. Riggin and plaintiff retired privately and apart from this answering defendant, George W. Corkwell, and made a settlement of their said accounts, and plaintiff, with a full knowledge of all of the facts aforesaid, signed for and gave to said George V. Riggin, individually, a receipt in full to said executors for her distributive share in said estate; and said George V. Riggin, individually, with the knowledge and consent of' said plaintiff, presented said receipt to this answering defendant, as such executor, and represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, individually, had paid to plaintiff the full amount of her distributive share in said estate, and that the same was, therefore, due and payable to him, said George V. Riggin, individually.</p> <p>Whereupon, and in reliance upon the conduct and representations of the plaintiff, and this answering defendant, George W. Corkwell, believing that plaintiff had been paid her share of said estate in full, said executors executed and delivered to said George V. Riggin, individually, their check upon said funds of said estate so deposited in said Citizens’ Bank of Mt. Sterling, Ohio, as aforesaid, for the sum of $1,768.86, and which said check was on April 5,1895, duly presented by and paid to said Riggin individually, whereby the said sum of $1,768.86, became and was, and is wholly lost to and placed beyond the control of said executors, and this answering defendant, George W. Cork-well.</p> <p>This defendant further says that prior to said April 4, 1895, plaintiff borrowed a large sum of money from one A. R. Alkire, who was at that time and still is the president of the said Citizens’ Bank, upon the promise of repaying the same out of her distributive, share in said estate, and that both plaintiff and said Alkire knew that the funds of said estate were deposited in said Citizens’Bank of which said Alkire was president.</p> <p>And at the time of said accounting between plaintiff and said Rig’gin, said Riggin, as this plaintiff is since informed and believes, paid to plaintiff a part of tbe sum so found due ber on said accounting, in currency, but the exact amount of which payment in currency this defendant is unable to state, and for the balance so found due her upon said accounting said Riggin thereupon gave her his individual check upon the Farmers’ Bank of Mt. Sterling, Ohio, for the sum of $1,006.73, which sum of money in currency and said check she then accepted in full satisfaction of her said distributive share in said estate; and thereupon, and with a full knowledge of all the facts aforesaid, executed and delivered to said executors her receipt for said sum of $1,955.23, in full of her distributive share of said estate, and the same was thereupon, with her full knowledge and consent, filed and recorded by the probate court in full satisfaction of her distributive share of said estate; and the plaintiff thereupon authorized said executors to draw their check as 'aforesaid, in favor of said Riggin, individually, for said sum of $1,768.86, which amount included the said sum of $1,006.23 now claimed by plaintiff in her petition.</p> <p>(That one of the purposes and objects of plaintiff in settling with said Riggin and agreeing with him to accept his check upon said Farmers’ Bank, and so authorizing said Riggin, individually, to draw and receive from said executors the said money so deposited by them in said Citizens’Bank was to avoid the payment of said moneys so due and owing by her to said Alkire as aforesaid. This defendant further says that plaintiff failed and neglected to present to said Farmers’ Bank, for payment, her said check for $1,006.73, so given her by said Riggin, until April 13, 1895. That for a long time prior to, and on said April 4, 1895, and until April 15, 1895, said Riggin had a large amount of property subject to attachment or execution, and that on April 15, 1895, and before this defendant, George W. Corkwell, had any knowledge or intimation that plaintiff had not received all the money or property which she claimed from said estate, said Riggin’s property was seized on execution and upon attachments, upon valid claims for much more than its value, and said Riggin became and is now wholly insolvent, so that, if this answering defendant, Geo. W. Corkwell, as such executor, is now compelled to again pay the claim of plaintiff, that the same will be wholly lost to him.)</p> <p>In the court of common pleas the portions of this defense which related to the plaintiff’s motive in entering into the arrangement with Riggin were stricken out on motion of the plaintiff. She then demurred to the third defense, and her demurrer was overruled. She then replied denying that she had ever represented to Corkwell that Riggin had paid to her the full amount of her distributive share of the estate, and alleging that although she had received advances which reduced the amount due upon her distributive share to the sum named in her petition, the executors had united in the representation that Riggin had funds to his credit in the Farmers’ Bank of Mt. Sterling sufficient to meet his check for that amount and that they induced her to accept his individual check upon that bank for the sum named, and in consideration thereof to execute to the executors her receipt for the full amount of her distributive share, and that Riggin did not then nor at any time prior to the presentation of the check by her have any funds on deposit in the Farmers’ Bank, and that the cheek remains unpaid. The cause coming on for trial in the court of common pleas a jury was waived and there was a general finding and judgment in favor of the defendants. Thereupon the plaintiff, her motion >for a new trial having been overruled, took a bill of exceptions containing all the evidence offered, and filed her petition in error in the circuit court where the judgment of the common pleas was reversed for two reasons as shown by the record; first, because the common pleas had erred in overruling plaintiff’s demurrer to the third defense; second, because the judgment was not sustained by the evidence. This petition in error is for the reversal of the judgment of the circuit court.</p>

In Quo Warranto. The petition charges that the defendant, being a corporation formed for the purpose, as shown by the articles of its incorporation, ‘ ‘of the education of suitable persons in the art and science of curing diseases by the use of air, baths, electricity, heat, magnetism, massage and all other resources of nature,” had violated the provisions of section 3726, Revised Statutes, because it had not acquired real and personal property of the value of $5,000, and…

This action was brought in’the court of common pleas of Cuyahoga county by the plaintiff in error, Adam W. Poe, against the defendant in error, Flora A. Dixon, to recover against her on account of certain sums of money he had been compelled to pay as her surety. He recovered in the court of common pleas the amount claimed, which judgment the circuit court on error reversed.

<p>Error to the Circuit Court of Auglaize county.</p> <p>On the eleventh day of August, 1896, the plaintiff, the Village of St. Marys, commenced its action against The Lake Erie & Western Railroad Company by filing a petition in the court of common pleas, in which it was alleged in substance that the defendant is a railroad corporation, operating a line of railroad through Auglaize county, a part of which is located in said Village, and that such line of railroad crosses certain streets therein, the names of which are given; that the Company is the owner of real estate and a leasehold interest in real estate in said county; that on the ninth day of February, 1895, the council of St. Marys duly passed an ordinance requiring the defendant Company to light its line of railway at the points where the same crosses the above mentioned streets with electric lights, said ordinance specifying the manner in which the railway should be lighted and the number and style of lamps, and the times such lamps should be kept burning in each twenty-four hours. Said ordinance was duly published.</p> <p>On the ninth day of February, 1896, a copy of the ordinance and notice of its contents and requirements was served upon the defendant in form and manner and in conformity to law, and more than twenty days prior to the imposing of any penalty for default. The Company neglected for more than twenty days after the service of such notice to do such lighting, and plaintiff caused such lighting to be done, and on the seventeenth day of March, 1896, duly passed an ordinance assessing the expense of such lighting on the real property and leasehold interest of the Company in Auglaize county. Said ordinance assessing the expense of lighting in the following manner: $42, April 1, 1896, $42, on the first day of each and every month thereafter until the first day of April, 1897, and in default of the payment of any or all of such installments when the same shall become due, that they shall be collected as provided by law. On the first day of April, 1896, the sum of $42 became due and payable, and a like sum became due and payable on the first days of May, June, July and August of said year, and none of -said amounts have been paid. Plaintiff demands judgment against the defendant for $210, interest, penalty and costs, and prays that the same may be declared a lien upon the real estate and leasehold interest of defendant, and for other and further relief.</p> <p>By its answer the Company admitted that the plaintiff is a municipal corporation and the defendant a railroad corporation, and that as such it is the owner of and operating a line of railroad through Auglaize county, a part of which is located in the Village of St. Marys; that it is the owner of real estate and leasehold interest in real estate in Auglaize county, and that the plaintiff caused the streets alleged to be crossed by defendant’s railway to be lighted by and with electric lights, and denied the other allegations of the petition.</p> <p>At the trial of the case a jury was waived and the issues joined were tried to the court. Plaintiff gaye iñ evidence the ordinances referred to in the petition; also evidence showing service upon the Company as alleged in the petition; also evidence showing the number, location and character of the lights furnished and the lighting done by the procurement of the Village at points where the streets named in the petition are intersected by the line of railway of theD defendant. No evidence was given or offered by the defendant. The court thereupon rendered judgment in favor of the plaintiff and against the defendant for the sum of $154.37. Motion for á new trial by the defendant being overruled, a bill of exceptions containing all of the evidence was taken. On error the circuit court reversed the judgment of the court of common pleas and rendered final judgment against the Village, dismissing its petition. This proceeding is to reverse the judgment of the circuit court and affirm the judgment of the common pleas.</p>

<p>Error to the Circuit Court of Hamilton eounty.</p> <p>The action in the court of common pleas was for the purpose of enjoining the auditor from adding $12,000 valuation to the tax return of plaintiffs below, defendants in error, and to enjoin the treasurer from collecting the taxes on said amount.</p> <p>The court of common pleas decided the case against the plaintiffs below, and the case is reported in the 2 Ohio Nisi Prius Reports, 291. Upon trial on appeal in the circuit court there was a finding of facts and conclusion of law as follows:</p> <p>1. The plaintiff is a partnership composed of Thomas F. Huddleston, Charles R. Hubbard, ffm. A. Ragsdale and Ed. Y. Hauss, formed for the purpose of carrying- on business in the state of Ohio, and engaged in business in the city of Cincinnati; that the said firm has been engaged in business since a time prior to the year, 1893.</p> <p>2. The defendant, John Hagerty, at the time of the bringing of this action, was the auditor of Hamilton county, Ohio, and the defendant, Leo Schott, was at the time the treasurer of Hamilton county, Ohio.</p> <p>3. The plaintiff made a return for taxation, for the year 1893, ox its personal property, upon a certain printed form, furnished by the county auditor, containing the various items for the return of all moneys, credits, investments, and personal property of every kind subject to taxation under the laws of Ohio, one of which items was known as No. 10, and provided for the average value of all goods and merchandise owned or held as a merchant during the year or part thereof, from the day preceding the second Monday of April, 1893. The plaintiff made a return of its moneys, credits, and property, but returned no property for taxation as a merchant under said item 10.</p> <p>4. The plaintiff firm was cited to appear before the board of supervisors of the city of Cincinnati, sitting and acting as the city annual board of equalization, on the eleventh day of July, 1893, to show cause why an addition should not be made to the personal return of the plaintiff for the said year 1893. On said July 11, 1893, Mr. Charles R. Hubbard, one of the members of said firm, in response to the said citation, appeared before the said board, and was examined by the said board ■with reference to the business of the said firm, and his testimony so given was the only evidence presented to the said board on the hearing of such citation.</p> <p>5. The evidence, and the only evidence, submitted to the board, was this:</p> <p>The said firm of Huddleston, Hubbard & Company was engaged in the live stock commission business in the city of Cincinnati, and had its place of business at the stock yards in said city. The business of the plaintiff was required to be transacted at or near the stockyards. The Cincinnati Union Stock Yards Company is an incorporated company under the laws of Ohio, for the purpose of handling live stock and yarding the same. It is not engaged in the business of buying live stock and selling the same, either on its own account or on commission. Its business consists of feeding, yarding, and holding the stock for others, and it is near their yards where the business of the plaintiff is conducted. The owners of live stock within the states of Ohio, Kentucky, Indiana, Illinois, and Tennessee, in certain cases, send their live stock to the city of Cincinnati to be sold for them. In some cases, the owners bring the live stock, while, in other cases, the owners do not do so, but consign the live stock, as hereinafter set forth. When the owners come with their stock and arrive with it, it is taken in charge by the employes of the Cincinnati Stock Yards Company, as aforesaid, and placed in their yards by the said employes. The owner then goes to the office of the plaintiff, and notifies the plaintiff of the arrival of the stock, and authorizes the plaintiff to sell the stock for him, and deduct a commission and all yardage expenses for feeding, watering and keeping the stock, and remitting the balance. The owner accompanies the stock in about sixty per cent, of the sales made by the plaintiff from the stock yards. In the remaining cases, being about forty per cent, of all the sales by the plaintiff from the stock yards, the stock was shipped by the owner, consigned to the Cincinnati Union Stock Yards Company, care of Huddleston, Hubbard & Company. When the stock was so consigned, the owner would notify the plaintiff by letter or telegram, advising’ them of the shipping of the stock, and directing them to sell the same at a certain price, and informing them how to remit the proceeds of the sale. In such cases, after the arrival of the stock, the employes of the Cincinnati Union Stock Yards Company take charge of the same, and place it in their yards, as hereinbefore set forth, and notify the plaintiff of the arrival of the same. Thereupon, the plaintiff having been notified of their said arrival, in accordance with the instructions of the owner, as hereinbefore set forth, would make the sales of the stock in the same manner as herein-before described. The plaintiff has access to the stock, at all times, by asking the employes of the stock yards company to unlock the gates, which are kept locked to prevent the escape of the stock. The said company is required to deliver the same number of head which it received, upon receiving an order to do so, as hereinafter set forth. When the plaintiff makes a sale of the stock, it orders the Cincinnati Union Stock Yards Company to weigh the same, and deliver it to the purchaser, and the Cincinnati Union Stock Yards Company comply with the said order of the plaintiff. The plaintiff collects from the purchaser the amount of the sale, and deducts the charges which are due to the Cincinnati Stock Yards Company, for feeding, watering, and yarding the stock, and also its commission, and remits the balance to the owner. The .Cincinnati Union Stock Yards Company claim a lien on all stock placed in their yards for their charges. Settlements are made by and between the Cincinnati Union Stock Yards Company and the plaintiff daily, for the business of the preceding day. Generally, the sales made by the plaintiff of said stock are for cash, or the check of the purchaser. If, however, the plaintiff is entirely convinced of the solvency of the purchaser, credit for a short time is occasionally given. In all cases of sales, upon the direction of the plaintiff, the Cincinnati Union Stock Yards Company delivers the stock to the purchaser, without ascertaining whether plaintiff has collected the money, and, when so delivering the stock, releases any lien or claim it has thereon, and looks to the plaintiff for the same. The plaintiff, in such cases, makes its settlement as is customary on the day following, whether payment has been made or not. In all cases of sales, whenever the plaintiff orders the stockyards company to deliver stock to the purchaser, it is weighed and delivered, and the plaintiff held responsible by the company for the charges. About two-thirds of the business of the plaintiff consists of dealing with stock sent, as aforesaid, from other states other than the state of Ohio. In case the stock so consigned to the stock yards company, in care of the plaintiffs, or that brought to the stock yards company by the owners thereof, was not sold by them (the plaintiffs), the same would then be shipped by said stock yards company, or the owners of the stock, without any direction or control of the plaintiff, to other markets indicated by the owner or consignor. The only duty conferred upon the plaintiff being to sell said property when consigned to the stock yards company in their care, or when brought by the owner, being to sell the same, if the price could be obtained, pay the charges and their commission, and remit balance of proceeds, as directed, and that, at no time, did plaintiff have any control of said stock while in the possession of the stock yards company. There was no evidence whatever before said board as to the average value of all goods and merchandise owned or held by plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893, or of the average value of goods, merchandise, or stock owned or held by them as merchants, or sold by them under the conditions hereinbefore stated, which had come to them- from any place within this state, or from any place out of this state, for the purpose of being sold at any place within this state, and no books or papers of said plaintiff were asked for or produced, showing the same, and no inquiry was made by the board of the plaintiffs, or either of them, as to such matters, and no evidence was heard in regard thereto by said board.</p> <p>6. The said annual board of equalization entered upon its minutes for the year 1893 the following:</p> <p>Office of the Board of Supervisors,</p> <p>Cincinnati, July 7, 1893.</p> <p> City Annual Board of Equalisation. </p> <p>The board met. Present, Messrs. Doherty, Krohn, Strunk and Mr. President. Messrs. Foley and Harper were absent, the former being ill and the latter engaged in inspection of new structures and examination of complaints.</p> <p>President Smith in the chair.</p> <p>It was moved and adopted that citations be issued for the following corporations, firms and individuals, to show cause why additions should not be made to the personal returns for 1893 of said corporations, firms and individuals. Said citations are returnable on dates specified.</p> <p>Citation 168, Huddleston, Hubbard & Co. Returnable July 11th, at 10 A. M.</p> <p>The board adjourned to meet Saturday, A. M., July 8, 1893.</p> <p>Louis Krohn, V. Pres.</p> <p>Attest:</p> <p>F. S. Armstrong, Secy.</p> <p>Office of the Board of Supervisors,</p> <p>Cincinnati, Ohio, July 11, 1893.</p> <p> City Annual Board of Equalization. </p> <p>Messrs. Doherty, Harper and Krohn met, with President Smith presiding, and approved as read the minutes of the last preceding meeting-. Mr. Foley was engaged elsewhere on official business.</p> <p>The following appeared in answer to citations, and the action as is recorded in each case was adopted by the board:</p> <p>Citation No. 168, Huddleston, Hubbard & Co. Chas. R. Hubbard appeared, was sworn and examined.</p> <p>Case continued.</p> <p>Office of the Board of Supervisors,</p> <p>Cincinnati, O., July 18, 1893.</p> <p> City Annual Board of Equalization. </p> <p>The board met with all members present, and President Smith presiding.</p> <p>The minutes of the last preceding meeting were approved as read. Citations having been issued and duly served for the following firms, to appear and show cause why additions should not be made to the return of personal property of each for 1893, the said firms appeared as is stated (in previous minutes), and were examined.</p> <p>The board having heard the evidence of said firms, as well as other evidence introduced, in each ease adopted the following resolution, by the following affirmative vote: Ayes- — Doherty, Foley, Krohn, Strunk and Mr. President.</p> <p>‘Resolved, That the amounts set opposite the names of the following firms be added to their personal returns for 1893, under the items respectively stated, for the reason that in each case the amount returned in said item in the tax return was, as shown by their statements, and by other evidence brought before the board, and as found by this board, that much below the actual value of the property that should have been returned in said item.’</p> <p>The vote on each case separately being:</p> <p>Ayes — Doherty, Foley, Harper, Krohn and Mr. President.</p> <p>Citation 168, Huddleston, Hubbard & Company. Amount returned, $7,500. Added by B. of S., $12,000. Dup. 1893, $19,500. Add to item 10, $12,000.”</p> <p>7. The said annual board of equalization for the year 1893 added to the return of the plaintiff the sum of $12,000 under said item 10.</p> <p>The said addition was made by the said board under the provisions of section 2740 of the Revised Statutes, claiming that said amount should be added under item 10, as plaintiff was engaged as a merchant under said section, and on account of live stock sold by plaintiff, which live stock had been sent or brought to the Cincinnati market in the manner hereinbefore stated, from states other than the state of Ohio.</p> <p>If said plaintiffs, under the provisions of section 2740, were as merchants required to return under item 10 for taxation the average value of all the live stock billed to the said stock yards company, from any place out of the state of Ohio, and which was sold by the plaintiffs under authority given them by the owner or consignor, in the manner hereinbefore stated, and in addition thereto, all of the said live stock billed to said stock yards company from points out of the state of Ohio, and which was accompanied by the owner, and who merely employed the plaintiffs to sell the same, in the manner hereinbefore stated; the plaintiffs having no other ownership or control of said stock, then the addition made by the board of equalization to the return of said plaintiffs was not excessive. But if said plaintiffs were not required to return the same, then said addition was excessive.</p> <p>And the court further finds that no evidence was offered to said board on such hearing- as would justify the board in making said addition of $12,000, or any other particular sum, and that no evidence was offered in this court from which it could be determined what addition, if any, ought to have been made to such return by the said board.</p> <p>As a conclusion of law, from the facts hereinbefore found, the court finds:</p> <p>1. That section 2740 of the Revised Statutes is a constitutional and valid law.</p> <p>2. That the action of the board of equalization was arbitrary and unjust, and without sufficient evidence.</p> <p>3. That there was no evidence offered to said board on such hearing which justified or warranted it in making the addition of $12,000, or any other specific sum, to the personal return of said plaintiff, under item 10, as returned by them, or to said return; but, on the contrary, the said addition was arbitrary and unjust, and without evidence.</p> <p>It is theref ore considered, adjudged, and decreed by the court that the defendants, the auditor and treasurer of Hamilton county, Ohio, respectively, be, and they are hereby, perpetually enjoined from placing on the duplicate against the plaintiff the sum of $12,000 for the year 1893, and from collecting or demanding from the plaintiff the taxes upon said sum for the said year. Nothing herein contained, however, shall prejudice the right of the said board, if such right it has, or the auditor of Hamilton county, or of any other board or officer, on proper proceedings or evidence, to place upon the duplicate the average value of all goods or merchandise owned or held by the plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893.</p> <p>It is further ordered that the defendants pay the costs of this action. The defendants except to the findings of fact herein, for the reason that the same are against the evidence, and are contrary to the undisputed evidence, and are contrary to the undisputed evidence offered by the plaintiff, and there is no evidence to sustain the same. The defendants further except to said findings, for the reason that the same are not sufficient, and the court has not found all the facts involved in this case and necessary to the determination thereof. The defendants except to the conclusions of law, for the reason that the same are contrary to law, are not sustained by the findings of fact, are not sustained by the undisputed evidence of the case, and are contrary to the undisputed evidence of the plaintiff, and there is no evidence to sustain the same.</p> <p>The defendants further except to said conclusions of law, for the reason that the court does not set forth all the conclusions of law involved in the case and presented thereby and necessary to a determination thereof.</p> <p>And the defendants except to the judgment entered herein.</p> <p>Plaintiff excepts to so much of the findings of fact as are contained in item 5, and which purports to give the evidence of Charles R. Hubbard before said board, and item 6 thereof, for the reason that it is not finding a fact, but merely stating the evidence.</p> <p>A motion for a new trial was filed by the defendants below, which was overruled and exceptions taken. A bill of exceptions was allowed and filed, containing all the evidence. Thereupon the auditor and treasurer filed a petition in error in this court, seeking to reverse the judgment of the circuit court.</p>

<p>Correction of deed — Claim of mutual mistake — Proof required of mutuality of mistake — Reformation of instrument must conform to intention of both parties.</p> <p>1. In a suit to correct the description in a deed on the ground that by the mutual mistake of the parties, it includes land not intended to be sold and conveyed, the proof of the mutuality of the mistake must be clear and convincing, a mere preponderance is not sufficient.</p> <p>2. No reformation of an instrument can be made that does not conform to the intention of both parties ; the court can not by reformation make a new contract.</p> <p>3. Where the grantor is mistaken as to the side of a particular tract of land from which a given number of acres, in a rectangular form, are to be taken, but the grantee is not, the fact that the grant so made includes a house, both understood was not tp be included, is ground for a rescission of the grant, but not for a reformation of the deed.</p>

James B. Wallace, assignee of the Norwood Park Company, instituted proceedings in the court of .insolvency in Hamilton county to sell real estate, and an order was made to sell at private sale.

<p>Error to the Circuit'Court of Athens county.</p> <p>Under favor of section 1097, Revised Statutes, the treasurer of Athens county, on April 13, 1898,. filed with the clerk of the court of common pleas of said county the following application:</p> <p>“The plaintiff says that on the fourteenth day of August, 1894, by the consideration of the common pleas court of Washington county, Ohio, the defendant, Theodore D. Dale, was appointed receiver for The Toledo and Ohio Central Extension Railroad Company; that said Theodore D. Dale thereupon qualified, and has ever since said date and is now such receiver for said Railroad Company; that he caused the property of said Railroad Company for the year of 1897 then in his possession as such receiver to be listed in the name of said Company for the purposes of taxation in Athens county, Ohio, for said year; that the taxes charged against said property by him for said year, stands upon the duplicate in the Treasurer’s office of Athens county, Ohio, in the name of said Railroad Company; but the said Treasurer avers that the taxes for said year are a proper charge and debt of the said Theodore D. Dale as receiver of the aforesaid Railroad Company.</p> <p>The said Treasurer says that there stands charged in the manner aforesaid, against the said Theodore D. Dale, as receiver for The Toledo and Ohio Central Extension Railroad Company upon the duplicate in his hands and upon the duplicate on which he is now engaged in collecting the taxes for the current year 1897, the sum of $1,626.84 taxes; that the same are delinquent, due and unpaid together with five per cent, penalty thereon allowed by law to said Treasurer as a compensation for collecting the same, and that the said Theodore D. Dale as such receiver is indebted to said Treasurer in the sum of $1,708.18, taxes and penalty for the year of 1897.</p> <p>Wherefore plaintiff asks that the defendant show cause why he should not pay said taxes and penalty amounting to the sum of $1,708.18, and the costs of this proceeding, and that the said rule so entered may have the force and effect of a judgment at law, and that the same may be enforced by execution issuing from this court against the said Theodore D. Dale as receiver as aforesaid, and for all other relief to which plaintiff may be entitled in equity.</p> <p>A. E. Price,</p> <p>Attorney for plaintiff.”</p> <p>The Receiver by his attorneys entered his appearance, and thereupon filed his answer which is as follows:</p> <p>“And now comes said defendant, Theodore D. Dale, Receiver of The Toledo and Ohio Central Extension Railroad Company, and for answer to the application of said plaintiff herein, and showing cause why the rule asked by plaintiff to be entered against him herein should not be made, says:</p> <p>Said Theodore D. Dale, Receiver, says that the reason, and the sole reason, why said taxes set out in said application have not been paid, is the fact that said defendant has not at any time had, and does not now have, any money, or means, or resources, with which to pay the same; that all of said taxes have at all times been admitted and recognized by defendant, and by said court of common pleas of Washington county, as valid claims against said defendant as such Receiver, and against said Railroad Company, and as having a first lien upon all the property of said Company, and upon all the property in the hands of this Receiver, prior and superior to any and all other liens thereon, and entitled to payment out of the proceeds of any sale of said property, or any part thereof, before the payment of any other claim or claims; that in and by the order of said court of common pleas of November 10, 1893, appointing Elias Summerfield, the predecessor Receiver of defendant, Receiver of said Railroad Company, said court ordered said Receiver “to run the entire line of railroad of said Railroad Company, with its branches and appurtenances, and to keep the said railroad and equipment in repair, to keep up to a proper standard of efficiency all means of transportation of said railroad;” that in the order of said court, made August 4, 1894, removing said Summerfield as said Receiver and appointing said Dale as said receiver, said court ordered that said Dale should be appointed such Receiver “with all the powers, rights and duties heretofore granted to and imposed upon the said E. Summerfield as receiver under said order of November 10,1893;” that acting under said orders, and in obedience to the instructions of said common pleas court, said E. Summerfield during his receivership and said T. D. Dale since, have run and operated the railroad of said The Toledo and Ohio Central Extension Railroad Company, and the same is still so run and operated by this defendant as such Receiver; that the first and foremost duty of said receivers, to the state of Ohio, to the general public, and to all parties concerned, has been and still is, the running and operation of said railroad as a common carrier of passengers, and goods, and all .moneys which heretofore have come, which, now may be, or which may hereafter come, into the hands of said defendant and his predecessor Receiver or of any Receiver of said Company, must be first applied to the payment of the expenses of so running and operating said railroad, which expenses must be paid in cash, as the persons to whom the debts incurred in such running and operation are due are not able to, and will not wait for their money, or extend credit, and will cease to do the work, and will cease to furnish materials and supplies, required for such running and operation, unless their claims for previous work, materials and supplies, are paid, and if the same are not paid no others could be found to do such work, or furnish such materials or supplies; that the moneys which have been received by and come into the hands of said receivers have not been sufficient to even pay the expenses of running and operating said railroad, and this defendant has been compelled to and has, under the orders of said court, borrowed large sums of money to pay said expenses of running and operation, which money so borrowed is still ■largely unpaid; that this defendant, and any Receiver, of said Company, could not have paid said taxes, and cannot now pay the same, except by ceasing to run and operate said railroad, which would not only be a violation of the duties of said receiver, but would be greatly to the injury of said Athens county, its citizens and taxpayers, who are greatly benefited bjr'the running- and operation of said railroad; that within a few weeks said court of common pleas of Washington county, will order a sale of said railroad, and of the property in the hands of this defendant as such receiver, and that such order of sale will provide, fully and effectively, for the payment in cash by any purchaser of a sufficient sum of money with which to pay, and with which there will be paid, all taxes upon the property of said railroad company and upon the property in the hands of this defendant as such Receiver, including all taxes due and payable to said plaintiff, and all taxes set out in said application; that should this court grant the order and rule prayed for by plaintiff, and the same be enforced by execution, it would require this defendant to stop the running and operation of the line of railroad of said company in the hands of this defendant as such Receiver, a large part of which railroad is in said Athens county, and serves the citizens of the same, and such stopping of operation would be a serious injury to said Athens county, and to its citizens and taxpayers, whereas, within a short time, under decree of foreclosure and sale of the property of said Railroad Company which will soon be entered by said common pleas court of Washington county, in said action in which this defendant and his predecessor Receiver were appointed, the payment of all said taxes claimed by plaintiff will be fully provided for, and will be paid plaintiff out of the proceeds of such sale, without stopping the running and operation of said railroad; that this defendant, at the present time, has no money, or means, or resources, with which to pay said taxes, but will make payments upon the same as rapidly as he can do so without stopping the operation and running of said railroad.</p> <p>Wherefore said Theodore D. Dale, Receiver as aforesaid, prays that the prayer of said application, and each and every part thereof, may be denied; that it may be adjudged by the court that this defendant has shown cause, and sufficient cause, why he should not pay said taxes; that'no rule be entered against defendant for the payment of said taxes, or any part thereof; and further that .this defendant as such Receiver may be fully protected in his rights, and that this proceeding be dismissed. Nye & Follett,</p> <p>Attorneys for T. D. Dale, Receiver.”</p> <p>On a hearing in the common pleas judgment was rendered in favor of the Treasurer, from which the Receiver appealed to the circuit court. The case was there heard upon the application and answer, the latter being taken as true. The court held that the answer showed sufficient cause why a ■ rule should not be made on the Receiver as asked, and dismissed the application. The Treasurer seeks in this proceeding to have the judgment reversed and a rule made on the receiver for the payment of the taxes.</p>

<p>Deed, in escrow — To be delivered, to grantee on death of grantor— Title does not vest at date of first delivery — Rights of grantor's creditors.</p> <p>An instrument for the conveyance of lands without substantia valuable consideration, deposited with a third person as an escrow to be by him delivered to the grantee on the death of the grantor, does not, by relation, vest the title in the grantee at the date of the first delivery to the prejudice of persons who thereafter, without knowledge of the instrument, extend credit to the grantor.</p>

<p>Error to the Circuit Court of Logan county.</p> <p>This action was brought in the court of common pleas of Logan county to determine the respective rights of the several claimants to a fund in the hands of The Citizens’ Bank, of DeGraff, Ohio. After trial of the cause in the court of common pleas it was taken to the circuit court on appeal and there tried again. The circuit court denied to the plaintiffs in error the relief they demanded, whereupon the evidence was embodied in a bill of’ exceptions and the cause brought to. this court for review. Such facts as may be necessary to understand the decision of the court will be stated in the opinion.</p>

In Quo Warranto. In The State ex rel. v. Luther Beal the petition charges that the defendant usurps and intrudes into the office of infirmary director of Butler county in violation of the constitution and laws of the state.

The original action was brought under section 6134, of the Revised Statutes, to recover damages for the death of plaintiff's intestate, Robert J. Blum, which it is alleged, was caused by the wrongful acts, neglect and default of the defendant, the Railway Company, on the twenty-third day of November, 1897.

<p>Fraud in sales of wearing apparel — By itinerant vendors — Act of April US, 1894 — Interpretation of law.</p> <p>Section 9 of the act of April 23, 1894 (91 O. L., 173), entitled “ An act to prevent and punish fraud in sales of wearing- apparel at public or private sale by itinerant vendors, and to regulate all such sales,” does not apply to the claim of a wholesale dealer arising out of a sale of goods to a licensee to be by the latter resold in the course of the business licensed under the act, and no right to, or lien on the deposit of $500 required by the act to be placed with the secretary of state, can be asserted under that section in behalf of such claim, the claim not being one that arose 1 ‘ in connection with the business done in this state,” within the meaning of that section.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>On the twenty-third day of September, 1893, the defendants in error leased a certain tract of land adjoining the village of St. Bernard, in Hamilton county, to one Henry Bostwick, by a written lease duly executed, for ninety-nine years renewable forever, upon a consideration of a ground rent to be paid from time to time, and in default the lien for rent to be foreclosed and leasehold interest be sold. The lease was duly recorded, and the lands transferred to said Henry Bostwick, and the same stood in his name for taxation, and possession was delivered to him, and by him retained therafter. The lease contained a privilege of purchase at any time during the term thereof and contained the further provision that the lessee should pay all taxes and assessments that might thereafter be levied, charged or rated against said premises.</p> <p>Said Henry Bostwick caused said lands to be laid out into village lots, and dedicated certain streets to the public, and the village accepted the plat, and the streets were duly opened and used as public streets.</p> <p>Afterward, and while said lessee was still the holder of many lots bounding4 and abutting upon the said streets, he, with other owners of property bounding and abutting on said streets, signed petitions directed to the council of said village as provided in section 2272, Revised Statutes, for the improvement of the streets and avenues in said petition mentioned and described, by grading the road-bed, setting the necessary- curbs and gutters along the entire length thereof,' and constructing the necessary culverts and drains, macadamizing and graveling the 'roadway, and building necessary retaining walls; and further that the whole cost of such improvement be assessed per front foot upon the lots bounding and abutting on said streets, and to be collected in ten annual install* ments. In said petition said Henry Bostwick represented himself as the owner of said lots so bounding and abutting on said streets.</p> <p>Said petitions having been regularly presented to the council, it duly acted upon the same and passed the proper resolutions and ordinances and caused the said streets to be improved, as asked for in the said petitions, and assessed the cost and expenses thereof against the abutting property by the foot front, pajmble in ten annual installments.</p> <p>After the said streets had been improved and the assessments made, said lessee all the while being the holder of said lots under his said lease, the defendants in error instituted proceedings in the court of common pleas to sell said leasehold estate for the payment of arrearages of ground rent reserved in said lease, and said leasehold estate was duly sold at sheriff’s sale, bid in by said defendants in error, sale confirmed and deed made and delivered by the sheriff.</p> <p>. Thereupon the defendants in error commenced their action in the court of common pleas against said village, the county auditor and the county treasurer, seeking to enjoin the collection of so much of said assessment as exceeded one-fourth of the value of said lots after the completion of said improvements, and averred in their petition that they did not sign the petition for said improvements, which fact was conceded.</p> <p>. To the said petition the said village filed its answer, and in the second and third defenses averred the facts aforesaid, to which the defendants in error demurred, and the circuit court sustained the demurrer, to which the village excepted. There were also defenses numbered four and five, to which demurrers were sustained, but in the view taken by the court upon the main question, they become immaterial.</p> <p>The áction was tried on appeal in the circuit court upon the petition and first defense, which raised issues as to the petitions signed by some of the defendants in e.rror as to certain lots, and as to certain other irregularities in the case, and a judgment was rendered in favor of the defendants in error, reducing the assessment, except as to a few lots, to twenty-five per cent, of the value of the ]ots after the improvements were made. The circuit court found its conclusions of fact separate from its conclusions of law, and a motion for a new trial having been overruled and exceptions taken, the plaintiffs in error filed their petition in this court seeking to reverse the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>Action was brought in the court of common pleas of Hamilton county, by Charles B. Snell, against the Cincinnati Street Railway Company, a corporation organized under the laws of this state, to recover damages sustained by the plaintiff in consequence of alleged negligence of the defendant. The. court overruled a motion filed by the plaintiff for a change of venue, to which he took exceptions, and obtained a bill of exceptions showing that his motion was supported by his own affidavit, and the several affidavits of five other persons, residents of Hamilton county, and that no other affidavits or evidence was offered by either party on the hearing of the motion. The affidavit of the plaintiff is as follows:</p> <p>“Charles B. Snell, being duly sworn, says that he is the plaintiff in the above entitled action, now pending in the court of common pleas, of the said Hamilton county; that the defendant in the above entitled action is a corporation, and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant can not, as he believes, have a fair and impartial trial in the said connty. ’ ’</p> <p>The affidavits of the other five persons are substantially alike, and the following copy of one will suffice to show the character of all of them:</p> <p>“Lewis Stentz, a credible person, being duly sworn, says that he resides in the said Hamilton county, Ohio; that he is now and for one year last past, has been engaged in the business of life insurance, as managing agent of the Northwestern Life Assurance Company, and has resided for the past five (5) years in the city of Cincinnati, in the said county; that Charles B. Snell is the plaintiff in the above entitled action, now pending in the court of common pleas of the said Hamilton county; that the Cincinnati Street Railway Company, the defendant in the above entitled action, is a corporation and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the said defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant believes that the said Charles B. Snell can not have a fair and impartial trial in the above entitled action in the said county.”</p> <p>The motion having been overruled, a trial was had to a jury upon the issues joined by the pleadings, which resulted adversely to the plaintiff; and from the judgment rendered on the verdict he prosecuted error to the circuit court, where the judgment was affirmed, and he now brings the case to this court. The only error assigned here and in the circuit court is the refusal of his application for the change of venue. Any other facts that may be deemed important will be stated in the opinion.</p>

<p>Election laws — Board of elections — How constituted — Section %9%6b Revised Statutes — Requirement of uniformity of operation— Invalidity of Act of April 16, 1896 — Effect of failure ofiepealing act — Section 6786 Revised Statutes — Constitutional law.</p> <p>1. When an act of the general assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more cities or counties, such act by reason of such exception is unconstitutional and void.</p> <p>2. Such an exception can not be held invalid and thereby extend the act over the excepted territory, because in such a case the general assembly never enacted the statute in such territory, and the court has no power to enact it therein.</p> <p>3. Section 29265, 92 O. L., 166, Revised Statutes, excepts from its operation the city of Mansfield and cities of the fourth grade of the first class and is therefore unconstitutional.</p> <p>4. The said section being inoperative, the repealing section contained in the same act is also inoperative, and this leaves said section 29265, as amended April 28, 1890, 87 O. L., 359, in force.</p> <p>5. While the election laws for cities may be valid under the doctrine of classification, that doctrine does not extend to counties, and election laws for counties are required to have uniform operation throughout the state.</p> <p>6. In view of this holding, it is the duty of the state supervisor of elections to appoint deputy state supervisors under the statute, for the territory in each county lying outside of any city in such county.</p> <p>7. The three years statute of limitations in section 6789 is for the protection of an officer who is in office under an existing commission, and he can not tack a former term of office to his present term, so as thereby to bring himself within the limitations of that section.</p> <p>8. The three years limitation under that section is only for the protection of officers, and not for the protection of boards as distinguished from the officers composing them.</p>

The City of Bellaire brought action against the Baltimore & Ohio Railroad Company, The Central Ohio Railroad Company, and The Cleveland, Lorain & Wheeling Railroad Company, to enforce against the two companies first named, payment of certain assessments for street improvements, amounting with penalty, to the sum of $602.09.

<p>Error' to th§ Circuit Court of Fayette county.</p> <p>The defendant in error brought this action in the court of common pleas of Fayette county against the plaintiff in error and others to recover under section 4271, Revised Statutes, money expended by her husband on account of a ‘ ‘scheme of gambling,” together with the exemplary damages allowed by that section. She recovered in the court of common pleas a judgment against all of the defendants. The cause was taken to the circuit court and there reversed as to all of the defendants except the ' plaintiff in error, and affirmed as against him. Whereupon he brought the cause to this court for review. The facts necessary to an understanding of the decision are stated in the opinion.</p>

Habeas Corpus. The petitioner, Malcom Jennings, by his petition in hateas corpus seeks to be discharged from a commitment made by a notary public before whom his deposition was being taken in an action in quo warranto pending in this court, being the State of Ohio ex rel F. S. Monnett, Attorney-General v. The Buckeye Pipe Line Company.

The plaintiffs own the fee in a tract of land lying in the hamlet of Rocky River in Cuyahoga county and the defendants are the trustees and supervisors of said hamlet, the trustees having succeeded with respect to the matters in controversy to the rights and duties of the commissioners of the county.

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

<p>Error to the Circuit Court of Hamilton county.</p> <p>The action below was by George Guckenberger, a taxpayer of the city of Cincinnati, against the city and Messrs. Julius Dexter, Franklin Alter, Thornton M. Hinkle, Charles P. Taft, and J ulius F r eiberg, constituting the board of trustees of the sinking fund of the city. It was brought on behalf, not only of the plaintiff, but of all other taxpayers of the city, (the corporation counsel having refused to bring such action), for the purpose of obtaining an injunction to prevent the performance of a certain contract theretofore entered into between the trustees and Roberts & Company, a New York banking corporation. A copy of the contract is given in the petition, and is as follows:</p> <p>Agreement made this fifteenth day of June, 1898, between Roberts & Company, a corporation organized under the laws of the state of New York, and doing business in the city of New York, in the said state (hereinafter called the “bankers”), parties of the first part, and the trustees of the sinking fund of the city of Cincinnati, in the state of Ohio (hereinafter called the “trustees”), parties of the second part:</p> <p>Whereas, there are now outstanding approximately the following amounts of the following issues of bonds of the city of Cincinnati (hereinafter called the outstanding bonds), that is to say:</p> <p>Cincinnati Southern R. R. 7 per cent.</p> <p>bonds maturing in 1902, say.................... $494,000</p> <p>Cincinnati Southern R. R. 7 3-10 per</p> <p>cent, bonds maturing in 1902, say..... 7,644,000</p> <p>Cincinnati Southern R. R. 6 per cent,</p> <p>bonds maturing- in 1906, say.............. 2,890,000</p> <p>Cincinnati Southern R. R. 7 3-10 per</p> <p>cent, bonds maturing in 1906, say..... $1,860,000</p> <p>Cincinnati Southern R. R. 7 per cent.</p> <p>bonds maturing in 1908, say............... 835,000</p> <p>Cincinnati Southern R. R. 6 per cent.</p> <p>bonds maturing in 1909, say............... 895,000</p> <p>Funding Floating debt 7 per cent,</p> <p>bonds maturing in 1904,' say................. 992,000</p> <p>Total amount outstanding estimated at....................................................... $15,610,000</p> <p>And whereas, the trustees, by virtue of the powers now vested in them, and legislation hereafter to be had amending or supplementing the same, propose to refund the outstanding balances of the issues aforesaid, whatever the same may be, in Cincinnati consolidated sinking fund bonds (hereinafter called “refunding- bonds”), of the character described in sections 2729a and 27295 of the Revised Statutes of Ohio, or authorized by subsequent legislation; and</p> <p>Whereas, the bankers have proposed to purchase a sufficient number of said refunding bonds to refund said outstanding bonds upon the terms hereinafter stated:</p> <p>Now, therefore, this agreement witnesseth, that the trustees agree to sell and deliver to the bankers and the bankers ag’ree to buy and accept from the trustees, so many of the refunding bonds hereinafter described as can be lawfully issued and shall be necessary to be sold to provide for the refunding of the several issues of bonds abo^ve described, subject to the following reservations and conditions :</p> <p>I. All the refunding bonds to be tendered to and purchased by the bankers under this agreement shall be regularly and legally issued ; shall bear date the first day of January or of July of the year in which they are so purchased by the bankers ; shall be payable in the city and state of New York; shall bear interest at the rate of three and one half (3i) per centum per annum, payable semiannually; and shall become due fifty (50) years and be redeemable thirty (30) years from date. If coupon bonds, they shall be of the denominations of one hundred dollars, five hundred dollars, and one thousand dollars ($100, $500, $1,000), in such lots or portions as the bankers may designate. If registered bonds, they shall be of the denomination of one thousand dollars ($1,000) or such multiple thereof and in such lots or portions as the bankers may designate. The bankers may require that each delivery be made in coupon bonds or in registered bonds, or partly in coupon bonds and partly in registered bonds in such proportions as they may designate; and all such coupon bonds shall be exchangeable for registered bonds, at the demand of the holder thereof, if tendered in sums of one thousand dollars ($1,000) or a multiple thereof.</p> <p>II. For the refunding bonds thus to be purchased by the bankers they shall make payment at the time of delivery in the manner hereinafter provided, either in cash or in outstanding bonds of the issues to be refunded. If said payment be in cash, it shall be the par value of the bonds thus paid for, with accrued interest until the time of such payment. If such payment be in outstanding- bonds, the same shall be accepted by the trustees at prices which would 'yield or represent to the city of Cincinnati an annual return of three and one half (3i) per centum per annum upon the cost of said bonds to said city, said prices and said annual return to be figured in accordance with “Price’s Stock Values,” tbe number of days, months and years in such computation to be the unexpired term between the date of the delivery of said outstanding bonds by the bankers to the trustees and the date of the maturity thereof. As it is probable that the larger part of the outstanding bonds delivered by the bankers to the trustees will be delivered by them before maturity, and, therefore, at a premium over and above the par value of said bonds, such premium may, at the option of the trustees, be paid in cash, or in refunding bonds, or partly in each.</p> <p>III. The bankers may only purchase refunding bonds for cash within ninety (90) days next before the maturity of each of the issues first above mentioned, and then only to the amount of outstanding bonds maturing within said ninety (90) days. Unless enough bonds of any issue to be refunded have been delivered to the trustees prior to ninety days before the maturity of such issue to satisfy the trustees that means of payment of the outstanding bonds of such issue will be provided by the bankers in cash on or before maturity, the trustees shall be at liberty to take such proceeding to provide the required money as to them may seem necessary.</p> <p>All outstanding bonds above described as and when acquired by the bankers shall be by them promptly tendered to the trustees. Upon such tender by the bankers to the trustees of any of the outstanding bonds more than ninety (90) days before the maturity of the bonds so tendered, the trustees shall accept the bonds so tendered, and pay the par value thereof, and the premium, if any thereon, with refunding bonds and cash as above-provided.</p> <p>If the bankers shall fail to deliver said outstanding bonds under -this contract to the trustees in amounts and at times as follows, viz.: not less than five hundred thousand dollars ($500,000) on or before the first day of January, 1899; not less than one million dollars ($1,000,000) on or before the first day of July, 1899; not less than one million five hundred thousand dollars ($1,500,000) on or before the first day of January, 1900; not less than two million dollars ($2,000,000) on or before the first day of July, 1900; not less than two million five hundred thousand dollars ($2,500,000) on or before the first day of January, 1901; not less than three million dollars ($3,000,000) on or before the first day of July, 1901; and not less than three million five hundred thousand-dollars ($3,500,00.0,) on or before the first day of January, 1902; then, and upon any such failure, and at any time while the same continues, and notwithstanding a prior failure of similar nature may have been waived, the trustees may, at their option, terminate this contract by giving thirty days’ written notice to the bankers of their election so to do; and such termination shall absolutely discharge and put an end to this agreement and the rights and liabilities of all parties and their assigns thereunder, and shall release the bankers and their assigns from all damages and claims ‘for damages whatsoever upon or arising out of this contract or any part thereof.</p> <p>IV. In case the state of Ohio, shall, on or before the first day of July, 1900, enact legislation, authorizing the trustees to issue refunding bonds of said city of Cincinnati, maturing fifty (50) years after date without privilege of redemption at an earlier period, and payable both as to principal and interest in such kind of lawful money as the trustees may determine, for the purposes specified in section 2729a.of the Revised Statutes of Ohio, as the same now provides or may hereafter be amended, the trustees shall issue and deliver, and the bankers shall purchase and receive refunding bonds maturing fifty years after date as aforesaid, and payable as to both principal and interest in gold coin of the United States, of or equal to the present standard of weight and fineness, and in other respects of the same character as the bonds described in Article I., upon payment therefor in outstanding- bonds or cash of a premium of one per centum of the par value thereof, in addition to the par value and accrued interest from the date of the bonds until the time of such payment.</p> <p>V. All bonds deliverable by or to the trustees under this contract, shall be received and paid for in either the city of Cincinnati, or the city of New York, as may be elected by the bankers with reference to each delivery.</p> <p>VI. On or before the first day of January, 1899, the bankers shall present to the trustees evidence satisfactory to the trustees that a sufficient proportion of this contract has been executed by the bankers or their assigns approved by the trustees, or has been assigned to and assumed by assignees similarly approved whose responsibility is satisfactory to said trustees, to assure the provision for that portion of the debt described herein which matures in the year 1902.</p> <p>On or before the first day of January, 1904, the bankers shall present to the trustees evidence satisfactory to the trustees that the remaining part of this contract has been sufficiently executed by the bankers or their assigns approved by the trustees, or has been assigned to and assumed by assignees similarly approved whose responsibility is satisfactory to the trustees, to assure the provision for that portion of the debt described herein which matures after the first of January, 1904.</p> <p>If the bankers fail to present evidence satisfactory to the trustees in accordance with either of the two paragraphs hereof next preceding, then and in either such event, and at any time thereafter before such satisfactory evidence shall have been presented, the trustees may at their option terminate this contract by giving thirty days’ written notice of their election so to do to the bankers; and such termination shall absolutely discharge and put an end to this agreement and the rights and liabilities of all parties and their assigns thereunder and shall release the bankers and their assigns from all damages and claims for damages whatsoever upon or arising out of this contract or any part thereof.</p> <p>VII. The bankers may assign to responsible parties,, satisfactory to the trustees, this contract as to all of said bonds oi* any part or parts thereof, such assignees assumixig and agreeing to perform all the stipulations of the bankers herein to the extent of the interest assigned to them respectively. Copies of every such proposed assignment shall be forthwith filed with the president of the trustees, and no such assignment shall take effect until the same shall have beexi approved by the trustees.</p> <p>VIII. The trustees contract only in their official capacity, and in no event are they or axxy of them to be individually liable because hereof; and the bankers bind themselves, their successors and assigns.</p> <p>In witness whereof, hereto and to a duplicate hereof the parties of the first part have caused their name to be signed by William Edward Coffin, their general manager, thereunto duly authorized, and the parties of the second part have caused the same to be signed by Julius Dexter, their president, the day and year first above written.</p> <p>In presence of</p> <p>(Signed) Roberts and Company,</p> <p>By W. E. Coffin,</p> <p>General Manager.</p> <p>The Trustees of the Sinking</p> <p>Fund of the City of Cincinnati,</p> <p>By Julius Dexter,</p> <p>President.</p> <p>The petition charged that said contract is in contravention of the laws governing said corporation, the city of Cincinnati, and the board of trustees of the sinking fund thereunder, for that the same was made and entered into without the publication of any notice of the intention so to do by the said board of trustees of the sinking fund; and without inviting or receiving any proposals from any person other than the said Roberts & Company for the bonds proposed to be issued thereunder; and for that it is proposed to increase the bonded indebtedness of the city of Cincinnati in the sum of more than $3,000,000, a result which will ensue, if said contract is permitted to be performed; and for that by the terms of said contract, the said trustees of the sinking fund delegate their powers and duties with regard to the redemption of the indebtedness of the city of Cincinnati to the said corporation called Roberts & Company ; and for that the execution of any such contract is in excess of the powers of the board of trustees of the sinking fund of the city of Cincinnati; and for other reasons apparent upon the face of the said contract. Plaintiff says that if said refunding bonds were now advertised for sale and sold to the highest bidder, they would bring a large premium, viz.: not less than four per cent, of their face value. Plaintiff further says that the performance of said contract will work great and irreparable injury to the city of Cincinnati and to this plaintiff and to all other taxpayers of the said city. Wherefore plaintiff prays that the defendants be restrained and enjoined from executing or performing said contract, or any part thereof ; and that upon final hearing the said injunction be made perpetual and said contract declared to be null and void; and the said trustees directed to cancel the same, and for all other and further relief that may be just.</p> <p>To this petition a general demurrer was interposed, which was overruled by the court of common pleas, and final judgment entered against the defendants. On appeal to the circuit court a like judgment was rendered, and the plaintiffs in error ask here a reversal of this judgment.</p>

In an action brought by one Eli Hull against The Shawnee & Iron Point Coal and Iron Company, an attachment was issued and garnishee process served on The Baltimore & Ohio Railroad Com•pany, defendant in error. The company filed an answer, as garnishee, in which, by mistake and misinformation of its agent and attorney, it denied being indebted to the iron company, although, in fact it was indebted at the time.

The defendant in error, Isaac N. Topliff, commenced an action in the court of common pleas against the county treasurer, seeking to enjoin the collection of certain taxes averred to have been illegally assessed against him. The judgment of the court was in favor of the plaintiff below, defendant in error here.

<p>Error to the Circuit Court of Logan county.</p> <p>Plaintiff in error brought suit in the common pleas court against the defendant in error to recover a balance on two promissory notes endorsed by the payee to his intestate. The notes differ only in amounts and dates of maturity, and the following is a copy of one of them :</p> <p>$213.00. Degrape, O., October 25, 1879.</p> <p>Eighteen months after date we, or either of us, promise to pay Jonathan Thatcher or order, Two Hundred and Thirteen Dollars, value received, with interest at 6 per cent, per annum. Payable at the Farmers and Merchants’ Bank, Degraff, Ohio.</p> <p>Dan S. Spellman,</p> <p>W. M. Strayer,</p> <p>A. J. Lippencott.</p> <p>The question for decision here arises on the second defense in the answer of Strayer’s administrator, which is as follows :</p> <p>2. For a second defense said defendant says that he is informed and he believes and avers the truth to be that said notes described in the petition were given by said Dan S. Spellman, principal, to Jonathan Thatcher, the payee named therein, as part consideration for the purchase of a printing press and newspaper outfit in DeGraff, Ohio; that by their contract the said notes were to be' drawn as said notes are set out in the petition, except that they were to bear interest at the rate of 8 per cent, per annum after maturity; that said notes were drawn as they are set out in the petition and signed by said Spellman, and at his request signed by said W. M. Strayer and A. J. Lippencott as his sureties, and in that form tendered to said Jonathan Thatcher, the payee therein named. Said Jonathan Thatcher then and there refused to accept said notes because they did not conform to the contract as aforesaid and did not call for interest thereon at 8 per cent, per annum after maturity. The said Dan S. Spellman and Jonathan Thatcher then and there, in the presence of said George Stuts, now deceased, or his authorized agent, without the knowledge or consent of said W. M. Strayer, this defendant’s testate, modified and altered said contract and notes by an additional paper then and there made and delivered with said notes by said Dan S. Spellman to said Jonathan Thatcher, by which paper it was agreed that said principal maker thereof should pajr interest on each and both of said notes from the date of maturity respectively until paid at the rate of 8 per cent, per annum. ■ A eopy of said agreement in writing is hereto attached, marked “Exhibit A,” and made part of this answer.</p> <p>Said paper writing was then and there in the presence of said George Stuts, deceased, or his authorized agent, attached to said notes, and they were then and there sold and assigned by said Jonathan Thatcher to said George Stuts, now deceased.</p> <p>Defendant further says that his intestate, W. M. Strayer, had no knowledge of said alteration of said contract at the time it was made or before the delivery of said notes to said Thatcher, or before the sale or delivery to said George Stuts, now deceased; and said alteration was a material one which avoided the said contract and surety-ship of said Strayer.</p> <p>To this defense the plaintiff interposed a demurrer which, in the court of common pleas, was sustained. The cause was tried at the October term, 1895, of the common pleas court, and the trial resulted in a verdict and judgment for the plaintiff for the amount claimed. This judgment was reversed by the circuit court at its February term, 1896, for the reason that the court of common pleas had erred in sustaining the demurrer to said second defense. Later proceedings were had in the case in the common pleas and circuit courts, but they are not material to the point to be decided nor to the judgment to be rendered.</p>

Leonard L. Parry, defendant in error, brought action in the court of common pleas of Richland county against A. M. Mosier, M. D. Harter, L. F. Harrington, B. F. Platt, W. L. Leonard, M. B. Bushnell, George W. Snyder, and W. A. Van Frank, as partners doing business under the firm name of the Mansfield Improvement Company, and individually, to recover for an alleged breach by them of a contract, a copy of which is as follows: “Memorandum of an agreement made this twenty-first…

The amended petition, filed by the bridge company in the court of common pleas is as follows: “Now comes the plaintiff, and by leave of the court first duly granted to file its amended petition herein, says: The said plaintiff, The Buchanan Bridge Company, is a corporation duly created and existing under the laws of Ohio, and having its home office and principal place of business at Bellefontaine, in the county of Logan, in said state. 1.

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

<p>Mortgage foreclosure — Sale of property and balance still due mortgagee — Action can be maintainedfor balance, evidenced by record —Statute of limitations.</p> <p>1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and after applying the proceeds, a balance of $102.21 remained. Held, that an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.</p> <p>2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no inter, mediate payments having been made. Held, that under our statute of limitations, the action is barred.</p> <p>3. Whether the limitation is fifteen, or ten, years, is not necessary to determine in this action; and is left undecided. .</p>

<p>Agency — Liability of employerfor willful or malicious acts of servant — When in course of employment — Questions of motive of act —Law of evidence.</p> <p>1. An employer is liable for the willful or malicious acts of his servant done in the course of the servant’s employment.</p> <p>2. When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.</p> <p>3. In a suit against an employer for an injury caused by the wrongful act of his servant, and the evidence is such, that different minds may fairly draw different conclusions from it as to the real motive and purpose of the servant in doing an act, apparently within the course of his employment, it should be left to the jury to determine the question, under proper instructions as to the law; and it is error for the court, in such case, to direct a verdict for the defendant.</p>

In Quo Warranto. Three of the defendants are the commissioners of Cuyahoga county, three are members of the county buildings commission appointed by the judges of the common pleas court of said county and the seventh is the auditor of the county.

The plaintiff in error is one S. A. ■ Greenlee, a creditor of the assignor. His claim was made in the form- of an application to the probate court for an order requiring the assignee to aLlow and pay him the sum of $300 out of the assets of the assignment, for services and labor as an “operative” within twelve months of the assignment, in preference to certain chattel mortgages given within two months prior to the assignment by the assignor.

The second amended petition of Humphrey Jones, the relator, in the court of common pleas is as follows: “At the January Term,.1895, of the common pleas court of Fayette county, Ohio, three separate indictments for manslaughter were found and returned by the grand jury of said county, against one Alonzo B. Coit, who soon thereafter was arrested under said indictments and arraigned on said charges, and plead “not guilty” thereto, and put himself upon the country as did also…

Exceptions to decision of Common Pleas Court of Scioto county. In the former case Gee was convicted in the police court of the city of Cleveland upon an information which charged him with unlawfully, negligently and willfully depriving his illegitimate child of necessary food, clothing and shelter.

The action was against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover for the unlawful killing of Henry C. Snyder, of whose estate plaintiff in error is administratrix.

In-Quo Warranto. At the November election, 1895, Thomas Dave Brown, defendant, was duly elected county commissioner of Cuyahoga county for the term of three years, and was duly commissioned by the governor and acted as such commissioner for the term of three years from and after the third Monday of September, 1896.

The action below was brought by Mary Finn against the Grand Rapids Fire Insurance Company, on a policy of insurance issued by the defendant by which the plaintiff was insured in the sum of six hundred dollars against loss or damage by fire on her household furniture, etc., for three years from the fifth day of December, 1895.

<p>Error to the Circuit Court of Hardin county.</p> <p>The original action was brought against the Board of Commissioners of Hardin county by Josephine M. Coffman as executrix of her deceased husband, Freeman J. Coffman, to recover damages for his death, wrongfully caused, it is alleged, by the neglect of the commissioners to-keep in repair a bridge under their control, over a stream known as Blanchard river, and forming part of a public road in that county. The death resulted from the bridge giving way, on the fifth day of July, 1895, while the deceased was riding over it on a water tank drawn by a traction engine that was being propelled by steam. The petition charges that the bridg-e was of defective construction and out of repair, in that, the timbers which supported the floor were insufficient and unsound, the rods by which they were suspended from the truss were held only by nuts that were too small and without washers, and the wood into which the rods were fitted was decayed; and these defects, it is averred, had increased from long exposure, rendering the bridge unsafe for travel upon it, of which the commissioners had notice, but nevertheless neglected to repair it. Issue was taken by the defendant on the charge of negligence, and a counter-charge made of contributory negligence on the part of the deceased. The plaintiff recovered a verdict on which judgment was rendered; and that judgment having been affirmed by the circuit court, the commissioners brought error to this court. The opinion will contain such further statement of the ease 'as may be considered necessary to an understanding of the questions upon which it is reported.</p>

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

<p>Power of auditor of state to remit taxes — Cannot reduce valuation by local board of equalization, when — Laws of Taxation.</p> <p>The power conferred upon the auditor of state to remit taxes does not authorize him to reduce a valuation of real estate made in pursuance of law by a local board of equalization, merely because he believes the valuation to be excessive.</p>

<p>Nitroglycerine an explosive and dangerous substance — Its storage a menace to property in vicinity — Liability of siorer for damages —Extends to premises beyond those adjacent.</p> <p>1. Nitroglycerine is a substance usually recognized as highly explosive and dangerous, the storage of which at any placéis a constant menace to the property in that vicinity. And one who stores it on ,his own premises is liable for injuries caused to surrounding property by its exploding, although he neither violates any provision of the law regulating its storage, nor is chargeable with negligencé contributing to the explosion.</p> <p>2. A right of action will exist in favor of all property within the circle of danger, and the fact that the property injured was not on premises adjacent to those on which the explosive substance was stored, will not defeat a recovery.</p>

On the fifth day of December, 1894, J. H. Bush made an assignment for the benefit of his creditors to Robert L. Adair, who duly filed the assignment, qualified, and entered upon the execution of his trust. On the same day the assignment was made, but prior thereto, Bush made three mortgages on the property assigned, to certain of his creditors, to give them preference and secure to each of them a pre-existing debt.

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

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