Volume 61 — Ohio State Reports, New Series

Error, to the Circuit Court of Hamilton County. The action below was against the defendant in error, Overman, as clerk of the village of St. Bernard, and the auditor and treasurer of Hamilton county, to perpetually enjoin the collection of an assessment which -had been assessed by order of the village council upon plaintiff’s lands abutting upon Church street, in that village, for the improvement of that street by grading, draining and macadamizing the roadbed thereof.

The action below was commenced by the treasurer of Franklin county for the collection of certain taxes and assessments that had been levied and made upon certain property of the defendant, John Walsh, which, had not been paid. Walsh filed an answer and cross petition to which a demurrer was sustained, and the case was then appealed by him to the circuit court after judgment on the demurrer.

<p>Error to the Circuit Court of Sandusky county.</p> <p>A sufficient statement of the case appears in the opinion.</p>

Exception to the ruling of the Common Pleas Court of Lucas county.

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

Defendant in error brought suit against the plaintiff in error in the court of common pleas alleging in substance that on June 26, 1896, he had recovered a judgment in the court of common pleas against the Wheeling & Lake Erie Railway Company for $2,030.40 and costs taxed at $216.33; that the railway company had thereupon instituted proceedings in error in the circuit court where the judgment of the common pleas was affirmed; that the company then filed a petition in error…

IN MANDAMUS. In his petition the relator alleges that from and since the first Monday in January, 1898, he has been a duly elected and qualified and acting member of the house of representatives in the General Assembly of Ohio; that for the same time the defendant, Mason, has been the duly qualified and acting speaker of the house, and the defendant Guilbert, the duly qualified and acting Auditor of State; that the relator’s salary as such member, as fixed by law, is $600.00…

<p>Error to the Circuit Court of Mercer county.</p> <p>The action below was by the defendant in error, Charles F. Hart, against the plaintiff in error, I. F. Raudabaugh, to recover damages for the alleged breach of a contract for the sale of certain interests in oil property. Hart’s amended petition, filed in the court of common pleas, is as follows, namely:</p> <p>“Plaintiff complains of the defendant that on the 21st day of September, 1894, Riley, Raudabaugh & Company was a partnership, doing business in Ohio; that defendant, I. Frank Raudabaugh, was a member of the firm of C. E. Riley & Company; that defendant was also a member of said firm of Riley, Raudabaugh & Company, owning a large interest in each, of said companies. That defendant, prior to the entering into the contract hereinafter set forth, represented to plaintiff that he, the defendant, has full power and authority from all the other members of said partnerships of C. E. Riley & Company and Riley,'Raudabaugh & Company, to sell, and then and there undertook to sell all of the property hereinafter described to plaintiff, and plaintiff relying on said representations of said defendant, on the 21st day of September, 1894, accepted the following proposition, which was tendered to plaintiff by defendant in writing, which said proposition was on the same day, to-wit: September 21st, 1894, accepted by plaintiff. That in the said written proposition said I. Frank Raudabaugh agreed to sell to plaintiff the interests of C. E. Riley & Company and Riley, Raudabaugh & Company in sis hundred (600) acres of land in Franklin township, Mercer county, Ohio, then owned by Riley, Raudabaugh & Company and C. E. Riley & Company. Said property being certain oil and gas leases, being described as two leases from Benjamin Preston to I. F. Raudabaugh, one lease from Isaac Sheely to I. F. Raudabaugh, one lease from the State of Ohio to John Lyons and Isaac W. Sheely, one lease from State of Ohio to' Isaac Brandon, one contract from John Lyons to J. W. Eiley, one contract from Stephen Brandon to J. W. Eiley, one lease from Isaac Brandon to J. W. Eiley, one lease from Isaac W. Sheely to C. E. Eiley & Company. Said sale was to include all of the above leases, oil wells, machinery and other personal property used in the operations for oil together with seventeen oil wells, fully completed. Said defendant further agreed to drill and complete one additional well on one of the above described leases. The consideration for said sale was the sum of twenty-three thousand dollars ($23,-000.00). That said sale was made upon the following terms of credit, to-wit: Ten thousand dollars ($10,000.00) to be paid by October 1, 1894, and the balance payable within one year at six per cent.</p> <p>“Said contract further provided that Charles Hart, plaintiff, should locate the new well to be drilled by the 27th day of September, 1894. Said agreement between the plaintiff and the defendant contained a condition that defendant would sell said plants and property above set forth to plaintiff provided the deal was closed by October 1, 1894. Plaintiff further says that on the 26th day of September, 1894, he located the well as required by said contract and notified defendant in writing of such location but that defendant wholly disregarded said notice and location. Plaintiff further says that from said 21st day of September, 1894, and until and including October 1,1894, he was ready and willing to do and perform everything to be done by him in the carrying out of said sale and contract, but the defendant although often requested so to do, has refused to comply with said contract and has at all times refused to transfer and deliver said property to plaintiff and has deceived plaintiff in this, to-wit: That the defendant had not at the time of the mating of said contract of sale or afterwards power or authority from the said members of the said partnership of O. E. Riley & Company or from the members of the partnership of Riley, Raudabaugh & Company, to sell all or any of the above described property to this plaintiff on the said terms whereby the said contract and agreement became and was void and by reason thereof and of the said defendant’s failure and refusal to deliver and transfer the said property to the plaintiff on the terms aforesaid,, this plaintiff has been deprived of the ’advantages that would otherwise have accrued to him under-said contract, and in this that the market price and value of said property above described was on said October 1, 1894, the sum of twenty-eight thousand ($28,000.00) dollars, while the price and consideration to which said defendant undertook and agreed to sell the same to plaintiff as aforesaid, was but twenty-three thousand ($28,000.00) dollars, and that by reason of the premises plaintiff has been damaged in the sum of five thousand dollars ($5,000.00)..</p> <p>“Wherefore the plaintiff prays judgment against the defendant, I. Frank Raudabaugh, for the sum of five thousand dollars, with interest from October-1, 1894.”</p> <p>A general demurrer to- this pleading being overruled, an answer was filed and trial had which resulted in a judgment for the plaintiff. A motion for a new trial being thereupon overruled, and error prosecuted to the circuit count, that court affirmed the judgment of the common pleas. Raudabaugh brings error to this court to obtain a reversal of both judgments.</p>

<p>Motion for neiv trial — Overruled — Fifty days given for bill of exceptions — Record must show bill submitted to trial judge, when — Cotirt practice.</p> <p>Where fifty days have been given after the overruling of a motion for a new trial for the perfection of a bill of exceptions, it is necessary, with respect to the requirement of its submission to the trial judge or judges, in order to constitute a valid bill, that the record should show affirmatively that the bill was submitted to the trial judge or judges (if within the district or circuit) for his or their signature not less than five days before the expiration of the fifty days allowed for the same.</p>

<p>Error to the Circuit Court of Crawford county.</p> <p>John Roberts died in the month of September, 1885, leaving a will as follows:</p> <p>“1. I give, devise and bequeath to my beloved wife, Isabel Roberts, all my household goods and furniture, and the homestead property where I now reside, containing about fourteen acres, also an annual income of three hundred dollars a year, to be paid, one-half April 1, and one-half October 1, of each year. Should my said wife desire it, said homestead property may be sold and conveyed by my executor, and two thousand dollars of the proceeds invested in real estate in the village of Bucyrus, for a homestead for my said wife, these legacies to my said wife shall remain and continue during her life, if she so long remain my widow and unmarried, at her decease, or at her remarriage, if she marry again, I give, devise and bequeath said fourteen acre tract, or in case that be sold, the property to be bought in the town of Bucyrus out of the proceeds, to my son John Roberts Jr., in fee.</p> <p>2. I give, devise and bequeath to my daughter Mary Jane Cobb, the house and lot in Bucyrus where she now resides. I order and direct my executor to build a summer kitchen on the west side of her house, of suitable size and reasonable expense, and to pay the taxes on said house and lot for the first year after my decease, this legacy to my said daughter is for and during her life, on condition that she does not allow or permit James Cobb, her husband, to reside upon the property or stay there. Upon the death of my said daughter, or in case she disregards the above conditions upon which said property is devised to her, I give, devise and bequeath said property to her children in fee.</p> <p>3. I give, devise and bequeath to my great grandson, John Fleming Roberts, the sum of eight hundred dollars, and order and direct that the same be invested in real estate in his name and authorize and empower his mother, Virginia Roberts, to make the investment for him.</p> <p>4. I order and direct that the time of payment of the amount owing to me by my son, Wesley Roberts, be extended for the term of eight years from this date on the principal sum of said indebtedness, he to be required to pay interest in accordance with the terms and condition of the loans.</p> <p>! 5. All the residue of my property not herein otherwise disposed of, I order and direct to be invested at interest to the best advantage for my estate, and out of the income of the funds, as well as the interest on the funds mentioned in clause four of this will, the said cash payments to my wife as well as all other liabilities and expenses to be paid.</p> <p>And when my said son, John Roberts Jr., arrive at the age of twenty years, eight thousand dollars of said invested funds with the accumulated interest thereon, shall be invested in a farm for my said son, John Roberts Jr., the title of which shall be put in his name in fee.</p> <p>I charge the maintenance, support and education of my said son John, until he arrives at the age of twenty years, upon my said wife, and upon the property devised to her in this will, and order and direct that he be kept at school at Bucyrus until he becomes twenty years of age.</p> <p>In case the amount so devised to my said wife shall be insufficient for themaintainance and support of my said wife and my said son John, I authorize my executors to increase the annual allowance to her not exceeding one hundred dollars a year. If my said daughter, Mary Jane Cobb, shall come to want, I order and direct that my executor out of my estate assist her.</p> <p>6. All the residue of my property of every description not herein otherwise disposed of, I give, devise and bequeath to my sons Wesley Roberts, George Roberts and Edwin Roberts, to each an equal share.</p> <p>7. I nominate and appoint my son, George Roberts, executor of this, my last will and testament, and do hereby revoke all former wills by me made, in witness whereof I hereunto set my hand seal this twenty-fourth day of August, A. D., 1885.”</p> <p>The will was duly admitted to probate, and George Roberts duly appointed and qualified as executor.</p> <p>On the 20th day of February, 1888, said executor filed the following petition, duly verified:</p> <p>“In the Probate Court, Crawford County, Ohio.</p> <p>George Roberts, Executor of the Last Will andTestament of John Roberts, Deceased, Plaintiff, v. Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, Guardian of Said John Roberts Jr., and John Fleming Roberts, Defendants.} PETITION.</p> <p>The said George Roberts, who has been duly appointed and qualified as executor of the last will and testament of said John Roberts, deceased, by said court, respectfully represents: That the said John Roberts died on or about the-day of September, 1885, seized in fee of a homestead property containing about fourteen acres in Holmes township, a house and lot in the city of Bucyrus, and choses in action which, on November 7, 1885, was inventoried by the appraisers of his estate at $12,256.57, of which the sum of $2,146.21 is considered nearly or quite uncollectable. That said Isabel Roberts is the widow of said John Roberts, deceased, that said Wesley Roberts, George Roberts, Mary Jane Cobb, Edwin Roberts and John Roberts Jr., are his children, and said John Fleming Roberts is his great grandchild. That by the provisions of his will the testator devises to said Isabel Roberts during widowhood the said homestead property and an annuity of three hundred dollars a year, with authority on the part ,of the executor to increase the annual allowance not exceeding one hundred dollars a year if the annuity shall be insufficient, and if she desires it to sell the homestead and have two thousand dollars of the proceeds invested in a homestead in the village of Bucyrus for her. To said Mary Jane Cobb the said house and lot in Bucyrus with a charge upon his estate to add a summer kitchen to the dwelling house thereon, and aid in case she come to want. To said- John Fleming Roberts the sum of eight hundred dollars, to be invested in said real estate for him.</p> <p>To said John Roberts Jr., when he arrives at the age of twenty years, the sum of eight thousand dollars and certain accruing interest to be invested in a farm for him, and the remainder of said homestead after termination said Isabel Roberts’ rights thereto. In the said inventoried assets of said estate there is included the sum of seven thousand four hundred and seventy-nine dollars and sixteen cents owing to the testator by said Wesley Roberts. The said will provides that the time of payment of the amount owing to the testator by said Wesley Roberts be extended for the term of eight years from the date of the will or the principal sum of said indebtedness, the interest to be paid in accordance with the terms and conditions of the loan. The said will directs that all the residue of testator’s property not therein otherwise disposed of be invested at interest to the best advantage for the estate, and that out of the income of the fund as well as the interest payable by said Wesley Roberts, the cash payments to said Isabel Roberts as well as all other liabilities and expenses to be paid. The said Wesley Roberts, George Roberts and Edwin Roberts are made the residuary legatees of the testator’s estate by said will. The dwelling hoúse on said homestead property has been recently destroyed by fire, greatly reducing the provisions made for the support of said Isabel Roberts and John Roberts Jr. It is the opinion of the executor that there is scarcely property of the estate sufficient to carry out the provisions of said will. That for the purpose of expediting the settlement of the estate of the testator, promoting the interest of the legatees and enabling them to obtain the immediate benefit of their legacies without delay or future risk, the said Wesley Roberts, George Roberts, executor, Isabel Roberts and James H. Malcolm, guardian of said John Roberts Jr., have entered into an agreement in writing relative to the adjustment of the legacies of the testator, a copy of which is hereto annexed marked Exhibit A., and made part of this application. And all the heirs at law and legatees of said testator consenting thereto, the plaintiff prays that the court ratify and confirm said agreement and order that the said James H. Malcolm, as guardian of said John Roberts Jr., proceed to carry into effect the provisions of said agreement on behalf of said John Roberts Jr., and order that said agreement be ratified and confirmed.</p> <p>Exhibit A. It is hereby agreed by and between .Isabel Roberts, widow of John Roberts, deceased, James H. Malcolm, guardian of John Roberts Jr., a minor, George Roberts, executor of the last will and testament of John Roberts, and Wesley Roberts, as follows: “The said Wesley Roberts agrees to execute and deliver to said Isabel Roberts and John Roberts Jr., a good and sufficient warrantee deed for the west half of the southwest quarter, and northeast quarter of the southwest quarter of section one in township four, south of range sixteen, in Crawford county, Ohio, the same to be conveyed, held and owned by said Isabel Roberts until the said John Roberts Jr., arrives to the age of twenty years, and shall then pass to and vest in fee simple in the said John Roberts Jr. The said George Roberts, as executor as aforesaid, agrees to release and relinquish to said Wesley Roberts the debt and liabilities of said Wesley Roberts to the estate of said deceased, as shown by the inventory and appraisement of the personal property of said estate. The said Isabel Roberts agrees to relinquish to said executor and to said estate all her title and claim to annuities, maintenance and assistance from said executor and said estate, except the sum of six hundred dollars, which is to be paid on or before-.</p> <p>The said James H. Malcolm, guardian as aforesaid, releases said executors and said estate from the eight thousand dollar legacy by said will directed to be invested in a farm for the use and in the name of said John Roberts Jr., and from all claims on said estate or said executor for assistance and support for said John Roberts Jr.</p> <p>This contract to go into effect and be binding on all parties thereto on condition that all the legatees of said will and parties in interest consent thereto, and to the modifications it makes of said will, and on conditions that the probate court of Crawford county, Ohio, ratify and confirm the same, September 28, 1887.</p> <p>Wesley Roberts,</p> <p>Geo. Roberts, Executor,</p> <p>Isabel Roberts,</p> <p>James H. Malcolm, Guardian.</p> <p>( WAIVERS ON PETITION. V We hereby consent to the terms of the within agreement. M. J. Cobb.' We hereby waive the issue and service of notice, enter our appearance herein, and consent that the court make the order prayed for. Isabel Roberts, Wesley Roberts, Mary J. Cobb, James H. Malcolm, Guardian of John Roberts Jr.”</p> <p>On the same day the following decree was rendered in the case in the probate court:</p> <p>“This day came the said George Roberts, executor of the last will and testament of John Roberts, deceased, plaintiff, and also the defendants, Isabel Roberts, Wesley Roberts, Mary J. Cobb and James H. Malcolm, guardian of John Roberts Jr., and signify their consent to the provisions of the contract, a copy of which is annexed to the petition marked Exhibit A., and their readiness to carry out the stipulations of the same, the court having examined said contract and heard the proofs and allegations of the parties do find that the provisions of said contract are fair and reasonable and conducive to the interests of all the parties, and especially to the interests of said John Roberts Jr., and to the interests of the estate of said John Roberts, deceased, do ratify and confirm the said contract and authorize and empower the said George Roberts, executor of the last will and testament of said John Roberts, deceased, and the said James H. Malcolm, guardian of the said John Roberts Jr., to carry out the provisions of said contract and execute and deliver all such instruments of writing as may be necessai*y and proper for that purpose.”</p> <p>On the 25th day of February, 1895, being six months after John Roberts Jr., reached the age of twenty-one years, he filed the following petition, duly verified, making the will of John Roberts, deceased, Exhibit A.:</p> <p>“In Court Common Pleas, Crawford County, Ohio.</p> <p>John Eoberts Jr., Plaintiff, \ v. j George Eoberts, Executor I of the Last Will and Test- / ament of John Eoberts, I Deceased, Isabel Eoberts, \ Wesley Eoberts, Mary Jane Í Cobb, Edwin Eoberts, and \ James H. Malcolm, Guard- \ tan of John Egberts Jr., Defendants. / petition in error.</p> <p>The said plaintiff says: That in the month of September, A. D., 1885, John Eoberts departed this life at the county of Crawford and State of Ohio, that he died testate, and his will was duly admitted to probate and recorded in the probate court of said county, a copy of said will is hereto attached marked “Exhibit A,” and made a part hereof.</p> <p>Plaintiff further says that he was then a minor and said James H. Malcolm was appointed by said probate court as his guardian, said appointment being made on the 28th day of September, A. D., 1887.</p> <p>Plaintiff further says that on the 7th day of November, A. D., 1885, said executor filed and swore to an inventory of the personal property of said estate, which showed $95.00 household goods, which were taken by said Isabel Eoberts, widow of the testator under the statute and provisions of said will.</p> <p>Said inventory showed all the remainder of the personal property of said testator to consist of interest bearing promissory notes amounting to $12,-256.57. Among said securities as shown by said inventory was a promissory note secured by mortgage against said Wesley Roberts in favor of said testator for $5,382.00, dated April 3, 1880, and due April 3, 1881, with eight per cent, interest per annum, that partial payments of interest had been made upon said promissory nóte to the testator, so that at the date of said inventory there was due upon said promissory note the sum of $7,040.99, which amount was found collectable by the appraisers and so certified by them in said inventory.</p> <p>Plaintiff further says that the estate was not in debt beyond a few small unpaid bills amounting in the aggregate to $26.72, and the funeral expenses, including cemetery lot, amounted to $263.70. The personal assets of said estate were good and ample to carry out the provisions of said will, and give to this plaintiff in full his legacy therein provided.</p> <p>Plaintiff further says that by the terms of said will said executor was required to keep the said securities and the funds of said estate at interest, and when this plaintiff should arrive at the age of twenty years, to invest $8,000.00 of said invested funds with the accumulated interest thereon, in a farm for this plaintiff, the title of which should be put in him in fee simple.</p> <p>This plaintiff says he arrived at the age of twenty years on the 29th day of October, A. D., 1893, and at that time said executor did not invest $8,000.00 and interest or any part of said funds in a farm for this plaintiff.</p> <p>On the 29th day of October, 1894, the plaintiff arrived at the age of twenty-one years, he, through his attorneys, made written demand of said executor for his legacy under said will, but said executor neglected and refused, and still neglects and refuses to discharge his said duty to give plaintiff his said legacy or equivalent.</p> <p>This plaintiff is informed and believes, and on such information and belief alleges: That said George Roberts, as executor of the last will and testament of said John Roberts, deceased, in order to avoid his duties toward this plaintiff under said will, and to modify and change the will itself, procured an order to be made on the 20th day of January, A. D., 1888, purporting to authorize said Wesley Roberts, mortgage debtor of said estate, to execute a deed of certain real estate to Isabel Roberts, plaintiff’s mother, until plaintiff should arrive at twenty years of age, with remainder to plaintiff in fee simple, and discharge said Wesley Roberts from his said mortgage debt amounting at that date to $7,479.16, and thereby extinguish all other claims of plaintiff to said legacy.</p> <p>Said order was made in a proceeding instituted by said executor in said probate court, wherein said George Roberts, executor of the last will and testament of John Roberts, deceased, was plaintiff, and Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, guardian of John Roberts Jr., and John Fleming Roberts were defendants.</p> <p>A certified copy of said order and the record of the proceedings whereon the same was founded is hereto attached and marked “Exhibit B,” and made part hereof.</p> <p>Plaintiff having recently and within the past six months arrived at the age of twenty-one years, institutes these proceedings for the reversal of said order, and says: that in the record and proceedings aforesaid is manifest error in this, to-wit:</p> <p>1. This plaintiff was not made a party to said action, no summons having been issued against him, and no process was served on him.</p> <p>2. The said James H. Malcolm, as guardian of this plaintiff, had no authority in law or in fact to waive summons in said cause, or to enter the appearance of this plaintiff therein, or to consent to the order prayed for in said executor’s petition.</p> <p>3. The said James H. Malcolm, 'as guardian, had no authority in law or in fact to enter into said agreement in behalf of this plaintiff. .</p> <p>4. No answer or defense in said action was made by guardian ad litem, in behalf of this plaintiff or by any one, and no guardian ad litem was appointed for plaintiff.</p> <p>5. Said contract, marked “Exhibit A,” in said record on its face required the consent of “all the legatees of said will and the parties in interest to consent thereto, and to the modifications it makes of said will,” whereas all the said legatees and parties did not sign said agreement, to-wit, the same was not signed by said legatee, John Fleming Roberts.</p> <p>6. Said John Fleming Roberts was a necessary defendant in said action, but was neither summoned or entered his appearance therein.</p> <p>7. The probate court had no jurisdiction to malee said order or approve said contract, nor exonerate said executor from liability for said $8,000.00 legacy prior to the time plaintiff was twenty years of age.</p> <p>This plaintiff further says there is error in said order and proceedings not apparent upon the record in this, to-wit:</p> <p>8. Said Wesley Roberts, on the 20th day of January, A. D., 1888, executed a deed for the following described real estate situated in the county of Crawford aforesaid, to-wit: The west half of the southwest quarter, and the northeast quarter of the southwest quarter, section 1, township 4, range 16, containing 120 acres in said county. The granting clause of said deed is “that the said Isabel Roberts to have and to hold the premises until October 29, 1893, when the said John Roberts Jr., will arrive at the age of twenty years, and then the full fee simple title shall pass to and vest in the said John Roberts Jr.,” and said executor, in consideration thereof, proceeded to apparently release said Wesley Roberts from his said mortgage debt. Said land was on said 29th day of October, A. D., 1893, worth not to exceed $3,600.00, and could not under said will satisfy plaintiff’s legacy of $8,000.00 and accruing interest thereon.</p> <p>9. Said land on the 29th day of October, A. D., 1894, on plaintiff’s arrival at age was not worth, nor is the same now worth to exceed $3,600.00.</p> <p>10. Said land was sold for taxes prior to the 29th day of October, A. D., 1893, and other parties are now in possession thereof under said tax title.</p> <p>11. Said deed for said land was never delivered to or accepted by this plaintiff, nor has he since he arrived at the age of 21 years, ratified said agreement of said executor and guardian, the said order of court, or “the modifications it makes of said will.”</p> <p>Wherefore, this plaintiff prays that for the errors aforesaid the said order and proceedings of said probate court may be set aside, reversed and held for naught, and that he may be restored to all the rights he may have lost thereby.”</p> <p>James H. Malcolm, defendant, filed a motion to compel plaintiff, John Roberts Jr., to amend his petition by striking therefrom as irrelevant and redundant, the averments as to the facts not appearing in the record of the probate court, being an enumeration of eleven items asked to be stricken out. This motion was overruled and exception taken.</p> <p>George Roberts, executor, demurred to the petition on the ground that the court of common pleas had no jurisdiction of the subject of said cause of action, that there was a defect of parties plaintiff and defendant, that several causes of action were improperly joined, that separate causes of action against several defendants were improperly joined, and that the petition does not state facts sufficient to constitute a cause of action. This demurrer was overruled and exceptions taken.</p> <p>James H. Malcolm, guardian, filed a like demurrer and it met a like fate, to which he excepted.</p> <p>Thereupon the executor and guardian filed separate answers in which the age of the plaintiff, the making of the will and the conveyance of the lands to plaintiff are conceded, but the averment in the petition in error that plaintiff had not ratified said agreement and order is denied, and issue is taken with the other averments of the extrinsic facts set up in plaintiff’s petition. New matter is also set up as an answer, treating the petition as one in equity.</p> <p>The plaintiff took issue in his reply with the new matter set up in the answers.</p> <p>Afterward the executor filed an amendment to his answer, in which he averred that the debts and legacies of equal priority of the testator, John Roberts, were largely in excess of the assets of his estate and could not all be paid, that said contract was made in good faith and was proper to be made subject to the approval of the probate court. He further set up the making of the deed, the release of the mortgage, and all that was done in pursuance of the said contract and decree of the probate court, and asked that in case the decree of the probate court should be reversed, that all parties should be restored to what they had before that decree was made, and that the estate of the testator should then be administered under his will. The guardian filed a like answer.</p> <p>The plaintiff in his reply took issue with these averments to the answers, and denied that the court had jurisdiction for want of proper parties to make the order prayed for.</p> <p>A motion was also made by defendants to have one, John A. Schaber, the successor of James H. Malcolm in said guardianship, made a party defend, ant, for the reason that while he was such guardian with sufficient money of his ward in his hands, he allowed said lands to be sold at delinquent tax sale, and purchased the same himself, and took a tax deed therefor in his own name, and still holds the same. This motion was supported by an affidavit, but the motion was overruled and exceptions taken.</p> <p>The cause was heard at the April term, 1897, upon the petition in error, the transcript and the evidence, and was argued by counsel, on consideration whereof the court of common pleas found that there was no error apparent upon the record, that said plaintiff was not entitled to the relief prayed for in his said petition, and therefore affirmed the judgment of the probate court. The plaintiff filed a motion for a new trial, which was overruled and exceptions taken.</p> <p>Upon petition in error by John Roberts Jr., the circuit court reversed the judgment of the common pleas for the following reason: “This cause being a proceeding in equity in said court and not alone in error, the judgment and finding of said court is not responsive to the issue joined in the case, and is against the weight of the evidence, and said court of common pleas erred in overruling the motion of the plaintiff in error herein for a new trial.” Upon reversing the judgment the circuit court sustained the motion of John Roberts Jr., for a new trial, and granted him such new trial. He excepted to so much of the decision as held that his petition was not one in error alone.</p> <p>Thereupon George Roberts, executor, and James H. Malcolm, guardian, filed their petition in error in this court, seeking to reverse the judgment of the circuit court; and John Roberts Jr., filed his cross-petition in error, alleging that the circuit court erred in not reversing also the judgment of the probate court.</p>

<p>Several judgment against one of joint defendants — Contract several in effect though joint in form — Rights of surety on joint note — Section 3328, Revised Statutes — Practice.</p> <p>1. The rule that it is improper for a court to render a several judgment against one or more defendants, leaving the action to proceed against the others, in actions founded upon joint contracts wherein the plaintiff has no election as to the joinder of defendants, his only remedy being by joint action, has no application in favor of a defendant who pleads that he is surety only and has been released from liability on the contract by reason of an extension of time of payment without his consent, the plaintiff in his reply admitting such suretyship. As between parties so pleading the contract is in legal effect several although joint in form.</p> <p>2. Courts are confined to a consideration of the statements in the pleadings in disposing of a motion for judgment notwithstanding the verdict under Section 5328, Revised Statutes. The record outside of the statements in the pleadings should not be considered in disposing of such motion.</p>

<p>Act to provide for sale or lease of estates tail — Does not apply, to previously existing estates — Act of April 14, 1859. — Guardian of minor children cannot bind minors or their legal representatives, when.</p> <p>1. The act to provide for the sale or lease of estates tail in certain cases, passed April 14, 1859, 1 S. & S., 550, does not apply to previously existing estates. Gilpin v. Williams, 25 Ohio St., "¿83.</p> <p>2. An order for the sale of an estate limited to the first taker for life, remainder to her children, created previously to that statute, made in a proceeding commenced by the life tenant, is of no legal force whatever, because the court is without jurisdiction of the subject matter, and may therefore be collaterally impeached, by those who did not, or who could not'by reason of minority, assent.</p> <p>3. The fact that the petitioner, the life tenant, was the guardian of her minor children, and as such guardian entered their appearance and consented for them, does not estop such minors, or their legal representatives, on the termination of the life estate, from recovering the possession of the land from a purchaser at the sale or those claiming under him.</p>

<p>Judgment lien — On debtor's land at his death — Issue of execution not necessary, when — Lien takes priority in proceeds of land— Limitations as to time op action against executors.</p> <p>1. Where a judgment is a subsisting lien on the lands of the debtor at the time of his death, it is not necessary thereafter to issue execution upon it in order to preserve the lien. It is entitled to share in the proceeds of the land, when sold by the personal representative, according to its priority at the time of the debtor’s death, although execution be not issued thereon within five years from its rendition or the date of the last execution.</p> <p>2. The allowance of the claim by the personal representative, or its presentation to him for that purpose, is not requisite to the judgment creditor’s right to share in the fund.</p> <p>3. Pleading the lien by the judgment creditor in an action brought by the personal representative to sell the land for the payment of debts, is not the commencement of an action within the purview of the statute limiting the time within which actions may be commenced against executors and administrators.</p>

<p>Savings and loan corporation — May reserve in its certificate lien— On stock to secure debt of holder — Such lien applies to transferee</p> <p>A corporation organized to do the business of a savings and loan company may, by an express stipulation in the certificate of stock by it issued, reserve a valid lien upon the stock to secure the debts of the holder to it; and such lien may be asserted against a transferee who receives the stock before, but does not present it for transfer on the stock book of the company until after, the original holder becomes indebted to the corporation.</p>

<p>County Warden as county office — Cannot be filled by appointment.</p> <p>The office of “County Warden” created by section 409, Revised Statutes, is a county office, and can not be filled by an appointment. Art. 10, Sec. 2, constitution.</p>

<p>County Commissioners — Powers and duties — Liability for defective bridge — Petition alleging injury not sufficient, when.</p> <p>1. Section 845, Revised Statutes, does not impose upon county commissioners a liability for injuries resulting from a defective model furnished by the board of public works for a bridge over a canal belonging to the state. u</p> <p>2. A petition alleging that a defective bridge at which the plaintiff received an injury is upon a street of a municipality does not show a defect with respect to which the statute imposes a liability on the commissioners of the county.</p>

<p>Error to the Circuit Court of Belmont county.</p> <p>The action below was commenced in the common pleas of Belmont county, September 17th, 1896, by the defendants in error, Elma Sidwell, as Ex’x. of ' Plummer Sidwell, deceased, and Shepherd Davis, to obtain a decree for the sale of certain lands (about 76 acres) in that county, and to have conflicting liens marshalled and priorities determined. Plaintiff’s action was grounded upon a judgment rendered at the January term, 1896, of that court, in a suit commenced May 27, 1895, against John W. Beam et al., for $1,201.32, being balance remaining due as purchase money, and a decree finding the same to be a lien upon the property sold in the nature of a vendor’s lien.</p> <p>Nicholas Kuhn, in his answer and cross-petition, set up the recovery, February 27, 1892, by the consideration of the same court, of a judgment against John W. Beam, the then owner of the land, in favor of one Somerville, and afterward purchased by answering defendant, on which a balance remains due, which is and has ever since the date of the rendition of the judgment been a lien upon the land in controversy; that December 19, 1892, execution issued and was levied on said land; that the judgment was purchased for full value and without knowledge of any vendor’s lien.</p> <p>Campbell, as Adm’r. of Reuben Ochsenbein, the plaintiff in error, by his answer and cross-petition, set up the execution by John W. Beam and wife, February 27, 1895, of a mortgage on the lands, to secure certain notes, then executed by Beam to Ochsenbein; the delivery for record of the mortgage the same date, its record, and that the same was given for a valuable consideration and without notice of the vendor’s lien.</p> <p>At the January term, 1897, the common pleas found due plaintiff $1,273.38; that the same is a lien on the land, and ordered that, in default of payment in five days, the land be sold and the money brought into court, reserving all questions of pri-' ority.</p> <p>At the June term following, the sale being confirmed, and the proceeds of sale, $2,700.00, being before the court for distribution, a decree was rendered, ordering the payment, first of costs, second of the judgment to Kuhn, and the balance to Campbell, Adm’r. From this judgment the plaintiffs (the defendants in error) appealed.</p> <p>On trial in the circuit court, after order confirming the sale, there was found due the plaintiffs $1,-297.49, and that they had a valid vendor’s lien and the right to enforce it against the premises. Also, due Kuhn $410.25, and that is a valid lien. Also, that there is due Campbell, Adm’r., $1,376.20, and will become due $500, March 1, 1898, $500, March 1, 1899, $500, March 1, 1900, and $500, March 1, 1901, with interest on each from March 1, 1897, all constituting a valid lien on the premises. Coming to distribute the $2,700, proceeds of sale, the court found the facts stated in the petition and answers true, and ordered that, after payment of costs and taxes, there be paid, first, to' the plaintiffs the amount found due them, second, to Kuhn, the amount found due him, and third, the remainder to Campbell, Adm’r.</p> <p>Campbell, Adm’r., brings this proceeding to reverse this judgment as to priority of liens and order of distribution.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The action was commenced by H: P. Whittaker against “Kinzea Stone and Dudley Allen, partners-as Stone and Allen.” An attachment was issued with the summons upon affidavit upon the ground that the said defendants were non-residents of Hamilton county and the state of Ohio. The summons was served upon Dudley Allen personally, and as to Kinzea Stone it was returned not found. The order of attachment was' returned showing a levy upon property of defendants, which was duly appraised and taken into the custody of a constable.</p> <p>On the return day of the summons Dudley Allen, appeared, and Kinzea Stone failed to appear, and after waiting one hour, trial was had as to Dudley Allen, witnesses examined, the attachment sustained and judgment rendered against Mr. Allen for the amount claimed by plaintiff together with costs of suit. No entry was made upon the docket on the day of trial as to Kinzea Stone, further than the entry that he did not appear.</p> <p>The next day the-justice of the peace issued an alias summons for Kinzea Stone, which was on that day duly served upon him personally. The cause was thereafter tried to a jury, Mr. Stone being-present and defending upon the merits of the case. A verdict was returned against him for a reduced amount, and judgment was rendered upon the verdict and the attachment sustained. Mr. Stone appealed the case to the court of common pleas, wherein plaintiff below filed his petition, averring that Mr. Stone retained him to render certain legal services as an attorney-at-law in an action to be instituted at the City of Chicago by Mr. Stone and one Dudley Allen, and further avering that said services and certain expenses were for the benefit of Mr. Stoné, without saying that they were also for the benefit of Mr. Allen.</p> <p>To this petition Kinzea Stone filed an answer in which the first ground of defense was as follows:</p> <p>“Now comes the defendant K. Stone, and by way of first defense, says, that on the 10th day of October, 1894, before W. F. Gass, Justice of the Peace in and for Cincinnati township, plaintiff instituted a suit against Kinsea Stone and Dudley Allen as partners under the name of Stone & Allen, and on said 10th day of October, 1894, in said cause, caused to be issued an attachment against the property of said Stone & Allen, on the ground that said defendants were non-residents of the county of Hamilton and state of Ohio; that under the direction of said plaintiff said attachment was levied on a certain horse, as the property of the said defendants; that in said action summons was issued and served on the defendant Dudley Allen, but returned not found as to said K. Stone; that thereafter, on the 15th day of October, 1894, judgment was taken against the defendant Dudley Allen in the sum of $268.00 and costs, and said action was not continued as to said K. Stone; that thereafter, October 16, 1894, in said action, an alias summons was issued against the defendant K. Stone, and served on said defendant K. Stone, and thereafter, on October 31st, 1894, a jury having been demanded by said K. Stone, trial was had and verdict and judgment given against said K. Stone, from which judgment an appeal was duly taken by this defendant K. Stone, and is now in this court, under the title and number as set forth in the caption of this case, and is the action herein. That the cause of action wherein said judgment was obtained against said Dudley Allen is the same cause of action set forth in the petition herein, and in said action said K. Stone and Dudley Allen were sued as partners under the name of Stone & Allen, and sought to be made liable as such, as appears on the transcript of the proceeding of said justice filed herein by this defendant; and the property attached in said action was the property of this defendant. That said judgment against said Dudley Allen is still in full force and effect.”</p> <p>The plaintiff below demurred to this ground of the answer, for the reason that it does not set forth sufficient facts to constitute a defense.</p> <p>The court of common pleas overruled the demurrer, and the plaintiff not desiring to reply, the court rendered judgment against the plaintiff below and in favor of Mr. Stone.</p> <p>Upon petition in error the circuit court reversed this judgment, and thereupon Mr. Stone filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and asking an affirmance of the court of common pleas.</p>

<p>Canal lands — Title to, acquired by state —• Remains after state ceases to use — Act of February 4,1825 — Statute of limitations does not run against state — Lands leased by claimant with no title — Rights of state and tenant— Tax sale of state lands.</p> <p>1. The title acquired by the state to lands which it appropriated and used in the construction and operation of canals under the act of February 4, 1825 , 23 O. L., 50, is a fee simple, and the former owners of such lands, by reason- of such appropriation, parted with all their title and interest in such lands.</p> <p>2. The fee simple title to such lands remains in the state after it ceases to use such lands for canal purposes, and the statute of limitations does not run against the state as to such lands.</p> <p>3. When such lands are leased by a claimant who has no title, to a tenant who takes possession, and the state thereafter leases the lands to the same tenant, and he pays rent to the state and refuses to pay rent to the claimant, the possession of such tenant is the possession of the state, and it may maintain an action against such claimant to quiet its title.</p> <p>4. The rule that a tenant cannot dispute the title of his landlord, does not in such cases have the effect to prevent the state from obtaining actual possession of its lands by means of a lease to the tenant of a claimant who has no color of title.</p> <p>5. A tax sale of lands belonging to the state is void, and confers no right to the lands upon the purchaser.</p>

<p>Error to the Superior Court of Cincinnati.</p>

<p>Error to tbe Circuit Court of Defiance county.</p> <p>The facts necessary to an understanding of the cases are stated in the opinion.</p>

The Coal Company brought suit in the court of commoh pleas to recover from the railroad company on a petition whose material allegations are as follows: On or about May 10th, 1877, the defendant — to enable plaintiffs to sell their coal to persons at Columbus, Ohio, and at points beyond that, at lower prices than they otherwise could, and thereby to compete successfully in their said business with other shippers of coal on other roads to said points; and to induce plaintiffs…

<p>Taxation of personal property — Foreign corporation doing business in this state — Property situated and taxed in Ohio — Stock shares exempt from taxation — Deduction of debts from credits — Sections 2746, 2744 and 2730, Revised Statutes.</p> <p>1. Where all the business of a foreign corporation is transacted in this state, and all of its property situated and taxed here, shares of its capital stock held in this state are exempt from taxation by force of section 2746, Revised Statutes.</p> <p>2. dioses in action, whether book accounts, promissory notes, or the like, of foreign corporations that are kept in this state and arise out of the corporate business transacted here, are subject to taxation under the provisions of section 2744, Revised Statutes.</p> <p>8. Such corporation, in listing for taxation its “credits” liable to taxation in this state, may, under the provisions of section 2730, Revised Statutes, deduct from its claims and demands that arise out of the business it transacts in this state, such of its bona fide debts as arise from the same source.</p>

The defendant in error, Winfield S. Wells, filed his petition against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover penalties for charging a greater rate of fare than is allowed by statute. The petition contains five separate causes of action, and the whole amount of penalties sued for is $750, being the sum of $150 for each cause of action.

<p>Error to tbe Superior Court of Cincinnati.</p> <p>Action for damages to abutting property by change in the grade of a street. Judgment for defendant affirmed.</p> <p>The plaintiffs in error erected a building, which they used for manufacturing purposes, on a lot of theirs, abutting on Lodge street in the city of Cincinnati, with reference to the then-established grade of the street. Afterwards, by authority of the city, other abutting owners lowered the grade of the street two feet, and, without expense to the plaintiff in error, improved it with an asphalt pavement. The plaintiffs in error brought the action below, against the city, to recover damages done to their property, as they claimed, by the change of grade. The jnry returned a verdict for the defendant, on which judgment was rendered, and that judgment was affirmed in general term. Plaintiffs bring the case on error, to this court.</p>

<p>Homestead exemption — Judgment creditor’s lien does not preclude debtor’s allowance in lieu of homestead — From accounts receivable, etc.</p> <p>A judgment creditor, by a suit in equity to subject the proceeds of his debtor’s bills and accounts receivable and the appointment of a receiver for the purpose of collecting them, does not acquire such lien as will preclude an allowance out of such proceeds to the debtor in lieu of a homestead, the debtor being the head of a family from the commencement of the proceeding, and not the owner of a homestead at the time of the distribution of such proceeds.</p>

<p>Error to the Circuit Court of Huron county.</p> <p>On motion to affirm the judgment of the circuit court.</p> <p>Plaintiff's brought a civil action in the court of common pleas against defendant, and upon issues of fact joined the cause was tried to a jury. In the progress of the trial numerous exceptions were taken by the company to the rulings of the court as to the competency of evidence, to the refusal of the court to give to the jury the instructions which it requested, and to portions of the charge given. After a verdict for the plaintiffs the company moved for a new trial upon numerous grounds, including the following:</p> <p>Fourth: — That the court erred in not charging the jury as requested by said defendant, to which refusal to so charge the said defendant then and there excepted;</p> <p>Fifth: — That the court erred in its charge to the jury in each and every the particulars and parts thereof, to which the said, defendant then and there excepted;</p> <p>Sixth: — That the amount of damages awarded said plaintiffs is excessive and appears to have been given under the influence of passion and prejudice;</p> <p>Seventh: — That the verdict is not sustained by sufficient evidence;</p> <p>Eighth: — -That the verdict is against and contrary to the weight of the evidence;</p> <p>Ninth: — That the verdict is contrary to law;</p> <p>Tenth: — That said verdict should have been in favor of said defendant and against said plaintiffs;</p> <p>Eleventh: — For errors of law occurring at the trial and then there duly excepted to by said defendant;</p> <p>The motion was overruled and a judgment was entered upon the verdict, to which the company excepted. The company thereupon filed its petition in error in the circuit court, alleging error in all of the matters alleged in the motion for a new trial. Upon the hearing the circuit court reversed the judgment of the court of common pleas for the following reasons, as appears from its journal entry:</p> <p>“The court find that there is error apparent upon the record in the proceedings of said court, to the prejudice of the plaintiff in error, in this, to-wit: that the said court of common pleas refused to the plaintiff here a new trial on its motion therefor.</p> <p>“Said court also finds that said court of common pleas also erred in admitting testimony that was objected to by the plaintiff in error, tending to show the depreciation of the value of the defendant in error’s property.</p> <p>“The court also finds that the court of common pleas erred in its charge to the jury, and in its refusal to charge the jury as requested by the plaintiff in error, and especially in refusing to give requests numbers 1-4-6 and 7.”</p> <p>Plaintiffs having filed a petition in error here for the reversal of the judgment of the circuit court, the company moves for the affirmance of that judgment for the reason that one ground of reversal by the circuit court is that the judgment of the common pleas court was not sustained by the evidence.</p>

<p>Error to the Circuit Court of Morrow county.</p> <p>The action below was upon an undertaking for costs commenced in the court of common pleas by Calvin Hull against Burr Burson and John W. Edwards, upon an agreed case and submission, under favor of Section 5207, Revised Statutes. The essential facts thus submitted are as follows:</p> <p>The defendant in error, Burson, commenced an action against plaintiff in error, Hull, before a justice of the peace of Congress township, Morrow7 county. Bur-son was a non-resident of that township, but a resident of the coifnty. Being required before trial to give an undertaking for costs, he did so with Edwards, defendant in error, as surety, the condition of the undertaking being: “Now7 w7e, the said Burr Bur-son and John W. Edwards (his surety), hereby undertake and promise the said Calvin Hull to pay all costs that may accrue in the said action.” On trial Burson obtained judgment. Hull appealed. In the common pleas Hull obtained judgment against Bur-son for costs. The wdiole amount of costs claimed against Burson was $182.64, of which $135.54 accrued in the common pleas, and $47.10 before the justice. Burson is insolvent. A large number of persons, as witnesses, officers, etc., are interested in the costs. Judgment was demanded for the w7hole amount with interest.</p> <p>The common pleas found that Edwards w7as not liable for any of the costs and awarded judgment in his favor against Hull for costs, which judgment was affirmed by the circuit court. Hull brings error.</p>

<p>Restrictions as to contracts, appropriations and expenditures — ■ By municipalities — Burns law — Section 2yo2 Revised Statutes.</p> <p>1. Unless a valid exception is made by some provision of statute, section 2702, Revised Statutes, is applicable to so much of the cost and expense of a street improvement as is to be paid by the municipality out of funds arising from a levy on the general tax list.</p> <p>2. Said section is not applicable to so much of the cost and expense of a street improvement as is to be paid by an assessment on the ' property bounding and abutting on such improvement or adjacent thereto.</p> <p>3. Whether the certificate required by said section 2702 has been filed and recorded or not, must be ascertained by each contractor for himself at his peril. In the absence of such certificate, when required, no liability arises against the municipality, even though the contractor has fully performed his contract.</p>

<p>Master and servant — Servant acting under immediate order of superior — Prudence required of servant — Law of contributary negligence — Question of care for decision of jury.</p> <p>1. A servant assumes only such risks incident to his employment as ■will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.</p> <p>2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it</p> <p>3. In such case the question is one of fact for the jury under proper instructions from the court.</p> <p>4. A servant was called by the foreman of a common master to assist him in the adjustment of a machine, and was ordered to do a certain thing in connection with the work; this, to the knowledge of the servant, was dangerous; but he had a short time before done substantially the same thing under the foreman’s order without accident; the danger arose from the proximity of a revolving saw that, by the culpable negligence of the master, was not protected; the servant obeyed the order, using ordinary care, but his clothing was caught by the saw and he was seriously injured. The court left it to the jury to say whether, under all the circumstances, the risk of injury was so great, that no ordinarily prudent man would have obeyed the order; and that if they found that it was, they should return a verdict for the defendant, and if not, they should return a verdict for the plaintiff Held, that the jury was properly instructed.</p>

<p>Liability of railway company for loss by fire — Evidence of cause of fire — Presumption of negligence by railway company — • Petition alleging loss not subject to demurrer, when — Obligation of contracts — Constitutionality of act of April 26, 1894.</p> <p>1. The act of April 26, 1894 (91 O. L. 187), imposes upon every railroad company operating a railroad or part thereof in this state, anabsolute liability for loss or damage by fire, originating on its land, caused by operating the road; and the fact that the fire originated on the land of the company is made prima facie evidence that it was caused by operating the road. In an action for such loss or damage, it is not necessary to allege or prove negligence on the part of the company; nor is the absence of such negligence a defense.</p> <p>.2. A different rule of liability, and of evidence, is provided by the act, where the loss or damage is caused by fire originating on land adjacent to the land of the railroad company. In such cases the company is liable only when the fire was caused in whole, or in part, by sparks from an engine on or passing over the road ; and the fact that the fire was so caused is made prima facie evidence ■of negligence on the part of the company or person operating the road. But this prima facie case of negligence may be overcome by proof, under a proper pleading, that the company exercised due care, the burden being on the company to show that it was free from negligence.</p> <p>3. A petition which alleges that the plaintiff’s loss was caused by fire that originated on laud adjacent to the land of the railroad company, and- that the fire was caused in whole or in part by sparks from an engine upon or passing over the railroad while the defendant was operating it, is not subject to demurrer on the ground that it fails to charge the defendant with negligence. Though it does not in terms charge such negligence, it states facts which in law make a prima facie case of negligence, and show a complete cause of action.</p> <p>4. These provisions of the statute are constitutional. They neither impair the obligation of contracts, nor deprive railroad companies of property without due process of law, nor deny them the equal protection of the law; and they have uniform operation throughout the state. Whether section 3, of the act, which provides for taxing as part of the costs an attorney’s fee for the successful party on appeal, is constitutional, Quere ? But if not, it is severable from the remaining provisions, and does not affect their validity.</p> <p>5. The statute is applicable where the railroad company obtained its right of way or part of it by deed, as well as when it was acquired by legal appropriation, and to companies in existence when the statute was passed, as well as to those organized since.</p>

<p>Common carrier of merchandise— Obligations of — Liable for delivery to wrong person.</p> <p>The obligation of a common carrier of merchandise is to carry to the destination and deliver to the consignee named in the address, unless prevented by the act of God or the public enemy; and delivery to a wrong person, not induced by some act or representation of the consignor, is not excused by any degree of care which the carrier may exercise.</p>

<p>Taxation of personal property — Protected by patent — Not put on market — But leased or rented — Value determined, how — Duty of county auditor — Valuation of telephone tnstruments.</p> <p>1. Where a letter of instruction sent by the auditor of state to a county auditor embraces and commands the performance of a number of acts, some of which are proper and others not, the latter officer is bound to follow the former but may disregard the latter.</p> <p>2. Where the manufacture of an article of tangible personal property is protected by a patent, and such article when manufactured is not put on the market for sale but its ownership retained by the manufacturer in himself, and the article leased or rented by him to another for a valuable consideration, payable to him, it should •be taxed as his property at “its true value in money,” although that value is enhanced by reason of the patent. Its true value in money for taxation is the value that attaches to it in his hands.</p> <p>3. In ascertaining the true value in money of such property in the hands of its owner, every fact or circumstance, brought to the attention of the person or officer who is charged with the duty of fixing that value, and which in its nature bears on the question, should be considered by him. One of those circumstances is the earnings or rental of such article.</p>

<p>In Quo Warranto.</p> <p>The city of Piqua is divided into five wards, and each ward is entitled to two members in the council, thus making the full council to consist of ten members. At the April election for the year 1898, a Mr. Crow was elected a member of the council for the Second ward, being the ward in which he then resided. He duly qualified, but shortly thereafter removed with his family into the fifth .ward, where he has ever since resided. An ordinance of the city passed in 1854, provides that a councilman who removes from his ward shall be deemed to have resigned his office. No election was held to fill the vacancy caused by the removal of Mr. Crow from the Second to the Fifth ward.</p> <p>After the April election for the year 1899, the council met for organization, and the clerk called the roll of the members who held over and three of them answered. He also called the names of the newly elected members, and two of them answered, and came forward and were duly qualified, so that there were five members of the council present. Thereupon the council proceeded with the five members present to organize, and all five of them voted for William P. Orr, defendant, for president of the council, he at the time being one of the five who were present. Other officers were elected by the same vote, and the council proceeded to business. Some of the absent members claimed that five did not constitute a quorum, and questioned the legality of the said election, and thereupon a proceeding in quo warranto was instituted by the Attorney General in this court, to oust Mr. Orr from the said office of president of the council.</p>

The controversy concerns a portion of the proceeds of the sale of property in the hands of the assignee of E. E. Evans & Company, for the benefit of their creditors. On appeal from the probate court the common pleas court made a special finding of the facts, the material facts found being that on October 2,1893 the City Hall Bank recovered a judgment against the assignors before a justice of the peace, and upon the same day caused an execution to be levied on their chattels.

The plaintiff seeks to recover a penalty of $500 under Sections 4426-1 and 4426-2 of the Revised Statutes. In his petition he alleges that he is a colored person of African descent; that the defendant, Koerber, is the proprietor of a place in the city of Akron, where meals are furnished to persons desiring them and intoxicating liquors are sold by the drink.

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

<p>Motion to dismiss proceeding in error to the Circuit Court of Lake County.</p>

The action below was by Joseph T. Harrison, assignee, against Elizá W. Chatfield, W. H. Chat-field and Charles B. Eggleston for a decree setting aside a deed, and was tried on appeal in the circuit court.

In the month of March, 1883, Friend W. Smith purchased a tract of land in Licking county having a duly recorded mortgage thereon in favor of one Amos Remington for about $4,590.00, which amount Mr. Smith became liable to pay as part of the purchase price of the land.

The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the defendant below, and in his petition avers that as assignee of Gustave Steffe he obtained an order in the probate court to sell certain real estate belonging to the estate; that he duly offered the same for sale at public auction; that the defendant bid therefor the sum of |933.33; that the same’was struck off and sold to him for that sum; the sale reported to the court…

The amended petition of the plaintiff in error in court of common pleas, omitting the caption, is as follows: “The plaintiff, George M. Osborn, says that he is the administrator de bonis non, with will annexed, of the estate of William Salter, deceased, duly appointed by and qualified in the probate court of Scioto county, Ohio, and that he has been acting as such since May 21, 1888.

The suit in error in this case grew out of exceptions filed in the probate court by the plaintiff in error to certain items in the inventory of the estate of Marcella McLean, deceased, as filed by her administrator, D. L. Tyler. The exceptions were overruled, and an appeal taken to the common pleas. It, as requested, found the facts, and thereon overruled the exceptions; and the judgment was affirmed by the circuit court.

Exceptions by tbe prosecuting attorney to tbe ruling of tbe Court of Common Pleas of Brown County.

The defendants in error brought several suits in the court of common pleas for injunctions to prevent the collection of assessments upon their lands for the improvement of Columbian avenue in Hamilton county, relying upon the constitutional invalidity of the legislative act under which the improvement and the assessments were made. The substance of the act is as follows: ... An Act.

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

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

An affidavit in due form was filed with the mayor of the village of Cadiz, charging the plaintiff in error with keeping a place in that village where intoxicating liquors were sold by him in violation of an ordinance of the village. The accused was arrested on a warrant duly issued, and taken before the mayor to answer to the charge, where he declined to demand or waive a jury.

An action in quo warranto was brought against the five plaintiffs in error to oust them from the directory of the Pape Brothers’ Moulding Company, a corporation organized under the laws of the state of Ohio and doing business in Hamilton county, they having been elected in August, 1898, and 'continuing to hold notwithstanding the alleged fact that at an election in August, 1899, five others named were elected over them as directors of the board, which consists of nine…

In Mandamus. The cause is submitted on demurrer to the answer and upon the agreement that the facts appearing in the pleadings shall be taken as conclusive for the purposes of final judgment. In substance those facts are that at the general election held on the 7th day of November, 1899, the relator was duly elected to the office of sheriff of Paulding county for a term of two years, to commence on the first Monday in January, 1900.

Tlie cause was submitted on its merits on tbe hearing of tbe motion. In substance tbe petition avers that tbe relator, Charles A. Leland, was, on tbe first Monday of November, 1897, duly elected a member of tbe bouse of representatives of tbe state of Ohio, from Noble county, duly qualified, entered upon tbe duties of tbe office and has ever since occupied and performed tbe duties thereof.

In Quo Warranto. In these cases the late attorney general filed petitions in quo warranto containing several causes of action and alleging the grounds upon which he claims the said corporations should be ousted of their franchises. The first causes of action in the three first cases are substanially copies of the petition upon which the judgment of this court in the State on the relation of the Attorney General v. The Standard Oil Company, 49 Ohio St., 137, is founded.

In Mandamus. This is a petition for mandamus to require the defendant to permit the relator to appear in court as an attorney at law, up to the time the relator shall assume the duties of judge of the court of common pleas, to which office he has been duly elected and commissioned.

The defendants in error sued the plaintiff in error, before a justice of the peace, for a conversion of one car-load of lumber, and obtained judgment.

<p>Ohio Canal system — Possession and use of lands and streams m construction of — When merely incidental or indirect — May not vest fee in the state — Rights of landowner and state — Backing of water from dam does not cause appropriation of land .by state, when.</p> <p>1. Where the possession and use of lands or streams in the construction of the Ohio canal system were merely incidental, constructive or indirect, and not of a character to fairly apprise both the officers of the state and the owners of the lands, that such lands or streams were appropriated and used in the construction of the canals, no fee to such lands or streams vested in the state.</p> <p>2. Section 8 of the canal act of 1825 should be so construed as to fairly carry out the intention and understanding of the officers of the state on the one hand, and the land owner on the other, in each case, as near as the same can be ascertained from what was done, and the situation and surroundings of the premises in question.</p> <p>3. The mere incidental backing of water up a stream caused by the erection of a dam across a river, used as a part of the canal system, such stream flowing into said river and remaining in a state of nature, except as slightly raised by such back water, does not constitute such an appropriation and use of the bed of the stream for canal purposes as to vest the fee of such stream in the state.</p>

<p>Error to the Circuit Court of Jefferson county.</p> <p>The plaintiff in error was indicted and convicted in the common pleas court of Jefferson county, on the charge of unlawfully selling intoxicating liquors in a prohibition township of the county. He plead not guilty. The parties waived a jury, and submitted the issue to the court on the following agreed statement of facts:</p> <p>“That said Emil Stevens, the defendant, on March 23rd, 1898, in the county of Jefferson and township of Mt. Pleasant, was then and there not a legally registered druggist, and then and there and without the limits of a municipal corporation sold intoxicating liquors other than cider or wine manufactured from the pure juice of the grape cultivated in the state of Ohio, as a beverage to divers persons, said selling being then and there prohibited, and said selling not being for exclusively known medicinal, art, scientific, mechanical or sacramental purposes. That at the time of said sale and for more than thirty days prior thereto, said township of Mt. Pleasant was a prohibition or local option township, in which the sale of intoxicating liquors was forbidden and unlawful, under the laws of the said state of Ohio. That said intoxicating liquors, sold as aforesaid, were beer manufactured in the state of West Virginia, and were shipped in small barrels, called kegs, from the manufactory in West Virginia, to the defendant, Emil Stevens, in the township of Mt. Pleasant, and there received by the said Emil Stevens, in said township and state. That each keg was a single package and was shipped singly by the manufacturer to the defendant, Emil Stevens, and was so received by him in'said township and state. That the sale heretofore admitted to be made by the said Emil Stevens was a sale of one of said kegs of intoxicating liquor, and was sold as aforesaid in exactly the same form and condition as received by him. That the sale was made of the original and unbroken package as shipped by the manufacturer from the manufactory in West Virginia, and as received by the defendant Emil Stevens in said township and state. • That the said defendant, Emil Stevens, was in the employ of said manufactory which shipped said kegs of intoxicating liquors, and that by virtue of said employment, it was- the business of the said defendant, Emil Stevens, to make sales in said township and state of the product of the said manufactory similar to the one hereinbefore described. That the keg of intoxicating liquor,' sold by the defendant as aforesaid, was one of the large number of such kegs, which several days prior to said sale and upon their receipt from said manufactory had been stored away in said township by said defendant and afterwards there sold to divers persons as aforesaid by said defendant. It is agreed that, for the intoxicating liquors sold by the said defendant in Mt. Pleasant township as aforesaid, the defendant then and there collected and received the purchase price from the vendees.</p> <p>The court found the defendant guilty and sentenced him to pay a fine and be imprisoned a certain number of days. A motion for a new trial and in arrest of judgment were made and overruled. The judgment was affirmed by the circuit court; and, upon the record, this court is asked to reverse both the lower courts and discharge the accused, on the ground that the judgment is contrary to law.</p>

The action below was by Clarence L. Fishburn, by next friend, against the Ohio and Indiana Torpedo Company and George E. Grant, to recover for personal injuries alleged to have been caused by the joint negligence of those parties.

<p>Liability of incorporators under Section 3244, Rev. Stat. — For amount of deficiencies in payment of ten per cent, of authorized capital — Suit lo enforce this shotild be for benefit of all creditors — Allowance by court for attorney fees.</p> <p>1. The liability of the incorporators under Section 3244, of the Revised Statutes, is for the amount of any deficiency in the actual payment of ten per cent, of the authorized capital stock of the corporation, at the time of their certifying, as therein provided, to the secretary of state, and not merely for one-tenth of that amount.</p> <p>2. This liability is a security for the creditors of the corporation, in addition to the liability of the stockholders; and it is not necessary, to entitle a creditor to its benefit, that he should have knowledge of the making of the certificate, or of its contents.</p> <p>3. Suit to enforce the liability of the incorporators should be prosecuted for the benefit of all the creditors, as in cases against the stockholders, and the liabilities of both classes may be enforced in the same action.</p> <p>4. In such case the court may, in its discretion, allow reasonable attorney’s fees to counsel for plaintiff, and order the same to be paid out oj the fund recovered.</p>

The relator commenced an original action in the circuit court for a peremptory ivrit of mandamus, to compel the Fraternal Mystic Circle to restore him to membership with all its privileges and benefits.

<p>Error to the Superior Court of Cincinnati.</p> <p>Judgment reversing judgment at Special Term affirmed, and final judgment for defendants in error. ‘</p>

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

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