Volume 62 — Ohio State Reports, New Series

This case was tried in the courts below on the amended petition of the plaintiff, the answer to the amended petition and a demurrer to the answer. The demurrer was overruled by tbe court of common pleas and judgment entered for tbe plaintiff in error for tbe amount admitted in the answer to be due. But tbe court refused to render judgment for interest from August 15, 1891, as claimed in tbe petition.

This action was begun by Charles H. Taylor in the court of common pleas of Montgomery county, and since its commencement he has died, and his administrator has been made a party and prosecutes the action.

Tbe relator filed in the circuit court of Lucas county its petition for a writ of mandamus against Wiliiam M. Godfrey, the auditor of said county, which is as follows: The relator, the United States Mortgage & Trust Company, for its petition says: That it is a corporation duly incorporated under the laws of the state of New York; That William M. Godfrey is now and for more than one year last past has been, the duly elected qualified and acting auditor of the county of Lucas…

The plaintiff in error brought action in the common pleas of Muskingum against Thomas Mattingly, Martha E. McGowan, George L. Foley, as assignee in trust for the benefit of creditors of Thomas Mattingly, and certain other persons, creditors of Mattingly, in the nature of a creditor’s bill.

November 1,1895, George L. Foley, as assignee for the benefit of creditors of Thos. Mattingly, commenced a proceeding in the probate court of Muskingum for an order to sell certain real estate of his assignor, and Martha E. McGowan, who had a mortgage on the real estate to secure seven notes of $1,000 each, given her by Mattingly about September 1, 1884, all past due, was made defendant..

<p>Interpleader — Section 5016 Rev. Stat. — Interposition of affidavit and request that opposing claimants interplead — Nature of practice of interpleader — Sttit by judgment creditor of legatee making debtor and administrator parties — Administrator may interpose when — Jurisdiction of probate court — Section 524 Rev. Stat.</p> <p>1. The purpose of section 5016, Revised Statutes, which permits a defendant before answer, in an action upon contract or for the recovery of personal property, to interpose an affidavit and ask that opposing claimants interplead, was intended as auxiliary to the practice in chancery respecting interpleader, and to direct the practice in the particular classes of cases named, and was not intended to regulate the entire subject of interpleader.</p> <p>2. Where a judgment creditor of one who is a legatee or distributee under a will, begins a suit in the nature of a creditor’s bill, making the debtor and the administrator with the will annexed parties, it is proper practice for such administrator to'interpose, before answer, an affidavit setting forth the grounds for interpleader, and praying that a claimant other than the plaintiff be brought in and required to litigate with the plaintiff to their respective rights to the fund.</p> <p>3. A motion in such case to quash the service on the part of the •claimant, based upon the ground that the court has no jurisdiction because the case is not one for interpleader, will be overruled.</p> <p>4. The probate court has not jurisdiction, in making an order of distribution under section 524, Revised Statutes, to determine the persons to whom distribution is to be made, and the amount going to each, but its power is exhausted in that particular when, upon final settlement of the account of the executor or administrator, it enters a general order of distribution.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The defendants in error had a large number of fish nets situated in Lake Erie, some ten miles out in the lake, northeast of Cleveland, and L. K. Burton, chief game and fish warden, hired E. R. Edson, owner of the tug “Harrow,” and proceeded with the tug and a force of men July 21, 1895, to where the nets were located, and seized and carried away the nets, under the claim that they were used at the time in violation of section 6968, Revised Statutes. What finally became of the nets does not appear, but there is no showing that they were sold as the statute provides. Thereupon the defendants in error brought an action in replevin against the game and fish warden and the owner of the tug for the recovery of the nets or their value, and they recovered judgment in the court of common pleas for the value of the nets, $464.00.</p> <p>The circuit court affirmed the judgment, both courts holding that said section 6968 is uncqnstitutionaL Thereupon the plaintiffs in error filed their petition in this court, seeking to reverse the judgments of the courts below.</p>

The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the Woodland Avenue and West Side Street Railroad Company and the Cleveland City Railway Company for the. collection of a judgment which plaintiff averred in his petition that he had recovered on the docket of a justice of the peace in and for Brooklyn township, on the 21st day of August, 1893, against said Woodland Avenue and West Side Street Railroad Company for a sum less…

On May 2nd, 1898, George F. Pendleton and Fred P. Whiteley filed their petition in the court of common pleas against the City of Findlay as follows: “The said plaintiffs say that they are duly authorized and empowered to practice law in any court in the State of Ohio. That the City of Findlay is a municipal corporation duly incorporated under the laws of Ohio.

In February, 1897, Jane Julier, the defendant in error, commenced an action against the parties who are the present plaintiffs in error, for the assignment of dower in certain real property situated in the city of Cleveland.

The action below was brought in the superior court, by the plaintiffs in error, to enjoin assessments on their lots, levied by the municipal authorities of the city of Cincinnati, for the improvement of Goodwin street. The case was tried at special term and reserved to the general term where judgment was rendered against the plaintiffs, who thereupon brought the case on error to this court. The facts appear in the opinion.

The action below was brought in the court of common pleas by the relator against the Capital City Dairy Company, an Ohio corporation, and two of its officers, to compel them to furnish the relator samples of their product, for analysis, in order that it might be ascertained whether the product was of the standard required by the pure food laws of the state.

The plaintiff below as a judgment creditor commenced an action in the common pleas against his debtor, John W. Overturf and others, to have applied to the payment of his judgment the fees, commissions, etc., of Overturf as executor of certain estates, on the ground of the latter’s insolvency, and his inability to have satisfaction of his judgment. The-case having been appealed to the circuit court, was there first heard on demurrer to the petition, which was overruled.

The question in this case arises upon the sufficiency of the petition in the court below, the action having been commenced March 7, 1896.

The defendant in error brought suit in the court of common pleas against Drummond, who is a justice of the peace and the sureties upon his official bond.

The defendant in error brought suit against the plaintiff in error as executor of the last will and testament of John J. Trump, deceased, upon an account of several items, alleging the indebtedness of the testator on said account and the presentation thereof t® the executor and its rejection by him.

In Mandamus. The relator alleges that it is a corporation duly organized under the laws of West Virginia; its capital stock is $150,000 of which $50,000 is preferred and $100,000 common. Of the $50,000' preferred stock $2J,600 has been issued and the money realized thereon is in the possession of the company. Of the $100,-000 of common stock authorized but $20,000 has been issued and the proceeds thereof paid to the company.

On the 4th day of April, 1889, the last will and testament of Christian B. Odell was admitted to probate by the probate court of Warren county, and Joseph H. Monger was appointed and qualified as executor thereof.

<p>Candidate for sheriff — Dies on election day — Received highest number of votes — Candidate receiving next highest number not thereby elected — Death of sheriff creates vacancy in term he was serving but not in term for which he was candidate — One duly appointed to vacancy will hold office till successor is elected.</p> <p>1. When the candidate for an office for whom a majority or plurality of votes was cast at the election, dies on the election day and before the polls are closed, the candidate for the same office receiving the next highest number of votes is not thereby elected; nor has he thereby acquired any right to be inducted into the said office.</p> <p>2. When one who is holding the office of sheriff, and is a candidate for election to succeed himself, dies before entering upon the new term, a vacancy is thereby created in the term in which he was serving, but not in the term for which he was a candidate and upon which he had not entered; and one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of his predecessor, and until his successor is elected and qualified; and such election must be had at the first proper election that is held more than thirty days after the occurrence of the vacancy.</p>

The defendant in error brought suit in the court of common pleas of Sandusky county against the defendants who are the children and heirs of the late Rutherford B. Hayes, alleging in her amended petition, upon which the case was tried, that heretofore, to-wit, on the first day of January, A. D. 1893, and from thence and until, and at the time of the injury to the said plaintiff, as hereinafter mentioned, the said defendants wrongfully, injuriously and negligently, did keep…

The defendant in error, Albert F. Hoffmeister, commenced liis action against the Cincinnati Volksblatt Company, in the superior court of Cincinnati by tbe filing of a petition in which it is alleged that: “The defendant is a corporation organized under the laws of the state of Ohio. The plaintiff is a stockholder in said corporation and is the owner and holder of five (5) shares of its capital stock, of the face value of five hundred ($500) dollars each.

Motion by defendant in error to strike the bill of exceptions from the files in cause No. 6816 on the general docket. The record shows that at the January term, 1899, of the court of common pleas of Hancock, to-wit, on the first day of April, 1899, motion by defendant to set aside the verdict and for a new trial was heard and overruled and judgment entered on the verdict in favor of Brown and against the company.

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>The defendant in error brought his action in the court of common pleas against the plaintiff in error, upon a life insurance policy upon the life of his wife, in the sum of $2,000, bearing date November 30, 1894, and which policy was issued and accepted upon the following conditions, among others, in the body of the policy:</p> <p>“First — No obligation is assumted by this Company upon this policy until the first premium has been paid, nor prior to the date of the policy, nor unless upon said date the insured is alive and in sound health.”</p> <p>There were also answers to interrogatories as to her health in the application, which were made part of the policy by reference. The answer set out the interrogatories and answers in the application, and averred that they were material, and were wilfully false and fraudulent, and that the company relied thereon, and would not have issued the policy but for the answers to the interrogatories, and that its agents did not know that the answers were false, and also averred that the wife was not in sound health on the date of said policy or prior thereto.</p> <p>The reply denied the averments of the answer. Upon the trial the policy and the application therefor were introduced in evidence. Testimony was introduced by the Insurance Company tending to prove that the wife was not in sound health at the date of the policy, or at the date of the application. She died on the 5th day of September, 1895, and her husband contended that she was in sound health at both the date of the policy and the application.</p> <p>The case was tried to a jury and a verdict returned for the full amount. A motion was made for a new trial, which was overruled and judgment rendered upon the verdict, to all of which the Insurance Company excepted. The circuit court affirmed the judgment. Thereupon the Insurance Company filed its petition in error in this court seeking to reverse the judgments below.</p>

<p>Error to the Circuit Court of Knox county.</p> <p>The action below was brought by Harry Gotshall as administrator of the estate of Henry M. Campbell, against Thomas D. Banning as executor of John D. Thompson’s estate, to recover the amount of a legacy alleged to he due the estate of Henry M. Campbell under his father’s will, from the estate of John D. Thompson who was executor of that will. The plaintiff recovered in the court of common pleas, and that judgment having been affirmed by the circuit court, error is prosecuted here to obtain a reversal of those judgments.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Error to the Circuit Court of Mahoning County.</p> <p>This case was tried in the common pleas, a finding of facts made, and judgment rendered for the defendants, which on error was affirmed by the circuit court.</p>

On the 14th day of December, 1894, Mrs. Westlake commenced an action in the court of common pleas against the city of YoungstoAvn, her first cause of action being for the recovery of possession of certain .real estate described in her petition, and the second being for the recovery of the rents and profits thereof from January 1, 1884.

<p>' Life insurance■ — Action for recovery on written contract — Inadmissibility of statements of agent — To vary contract — Presumption of knowledge, by insured, of provisions of policy — Insured cannot recover on verbal modification by agent, when.</p> <p>1. In an action to recover on a written contract for life insurance and upon an alleged subsequent verbal modification of the same, statements and representations made Ey the agent who solicited the policy, prior to and contemporaneous with the issue of the policy, are inadmissible to vary, in any respect, the terms of the written policy. In the absence of proof of fraud or mistake, such statements and representations are merged in the written contract.</p> <p>2. Where a life insurance policy has been accepted by the insured, and the policy has been in the possession of the insured for nine years, and he has paid nine annual premiums thereon, he will be conclusively presumed to have knowledge of all the stipulations and provisions of the policy.</p> <p>3. When such policy provided that the contract of insurance is ■ completely set forth in the policy and application and that none of its terms can be modified, except by an agreement in writing signed by the president, vice-president or secretary, and also that no agent has authority to extend or postpone the time of payment of any premium or note, the insured can not recover on a verbal modification of the terms of the policy made by an agent of the insurance company, extending the policy one year and waiving the payment of an annual premium, in the absence of such knowledge and acts by the insurance company as would estop it from alleging in defense the provisions of the policy.</p>

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>The Cleveland Trust Company, plaintiff below, and also plaintiff in error here, is a corporation organized and incorporated under the statutes of this state, and is engaged in the banking business at the city of Cleveland. It has a paid-up capital stock of $500,-000 divided into shares of one hundred dollars each. It owns and holds 174 bonds of the United States, each of the denomination of one thousand dollars. In making its return for taxation in May, 1898, to the county auditor it deducted the value of said bonds from its capital stock and returned the balance, less the duplicate value of its real estate, to the county auditor for taxation. The county auditor added the amount of the value of the bonds to the return, and upon the basis of the amount of the return so increased by said addition, fixed the value of each share of its capital stock, and entered such shares upon the duplicate for taxation against the holders of such shares, and delivered the duplicate to the county treasurer, who proceeded to collect the taxes so assessed. Thereupon the Trust Company began its action against the treasurer, seeking to enjoin so much of the taxes as were levied by reason of the valuation placed upon said bonds and so added to said return, and tendered payment of the taxes levied upon its return as originally made by it. The ground upon which the injunction was asked is, that the United States bonds are non-taxable under section 3701, Revised Statutes of the United States, and “that it is the regular custom of banks and banking associations throughout the state of Ohio to deduct the value of government bonds owned by them from the paid-in capital stock returned, although not so apparent upon the face of their returns to the several county auditors; that said bonds were by the banks and banking associations of this state so deducted in the returns for 1897: that similar deductions of United States government bonds are likewise made by unincorporated banks in the state of Ohio under and by virtue of Revised Statutes of the State of Ohio, section 2759; that the auditor of Cuyahoga county, and the county auditors elsewhere throughout the state, as this plaintiff is informed and believes did not include United States government bonds so owned in fixing the total value for 1898 of the shares of the several incorporated banks of Ohio, as directed by section 2766 of the Revised Statutes of Ohio.”</p> <p>To this petition the county treasurer by his counsel demurred upon the ground that it did not state facts sufficient to constitute a cause of action. The common pleas sustained the demurrer, and the plaintiff not desiring to plead further, the court rendered final judgment dismissing the petition. The circuit court affirmed the judgment. Thereupon the trust company filed its petition in this court, seeking to reverse the judgments below.</p>

<p>Imprisonment for debt forbidden in civil actions — Section 15 of Bill of Rights- — -Nature of money obligations — Enforcement of delivery of attached property — Section 5556, Rev. Stat.— Proceedings in contempt against sureties on undertaking — Cannot be imprisoned in default of payment, when — Judgment against sureties in action against principal, without due process of law, when.</p> <p>1. Money obligations arising upon contract, express or implied, and judgments rendered thereon, are debts within the purview of section 15 of the Bill of Rights, which forbids imprisonment for debt in civil actions.</p> <p>2. Section 5556, of the Revised Statutes, and the provisions therein referred to relating to proceedings in contempt, must be so construed, and restrained in their operation, as to avoid conflict with the inhibitions of the constitution, and, in so far as they are in derogation of personal liberty, should receive a strict construction.</p> <p>3. An order made in a proceeding in contempt against sureties on an undertaking for the redelivery of attached property by the principal, requiring'them to pay the judgment recovered against the principal, and directing that in default of such payment they shall be imprisoned in the county jail until they shall pay the judgment, is in contravention of their constitutional right of exemption from imprisonment for debt.</p> <p>4. Judgment rendered against the sureties in such summary proceeding, for the amount of the judgment recovered against the principal in an action to which they were not made parties, is without due process of law, there having been no suit brought against them on the undertaking, nor opportunity given them to plead or defend according to the usual course of legal proceedings.</p>

<p>Error to the Circuit Court of Hancock County.</p> <p>Falk brought suit in the court of common pleas against the railroad company to recover the value of a grain elevator and chattel property within it, which were destroyed by fire on the 17th of August, 1895. He alleged that his said property was near the line of the defendant’s railroad and that the fire originated upon the land belonging to the railroad company and was caused by operating the road. He also alleged that the company negligently omitted to use a spark arrestor or other appliance to prevent the emission of sparks from the locomotive, from which negligence the fire originated. The value of the building was alleged to have been $2,100, the value of the chattels sufficient to increase his loss to $2,519.95, for which he prayed judgment.</p> <p>In its answer the Railroad Company admitted its corporate character and the destruction by fire of the plaintiff’s property on the day stated. It denied every other allegation of the petition. Its answer also contained the following allegations:</p> <p>Tlie defendant for further answer says, that the damage to plaintiff on the loss of said elevator by the fire set out in the petition was $1,437 34-100 and no more, and such loss to the amount of $1,200.00 was compensated and paid to plaintiff by the Phoenix Insurance Company of Brooklyn, New York, and the only loss on said elevator was tbe sum of $237 34-100 at the time this actipn was brought.</p> <p>Defendant says that all loss and damage to plaintiff by reason of the loss of grain by said fire was the sum of $264.95 and no more, and such loss and damage was fully and wholly compensated to plaintiff by the payment to him by The Phoenix Insurance Company of Brooklyn, New York, the sum of $264.95 in money.</p> <p>Such payments were made to plaintiff by said The Phoenix Insurance Company, of Brooklyn, New York, in the regular course of business of said company, for the consideration of a cash premium to said company, paid by plaintiff, in the sum of $29 75-10,0, for which consideration said company agreed in writing to make good to plaintiff such loss if it should occur.</p> <p>Defendant says that said The Phoenix Insurance Company, prior to the filing of said amended petition, has filed a written claim with defendant for the payment to said company of the value of the said buildings and property so by said fire destroyed, in the whole sum claimed by plaintiff, and claiming that they, said company, alone has the right to recover from defendant therefor under the terms of the said contract between plaintiff and said company.</p> <p>Defendant says that by the terms of the contract aforesaid, and by reason of the payment of said sums by The Phoenix Insurance Company to plaintiff, the plaintiff has no right to recover against defendant in this action.</p> <p>Defendant therefore prays that plaintiff be required to bring in said The Phoenix Insurance Company as a party to this action, and that said The Phenix Insurance Company be required to set up any claim they may have in the subject matter of this action within a time to be named by the. court, and that in default of such claim being set up herein by said company, said company be debarred from ever setting up such claim against defendant hereafter, and that on the trial of this action defendant may be dismissed hence with costs, and for all proper relief.</p> <p>Replying to the Railroad Company’s allegations as to payment made by the Insurance Company on account of said loss, the plaintiff made the following allegations:</p> <p>The facts as to the insurance of said property are as follows, not otherwise, to-wit: On or about June 15, 1895, for the consideration of $29.75 he purchased a policy of insurance from the Phoenix Insurance Company, of Brooklyn, New York. That he paid for said policy and contract of insurance, and thereby for said consideration said The Phoenix Insurance Company, of Brooklyn, New York, insured plaintiff against loss and damage by fire on his said elevator building in the sum of $1,200, and on his grain and seed therein the sum of $500, both said items being in said policy, the same being the only insurance he had on. any of said property.</p> <p>That said policy was in force at the time of said fire mentioned in his amended petition herein.</p> <p>After said fire said insurance company paid him under said policy on account of loss on said elevator building twelve hundred dollars, as it was bound by its contract to do, and at the time of said fire the grain and seed mentioned in said amended petition was in said building and was destroyed by said fire, and said insurance company paid him on account of loss to his said grain and seed, as it was bound to do3 the sum of two hundred and sixty-four dollars and ninety-five cents; in all said insurance company paid him $1,464.95 and no more.</p> <p>He says said insurance policy belonged to plaintiff, and said $1,464.95 so received from said insurance company also belongs to plaintiff, and said defendant railroad company is not entitled, as against plaintiff or at all, to credit for said insurance money or any part thereof against plaintiff’s said loss by said fire, or any part of said loss, and said railroad company is not entitled to offset any of said insurance money or any part of the amount thereof against plaintiff’s claim in his amended petition herein set forth, but he says lie is eneitled to recover from said railroad company the full amount of his said loss and damage in his amended petition herein set forth.</p> <p>The Phoenix Insurance Company, having been made a party, alleged that by its policy to Falk it had insured the building destroyed in the, sum of $1,200 and personal property within it for $500; that the fire occurred during the life of the policy and was caused by the negligence of the Railroad Company, and that it paid to the insured the full amount of the policy on the building and the further sum of $264.95 which, upon adjustment, was found to be the loss on chattels which were covered by the policy. It therefore prayed that by subrogation to the rights of Falk it might recover from the Railroad Company the money which it had so paid. There was further pleading, but of an argumentative character, by the Railroad Company as a part of its contention that it was liable only for the difference between Falk’s loss and the amount which the Insurance Company had paid. There was further pleading of a like character by Falk as a part of his contention that, notwithstanding the indemnity which he had received from the Insurance Company, he was entitled as against both it and the Railroad company to recover from the latter the entire value of the property destroyed. The pleading of this character did not at all affect the issues and they are therefore omitted from the statement. The allegation of the Insurance</p> <p>Company that it had paid Falk $1,464.95 on account of tbe loss was admitted by all tbe parties. Its allegation that tbe fire was caused by tbe negligence of tbe Railroad Company was denied by tbe latter.</p> <p>Upon tbe trial it appeared without contradiction that the fire originated upon the lands of tbe Railroad Company. Tbe court, not requiring proof of negligence, directed tbe jury to return a verdict in favoi of tbe plaintiff for 'the value of the property destroyed if they Avere satisfied from tbe evidence that tbe fire Avas caused by the operation of tbe railroad. Tbe jury returned a verdict for the plaintiff for $2,-394.94, being tbe estimated value of tbe property with interest thereon. Tbe Railroad Company filed a motion for a neAV trial, the material grounds being that tbe verdict Avas contrary to the law and tbe evidence and that tbe court erred in tbe charge, and the motion was overruled. Tbe court thereupon rendered judgment against tbe Railroad Company for tbe amount of tbe verdict and tbe costs of tbe suit and further adjudged that the Insurance Company was entitled to receive out of the judgment the sum which it had paid to Falk in discharge of its policy obligation and- ordered tbe clerk to pay that sum to it out of tbe proceeds of tbe judgment, and to pay the balance thereof to Falk.</p> <p>To tbe judgment so rendered both Falk and tbe Railroad Company excepted. On petition in error in the circuit court the judgment of tbe common pleas was affirmed.</p>

The relator is a taxpayer and the defendants are the commissioners, the coroner, the auditor and the treasurer, of Franklin county. The plaintiff brought suit in the court of common pleas to enjoin the payment to the coroner of the statutory fees for holding an inquest on the body of one Richard Claprood, who came to his death by violence.

<p>Motion by defendant to strike bill of exceptions from the flies in cause No. 6778 on the general docket. On reconsideration.</p>

<p>Error to the Circuit Court of Champaign County.</p> <p>Error to the Circuit Court of Cuyahoga County.</p> <p>Benjamin F. Church, as the administrator of Chas. W. Mitchell, deceased, filed a petition against the Board of Commissioners of Champaign county, under the “Act for the Suppression of Mob Violence,” passed April 10,1896 (92 O. L., 136), to recover five thousand dollars for the lynching of said Mitchell, at Urbana, in said county. Defendant demurred to the petition and the demurrer .was sustained by the court of common pleas and the petition dismissed. The circuit court reversed the judgment of the court of common pleas and the defendant then answered.</p> <p>The first defense contained in the answer of the defendant is a general denial, and the second defense alleges that the said act is repugnant to the constitution of Ohio. A demurrer to the second defense of the answer was sustained; and on the trial of the case, the court gave to the jury the following special charge upon the request of the defendant: “The jury is charged, as a matter of law, that although you may find and believe from the evidence before you in this case, that said Charles W. Mitchell, referred to in the petition, suffered death at the hands of a collection of individuals in Champaign county, Ohio, on or about the 4th day of June, 1897; if you further find from the evidence that said collection of individuals did not assemble for any unlawful purpose, and did not intend to do damage or injury to any one, and did not pretend to exercise correctional power over other persons by violence, and without authority of law, at the time of assembling, but was or were, attracted and induced through motives of curiosity, and the events that had transpired around the court house yard and jail during the night and morning preceding, to meet and assemble together; and being thus assembled, without any unlawful purpose and not intending to do damage, or injury, to any one, or pretending to exercise correctional power over any other person or persons by violence and without authority of law, afterwards, committed the acts of violence resulting in the death of said Charles W. Mitchell, then the plaintiff in this case cannot recover, and your verdict should be for the defendant.” And afterwards, in the general charge, the court instructed the jury, in part as follows: “Much has been said concerning the meaning of special charge No. 5, given on behalf of the defendant, and the court therefore deems it proper to instruct the jury that the meaning which you are to give to that charge is that, and I give it in the words of the charge itself, omitting the first introductory sentences, if, after being assembled, the collection of individuals referred to before, without any unlawful purpose having been formed and not intending to do damage or injury to any person, or pretending to exercise correctional power over any other person; committed the acts oí violence which resulted in the death of Charles W. Mitchell, then the plaintiff cannot recover.”</p> <p>“The special charges given you before the argument began are as much the charge of the court as are these general instructions, and so far as it treats of the same subjects, the general charge is to be received in addition to and as explanatory of the special charges.” The verdict was for the defendant and on petition in error the circuit court reversed the judgment of the court of common pleas, for error in the charge of the court.</p> <p>J. W. Caldwell brought his action, under the same statute, against the Board of County Commissioners of Cuyahoga County, to recover the sum of one thousand dollars for an injury which he alleged that he had received at the hands of a mob in that county, A demurrer to the petition, on the ground that the petition does not state facts sufficient to constitute a cause of action, and that said act is unconstitutional, was sustained by the court of common pleas, and the judgment of the court of common pleas was affirmed by the circuit court.</p> <p>These cases came up on petitions in error to reverse the respective judgments of the circuit court.</p>

<p>Pure food laws — Manufacture of oleomargarine — Police power of the state ■ — •Dairy products— Validity of acts of March 7, 1890, May 16, 1894, May 17, 1886, etc. — Punishment by criminal' law does not bar quo warranto proceedings, when — Violation of law by corporation — Constitutional law.</p> <p>1. The police power of the state is properly exercised in the prevention of deception in the sale of dairy products, and in the protection of the health of the people, and it is within the scope of this power to regulate the manufacture and sale of articles of food, even though the right to manufacture and sell such articles is a natural right guaranteed by the constitution.</p> <p>2. The acts of March 7, 1890 (87 O. L., 51), and of May 16, 1894 (91 O. L., 274), and of May 17, 1886 (83 O. L., 178), as amended March 21, 1887 (84 O. L., 182), and of March 20, 1884 (81 O. L., 67), (the purpose of which acts is to prevent deception in the sale of dairy products and to preserve the public health), are a reasonable exercise of the police power, and do not contravene any section of the constitution.</p> <p>3. The mere fact that the criminal laws of the state provide for the punishment, by fine, of those who offend against the above recited sections, is not a bar to a proceeding in quo warranto to oust a corporation engaged in the manufacture of oleomargarine, from the exercise of its right to be a corporation.</p> <p>4. Where the manner of conducting a business, which the state’s charter gives power to a company to conduct as a corporation, is in disregard and defiance of the laws of the state relating to that business, an abuse of the power results, and quo warranto may properly be invoked to stop the abuse, and, if the abuse be flagrant, to oust the corporation.</p>

The pleadings in the common pleas, omitting the captions and signatures, are as. follows: PETITION. Plaintiff says: That each of defendants is a corporation, duly incorporated under the laws of the state of Ohio.

Benjamin F. Buxer received from the plaintiff in error a life insurance policy on his own life for one thousand dollars, payable to himself at a period in the future to be determined by the premiums paid and accrued profits after deducting losses, if he should then be alive, and in case of his death before that time the'amount to be paid to his wife, the defendant in error.

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

Action by executor to obtain construction of will and directions for disposition of estate. Judgment of circuit court on appeal, reversed. Joseph Davis, as executor of the will of William Hutchings, brought the action below to obtain a judgment giving construction to the will, and directions for the distribution of a portion of the estate.

The defendant in. error, on behalf of himself and numerous others plaintiff, brought suit against the plaintiff in error to enjoin the erection of a building within fifty feet of the east line of Jennings avenue in Cleveland, upon a lot owned by him so that the building should extend to the east line of said avenue.

'iN QUO WARRANTO. The defendants are corporations organized under the laws of other states, the former under the laws of Michigan, the latter under those of Illinois.

Eeeoe to tbe Circuit Court of Darke county. Tills action was brought by petition in quo warranto, filed, by the relator in the circuit court of Darke county, to oust the defendant from the office of city clerk of Greenville, a city of the fourth grade . of the second class, having a council composed of eight members.

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

On the 10th day of February, 1892, The Cincinnati, Lebanon & Northern Railway Company filed the following petition in the court of common pleas, , against the city of Cincinnati and Daniel W. Brown, city auditor : “Plaintiff says that it is a corporation organized under the laws of Ohio, and is operating a railroad between Cincinnati and Lebanon in said state.

The original action in this case was commenced in the Common Pleas Court of the county by a judgment creditor to set aside a conveyance of certain real estate alleged to have been made by Charles G-.

Action for damages for wrongful arrest and imprisonment. Judgment for- plaintiff, affirmed by tlie circuit court. Affirmed.

Mrs. Ashbrook brought suit in the court of common pleas against the city of Hamilton to recover damages which resulted from the overflowing of her ■lot situated within said city in May, 1893, whereby ■her vegetables, hot beds and a rope walk situated on said lot were injured.

Susanna J. Price, mother of Abner Jones, on the 23rd day of September, 1881, made a deed as follows: “Know all men by these presents, that I, Susanna J. Price, in the consideration of the sum of three hundred dollars in hand paid by Abner Jones do bargain, sell, and convey unto the said Abner Jones and his children after him the following premises situate in the county of Belmont and state of Ohio, viz., being a part of section twenty-three (23), township No. seven (7), and…

The incorporated village of Ashley, in Delaware county, acting by its officers, improved High street in that village under the act of January 19, 1893, entitled “an act to authorize the village council of the incorporated village of- Ashley, Delaware county, to issue bonds for the purpose of street improvement.” The street having been improved under the contract, bonds were issued and sold and a levy made upon the taxable property of the village to pay such bonds as were…

The action was brought in the court of common pleas of Ashland county to recover under a policy of insurance issued to the defendant in error “against loss from liability to employes of the insured who may accidentally sustain bodily injuries while on the pay roll of the insured and while actually occupied by the performance of duty in the trade or occupation for which they have been employed by the insured and under circumstances which shall impose upon the insured the…

Tbe action below was by William G. Fee against tbe Buckeye Pipe Line Company to recover for a refusal to obey an order of tbe court of common pleas of Allen county, directing tbe company, as garnishee, to turn over to tbe sheriff of that county 1036 barrels of crude petroleum oil, which, it was alleged, tbe company’s answer showed was in its possession belonging to Miller, Tallmage & Russell, against whom Fee bad recovered judgment for $535.90, interest and costs.

The agreed statement of facts iB in substance as follows: On October 19, 1891, Alexander C. Patton, one of the defendants in error, made to the plaintiff in error his promissory note, in the words and figures follow-in?. to-wit: “$25,000.00. Columbus, O., Oct. 19, 1891. One day after date, we promise to pay to the order of A. Gr. Patton, twenty-five thousand and no hundredths dollars, at the National Bank of Columbus, Ohio. Value received. Alex. G. Patton.

This was a suit by plaintiffs below claiming to be pledgees of certain stock, against the company issuing it, for a sale of the stock and an application of the proceeds to their claim, the company itself claiming to own the stock and refusing to recognize the plaintiff’s right to it by a transfer on the books of the company. Judgment was rendered in the common pleas in favor of the plaintiffs, which, on error, was affirmed by the circuit court.

Erroe to the Superior Court of Cincinnati. Action for damages by employe for wrongful discharge before expiration of contract of employment. Judgment for plaintiff. Reversed in general term. Judgment of reversal reversed.

Hunter brought suit in the court of common pleas of Ashland county against Aaron Keever and nine others who were the surviving children and heirs at law of Henry Keever, who had died intestate seized of the premises in controversy.

The board of commissioners brought suit against Higgins in the court of common pleas upon eighty-two causes of action set out in the amended petition. Higgins had himself been a member of the board from the first Monday of January, 1888, to the first Monday in January, 1894.

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