Volume 65 — Ohio State Reports, New Series

The defendant was indicted for perjury in knowingly and wilfully swearing falsely while giving oral testimony before the judge of the court of common pleas sitting in chambers on the hearing of a motion to dissolve an injunction. The defendant demurred to the indictment on the ground that the facts charged did not constitute an offense against the laws of this state. He also filed a motion to quash the indictment.

Under favor of Revised Statutes, section 4499, the commissioners of Hancock county made an order vacating’ a ditch known as the Old Open Nimrod Bright ditch, No. 38. The commissioners refused to receive notice of appeal, and refused to receive and file a bond for appeal, and overruled a motion to vacate their said order and proceedings.

Action to reform a lease of oil lands by supplying the signature of a witness who was present at its execution but did not subscribe his name thereto, and correcting a misdescription of the premises; and to enjoin a lessee under a subsequent purchaser from operating the lands for oil. Demurrer to petition sustained, and final judgment for the defendants. Judgment affirmed by circuit court. Affirmed.

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

Exceptions by the Prosecuting Attorney to the ruling of the Court of Common Pleas of Putnam county. At the November term, 1900, of the court of common pleas of Putnam county, John Stouffer was placed on trial upon an indictment charging him with neglect and failure to support his minor child under sixteen years of age. At the close of the state’s evidence, the court, on motion of the defendant, instructed the jury to return a verdict of acquittal, which ivas accordingly done.

The first of these actions ivas brought for the reversal of the judgment rendered by the circuit court enforcing a lien in favor of the county treasurer upon premises owned by Conwell for the amount of the tax assessed by the terms of the statute, commonly known as the Dow law, upon the traffic in intoxicating liquors carried on upon said premises by one Grimes, said premises being in the incorporated village of Cadiz where at the time of the sales there was an ordinance…

<p>Assignment for creditors — Judgment against assignor not valid against assigned estate, when.</p> <p>A judgment obtained, after an assignment for tbe benefit of creditors, by a creditor against the assignor, is not a valid claim against the assigned estafé.</p>

<p>Decree of divorce — Judgment for alimony debt against defendant’s estate — Death of parties during appeal to circuit court — Cause survives in favor of representative of deceased plaintiff.</p> <p>1. Where a decree of divorce has been pronounced in favor of a wife for the aggressions of the husband, the right to alimony out of his real and personal property becomes vested by force of the statute, and a judgment for the same is thenceforth a debt against the husband, subject only, in case of appeal, to variation as to amount.</p> <p>2. Where, in such case, the husband appeals the cause to the circuit court, and, pending appeal, both parties die, the cause survives in favor of the personal representative of the deceased plaintiff and against the personal representative of the deceased defendant.</p>

<p>Mine boss in control of mine — Mine owner charged with knowledge of boss — Miner delegated with duties by boss — Such miner not fellow servant, in those duties, of other miners —Mine owner required to keep safe entries to mine — Degree of care and knowledge required of miner — Master amd servant.</p> <p>1. A mine boss who has control of a mine with power to hire and discharge employes stands for and in place of the owner or operator of such mine as to matters between such employes and owner or operator in the operation of such mine; and the owner or operator is chargeable with whatever such boss knows or ought to know in the operation or such mine.</p> <p>2. Such mine boss ought to know every fact which he would know if he used ordinary care and diligence in performing his duties in the operation of such mine.</p> <p>3. Where such mine boss, instead of performing his duties in and about the operation of such mine himself, enjoins the performance of such duties upon a miner in his employ in such mine, such miner, as to the performance of such duties, is not the fellow-servant of other miners, but as to them stands in the same relation as the mine boss; and the mine boss is chargeable with whatever notice such miner has or ought to have while so performing the duties of such boss.</p> <p>4. In the business of mining coal it is the duty of the owner or operator of a mine to furnish reasonably safe entries for the ingress and egress of those employed in such mine,- and to keep such entries in a reasonably safe condition, and the miners may rely and presume that this duty has been properly performed.</p> <p>5. It is the duty of a miner, as to such entries, to use ordinary care for his own safety, in view of what he knows or ought to know as to the condition of such entries; and he ought to know every fact which he would know if he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire in the employment in which he is engaged.</p>

<p>Erroe to the Circuit Court of Summit county.</p> <p>Action on alleged contract of defendant’s intestate to leave her estate, by will, to the plaintiff. Plea of the statute of frauds. Judgment for plaintiff, affirmed by the circuit court. Reversed.</p> <p>The action below was brought in the common pleas by Anna E. Bordner, against Adam E. Kling as administrator of the estate of Susannah Maconaky deceased, on an alleged contract of the decedent to leave her estate, by last will, to the plaintiff. The petition is as follows:</p> <p>“The plaintiff alleges the following facts, which constitute her cause of action in this behalf: On or about the 5th day of June, 1896, the plaintiff was living at Harrisburgh, ih the state of Pennsylvania; on said last named day she received a letter from Susan-nah Maconaky, then alive and residing at Akron, Ohio, in which letter the said Susannah requested this plaintiff to leave her home at said Harrisburgh, and come to Akron, aforesaid, for the' purpose of caring for and nursing the said Susannah, who was at the time ill, which this plaintiff accordingly did. Thereupon and thereafter, to-wit: on the 11th day of June, 1896, the sáid Susannah Maconaky and this plaintiff entered into a verbal contract, whereby the plaintiff agreed to abide with, nurse, attend and care for the said Susan-nah, in sickness or in health, for as long a time as she, the said Susannah might live. In consideration of which promise of the plaintiff, the said Susannah Maconaky on her part agreed to give to this plaintiff, all of her estate and property, except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah.</p> <p>“The plaintiff duly kept, observed and performed all and singular the conditions and stipulations of said agreement on her part to be carried out; she left her own family and home, and stayed with, nursed, cared for and attended, faithfully and diligently, the said Susannah all the time from said last named date until her death, which took place on the — day of July, 1896. Thereupon the defendant was duly appointed and qualified as the administrator of the estate of said Susannah Maconaky, deceased, and is still acting as such.</p> <p>“The said Susannah Maconaky did-not perform or keep her part of said agreement, although the plaintiff had fully executed her part of it, and did not give to this plaintiff, by last will or otherwise, any part of the estate or property whereof she was the owner at the time said agreement, was entered into, but died intestate.</p> <p>“The defendant, as the administrator aforesaid, has converted all the assets of said estate into money, and the entire amount therefrom is the sum of $1,740.32. Out of said money so in his hands the defendant is obliged to pay the debts and funeral expenses of his said intestate, which amount to the sum of $605.35 and no more. The costs of administering the said estate, including the commissions and compensation of the defendant as such administrator, is the sum of $191 and no more. And the reasonable expense of a tombstone for said decedent is $55. Leaving of the assets of said estate, after deducting the said sums expended in payment of said debts, funeral expenses, custs and compensation, the sum of $848.65 which would have accrued and belonged to this plaintiff if the defendant’s intestate kept and observed her said contract.</p> <p>“By reason of the premises and the violation of said contract by said decedent, after the same had been fully executed on the part of this plaintiff, she — that is to say, the plaintiff — has been damaged in the sum of |848.65.</p> <p>“On the 27th day of April, 1897, the plaintiff duly presented her claim against said estate, as above set forth, duly verified as required by law, to the defendant, as the administrator aforesaid, for allowance. But the defendant thereupon refused to allow the same as a valid claim against said estate, but disputed and rejected all and every part thereof:</p> <p>“Wherefore the plaintiff prays judgment against the defendant as the administrator aforesaid, for the said sum of $848.65, for such other relief as she may be entitled to.”</p> <p>The answer avers that the estate left by the decedent, with the exception of a few household goods of small value, consisted entirely of real estate; and that the proceeds of said real estate, which was sold by the defendant under the order of the court in the course of administration, after the payment of the debts and costs of administration are the only assets of the estate in his hands for administration and distribution. The answer denies the contract set up in the petition, and alleges that if such contract was made, it is within the statute of frauds, on which he relies in defense to the action. The answer further avers the fact to be that plaintiff, recognizing that there was no such contract, “presented to said administrator an account for her services to decedent Maconaky during the whole of her last illness, and for services before said last illness, and for services after the death of said Maconaky; and that on November 30,1896, defendant allowed plaintiff in full on said account for all she claimed for services during said last sickness of decedent, and which allowance on said account plaintiff accepted by her silence and by her neglect to sue on same within the timé allowed by law, and this defendant has at no time recalled or rejected said account as so allowed but the said allowance still stands.”</p> <p>The trial of the cause to a jury, at the January Term, 1898, upon the. issues joined by the foregoing pleadings, resulted in a verdict for the plaintiff for the amount claimed in the petition; and, after the overruling, of a motion for a new trial made by the de fendant, judgment was rendered on the verdict. Thereafter, but still at the same term, the court, on motion of the plaintiff, granted leave to amend the petition, as stated in the record, “to conform to the facts proved on the trial.” This leave was granted against the defendant’s objection, and he duly entered his exceptions. Thereupon the plaintiff filed her amended petition, containing as her first cause of action, a copy of her original petition, and adding the following as a second cause of action:</p> <p>“For her second cause of action, this plaintiff here adopts and repeats all of the allegations of her first cause of action herein, in regard to her leaving Harris-burgh, her receipt of a letter from Susannah Maeonaky then alive and residing at Akron, Ohio, and the purport of the said letter in regard to the death of the said Susannah Maconaky, the appointment and qualification of the defendant as her administrator, and in regard to the defendant’s conversion of the assets of said estate into money, and the amount thereof, and in regard to the amount of the debts and funeral expenses of said decedent, and costs of administering her estate, and the reasonable expense of a tombstone at her grave, and in regard to the amount of the assets of said estate after deducting all of said sums expended and to be expended in the payment of said debts, funeral expenses, costs, compensation and tombstone; and thereupon she further says, that on the said 7th day of June A. D., 1896, the said Susannah Maeonaky being then alive, caused and directed to be written a letter, mentioned in said first cause of action of the purport and effect in said first cause of action named, a true copy whereof is hereto attached, marked ‘Exhibit A.’ Whereupon this plaintiff accordingly did, immediately after the receipt of said letter, accept the proposition therein contained, and did come to the said city of Akron, aforesaid, and there duly kept, observed and performed all and singular, the conditions and. stipulations by the said letter required of her to be kept and performed, left her own family at home, and staid with and nursed, cared for and attended faithfully and diligently the said Susannah, all the time from the date of her said arrival in Akron, until the death of said Susannah, which took place as alleged in'said first cause of action, and which letter, and acceptance and performance of the same by this plaintiff constituted a written contract between her and the said decedent, by which the said Susannah Maeonaky on her part agreed to give to this plaintiff all of her estate and property, all of the assets of her estate, which might be left at her decease, except so much as might be necessary to pay the debts and funeral expenses of the said Susannah. The said Susannah Maeonaky did not perform or keep her part of said agreement in any wise, although the plaintiff had fully executed her part thereof, and did not give to this plaintiff by last will or otherwise any part of the assets or estate whereof she was the owner at the time the said agreement was entered into, but died intestate. And the plaintiff says on the 27th day of April, A. D. 1897,' she duly presented her claim against the estate of said decedent, as alleged in said first cause of action, for allowance, to the defendant, who thereupon refused to allow the same as a valid claim against said estate, but rejected every part thereof. By reason of the premises, and the violation of said contract by said decedent after the same had been duly executed on the part of this plaintiff, she, the plaintiff, has been damaged in the sum of $848.65, which she claims, and for which she prays judgment against said defendant.”</p> <p>The exhibit referred to in this second cause of action is as follows:</p> <p>“Exhibit A.</p> <p>“Aicron, O., June 7, 1896.</p> <p>“Dear Mother:—</p> <p>“Aunt Susan is very low and if you can possibly come do so at once. She wants you to take care of her. She has to be all alone part of the time. She says she will make it all right with you if you come. If you haven’t money to pay your fare she will send it to you. If you come and stay with her after her death all that is left after her debts and funeral expenses are paid shall be yours. She wants.you to come if you possibly can. I told her I thought you would come, poor thing, she cried when she told me to write for you. I think she thinks she is going to die before Jong. If you can not come let her know by return mail, but come if possible for she seems to want you so bad, and it may be the last you can do for her which I hope not. I am well at present, hoping this will find you the same.</p> <p>“Your son,</p> <p>“Address “WILL.</p> <p>“Mrs. Susan Maconaky,</p> <p>“600 Locust St.,</p> <p>“Akron, Ohio.”</p> <p>The defendant, protesting against the allowance of the filing of the amended petition, filed an answer thereto denying the contracts alleged, pleading the statute of frauds, and the other facts set forth in his answer to the original petition.</p> <p>A bill of exceptions was duly taken, setting out all the evidence, the charge of the court, exceptions to the admission and rejection of evidence, to the giving of certain instructions requested by the plaintiff, to the refusal to give instructions requested by the defendant, and to portions of the general charge; which, so far as deemed important in the decision of the case, will be noticed in the opinion.</p> <p>The judgment rendered by the common pleas court having been affirmed by the circuit court, the case has been brought here.</p>

<p>Mutuality in contract — Must he meeting of minds — Whether in express or implied contracts — Performance of services hy one, at time, not intending to receive compensation — Cannot recover on quantum meruit — In claim for services evidence of express contract not required — Implied contract may he evidenced — Master and servant — Contracts’.</p> <p>1. The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an Implied one, if, in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.</p> <p>2. Where it is shown, or admitted, that a party performing services, that should have been performed by another, had no intention at the time to claim compensation, and did not expect to receive any from the other, no recovery thereto can be had upon a quantum meruH against the party to whom the work was done.</p> <p>B. Where it is averred m a petition that the plaintiff performed services for the defendant “at his instance and request,” the averment may be supported by evidence of the circumstances under which the services were performed tending to show a contract; evidence of an express request is not required.</p>

Mias Burget brought an action in the court of common pleas to recover of the insurance company upon its policy the value of chattels which had been destroyed by fire during the life.of the policy.

<p>Error to the Circuit Court of Hamilton county.</p> <p>Habeas Corpus.</p> <p>An action ivas commenced in the superior court of Cincinnati by the German Dry Goods Company against Thomas Miller. The plaintiff, after service of summons, gave notice to take the depositions of the defendant Miller, of his confidential bookkeeper, Holjes, and of Rauh, a merchant with whom Miller had dealings, which depositions were to be taken before George D. Huston, a notary public in said county. Rauh was served with a subpoena duces tecum, issued by said notary, to produce the books of his business house showing the transactions with the defendant Miller, which he refused to do. Miller and Holjes, on the advice of counsel, refused to be sworn, Miller alleging the excuse that an adverse party could not be compelled to testify as an ordinary witness in advance of the trial, and Holjes that an ordinary witness could not be compelled to give his deposition unless some of the conditions prescribed in Revised Statutes, Sec. 5265, existed. Each of these witnesses was by the notary committed for contempt, and a writ of habeas corpus was issued in each case from the court of common pleas of Hamilton county. On the hearing the court of common pleas refused to discharge the prisoners and this judgment in each case, was afterwards affirmed by the circuit court. These proceedings in error are prosecuted by Rauh, Miller and Holjes respectively to reverse the said judgments of the circuit court.</p>

<p>Error to the Circuit Court of Montgomery county.</p> <p>The Denison University commenced its action against Mary E. Manning and Wm. H. Manning in the common pleas of Montgomery to recover the balance due upon a note executed in favor of the University, of which the following is a copy, viz.:</p> <p>“$6,000.00 Dayton, Ohio, April 30,1887.</p> <p>“Three years after date, we, or either of us, promise to pay to the order of Denison University, of Gran-ville, Ohio, six thousand dollars, for value received, with 7 per cent, interest per annum, payable semiannually, on the 30th day of October and April of each year, and any installment of interest not paid when due ,to bear 7 per cent, interest per annum, until paid. Payable at Dayton, Ohio.</p> <p>“Mary E. Manning,</p> <p>“W. H. Manning."</p> <p>Divers indorsements of interest paid on the note were set out in the petition, all of which were made, either on the day interest' was due, or after, save one. That indorsement is as follows: “April 15, 1891, paid six months’ interest to April 30, 1891, $210.00.” There was also an indorsement of $5,093.54, paid generally on the note. The balance claimed was $906.46, with interest from April 7, 1895, at seven per cent.</p> <p>To this petition a second amended answer, admitting the making of the note, but setting up three defenses, was filed, which will be found stated in substance in the opinion. To this pleading a demurrer was interposed, which being overruled, a reply was filed and the cause proceeded to trial to a jury. At the conclusion of the evidence offered by defendants the plaintiff moved for judgment which was overruled. Evidence was then given by plaintiff and the cause submitted. A verdict for defendants being rendered by the jury, and motion for new trial overruled, judgment was entered on the verdict. This judgment was affirmed by the circuit court. The plaintiff brings error.</p>

<p>Insurance policy prohibits sale or transfer of insured property— Assured assigns property to assignee for benefit of creditors —Insurance invalidated — That assignor retains possession-does not prevent — Property mortgaged — Claim by assured of homestead rights out of insurance money.</p> <p>1. Where an insurance policy has a condition to the effect that a sale or transfer of the property shall render the policy void, and the assured makes' a deed of assignment whereby he sells, grants, conveys, and transfers the property to an assignee for the benefit of creditors, such transfer will avoid the policy.</p> <p>2. The fact that the assignor retains possession of the property at sufferance, will not have the effect to prevent the policy from becoming void.</p> <p>3. Where all homestead and exemption rights are reserved in such deed, and there is a mortgage on the premises as against which no exemption can be allowed, and the assured asks an allowance in lieu of a homestead out of the insurance money, such claim is not an interest in lands, but a claim for money. r</p>

<p>Error to the Circuit Court of Delaware county.</p> <p>Martin M. Heffern commenced his action, in the Delaware common pleas, against George Hack, to recover certain real property situated in that county, and the rents and profits received by the defendant while he held possession. The petition contains the necessary and usual averments in real actions of that character. The answer denies those averments, and alleges title acquired by the defendant “by virtue of a forfeited land deed from the auditor of Delaware county,” and payment of taxes to a certain amount, by the defendant, since he obtained his deed. By reply the title asserted by the defendant is controverted, and also the payment of taxes by him in the amount claimed. The reply also avers that the tax sale was irregular and tlie auditor’s deed void, and that the only claim of the defendant on the property was a lien for the taxes which he paid at the tax sale, and the annual taxes since paid, with interest, the total amount of which is less than the rents and profits received by him from the premises.</p> <p>Upon these pleadings the cause was tried to the court (a jury having been waived) at its April term, 1899. The court found the issues for the plaintiff, that he had the legal estate in the property, was entitled to the immediate possession of the same, and that the defendant unlawfully kept him out of possession. The court further found that the rents and profits received by the defendant from the premises while he so held possession, exceeded the total amount due him for taxes, and held that these cross-demands should! be set off, one against the other; and that, on a full statement of the account between the parties, there was a balance due the plaintiff. Judgment was accordingly rendered in favor of the plaintiff for the possession of the premises, and for the balance so found due him, with costs.</p> <p>The defendant filed a motion for a new trial, but took no bill of exceptions; and on that record prosecuted error to the circuit court, where the judgment of the common pleas was reversed, and the cause remanded. The case has been brought here to obtain the reversal of the circuit court, and the affirmance of the common pleas.</p>

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

Mrs. Barbour brought suit against Mrs. Kocli for an injunction restraining her from putting doors and windows in the wall upon the line between their premises contrary to an agreement upon a consideration. The case was tried in the circuit court upon appeal and a perpetual injunction was granted as prayed for. Mrs. Koch filed her petition in error here to obtain a reversal of the judgment of the circuit court.

<p>Jurisdiction of Supreme Gourt as to amount involved — Requirement of amount of $300.00 — Section 6710, Revised Statutes— Difference between amount claimed and amount recovered.</p> <p>On error by tbe plaintiff below, the difference between the amount claimed by him and the amount recovered, determines the jurisdiction of this court under Section 6710, Revised Statutes, as amended April 26, 1898.</p>

<p>Error to tbe Circuit' Court of Seneca county.</p> <p>On August 20, 1890, plaintiff filed a petition in tbe court of common pleas to recover of tbe defendants individually on a promissory note of wbicb tbe following is a true copy:</p> <p>“McCutchenville, April 28, 1883.</p> <p>“For value received, we, tbe Trustees of tbe Mc-Cutcbenville Cemetery Association, promise to pay to Henry Reiff, or bearer, six hundred and seventy-nine dollars and sixty-tbree cents, one year after date, with eight per cent, interest annually.</p> <p>“Levi H. Mullholland,</p> <p>“Owen Haines,</p> <p>“Trustees.”</p> <p>The defendants answered as follows: They denied generally the allegations of the petition and alleged that in June, 1875, the McCutchenville Cemetery Association, then unincorporated, purchased from one Starkey, land for cemetery purposes, and for the purchase price executed to him a promissory note signed by its trustees. Afterwards in April, 1877, the association was duly incorporated. Starkey thereafter sold and transferred the note to one Lott who sold and transferred it to the plaintiff. In April, 1879, the note was renewed by the execution to the plaintiff of another by the trustees of said association, the note being for the sum of $579.45, with eight per cent, interest payable to the plaintiff or bearer. On xlpril 28, 1883, to renew the note last mentioned, the note set ou.t in the petition was executed; and in that connection the defendants allege: “Wherefore the defendants say that the said promissory note referred to in the petition was wholly without consideratiqn.” The remainder of the answer is as follows:</p> <p>“3. And for further answer herein the defendants say:</p> <p>“That as between the plaintiff, Henry Reiff, as payee of the promissory note mentioned and referred to in the petition, and the defendants, Levi H. Mullholland and Owen Haines, as makers thereof, no consideration whatever moved from the said Henry Reiff to the said Levi H. Mullholland and Owen Haines for the making of the same, wherefore the said promissory note is wholly without consideration.</p> <p>“4. And for further answer herein the defendants say:</p> <p>“That on the day when the said promissory note mentioned and referred to in the petition was executed, and before the defendants would consent to sign the same, the plaintiff promised and agreed to and with the defendants that they, the defendants,, should not be personally liable on said promissory note, but that only the property of the said cemetery association should be holden therefor.</p> <p>“That thereupon the defendants, on the faith of the said promise and agreement of the plaintiff, signed said promissory note, as trustees of the said cemetery association, and the plaintiff accepted the same with the full understanding that the defendants should not be personally liable thereon.</p> <p>“o. And for further answer herein the defendants say:</p> <p>“That on the 28th day of April, 1883, the plaintiff owned and held, as payee thereof, a certain promissory note for the sum of five hundred and seventy-nine dollars and forty cents, with eight per cent, interest annually, dated April 13, 1879, and signed by the plaintiff and John Row and James Starkey, trustees of the McCutchenville Cemetery Association.</p> <p>“That on said 28th day of April, 1883, it was mutually agreed, by and between the plaintiff and the defendants, who were then duly elected and acting trustees of said cemetery association, that the defendants, as such trustees, in lieu of said note so held by the plaintiff as aforesaid, should execute and deliver to the plaintiff such proper instrument, in writing, as would bind the property of the said cemetery association for the payment of the sum of six hundred and seventy-nine dollars and sixty-three cents, with eight per cent, interest from that date, but which would in no wise make the defendants personally, liable for said sum, or any part thereof.</p> <p>“That thereupon the said instrument in writing, or promissory note, mentioned and referred to in the petition, was drafted, and the defendants signed the «ame as such trustees, and the. plaintiff accepted the same, under the mutual mistake and belief that the instrument in writing correctly stated and embodied their agreement aforesaid.</p> <p>“Whereupon the defendants pray that the said instrument in writing, or promissory note, may be reformed so as to properly and correctly embody the true agreement so made by and between the plaintiff and the defendants as aforesaid; and for such other relief as is proper.”</p> <p>The plaintiff replying admitted that the note upon which he counted was given in renewal as alleged in the answer, and denied all other allegations of the answer. He further alleged that the defendants were members of the unincorporated association at the time of the purchase of the lands which were the consideration of the first note, that they have ever since been members of said association and that they are, therefore, liable for the purchase price of the land.</p> <p>The cause having been tried in the court of common pleas upon the allegations of mutual mistake upon which the defendants in their cross-petition pray for a reformation of the note so that it should be the obligation of the corporation alone, the cause was appealed to the circuit court and there submitted on the cross-petition, the other pleadings and the evidence; and that court found in favor of the plaintiff and dismissed the cross-petition. That judgment remains in full force. In the court of common pleas the cause was tried three times — the last trial at least being after the judgment of the circuit court — on issues >f fact supposed to survive the judgment of the circuit court adverse to the reformation of the note. The last trial resulted in a verdict and judgment in favor of the defendants and that judgment has been affirmed by the circuit court. Its reversal is the object of the present petition in error. On the trial in the court of common pleas the defendants notwithstanding the objections of the plaintiff were permitted to introduce evidence tending to show that they refused to sign the note until they were assured by the plaintiff that he would not regard them as individually liable thereon, and that he would look to the corporation alone for payment. The plaintiff in his testimony denied such conversation or agreement. The court adhering to the view upon which such evidence was admitted charged the jury as follows:</p> <p>“It is claimed by the defendants that they signed said note with the understanding that said note was so executed on behalf of said association and was the note of the said association, and that the plaintiff at the time he received said note so understood such to be the fact, and that he, so knowing the fact, received and accepted said note of said association, and understood and agreed that these defendants were not to be held liable thereon as individuals. All of this is denied by the plaintiff in his reply.</p> <p>“This being an affirmative defense made by the defendants, the burden of proof as to such defense is upon the defendants. That is to say, the defendants are required to establish such defense by a preponderance of the evidence before you can find thereon in favor of the defendants.</p> <p>“The jury are to determine from the evidence in the case what the fact is. Was it the intention of the parties to this note when the same was made, executed and delivered, that said note was and should be held to be the note of the cemetery association, and not the individual note of Mullholland and Haines? If such was the understanding, and the plaintiff received and accepted said note with the understanding and agreement, then he cannot recover from the defendants in this action, for the right of action of the plaintiff would then be against such association, and not against the defendants individually. If you find from the evidence and circumstances proved that it was the intention and understanding of the parties to this note, at the time it was executed and delivered, that the note in controversy was and should be held to be the note of the association, and not the note of Mullholland and Haines individually, and the plaintiff received and accepted the note with that understanding and agreement, then the plaintiff cannot recover from the defendants in this case, for the reason I have already stated.</p> <p>“If, on the other hand, you find from the evidence there was no such understanding between said parties as defendants claim, but that such note was given as. the note of said defendants, then they would .be liable thereon.</p> <p>“In determining this question, you should take into consideration all the evidence adduced and the circumstances proved in the case. The note sued on will be in evidence before you, and you should also consider the evidence as to the facts and circumstances under which the note was given — the consideration of such note, and all the other facts and circumstances appearing in evidence in this case.</p> <p>“Determining this question will, of course, determine whether the plaintiff is entitled to recover. And if, under the instructions given you, you should find for the plaintiff, you will compute interest according to the terms of the note and the amount you find by such computation you will insert in the blank I have prepared for that purpose, and your foreman will sign that verdict. .</p> <p>“If, on the other hand, you find that the note was and is not the note of said defendants, but was and is the note of the association, then your verdict should be for defendants.”</p> <p>The trial judge indicated a similar view of the subject by refusing to give in charge to the jury propositions which were requested by counsel for plaintiff.</p>

<p>Error to the Circuit Court of Ross county.</p> <p>On February 11,1895, the city of Chillicothe passed an ordinance granting a franchise to the Logan Natural Gas & Fuel Company and providing that said ordinance should be in force and take effect from and after its passage and legal promulgation. Section second of the said ordinance provided that the said company, its successors or assigns, shall for a period of ten years from the first day of September, 1895, be entitled to charge for such natural gas furnished not to exceed the sum of twentyjfive cents per thousand cubic feet. There was no provision in said ordinance for a “flat” rate which is a fixed price per month for each fire. Very little gas was sold by meter measurement, most of the consumers taking gas at flat rates by contracts between said company and individual consumers. In September, 1900, the gas company announced an advance in the price of gas as furnished by the flat rates, and thereupon on September 18, 1900, the city council passed an ordinance seeking to compel the gas company to continue to furnish gas at the flat rates which it established when it began business in the city of Chillicothe and had continued up to the time of the beginning of the controversy. The gas company refused to obey the ordinance of September 18,1900, and this action was begun by the city of Chillicothe» by its city solicitor against the Logan Natural Gas & Fuel Company seeking a mandatory-injunction requiring the gas company to furnish natural gas to all persons who are ready, able and willing to pay for the same in accordance with the prices fixed by the ordinance of September 18, 1900, so long as it may continue in the business of furnishing natural gas to the citizens and public buildings of said city, and that it be restrained from collecting from those who have signed written contracts, more than the price fixed in said ordinance.</p> <p>The court of common pleas granted a perpetual injunction, and on appeal the circuit court entered a decree in favor'of the city. This petition in error is filed to reverse that judgment.</p>

<p>Tbe syllabus in tbe immediate preceding case answers also for tbis case. — Reporter.</p>

<p>Suit by treasurer to collect street assessment — Which exceeded benefits conferred — Trial court may determine what amount shall be assessed — And refuse to set aside assessment in toto — Purchaser of property after improvement by sewering and paving had commenced — May contest legality of assessment, when.</p> <p>1. Where, in a suit brought by a treasurer to collect a street assessment, it has been judicially determined that the assessment made by the city authorities has in a substantial amount exceeded the special benefits conferred upon the property by the street improvement, the trial court has jurisdiction to go forward, upon proper pleadings, and determine what amount should be assessed; and it is not error for the court to refuse to. set aside the assessment in toto and remit the question to the city authorities for their action</p> <p>2. Where land abutting upon a street has been sold at administrator’s sale and conveyed after the work of improving the street by sewering and paving has been commenced, but before it has been completed, and before the passage of an ordinance making assessments on abutting property to pay the cost of the same, a recital in the deed that: “The taxes and penalties now due and the taxes for 1892 are to be paid by the said administrator for all street assessments and sewer assessments are to be paid by the said purchaser and grantee,” does not operate as an estoppel against the purchaser to contest the legality of the assessments.</p>

<p>Error to the Circuit Court of Jackson county.</p> <p>On the sixth day of February, 1899, Thomas J. Morgan began his action against the city of Wellston, to recover for*gas supplied to that city, at its request, from February 7, 1889, to February 7, 1891; and afterward, by leave of court, filed the following amended petition, the caption, signature and verification being here omitted:</p> <p>“Plaintiff for canseof action says: — that the defendant is a city of the second class in the state of Ohio; that it was formerly, and before being organized as such city, the incorporated village of Wellston, Ohio; that on February 7, 1891, the defendant was indebted to the Consolidated Wellston Coal & Iron Company, a corporation duly organized under the laws of Ohio, in the sum of thirty-six hundred dollars ($3,600.00), upon an account for the furnishing of street lights upon the streets and public, places of said city from February 7, 1889, to February 7, 1891, á period oc twenty-four months-, which said lighting was furnished to and for defendant, and at its request a copy of the said account is hereto attached marked Exhibit ‘A’ and made part hereof.</p> <p>“That on the........day of July, 1891, plaintiff for a full and valuable consideration by him paid to said The Consolidated Wellston Coal &Iron Company, became the owner of said account and claim for the lighting of said city, and the same was on the same day duly assigned to him by said The Consolidated Wellston Coal & Iron Company, and plaintiff bath ever since been and still is tbe sole and only owner of the same.</p> <p>“That on March 24, 1892, plaintiff commenced his action in this court against the defendant to enjoin it from disturbing or interfering with the machinery, boilers, dynamos, poles, wires, lamps, fixtures, and all parts of the plant from which the light, the furnishing of which is sought to be recovered for in this action was supplied; to compel defendant to pay for said light so furnished from said February 7,1889, to February 7, 1891, being the same lighting sued for in this action, for damages and for general relief.</p> <p>“The defendant filed a demurrer to plaintiff’s petition in said cause, and upon the hearing of the same, the court of common pleas sustained it, and plaintiff not asking to further plead, judgment was rendered against him on said demurrer; plaintiff thereupon, and in due and legal time, gave notice of his intention to appeal said cause to the circuit court of said county of Jackson, and filed his bond in the sum, and conditioned as required by law for said appeal and said cause was duly taken, entered and docketed in said circuit court. Afterward the defendant filed its answer to plaintiff’s petition in said circuit court, and plaintiff filed his reply thereto, and upon the issues so made in said circuit court trial was had at the May term of said court in said county for 1896. Upon said trial said court found as a fact that defendant was indebted to plaintiff for the lighting of its said streets from said February 7, 1889, to February 7, 1891, in the sum of thirty-six hundred dollars with interest after February 7, 1891, and entered its judgment in the words and figures following, to-wit: ‘ Tt is therefore considered by the court that the plaintiff recover from the said defendant the sum of forty-seven hundred and forty-five dollars and forty cents (4,745.-40), and his costs herein expended taxed to $......, and as to the equitable relief prayed for the petition is dismissed.’.</p> <p>“The defendant prosecuted error to the Supreme Court of the state of Ohio, where, on November 3. 1898, the said judgment for $4,745.40, although said Supreme Court found that said appeal was properly perfected to said circuit court, yet because of the. showing made by the answer filed by defendant in said circuit court and the facts found by said court, said cause was reversed for the reason that the said circuit court had no jurisdiction to enter or render said judgment or try said cause, and judgment was rendered in said court for plaintiff in error, defendant below.</p> <p>“Plaintiff says that -said judgment for $4,745.40 in said circuit court was for the same matters and cause of action declared upon in this cause; that his petition herein was filed and this action was commenced February 6, 1899, and within one year after the date of the reversal of said judgment by said Supreme Court.</p> <p>“Wherefore plaintiff prays judgment against the defendant for said sum of thirty-six hundred dollars ($3,600.00) with interest since February 7, 1891.</p> <p>“Exhibit A to the Petition.</p> <p>'“The City of Wellston, Ohio,</p> <p>To . -</p> <p>“The Consolidated Wellston Coal & Iron Co., Dr. “1891, Feby. 7,</p> <p>‘•‘To lighting streets of said city, 24 months, at $150.00 per month................ $3,-600.00.”</p> <p>To this amended petition the city demurred, and assigned for cause, that the amended petition does not state facts sufficient to constitute a cause, of action against the city.</p> <p>The court of common pleas sustained the. demurrer, and the plaintiff below excepted, but not desiring' to further plead, final judgment, was rendered against him.</p> <p>Upon petition in error the circuit court reversed the judgment, and thereupon the- city filed its petition iu error in this court, seeking a reversal of the circuit court, and an affirmance of the common pleas.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The Milwaukee Mechanics’ Insurance Company, through its agency in Cincinnati, issued to Julia A. Russell, on the 12th day of August, 1896, in consideration of a cash premium then paid by her, a policy of fire insurance on her dwelling house situated in Hamilton county, in the amount of seventeen hundred and fifty dollars, for the term of five years ensuing. The house was totally destroyed by fire on the 10th day of September, 1898, the policy then being in force, and in due time the insured made proper proofs of the loss, and demanded payment, which having been refused, the action below was brought to recover the amount named in the policy. The averments of the jetition, which are the usual and necessary ones in actions of that character, were, on the hearing of the cause, admitted to be true, and the only defense relied on was, that the plaintiff refused to accept an offer made by the insurance company to perform a stipulation contained in the policy which purported to give it the option to rebuild the house, and declined to furnish plans and specifications, as required by that stipulation, to enable the defendant to rebuild; the offer having been made, it was alleged, in the time and manner provided by the policy. A demurrer to that defense was sustained in special term, and judgment rendered for the plaintiff for the amount of the policy and interest, with costs; and from the affirmance of that judgment in general term, err*»r is prosecuted in this court.</p>

<p>Vacation of street or alleys — Vacated portion reverts to abutting lot owners — Right of property owner to access through reverting property — Injunction of obstruction — Respective rights of adjacent lot owners — Right of way granted by council — Section 2654, Rev. Stat.</p> <p>1. Where a street or alley is vacated by a city, the vacated portion reverts to the abutting lot owners, subject, however, to such rights as other property owners on the street or alley may have therein, as a necessary means of access to their property.</p> <p>2. A property owner on a street or alley, a portion of which. other than the part on which he abuts, is vacated by the city-council, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in hind from that of the general public, and not only in degree.</p> <p>3. The rights of the lot owners in an addition, on the plat of which the streets and alleys are indicated as dedicated to public use, are no greater than, nor different from, the rights of other lot owners upon other streets of the city.</p> <p>4. The provision in Section 2654, Revised Statutes, that when a street or alley is vacated by a city council, “the right of any lot owner shall not be impaired thereby,” simply preserves such rights as the lot owner had in the street or alley by existing law. It creates no new rights.</p>

The defendant in error was convicted of the crime of manslaughter in the Clinton county common pleas. The testimony given on the trial was taken by the official stenographer of the court and his assistant duly appointed for that purpose.

<p>Exception to the decision of the Court of Common Pleas of Darke county.</p> <p>Gravett was indicted at the October term, 1900, of . the common pleas court, the charge being:</p> <p>"The jurors of the grand jury of the county of Darke and the state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the state of Ohio, do find and present: That Henry H. Gravett, late of said county, on the 11th day of September in the year of onr Lord, one thousand and nine hundred, at the county of Darke aforesaid, did knowingly, wilfully and unlawfully practice medicine in the state of Ohio and county aforesaid without having first complied with the provisions of the act of the general assembly of the state of Ohio entitled: “An Act to regulate the practice of medicine in the state of Ohio,” passed February 27, 1896, and amended April 14, 1900, in this that at the time and place aforesaid, he, the said Henry H. Gravett, did, for a fee, to-wit, the sum of five ($5.00) dollars prescribe and recommend for the use of one Martha Huddle, a certain application, operation and treatment, to-wit, a system of rubbing and kneading the body, commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease the name and nature whereof is unknown to the jurors aforesaid, he, the said Henry H. Gravett, at the time aforesaid, not having obtained or received from the state board of medical registration and examination of the state of Ohio a certificate entitling him, the said Henry H. Gravett, to practice medicine, or surgery within the state of Ohio, as required by the act aforesaid, he, the said Henry H. Gravett, at the time aforesaid not being entitled, under the act aforesaid, or laws of the state of Ohio, to practice medicine or surgery within the state of Ohio, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”</p> <p>A demurrer to this indictment was sustained to which the present exception is prosecuted.</p>

<p>Error to the Circuit Court of Seneca county.</p> <p>Tbe facts are sufficiently stated in the opinion.</p>

<p>Individual liability of corporation stockholder — Provision of statutes does not alone create liability — Legal status of stockholder under the statute — Rule as to statute becoming part of contract — Validity of contract where made, recognized where performed, tohen — Construction of statute of sister state by highest court followed — Stockholders liability in Kansas enforced in Ohio, when — Interstate law — Contract law.</p> <p>1. A provision of statute that the stockholders of a corporation shall be individually liable to creditors for the debts of the company does not alone create the liability. It is rather a legislative requirement that whoever becomes a stockholder shall thereby assume an individual liability, and thus gives legal effect to the acts of the parties. The actual liability becomes operative by the act of a shareholder in becoming such, being founded on his proposal to become liable which arises from the membership and individual agreement to abide by the organic law of the corporation, and the acceptance thereof by the creditor by extending credit. Such obligation is contractual.</p> <p>2. The law of the state where a contract is executed and is to be performed, enters into and becomes a part of the contract in the sense that its construction, validity and obligatory effect are to be controlled by that law; and when valid there the contract will be sustained elsewhere, and accorded the interpretation required by the law of the place where made, unless the contract is against good morals, or contravenes a settled policy of the state in whose tribunals its enforcement is sought.</p> <p>3. The construction of the statute of a sister state by its highest court will be followed by this court.</p> <p>4. The individual liability of stockholders for debts of a corporation, provision for which is made by the constitution and statutes of Kansas, is not penal but is contractual. That liability may be enforced in Ohio. And a petition of a creditor in a suit against a stockholder which shows the constitutional and statutory provisions respecting such liability, and sets forth the construction given by the court of last resort of Kansas holding the liability to exist and to be several and contractual, and alleges other facts showing the ownership of the claim by plaintiff, the ownership of the stock by de fendant, the insolvency of the corporation, its dissolution under the provisions of the statute and that it had suspended business more than a year before the commencement of the action, states a cause of action.</p>

<p>Error to the Circuit Court of Allen county.</p> <p>On the tenth day of September, 1897, the plaintiff, Walter Zinn, filed his petition in the court of common pleas against the persons who were directors of the First National Bank of Lima, Ohio, during the years 1893 and 1894, and also made the hank a party defendant.</p> <p>The petition is as follows, omitting the caption, signature and verification, and also omitting the averments as to who were the officers and directors during those years, and which averments are contained in paragraphs numbered from five to thirteen, inclusive:</p> <p>“First. Walter Zinn, the plaintiff, above named, says that he was on and prior to the first day of January, 1893, the owner of one hundred shares of the capital stock of the First National Bank of Lima, Allen county, Ohio, for which he paid the sum of thirteen thousand ($13,000) dollars in cash.</p> <p>“Second. That he continued to be the owner of said stock until the sale thereof by said bank for the non-payments of the assessments on the same, on the -day of-, 1895.</p> <p>“Third. That said bank ©n and prior to the said first day of January, 1893, was, and now is a duly organized and incorporated national bank under the laws of the United States, and doing business as such under the name of The First National Bank of Lima, Ohio.</p> <p>“Fourth. That said national bank was so incorporated with a capital stock of one hundred thous- and dollars.</p> <p>“Fourteenth. That said board of directors and its said officers in and for the years 1893 and 1894, had the sole charge and management of all the property and affairs and the business of said bank.</p> <p>“Fifteenth. Said plaintiff says that said S. S. Wheeler, president; C. S. Brice, vice-president; O. M. Hughes, Jr., cashier, and F. C. Cunningham, assistant cashier, the officers of said bank, did knowingly permit the total liabilities to said bank of a certain corporation, known as the Munroe Manufacturing & Lumber Company, of Lima, Ohio, and doing business as such in the said city of Lima, Ohio, for money borrowed, including in.the liabilities of said manufacturing company, the liabilities of the several members thereof to exceed one-tenth part of the amount of the capital stock of said bank actually paid in, not including in said indebtedness the discount of bills of exchange drawn in good faith, against actually existing values, nor the discount of commercial or business paper actually owned by the said manufacturing company and the several members thereof.</p> <p>“Sixteenth. Said plaintiff further says that said bank was found by the comptroller of the currency to have its capital stock impaired on and prior to the 1st day of October, 1894, and that an assessment of one hundred per cent, on its capital stock should be made, and was made, and that the indebtedness of the said Munroe Manufacturing & Lumber Company, of Lima, Ohio, for money borrowed by said company and the individual members thereof from said bank, consisted of the following sums of money and the dates of said loans named, to-wit:</p> <p>“(The dates and amounts of the several loans are here omitted.)</p> <p>“Making the sum total of $145,150, which was loaned by said bank to said company in the amounts and dates above named, without any security whatsoever, and the same was a total loss to said bank; and at the dates of the loans aforesaid said bank and said manufacturing company were insolvent, and were known to be so by said directors and the officers of said bank at the time |he loans were made, or if not known, could have been ascertained by the slightest investigation and inquiry.</p> <p>“Seventeenth. Said plaintiff further says that the aforesaid liabilities of said manufacturing company, and the several members thereof, for money borrowed as aforesaid, were contracted with the knowledge and assent of each of said directors, or if either of the said directors failed to have actual knowledge thereof, that said directors were grossly negligent of their duty in the management of the affairs of said bank, in failing to examine the books of account and evidence of indebtedness held by said bank during all the period in which said liabilities were being contracted, and in failing to exercise the slightest diligence or in making the slightest investigation of the conduct of said bank; and that any investigation or supervision of the affairs of said bank, or any examination of its books, and the evidence of indebtedness held by this bank during that period, would have disclosed to either of said officers or directors that said liabilities were incurred, and the amount and extent thereof, and what security, if any, had been required by said directors and said officers for the loans so made by said bank to said company.</p> <p>“Eighteenth. That said directors of said bank, in and for the years Í893 and 1894, knowingly and carelessly permitted said Baxter, president, said O. M. Hughes, Jr., cashier, to manage and control the business affairs of said bank without any supervision or investigation whatsoever, when they knew, or ought to have known upon the slightest investigation arid inquiry, that they were grossly negligent, incompetent and dishonest in regard to the making of said loans of money by said bank to said company, and that they were both finally removed as said officers and directors of said bank, in October, 1894, because of their misconduct and mismanagement of said bank.</p> <p>“Nineteenth. That said C. M. Hughes, Jr., cashier, taking advantage of his position as such officer, negligently and willfully concealed the protested notes and drafts of said manufacturing company, upon which the said bank had loaned its money to the amount of over eighty thousand dollars, which were protested and returned to said bank, thus impairing the assets of said bank to that extent; that the same was known to said directors in and for the years 1893 and 1894, or, if not known, might and could have been known to the directors of said bank if said directors had made the slightest investigation and inquiry from him or made any investigation of the books of said bank.</p> <p>“Twentieth. Said plaintiff further says that said directors of said bank in and for-the years 1893 and 1894, knowingly, carelessly and negligently failed to require said C. M. Hughes, Jr., cashier, to execute his bond with security in the sum of fifteen thousand dollars, for the faithful and honest discharge of his duties as such cashier, as required by section 8 of the by-laws of said bank and in violation thereof.</p> <p>“Twenty-first. Said plaintiff further says that-said C. M. Hughes, Jr., while acting as such cashier as aforesaid, wilfully marked certain certificates of deposit on said bank “void or paid,” to-wit, one in the name of L. M. Swan for the sum of twenty-five thousand dollars ($25,000) on April 9, 1894, and one in the name of Mrs. W. W. Firestone in the sum of four thousand dollars, December 19, 1893, when he-knew that they were outstanding against the bank; and said directors of said bank knew of the transaction at the time, or if they did not know could easily have ascertained the facts, by the slightest investigation and inquiry from said Hughes, and from an investigation of the books in the bank that he had so marked said certificate of deposit.</p> <p>“Twenty-second. Plaintiff further says that prior to and during the years 1893 and 1894 he lived in the city of Columbus, Ohio, and that he had no knowledge, directly or indirectly, of the negligent and careless management of said bank as aforesaid and the enormous sums of money loaned as aforesaid, when he received a letter from the president of said bank asking him to pay an assessment upon his stock, October 4, 1894.</p> <p>“Twenty-third. Said plaintiff further says that the losses of said bank, the impairment and misapplication of the capital stock of said bank, and the profits thereof, the needless wasting of the dividends of the stockholders and the lessening of the value of their shares, and their total loss in value and the complete insolvency of said bank, the violation of its charter and by-laws, the wasting of its assets, the loss of his thirteen thousand dollars and the loss of one hundred and forty-five thousand, one hundred dollars to said bank, and the needless assessment on said stock, were directly occasioned by the wrongful, reckless and negligent mismanagement, the utter absence of supervision and examination and the gross neglect of duty and inattention in the conduct of the business of said bank on the part of said directors and officers of said bank during the years 1893 and 1894.</p> <p>“Twenty-fourth. Plaintiff further says that on the 6th day of April, 1897, he served a written notice upon the then directors of said bank to pay him. said sum of money, or upon a failure to do so, to bring an action against the defendant directors of said bqnk for the year 1894 prior to the resignation of Charles M. Hughes, Jr., for the causes set forth in this petition, and no attention whatsoever was paid thereto by said directors; and that on the 24th day of July, 1897, he again served a notice in writing embracing in substance the contents of this petition upon C. B. Crites, cashier, in person, in the bank in Lima, Ohio, requesting the present directors of said bank to pay him said sum of money, or on a failure to do so, to bring an action against the defendant directors named herein, to which request the present directors of said bank made no response whatsoever; and that on the 18th day of August, 1897, he again served the present directors of said bank with a notice in writing, by handing the same in person to T. D. Robb, the president of said bank, asking him to pay him said sum of money, or on a failure so to do, to bring an action against the said defendant directors named herein for the said sum of money, and also to call a meeting of the present directors of said bank to consider the requests and notices named above, to which no answer was made, although requested so to do immediately, and that the present directors of said bank now decline and refuse to pay said sum of money to this plaintiff, or to bring any action against said defendant directors for the years 1893 and 1894.</p> <p>“Twenty-fifth. Said plaintiff further says that he now brings and prosecutes this action on behalf ol himself and all other stockholders who wish to become parties to this action.</p> <p>“Twenty-sixth. 'Wherefore, this plaintiff asks that an account be taken of the loss and damage to said bank, its shareholders and creditors, sustained by the reason of the unlawful acts, misconduct and negligence of said defendant directors and officers, and each of them, as hereinbefore set forth, and that he may have a judgment for the said sum of thirteen thousand dollars ($13,000) and interest thereon from the-day of - — , 189 — , against said defendants, and each of them, in his personal and individual capacity for said loss and damages aforesaid, and that he may have such other and further relief as he may be entitled to in the premises, and for a judgment in favor of other shareholders in such sum as the court may find due.”</p> <p>The defendants demurred to this petition upon the following grounds:</p> <p>“First. That the plaintiff has not legal capacity to sue.</p> <p>“Second. That separate causes of action against several defendants are improperly joined.</p> <p>“Third. That said petition does not state facts sufficient to constitute a cause of action.”</p> <p>The court of common pleas sustained the first and third grounds of demurrer and dismissed plaintiff’s petition at his costs. The circuit court upon petition in error affirmed the judgment. Thereupon the plaintiff filed his petition in error in this court seeking to reverse the judgments of the courts below.</p>

Quo Warranto. This cause has been submitted upon a general demurrer to the petition which reads as follows: ■ pirst cause of action.

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

<p>Petition in error — Filed four months from date of judgment— May he amended,, when — Bo as to show sum involved is more than three hundred dollars.</p> <p>A petition in error -which was filed within four months from the date of the judgment or final , order complained of, may he amended after the expiration of four months from the date of the said judgment or final order, so as to show that the sum or value involved in the judgment sought to he reversed, is more than three hundred dollars, exclusive of interest and costs.</p>

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

<p>Common carrier■ — Action to recover package lost• in transit— Contract of carriage in bill of lading — Limits liability to fifty dollars unless value disclosed — Petition alleges contract and answer admits contract and loss — Only issue remaining is negligence — Pleading.</p> <p>WRen, in an action to recover from a common carrier of merckandise tRe value of a package lost in transit, tke petition sets out as the contract of carriage a Rill of lading containing a stipulation tkat the liability of the carrier skall not exceed fifty dollars unless tRe value of tRe article is disclosed, admits tkat tke value was not disclosed, and alleges tkat tke package was lost tkrougk tke carrier’s negligence, and tke answer alleges tkat tke goods were lost by tke carrier wkile in tke exercise of due care and admits its liability to tke extent of fifty dollars, no issue, except tkat of negligence, is presented for trial.</p>

In the second cause of action the plaintiff in substance alleges that prior to the first day of January, 1895, he was in the employ of the defendant company, performing the work of a brakeman at the rate of sixty dollars per month, qnd that on or about the latter part of December, 1894, while in the employ of the defendant company he applied for and was granted a leave of absence for about thirty days, and that when he reported for work again on or about the first day of…

<p>Action in Ohio by judgment creditor of Kansas corporation — To enforce liability of stockholder, — Corporation need not be made party — Action in one county — Summons may issue upon stockholders in other counties, when.</p> <p>1. An action may be maintained in Ohio by a judgment creditor of a dissolved Kansas corporation (other than railroad, charitable or religious), to enforce the individual liability of stockholders without making the corporation a party.</p> <p>2. Such action may be maintained against one or more stockholders upon whom service can be had within the state. And where such action has been properly brought in one county, summons may issue and service be had upon other stockholders, residents of other counties of the state.</p>

<p>Consideration in deed one of value — Title comes by purchase— Not competent to show by parol that title came by deed of gift — And thereby change line of descent.</p> <p>Where the consideration, expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol, that in fact the title came by deed of gift, and thereby change the line of descent.</p>

<p>Error to the Circuit Court of Richland county.</p> <p>The action below was brought in the Richland county common pleas, by W. W. Balliett, against the city of Mansfield, to recover damages for an allegéd nuisance caused by the drainage of the defendant’s sewage into a natural water course that runs by and through lands of the plaintiff situated below the city.</p> <p>The plaintiff’s case is stated in the following amended petition, upon which the cause was tried:</p> <p>“Plaintiff says that the defendant is a municipal corporation of the second class of the fourth grade, duly organized under the laws of -the state of Ohio. That for more than seventeen years lasit past the plaintiff has been and now i's the owner and in posser:.sion of the following described property in the county of Richland and state of Ohio:</p> <p>“The following described premises situate in the township of Mifflin, county of Richland and state of Ohio, and known as the northeast quarter of section number 31, of township number 23,' in range number 17, save and except 50 acres held and owned by the heirs of James Chew, deceased, out of the southwest corner of said quarter section. Also save and except acre in the northeast corner of said quarter occupied by a school house, extending the length north and south 10 rods, and in east and west 10 rods, so long as used for school purposes, and when not used to revert to the grantor. Also 14 acres heretofore conveyed by said grantor to John Brubaker of the southwest corner of said quarter, all of the said land containing 95 acres more or less. And also plaintiff for said time has been and now is the owner and in possession of the following described property in the county of Rich-land and state of Ohio and known as being 120 acres in the northeast quarter of section 32, township 23, in range 17. That there is situate on each of said tracts of land a dwelling house, barn and other necessary buildings, in those of which on the first described tract plaintiff, with his family, for more than seventeen years resided and now resides therein. That the buildings on the second described tract are occupied by a tenant of this plaintiff. That said lands have during all the years plaintiff resided thereon, been used by plaintiff for agricultural, stock and pasture purposes.</p> <p>“That there now is, and has been from time immemorial, a natural water way or creek of running water known as the Rocky Fork of the Mohican river passing through and over said lands of plaintiff herein described. That said creek has its source in the western part of the county of Richland, and traverses the township of Madison, passes near the city of Mansfield and over the lands of the plaintiff as hereinbefore stated; that said stream in its natural condition and at ordinary water stage is not more than from five to ten feet in width; that previous to thé grievances hereinafter complained of, said stream came from natural springs of water and was pure and wholesome and of great and continuing value to plaintiff for the purpose of watering his stock, of which he, the said plaintiff, raised a great many, and suitable for. all purposes for which, water, pure and wholesome, is generally used upon such farm, and was so used by plaintiff and his said family and his tenant in the proper conduct of his said farms. Plaintiff further says that about twelve years prior to the commencement of this action the city of Mansfield, a corporation, as herein alleged, composed of about eighteen thousand to twenty thousand people, through its officers and agents, constructed a system of sewage and underground pipes for sewage and drainage of said city, and is adding such pipes thereto each year since, by means of which the sewage of a great portion of said city was and now is conducted to and emptied of their contents, without regard to plaintiff’s rights, into said creek above said plaintiff’s lands and premises herein described; that as a result of this unwarranted and negligent conduct upon the part of the city, the filth, excrement, waste, refuse and unwholesome matter so negligently and willfully emptied by said sewerage into said creek, poisoned, polluted and rendered unwholesome the waters thereof, and made and continues to make them unfit for the use to which said plaintiff had theretofore employed them as herein stated, to-wit: that of watering stock and other domestic purposes. That at times of great rainfall the water of said creek overflows its banks and carries out upon the lands of plaintiff great quantities of filth and putrid refuse, the exutations of said sewers; that by reason of said overflow cesspools of noxious and noisesome matter deposited by said sewers are formed on plaintiff’s land; that for many months each year since, most noxious unhealthy and noisesome odors arise from the waters of said stream, the result of the filth so deposited by said sewers therein, and contaminate the atmosphere over and above said premise's so belonging to the plaintiff, thus rendering plaintiff’s property undesirable for habitation, unpleasant for occupancy and deleterious to the proper enjoyment of the same, and creating a subsisting and continuing nuisance in and upon the premises of plaintiff herein described.</p> <p>“Wherefore plaintiff says that by reason of the things complained of herein, he has been particularly annoyed, disturbed and injured in the occupation of his said premises and the actual and rental value of said premises, for the reasons herein stated, greatly reduced, all to his damages in the sum of fifteen hundred dollars.</p> <p>“Plaintiff further says that more than sixty days prior to the beginning of this action, he duly filed a claim for damages arising as above stated, with the clerk of said defendant city, but that no settlement or adjustment has been made. Wherefore plaintiff prays for a judgment against said defendant for the said sum of fifteen hundred dollars and for all proper relief.”</p> <p>A general demurrer to this petition having been overruled, the defendant answered as follows:</p> <p>“For answer to plaintiff’s am ended petition herein defendant says it admits that it is a municipal corporation of the second class of the fourth grade, duly organized under the laws of the state of Ohio; and admits that the creek commonly known as the Rocky Fork of the Mohican has its source in the western part of Richland county, and flows through and past the city of Mansfield and the lands described in the amended petition herein; admits that plaintiff has duly filed a claim for damages with the city of Mansfield, and that no settlement or adjustment thereof has been made. Defendant says that if said stream is polluted to such an extent as to be a nuisance and an injury to this plaintiff that the same is caused by other riparian proprietors, and by causes other than that alleged in the amended petition herein. Defendant denies each and every o ther allegation in the .amended petition contained not expressly admitted herein.</p> <p>“Second Defense — Defendant says that all rights of action of every kind and description set forth by plaintiff in his amended petition accrued more than four years previous to the commencement of this action, and that the same is now barred by the statute of limitations.</p> <p>“Wherefore defendant prays to be dismissed with its costs.”</p> <p>The plaintiff’s reply denied the allegation of the answer:</p> <p>“That if said stream is polluted to such an extent as to be a nuisance and an injury to this plaintiff, that the same is caused by other riparian proprietors, and by causes other than that alleged in the amended petition herein.”</p> <p>And also denied the plea in bar.</p> <p>On the trial of the issues, which took place at the January term, 1900, the jury found for the plaintiff, and, with a general verdict assessing his damages at $400, returned a special finding, in response to an interrogatory submitted by the court, that the damages to the “home” farm was $350, and to the farm that was rented, $50.00.</p> <p>A motion filed by the defendant, for a new trial, was overruled, and judgment entered on the verdict. A bill of exceptions was duly allowed and filed, which purports to contain the evidence, charge of the court, and instructions requested by the defendant which the court refused to give. Error was prosecuted to the circuit court, where'the judgment was affirmed, and thereupon the case was brought to this court. Such statement of facts as is necessary to an understanding of the questions upon which the case is reported, will be found in the opinion.</p>

<p>Collection of taxes — County commissioners no jurisdiction to authorize county treasurer to collect delinquent taxes — Section $858, Rev. Stat. — Delinquent list must be publicly read —Compensation of collectors.</p> <p>1. County commissioners have no jurisdiction to authorize a county treasurer to employ a collector to collect personal delinquent taxes under section 2858, Revised Statutes, until they first cause the delinquent list to be publicly read as provided in that section.</p> <p>2. An appointment of such collector can be authorized only for the collection of the whole or any part of the delinquent list which has been caused to be so publicly read.</p> <p>3. There is no authority under said section 2858, to employ a collector to collect future delinquent lists.</p> <p>4. Under said section 2858, the county commissioners must definitely prescribe the compensation of such collectors, before collections are made; and that duty is not performed by prescribing that the compensation shall not exceed a certain amount, or a certain per centum.</p>

<p>Error to the Circuit Court of Mahoning county.</p> <p>Boyle brought suit in the court of common pleas against the surety company, McCurdy and others being cosureties with Boyle upon the replevin bond mentioned in the statement of the case. He sought and obtained a recovery against the insurance company and against McCurdy upon the following state of facts which appear from the pleadings and the special finding made in the court of common pleas: On the 22nd day of November, 1886, the firm of Mc-Gillin & Company commenced an action of replevin in the court of common pleas against the sheriff of Mahoning county and others' to recover possession of chattels which were in the hands of the sheriff. In that action the plaintiffs gave a bond in the sum of $33,964.32, with McCurdy, Boyle and others as sureties for them, the bond being conditioned that McGillin & Company should duly prosecute said action and pay all costs and damages which might be awarded ¿gainst them. Upon the approval of the bond the chattels which were the subject of the action were delivered to the firm of McGillin & Company. Pursuant to a demand made by McCurdy before signing the replevin bond as surety, the members of the firm of McGillin & Company as principals and the surety company as surety, executed to McCurdy an indemnifying bond in the same penal sum as that named in the replevin bond, the same being payable to Mc-Curdy, his heirs, executors, administrators and assigns. The condition of the indemnifying bond is:</p> <p>“Whereas in an action now pending in the court of common pleas in the county of Mahoning, and state of Ohio, wherein Edward M. McGillin & Company are plaintiffs, and Eli B. Walker et al. are defendants, the said Robert McCurdy, with others, became the sureties on the bond of the said Edward M. Mc-Gillin & Company, for the penal sum of $33,964.32, in an action in replevin instituted in said court, and which bond is conditioned in substance that the said plaintiffs, Edward M. McGillin & Company, shall duly prosecute the said action, pay all costs and damages which may be awarded against them, a copy ofl which bond and the appraisal thereto attached isi hereto annexed and made a part of this instrument, and,</p> <p>“Whereas, the said Robert McCurdy is desirous of being indemnified and saved harmless from loss or damage-arising out his suretyship upon the bond of said Edward M. McGillin & Company, and,</p> <p>“Whereas, the said Edward M. McGillin & Company have applied to the said American Surety Company for such bond of indemnity,</p> <p>“Now, therefore, ‘the condition of this obligation is such that, if the said Edward M. McGillin & Company shall duly prosecute the said action and pay all costs, and damages which may be awarded against them, and shall and-will truly keep and save harmless the» said Robert McCurdy from loss or damage arising out. of his having entered into and executed-said bond of replevin, as one of the sureties thereon, then this obligation to be void; otherwise to remain in full force- and effect-.”</p> <p>The petition in the present case alleges that the» consideration for said indemnifying bond was paid to the surety company by McGillin & Company, it. being the sum of $250. The court finds that the premium Avas paid by McGillin & Company, and that it amounted to the sum of $420. This bond was executed without the knowledge of any of McCurdy’s co-sureties.</p> <p>In the action of replevin judgment was rendered against McGillin & Company and in favor of the-sheriff, and thereafter those for whose benefit the sheriff had held the property recovered judgments on the replevin bond for sums which in the aggregate exceeded $25,000. One-fiftlx of the amount of said judgments was paid by Boyle,' and one-fifth by the surety company directly to the persons in whose favor said judgments werg recovered, but on account of McCurdy’s liability as surety in the replevin bond. Other facts were found upon the cross-petitions of other sureties respecting their rights as against Mc-Curdy and the company, but the statement of those facts may be omitted in the present case. Upon the facts so found the court rendered judgment in favor of Boyle against the insurance company for $5,985.68 and costs and against McCurdy for $1,113.62, that being one-fifth of the sum which the surety company had paid for McCurdy’s benefit; the judgment against McCurdy to be satisfied by the full payment of that rendered in favor of Boyle against the surety company. Further finding and judgment was entered against the surety company on account of the liability of other sureties upon the replevin Rond, but it is not material to any questions now considered. On petitions in error filed in''the circuit court.by the surety company and McCurdy the judgments of the common pleas court were affirmed. The same parties now present petitiofis in .error here for the reversal of the judgments of the circuit court and the common pleas court.</p>

<p>Son in possession of real estate — Under parol contract from father — Without intending to waive any rights — Contracts with lessee by which son becomes' tenant of father — Such contract is waiver of son’s parol contract with father.</p> <p>Where- one who was in possession of real estate under a parol contract from his father to corivey the land to him if he would move on and improve the land, having performed the terms of the parol contract, subsequently, without intending to waive any of his rights, but without being induced by fraud, signed a contract with his father, by which contract he became a tenant of the latter, closing all former controversies and disputes, and in which contract the land is spoken of as the father’s land and in which the lessees covenant “to take good care of the farm as if it were their own,” and also covenant to abide by and with the contract, the signing of and acceptance under the lease, by the lessee, is a waiver of his rights under the parol contract to convey, and he is not entitled to specific performance of such parol contract.</p>

<p>Insurance benefits not liable to attachment — Section 3631-18, Rev. Stat. — Passed as act of April 27, 1896 — Invalid, because in conflict loith section 2 of article 1 of the constitution — Constitutional law.</p> <p>Section 3631-18, Revised Statutes, which provides that the benefits rendered by associations organized ■ under the act of which that section is a part, entitled "an act regulating fraternal beneficiary societies, orders, and associations,” passed April 27, 1896 (92 O. L. 360), shall not be liable to be appropriated in any way to the debts of the members or beneficiaries, confers privileges upon some of a class not enjoyed by others of the same class, and is invalid because in conflict with section 2 of article 1 of the constitution.</p>

<p>Oil and gas lease with granting, habendum, condition subsequent and surrender clauses — One dollar consideration for lease applies to each clause — Habendum clause for two years — Or as long as gas or oil is found — Not to exceed Uoenty-five years —Lease terminates absolutely in two years, no gas or oil being found — Condition that lessee shall pay one dollar per acre xmder certain delays to drill, null and void, when — Right of lessee to surrender lease — Contracts and their interpretation.</p> <p>1. An oil and gas lease with a granting clause, a habendum '' clause, a condition subsequent, and a surrender clause, was given in consideration of one dollar paid: Held — that the one dollar so paid was paid for the whole lease, and applied to each clause thereof, so that there was a sufficient consideration, not only for the lease, but also for each clause, and every part thereof.</p> <p>2. There being no.time for the lease to run stated in the granting clause, the habendum clause was, to have and to hold the same unto the said lessee, his heirs and assigns, for the term of two years, and as long thereafter as oil or gas is found in paying quantities, not exceeding in the whole twenty-five years, and no oil or gas having been found on the premises within said two years: Held — that the lease terminated absolutely at the end of two years, and that the right to drill ceased at the end of that time, unless there was an extension of the time found in other parts of the lease.</p> <p>3. Further along in the lease the following appeared: “In case no well shall be drilled on said premises within twelve months from the date hereof, this lease shall become null and void, unless the lessee shall pay for further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.” Held — that the payment of one dollar per acre, could in no event have the effect to extend the lease beyond the two years mentioned in the habendum clause, and no oil or gas having been found within the two years, the right to drill under the lease ceased at that time.</p> <p>4 Said lease also had the following clause: “It is agreed that the lessee shall have the right at any time to surrender this lease to lessor ^or cancellation, after which all payments or liabilities to occur under and by virtue of its terms, shall cease and determine, and the lease become absolutely null and void.” Held — that this clause, when taken in connection with the granting and habendum clauses, does not create an estate at will. Held also that as the consideration of one dollar paid for the whole lease was also a paj^ment for this clause, the lease is not void for want of mutuality.</p> <p>5. Another lease in every respect like the above, except that instead of the clause as to drilling a well within twelve months, had the following clause as to that matter: “In case no well shall be drilled on said premises within two years from the date hereof, this lease shall become null and void, unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.” No well having been drilled, and no oil or gas found within the two years mentioned in said cause, the payment of one dollar per acre could in no event have the effect to extend the lease, or the right to drill, beyond the term of two years mentioned in the habendum clause, unless the parties should by a further contract extend the. time.</p> <p>6. No oil or gas having been found, within the two years, said clause is too indefinite to supply the terms of an agreement for a further extension of the lease, or for further time in which to drill.</p> <p>7. That which is made certain in one part of a written instrument,' cannot be overcome or changed by words in another part, unless such other words are of equal or greater certainty.</p>

Theaction belowwas broughtby Stevenson Burke to enjoin the treasurer of Cuyahoga county from collecting taxes on various bonds and stocks which the auditor of that county, acting under sections 2781 and 2782, of the Revised Statutes, entered upon the duplicate for 1892, and charged thereon against the plaintiff, for that and the preceding five years.

Mandamus. The relator, a taxpayer, by his petition sets forth that the annual state board of equalization of railroads has, upon application and complaint of relator, refused to raise the aggregate value of railroads above that fixed by the boards of county auditors, which aggregate amount so returned is greatly below the actual value of the property within the state of such companies, and asks that a writ of mandamus issue commanding tlie board and the members thereof to…

The motion for a new trial was overruled and judgment rendered on the verdict on the 28th day of December; 1898^ The bill of exceptions was delivered to the trial judge, February 11, 1899. The following was written upon the bill of exceptions, February 15, 1899: “Leave is hereby given to file this bill of exceptions within ten days next after the expiration of the fifty days allowed by law. Jno.

<p>Mandamus.</p> <p>The relator says that the defendants, are the governor and secretary of state. That “on the 5th day of November, A. D., 1901, one Thomas W. Hill was elected to the office of infirmary director of Clermont county, Ohio, for a term of three years to begin on the first Monday in January next after his election. A commission was duly issued to said Thomas W. Hill by the defendant herein, and the same was delivered to him by the clerk of the court of common pleas of Clermont county, Ohio, on the first Monday in January, A. D. 1902, but said Thomas W. Hill failed and neglected to give a bond to the state of Ohio for the faithful performance of his duties upon said day, it being the sixth day of January, A. D., 1902, or upon any day prior thereto, and neither did he file or cause to be filed with the board of commissioners of said county upon said day or any day prior thereto for their approval a bond as aforesaid, but attempted to enter upon the discharge of the duties of said office on the sixth day of January, A. D., 1902, without executing or filing any bond as aforesaid.</p> <p>“Relator further says that said Thomas W. Hill, on the seventh day of January, A. D., 1902, executed to the state of Ohio a bond for the faithful performance of his duties and presented the same to the prosecuting attorney of said county for his certificate as to its sufficiency who refused to approve the same because not filed or presented on or before the first Monday in January, A. D., 1902, and before the said Thomas W. Hill entered upon the discharge of his duties. Said bond was filed in the auditor’s office of said county on the seventh day of January, A. D., 1902, and on the fifteenth day of January was presented to the board of county commissioners of Clermont county, Ohio, for their approval who refused to approve the same' for the following reasons which were duly entered on the journal of said board, to-wit: “Phis day Thomas W. Hill who was elected to the office of infirmary director of Clermont county, Ohio, at the November election, A. D., 1901, presented to the board for approval, a bond for the faithful discharge of his duties, and it appearing from an inspection of said bond that the same was not executed nor filed in the office of the board until the seventh day ©f January, A. D., 1902, and it further appearing that the certificate of the prosecuting attorney as to the sufficiency of said bond was not entered thereon as required by law, the board thereupon refused to approve said bond.’</p> <p>“Thereupon the board caused to be spread upon their journal a resolution declaring said office vacant, and appointing relatpr to fill said vacancy of which the following is a copy, to-wit: ‘It appearing to the board that Thomas W. Hill who was elected to the office of infirmary director of Clermont county, Ohio, at the November election, A. D., 1901, has failed and neglected to execute and file his bond for the faithful performance of his duties on or before the first Monday in January, A. D., 1902, as required by law, and it further appearing that by reason of his so failing to qualify and file said bond as required by law, there is now a vacancy in the office of infirmary director of said county. On motion of W. H. Wood, seconded by John Sutton, Mr. C. P. Witham is hereby appointed to fill said vacancy.’</p> <p>“Relator further says that said Thomas W. Hill was in his usual health and fully able to execute a bond prior to the first Monday in January, A. D., 1902, and the board of county commissioners were in session in said county every two weeks from the November election, A. D., 1901, to the first Monday in January, A. D., 1902, yet the said Thomas W. Hill failed and neglected to file a bond as aforesaid during said period.</p> <p>“Relator further says that on the sixteenth day of January, A. D., 1902, he forwarded by mail to defendant, Hon. L. C. Laylin, secretary of state, at Columbus, Ohio, a duly certified copy of the foregoing resolution appointing relator to fill said vacancy in the office of infirmary ‘director of said county, together with a fee of five dollars therefor asking that upon the filing of said certified copy of appointment as aforesaid that the defendants issue to relator a commission to fill said vacancy to which relator has been appointed as aforesaid.</p> <p>“Relator further says that the secretary of state duly received said certified copy of the foregoing resolution appointing relator to fill said vacancy, yet the defendants refused and neglected and still refuse to issue a commission to relator to fill said vacancy, although requested so to do.</p> <p>“Relator further says,that he is without remedy in the premises unless it be afforded by this honorable court.</p> <p>“Wherefore relator prays a writ of mandamus issue out of this court requiring defendants to show cause why they should not issue a commission to relator to fill vacancy as aforesaid, 'and for such further relief as is just and proper.”</p> <p>The defendants demur to this petition for the reason that the same does not state facts sufficient to warrant the relief therein prayed for.</p>

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

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

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

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